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Davis v. Civil Service Commission of Metropolitan Government of Nashville and Davidson County

Court of Appeals of Tennessee, Nashville

May 21, 2019

EARL GENE DAVIS
v.
CIVIL SERVICE COMMISSION OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY ET AL.

          Session March 5, 2019

          Appeal from the Chancery Court for Davidson County No. 17-0510-II William E. Young, Chancellor

         This appeal arises from the Metropolitan Government of Nashville Civil Service Commission's decision to suspend and demote Appellant, a police officer with Metropolitan Nashville Police Department. The department's decision to suspend Appellant was affirmed by the administrative law judge, but the administrative law judge reversed the demotion. The Commission then reviewed the administrative law judge's order and upheld the suspension but reinstated the demotion. On appeal to the Davidson County Chancery Court, the Commission's decision was affirmed. Finding no error, we affirm the decision of the Chancery Court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded

          J. Alex Little, Nashville, Tennessee, for the appellant, Earl Gene Davis.

          Jon Cooper, Lora Barkenbus Fox, Nashville, Tennessee, for the appellee, Civil Service Commission of the Metropolitan Government of Nashville & Davidson County, and Metropolitan Police Department of Nashville & Davidson County.

          Kenny Armstrong, J., delivered the opinion of the court, in which Arnold B. Goldin, J., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE

         I. Background

         Earl Gene Davis ("Appellant") is a Metropolitan Nashville Police Department ("MNPD") police officer. In 2010, Officer Davis was assigned to the Middle Tennessee Drug Enforcement Task Force ("Task Force"), which the United States Drug Enforcement Administration ("DEA") runs. The DEA often contracts with state and local law enforcement agencies for cooperative enforcement concerning drug crimes. Relevant here, in the fall of 2013, the City of Nashville and the DEA formed a Program-Funded State and Local Task Force Agreement ("Task Force Agreement"). Officials from Metropolitan Government of Nashville ("Metro") and the DEA, along with the Metro Chief of Police, approved the Task Force Agreement. In relevant part, the Task Force Agreement provided:

2. To accomplish the objectives of the [Task Force], the MNPD agrees to detail one (1) experienced officer to the [Task Force] for a period of not less than two years. During this period of assignment, the MNPD officers will be under the direct supervision and control of DEA supervisory personnel assigned to the Task Force.
3. The MNPD officers assigned to the Task Force shall adhere to DEA policies and procedures. Failure to adhere to DEA policies and procedures shall be grounds for dismissal from the Task Force.
4. The MNPD officers assigned to the Task Force shall be deputized as Task Force Officers of DEA pursuant to 21 U.S.C. § 878.
5. To accomplish objectives of the [Task Force], DEA will assign three (3) Special Agents to the Task Force. DEA will also, subject to the availability of annually appropriated funds or any continuing resolution thereof, provide necessary funds and equipment to support the activities of DEA Special Agents and MNPD officers assigned to the Task Force. This support will include: office space, office supplies, travel funds for the purchase of evidence and information, investigative equipment, training, and other support items.
6. During the period of assignment to the [Task Force], the MNPD will be responsible for establishing the salary and benefits, including overtime, of the officers assigned to the Task Force, and for making all payments due them. DEA will, subject to availability of funds, reimburse the MNPD for overtime payments made by it to the MNPD officers assigned to the [Task Force] for overtime . . . .

         While serving as a member of the "Group 1" Task Force from 2013 through 2014, Officer Davis was involved in an investigation of a drug conspiracy in Sumner County, Tennessee. DEA Special Agent Tanya Bilyeu was the lead case-agent for Group 1. Agent Bilyeu made the final operational decisions for Group 1 and also served as the supervisor when the group supervisor was out of the office. During the investigation, the Task Force discovered that F.C. was involved in a sexual relationship with his minor step-daughter.[1] F.C. was one of several targets in the Task Force investigation who was suspected of distributing cocaine and marijuana in Middle Tennessee. Based on this investigation, F.C. was arrested for sexual exploitation of a minor in April 2014. The arrest warrant for F.C. stated, in part, that he was believed to be an illegal immigrant from Mexico who posed a serious flight risk.

         F.C. was scheduled for a bond hearing on July 3, 2014.[2] F.C.'s bonding agent for this hearing was George Espinoza. Officer Davis alleges that he believed that members of the drug conspiracy intended to bond F.C. out at a time when law enforcement was unaware so F.C. could flee to Mexico. Officer Davis asserts that he believed Mr. Espinoza was part of the drug conspiracy and intended to accept drug funds as the source of payment for F.C.'s bond. Allegedly fearful that F.C. would flee to Mexico, Officer Davis claims that he and Agent Bilyeu discussed several ideas about how to keep F.C. from fleeing the country. Officer Davis contacted Immigration and Customs Enforcement ("ICE") to inquire about an immigration hold on F.C. ICE informed Officer Davis that F.C. was a legal resident alien and that ICE would not place an immigration hold on him. Ultimately, Officer Davis claims that he and Agent Bilyeu decided that Officer Davis should contact Mr. Espinoza, act as an ICE agent, and inform Mr. Espinoza that there was an immigration hold on F.C., such that posting bond for F.C. to make bail would be futile. Officer Davis made the call and represented to Mr. Espinoza that his name was ICE Agent Byron Daniels, he was going to place a hold on F.C., and it would be a "pretty moot point" to bond out F.C. Subsequently, the bond hearing was rescheduled, and F.C. remained in jail until the rescheduled bond hearing on July 7, 2014 when he was released.

         On July 7, 2014, Officer Davis reported to his MNPD supervisor, Sergeant Gene Donegan, that he had been "outed" in court as a DEA agent. Officer Davis was concerned that members of the drug conspiracy knew his real name, telephone number, and home address. Upon hearing this information, Sergeant Donegan took immediate steps to ensure Officer Davis's safety. In late 2014, Officer Davis was taken off the Task Force and subsequently promoted to Sergeant.

         In November 2014, MNPD received a complaint from ICE regarding Officer Davis's telephone call to Mr. Espinoza. At the same time, Officer Davis reported to Lieutenant Johnny Malzonie that he had impersonated an ICE agent without ICE's permission when he called Mr. Espinoza. Lieutenant Malzonie contacted Captain Jason Reinbold about the incident. Captain Reinbold immediately decommissioned Officer Davis from Sergeant to Police Officer II until an internal investigation could be conducted. Shortly thereafter, the MNPD Office of Professional Accountability ("OPA") launched an investigation into the matter.

         Sergeant Jeremy Moseley conducted the OPA investigation. To begin his investigation, Sergeant Moseley reviewed evidence provided by Homeland Security. Following that review, Sergeant Moseley determined that he needed to proceed with the investigation. Sergeant Moseley interviewed the following people during the investigation: Mr. Espinoza; Lieutenant Malzonie; Sergeant Donegan; Lieutenant Mitch Fuhrer; Officer Davis; Agent Bilyeau; and Mike Stanfield. As a result of the investigation, on July 7, 2015, Chief Steve Anderson formally charged Officer Davis with violations of MNPD policies and procedures and with violations of the Rules of the Metropolitan Government Civil Service Commission ("the Commission"). The charging document provided, in relevant part:

         Charge 1:

Department Manual
4.20 DEPORTMENT AND PERSONAL APPEARANCE
4.20.040 Personal Behavior: B: Adherence to Law
1. Employees are prohibited from engaging in conduct, on or off-duty, which constitutes an offense under the laws or ordinances of the United States or any subdivision thereof. (Category C)
to wit:
T.C.A. § 39-16-301 - Criminal Impersonation
(a) A person commits criminal impersonation who, with intent to injure or defraud another person:
(1) Assumes a false identity;
(2) Pretends to be a representative of some person or organization;
(3) Pretends to be an officer or employee of the government; or
(4) Pretends to have a disability.
(c) (1) Criminal impersonation under subsection (a) is a Class B misdemeanor.[3]
Charge 2
Department Manual
4.20 DEPORTMENT AND PERSONAL APPEARANCE
4.20.040 Personal Behavior: K: Obstruction of Rights
Employees shall not knowingly deprive any person of any right to which they are entitled by law or the rules and regulations of the Metropolitan Government. (Category B)
Charge 3
Metropolitan Civil Service ...

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