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Mosley v. City of Memphis

Court of Appeals of Tennessee, Jackson

November 21, 2019

PENNEY MOSLEY ET AL.
v.
CITY OF MEMPHIS ET AL.

          September 18, 2019 Session

          Appeal from the Chancery Court for Shelby County No. CH-18-0330 Jim Kyle, Chancellor

         This matter concerns judicial review of a motion to disqualify a city attorney and/or the entire Memphis City Attorney's Office from appearing in administrative cases pending before the Memphis Civil Service Commission between May 18, 2015 and September 29, 2017. Appellants argue that an assistant city attorney created a conflict of interest for herself and/or the entire office after she filed a notice of appearance claiming she represented the civil service commission in a separate case appealed to Chancery Court. Appellees argue that, even if the notice of appearance created a representation, state statutes and case law would permit the representation. The Civil Service Commission denied the Appellants' motion, and the Shelby County Chancery Court affirmed the Commission's decision. After applying the review standards outlined in the Uniform Administrative Procedures Act, we affirm the ruling of the Chancery Court.

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

          Darrell J. O'Neal, Memphis, Tennessee, for the appellants, Penney Mosley, Joey Jackson, Mario Ackers, Beverly Prye, Taurick Boyd, Michael Savage, and John Littles.

          Jef Feibelman and Lani Lester, Memphis, Tennessee, for the appellees, City of Memphis, City of Memphis Civil Service Commission, and City of Memphis, Office of the City Attorney.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Kenny Armstrong, and Carma Dennis McGee, JJ., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         Background

         This matter concerns whether Attorney Barbaralette Davis ("Ms. Davis"), an assistant city attorney for the City of Memphis, and/or the entire Memphis City Attorney's Office ("City Attorney's Office") should be disqualified from appearing in any administrative matters pending before the Memphis Civil Service Commission ("the Commission") between May 18, 2015 and September 29, 2017. On May 18, 2015, Ms. Davis filed a notice of appearance on behalf of the City of Memphis in a case styled as

         Rosalyn Small v. Memphis-Shelby County Airport Authority and the City of Memphis Civil Service Commission ("the Small matter"). The Small matter concerned a civil service appeal and a petition for judicial review filed by a former employee of the Memphis-Shelby County Airport Authority. On May 20, 2015, Ms. Davis filed a corrected notice of appearance asserting she represented the Commission instead of the City of Memphis.

         Ms. Davis remained an attorney of record in the Small matter for more than two years. Ms. Davis did not represent the City of Memphis or the Memphis-Shelby County Airport Authority before the Commission regarding the Small matter, according to her undisputed affidavit. Further, Ms. Davis stated that she did not communicate with, advise, or defend the Commission on the Small matter or coordinate with any other attorneys with this case. During the time she was attorney of record, she sent one email advising other attorneys that she would "appear to report to the [Chancery] Court" that the Commission had not proceeded with a remand of the Small matter due to procedural issues. She also received several emails about the Small matter from other attorneys, including from colleagues in the City Attorney's Office.

         On August 14, 2017, Petitioners Penney Mosley, [1] Joey Jackson, Mario Ackers, Beverly Prye, Taurick Boyd, and Michael Savage (collectively, "Petitioners")[2] submitted a motion to exclude Ms. Davis and the entire Memphis City Attorney's Office from all matters before the Commission. Each petitioner had a matter pending before the Commission unrelated to the Small matter when the motion was filed. In their collective motion, Petitioners alleged that Ms. Davis's notice of appearance in the Small matter created a conflict of interest and/or an appearance of impropriety that made any representation by Ms. Davis or the City Attorney's Office before the Commission improper. In particular, Petitioners argued that the Commission is a neutral agency that should not be represented as a party in any action pending judicial review. Further, Petitioners claimed Ms. Davis's representation of the Commission violated the Tennessee Supreme Court's Rules of Professional Conduct and warranted disqualification. Petitioners also called for the entire City Attorney's Office to be disqualified because the May 20, 2015 notice of appearance created a conflict of interest or appearance of impropriety that tainted the entire office. On September 18, 2017, Ms. Davis moved to withdraw as counsel of record in the Small matter. Her motion was granted by the Shelby County Chancery Court on September 29, 2017.

         The City of Memphis contested Petitioners' motion to disqualify in a response dated December 14, 2017. The City of Memphis argued that Ms. Davis never truly represented the Commission and that she mistakenly filed the notice of appearance in the Small matter. Moreover, the City of Memphis also claimed the state's Uniform Administrative Procedures Act ("UAPA") allowed the type of dual representation that Petitioners asserted was impermissible. The Commission conducted a hearing on the motion on January 31, 2018. Commissioner Blake W. Bourland denied the Petitioner's motion for disqualification in an order issued on February 12, 2018.

         Petitioners thereafter filed a Petition for Judicial Review in the Shelby County Chancery Court ("the trial court") on March 9, 2018. Petitioners again sought the disqualification of either Ms. Davis and/or the City Attorney's Office from all matters in which they represented parties before the Commission while Ms. Davis was listed as an attorney of record for the Commission. Petitioners also asked the trial court to grant them a judgment including court costs and attorney's fees. In an answer, the City of Memphis and the City Attorney's Office asserted that Petitioners failed to state a claim for which relief could be granted or possess rights that would be prejudiced by the Commission's denial of their motion. The City of Memphis further denied that Ms. Davis truly represented the Commission, established an attorney-client relationship with the Commission, or acted in a way that created a conflict of interest. A hearing on the Petition for Judicial Review occurred on December 14, 2018. The trial court denied the petition through an order entered December 31, 2018. In its order, the trial court found that conflict of interest issues before the Commission were governed by the UAPA and that the UAPA allows government employees to serve multiple roles in a case. Further, the trial court found that Petitioners' claims under the state's Rules of Professional Conduct were not persuasive. Therefore, the trial court failed to find error in the Commission's decision, denied Petitioners' motion, and assessed costs against Petitioners. This timely appeal followed.

         Issue Presented

         Petitioners raised a single issue on appeal. We restate that issue as follows:

1. Whether the trial court erred when it affirmed the Civil Service Commission's denial of Petitioners' Motion to Disqualify Barbaralette Davis and/or the City Attorney's Office despite Ms. Davis's notice of appearance on behalf of the Commission.

         Standard of Review

         Judicial review of a civil service board's decision that affects an individual's employment status is governed by the UAPA. Davis v. Shelby Co. Sheriff's Dept., 278 S.W.3d 256, 264 (Tenn. 2009) (citing Tenn. Code Ann. § 27-9-114(b)(1) ("Judicial review of decisions by civil service boards of a county or municipality which affects the employment status of a county or city civil service employee shall be in conformity with the judicial review standards under the Uniform Administrative Procedures Act, § 4-5-322."). The UAPA provides the following scope of review:

         The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if the rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

(1) In violation of constitutional or statutory ...

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