                      IN THE COURT OF APPEALS OF TENNESSEE
                           WESTERN SECTION AT JACKSON



CITY OF MEMPHIS,                        )
                                        )
               Plaintiff/Appellee,      )      Shelby Equity No. 105517
                                        )
vs.                                     )
                                        )
THE CIVIL SERVICE COMMISSION            )      Appeal No. 02A01-9512-CH-00289
OF THE CITY OF MEMPHIS and              )
STANLEY SHOTWELL,                       )

               Defendants/Appellants.
                                        )
                                        )
                                              FILED
                                              November 4, 1997

                                              Cecil Crowson, Jr.
                                              Appellate C ourt Clerk

             APPEAL FROM THE CHANCERY COURT OF SHELBY COUNTY
                           AT MEMPHIS, TENNESSEE



                THE HONORABLE D. J. ALISSANDRATOS, CHANCELLOR



For the Plaintiff/Appellee:             For the Defendants/Appellants:

Monice Moore Hagler                     Samuel Morris
Ronald G. Wyatt                         Timothy Taylor
Memphis, Tennessee                      Memphis, Tennessee




                                        AFFIRMED




                                        HOLLY KIRBY LILLARD, JUDGE



CONCUR:


ALAN E. HIGHERS, J.


BROOKS McLEMORE, SP. J.
                                              OPINION



       This case involves a chancery court review of a decision by a civil service commission. The

commission had ordered the reinstatement of a police officer. The chancery court reversed the

commission’s decision, upholding the termination of the officer’s employment. We affirm the

decision of the chancery court.

       In January 1993, Appellant Lieutenant Stanley Shotwell (“Shotwell”), a twenty-one-year

veteran with the Memphis Police Department, voluntarily entered the City of Memphis’ Employee

Assistance Program (“EAP”), seeking help for alcoholism. On January 21, 1993, he signed two

different documents. The first was an Alcohol and Drug Treatment Policy (“Treatment Policy”).

The Treatment Policy provided that “[a]ll City of Memphis employees have a responsibility and duty

to remain free of illegal substances at all times.” In signing the Treatment Policy, Shotwell agreed

to the following provisions:

       1. To remain free of illegal drugs for the remainder of your employment with the
       City.

       2. To agree to random and/or regularly scheduled drug and alcohol screens as
       directed by EAP staff, EAP Coordinators, and/or Division Director or designee for
       a period of two years after successful discharge from the EAP.

       3. Immediate reporting for drug alcohol screens when requested.

The Treatment Policy described the penalties for noncompliance with these provisions:

       Should you fail to remain free of alcohol/illegal drugs, whether by test or self
       admission, or fail to report for a drug screen, immediate action will be taken to
       protect public safety and City property interests. At the very least, you will not be
       allowed to work or be on City property for a period to be specified by the EAP staff
       and/or your division. Resumption of alcohol/illegal drug usage will be reported to
       management and will result in disciplinary action. If you continue the use of
       alcohol/illegal drugs, this will result in termination of employment with the City of
       Memphis.

       If you are a police officer, firefighter, or other employee in a safety sensitive position,
       you may be terminated upon receipt of a first positive drug screen after entrance into
       the Employee Assistance Program.

The second document Shotwell signed was the EAP Participation Agreement - Self Referral (“EAP

Agreement”). The EAP Agreement outlined Shotwell’s responsibilities:

       1. To keep all scheduled appointments.

       2. To comply with all facets of your individual treatment program, including random
       drug screens (where applicable).
       3. To provide the Employee Assistance Program Administrator with information
       regarding quality of care received by referral sources.

The EAP Agreement provided further that “failure to assume the above stated responsibilities could

result in discontinuance of the services of the Employee Assistance Program.”

       Subsequently, on February 12, 1993, Shotwell signed a third document, an individualized

EAP treatment plan tailored specifically for him (“Plan”). It required the following of Shotwell:

       1. Remain alcohol and drug free for the remainder of your employment with City of
       Memphis.

       2. Scheduled Monday and Thursday drug screening at Med Labs until modified by
       EAP staff, Dr. Tom Hickey, and/or Dale Shaefer. Please refer to your agreed
       Alcohol and Treatment Policy for details and rules. Failure to remain substance free
       will result in termination of employment. (Emphasis added).

       Over the next eighteen months, Shotwell underwent over twenty-eight urine screens, none

of which tested positive for alcohol or illegal drugs. Then on September 19, 1994, Shotwell

submitted a urine sample which tested positive for the presence of cocaine in his system.

        Shotwell was charged with two offenses: (1) a narcotics violation, for testing positive for

cocaine use, and (2) failure to comply with regulations, for violating his contract with EAP to remain

drug free. An administrative hearing was held. At the hearing, Shotwell confessed to having

imbibed alcohol at a police department staff dinner on September 15, four days before the urine

screen, and on his birthday, September 20, a day after the screen. He denied having used cocaine

and speculated that someone had spiked his drink at the staff dinner. Shotwell said, “I have my

suspicions. There is nothing I can say other than I don’t know what happened. I got nailed, there

is nothing I can say.” The summary of the hearing states: “Lt. Shotwell was advised he had been

given an opportunity to correct his problem when he entered the Employee Assistance Program and

that it was apparent that the contract between he and the City had been violated and that the results

would be decisive.” Subsequently, Shotwell’s employment was terminated.

       Shotwell appealed his termination to the Civil Service Commission, and a hearing was held.

A number of witnesses testified, including Deputy Chief David Dugger and Shotwell. The three

documents Shotwell signed, the Treatment Policy, the EAP Agreement and the Plan, were

introduced into evidence. It was undisputed that Shotwell referred himself to the EAP, and did not

enter it as a result of a disciplinary incident. Dugger testified that he understood Shotwell’s previous

statement “I got nailed” to indicate Shotwell’s belief that he had been set up, not as an admission of



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guilt. He also stated that there existed a last-chance contract for disciplined employees, but that

Shotwell had not signed one. Dugger testified further that other police officers had been disciplined

for positive drug screens but not terminated. However, he testified that all officers who had signed

a “last chance” agreement were terminated if they subsequently had a positive drug test. Shotwell’s

superiors testified that Shotwell was a good employee with no discipline problems. Finally,

Shotwell testified that he was in EAP for help with an alcohol problem, that his problem had not

affected his work, that he sought out help on his own, that he had not ingested cocaine, that he had

read the EAP documents before signing them, that he had signed out of necessity to stay in the

program, and that he had felt that some of the language in those documents pertaining to discipline

was vague.

       After the hearing, the Civil Service Commission reversed Shotwell’s termination, finding as

follows:

       (a) that Mr. Shotwell did voluntarily enter the EAP Program as a self referral and did
       execute the EAP contract documents presented; (b) that the City was entitled to
       require Mr. Shotwell to submit to the mandatory urine screen on September 19, 1994,
       as a condition of his EAP Program; (c) that Mr. Shotwell’s urine screen was properly
       administered by the Methodist Hospital laboratory, that the urine sample was
       properly handled and tested, and that the positive result was scientifically supported;
       and (d) that based upon the test results, the City had a reasonable basis to impose
       discipline upon Mr. Shotwell, in accordance with his EAP agreement.

       The Commission also finds (e) that at the time of Mr. Shotwell’s September 19, 1994
       urine screen, he had been employed by the City for approximately 21 years, had no
       disciplinary record and had a good on the job performance record; (f) that during the
       course of his EAP Program, Mr. Shotwell had submitted to in excess of 28 urine
       screens, which except for the September 19, 1994 urine screen, had all produced
       negative results; (g) that the EAP Program had been mandated by government and
       implemented by the City to help employees with problems and to the extent possible
       to conserve its labor resources; (h) that other Police Services Division employees
       under the EAP Program who have produced positive test results have not been
       terminated for their first offenses; and (i) that the language of the EAP Participation
       Agreement - Self Referral is somewhat ambiguous in that it provides for
       “disciplinary action” in the event of resumption of alcohol/illegal drug usage,
       “termination” for continuation of the use of alcohol/illegal drugs”, and/or
       “termination” for failure to remain substance free.

       Based upon all of the above findings, the Commission concludes (a) that the EAP
       Program is a mandatory program that must be fairly enforced by the City and not be
       taken lightly by the employee; (b) that the EAP Program is intended to provide the
       employee with a second chance with covered problems; (c) that the EAP Program
       should afford the self referral employee, who has sought out the program, not to
       avoid discipline, but to obtain help with the problem, with the same opportunity as
       a management referral employee, who has been referred to the program to avoid
       discipline and to obtain help with the problem; (d) that a self referral employee
       should not be required to sign his disciplinary death warrant in order to obtain the
       help the EAP Program was created to provide; (e) that Mr. Shotwell did violate the



                                                 3
       terms of his EAP agreement; and (f) that while the City did have a reasonable basis
       to impose discipline against Mr. Shotwell for his EAP violations, termination for his
       apparent first offense was not reasonable under all the circumstances of this case.

The Commission reinstated Shotwell to his previous position and awarded him full back pay and

benefits.

       The City of Memphis (the “City”) appealed this decision to the Chancery Court. After

reviewing the record and hearing the argument of counsel, the Chancery Court reversed the

Commission, finding that the Commission had acted in excess of its statutory authority and, in the

alternative, that the Commission’s decision was not supported by substantial and material evidence.

The Chancery Court noted that the Commission found that Shotwell had committed a violation

worthy of discipline but rejected termination as being too harsh for a first offense under the

circumstances. The Chancery Court stated “that this is not a reasonable basis that the Commission,

after it goes through its litany of complimenting, supporting, reinforcing what the City does, to now

reach this conclusion.” The Chancery Court found that the agreement signed by Shotwell was

unambiguous and that, in essence, the Commission had simply disagreed with the City’s zero-

tolerance policy towards drug use by police officers.

       Shotwell now appeals the decision of the Chancery Court. He argues that the Commission

acted properly in reinstating him and that the trial court erred by applying an improper standard of

review to the Commission’s decision.

       Tennessee Code Annotated § 4-5-322 sets forth the standard of review for the Chancery

Court in reviewing agency decisions such as those of the Commission:

               (h) 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 provisions;
               (2) In excess of the statutory authority of the agency;
               (3) Made upon unlawful procedure;
               (4) Arbitrary or capricious or characterized by abuse of discretion or clearly
       unwarranted exercise of discretion; or
               (5) Unsupported by evidence which is both substantial and material in the
       light of the entire record.
               In determining the substantiality of evidence, the court shall take into account
       whatever in the record fairly detracts from its weight, but the court shall not
       substitute its judgment for that of the agency as to the weight of the evidence on
       questions of fact.




                                                  4
              (i) No agency decision pursuant to a hearing in a contested case shall be
       reversed, remanded or modified by the reviewing court unless for errors which affect
       the merits of such decision.

Tenn. Code Ann. § 4-5-322(h)-(i) (Supp. 1996). The standard for appellate review of such actions

is the same as the standard for the Chancery Court’s review. Jackson Mobilphone Co. v. Tennessee

Pub. Serv. Comm’n, 876 S.W.2d 106, 110 (Tenn. App. 1993); CF Indus. v. Tennessee Pub. Serv.

Comm’n, 599 S.W.2d 536, 540 (Tenn. 1980). This standard of review is “narrower than the

standard of review normally applicable in other civil cases.” Jackson Mobilphone, 876 S.W.2d at

110.

       The “arbitrary and capricious” standard under Section 4-5-322 (h)(4) is discussed at some

length in Jackson v. Mobilphone:

       [A]gency decisions with adequate, evidentiary support may still be arbitrary and
       capricious if caused by a clear error in judgment. . . .
               A reviewing court should not apply Tenn. Code Ann. § 4-5-322(h)(4)’s
       “arbitrary and capricious” standard of review mechanically. In its broadest sense, the
       standard requires the court to determine whether the administrative agency has made
       a clear error in judgment. . . . An arbitrary decision is one that is not based on any
       course of reasoning or exercise of judgment, . . . or one that disregards the facts or
       circumstances of the case without some basis that would lead a reasonable person to
       reach the same conclusion.

Jackson Mobilphone, 876 S.W.2d at 110-11 (citations omitted).

       In this case, it is undisputed that Shotwell signed the Plan, a treatment program

individualized for him, and that the Plan stated that Shotwell was required to:

       1. Remain alcohol and drug free for the remainder of your employment with City of
          Memphis.

After setting forth required drug screens twice weekly, the Plan states unambiguously:

       Failure to remain substance free will result in termination.

It is also undisputed that Shotwell consumed alcohol twice, first at a staff party and then on his

birthday. Shotwell alleged that he tested positive for cocaine because his drink was spiked at the

party four days before the drug screen, but he provided no evidence to support this speculation.

       At the Commission’s hearing, Lieutenant Dugger testified generally that there had been

instances in which other unnamed police officers tested positive for drug use and were not fired.

However, there was no evidence that officers who had signed agreements that stated “failure to

remain substance free will result in termination” were nevertheless not fired. Indeed, Dugger

testified that in each instance in which the office had signed a “last chance” agreement, the officer



                                                 5
was fired. Shotwell notes that he never signed a “last chance” agreement, but the individualized Plan

he signed states unambiguously that a positive result on a drug screen “will result in termination.”

       In this case, the Commission emphasized that Shotwell referred himself to the EAP, found

that other police employees in the EAP who had positive drug screens had not been fired, and termed

the language in the EAP Agreement “somewhat ambiguous.” Significantly, the Commission stated:

       . . . that a self referral employee should not be required to sign his disciplinary death
       warrant in order to obtain the help the EAP Program was created to provide. . . .

In its ruling, the Chancery Court observed:

       In this Court’s opinion, a fair reading of what the Commission has done is that they
       have ruled, in essence, that they disagree with that zero tolerance policy.

The record supports this observation.

       The Commission acknowledged that the City had “a reasonable basis to impose discipline

against Mr. Shotwell for his EAP violations,” but concluded that termination was not reasonable.

However, the undisputed evidence in the record establishes that the City had a reasonable basis for

termination. Regardless of any ambiguities in other documents, the Plan signed by Shotwell is stark

in its clarity: “Failure to remain substance free will result in termination of employment.” Shotwell

admitted that he did not remain alcohol-free and produced no evidence that the positive drug screen

for cocaine was the result of a mistake or a “set-up.” Under these circumstances, we must conclude

that the Commission’s decision to reinstate Shotwell was arbitrary and capricious. We affirm the

decision of the Chancery Court, reversing the Commission and upholding the termination of

Shotwell’s employment.

       We are mindful of the fact that Shotwell is a twenty-one year veteran of the police force who,

until his substance problems arose, had no disciplinary record and a good job performance record.

Termination is indeed a harsh result. However, particularly for a sensitive position such as that of

a police officer, the City must be permitted to impose a zero-tolerance policy to combat substance

abuse within the police force, without such a policy being undermined by the Commission.




                                                  6
       The trial court is affirmed. Costs are assessed against Appellant, for which execution may

issue if necessary.




                                    HOLLY KIRBY LILLARD, J.

CONCUR:


ALAN E. HIGHERS, J.



BROOKS McLEMORE, SP. J.




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