                                                                                         03/25/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                              December 3, 2019 Session

       TENNESSEE DEPARTMENT OF CHILDREN’S SERVICES v.
                     KAVIANDRA JAMES

               Appeal from the Chancery Court for Davidson County
                 No. 18-0421-II     Anne C. Martin, Chancellor
                     ___________________________________

                           No. M2019-00070-COA-R3-CV
                       ___________________________________

A preferred-service employee with the Department of Children’s Services was terminated
for accessing a case file involving her sister and sending an email to the case manager
assigned to her sister’s case and the case manager’s supervisor, with a copy to her sister.
The employee ultimately appealed her termination to the Board of Appeals of the
Department of Human Resources, which modified her termination to a suspension
without pay and reinstated her with back pay. The Department appealed to chancery
court, which affirmed the Board’s determination. Upon a thorough review of the record,
we affirm the judgment of the trial court and remand the case to the Board of Appeals for
further proceedings.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein,
Solicitor General; Eugenie B. Whitesell, Senior Assistant Attorney General, and Matthew
D. Janssen, Assistant Attorney General, for the appellants, Tennessee Department of
Children’s Services.

Jonathan R. Stephens, Nashville, Tennessee, for the appellee, Kaviandra James.

                                       OPINION

                       I. FACTUAL AND PROCEDURAL HISTORY

       Kaviandra James was employed as a Case Manager 4 and a Team Leader with the
Department of Children’s Services (“DCS” or “the Department”) for nine years and was
a preferred service employee1; at all times pertinent hereto, she was assigned to the
Smoky Mountain region. Ms. James was terminated as a result of an investigation by
DCS Internal Affairs Division, during which she was interviewed by Regional Special
Investigator Bartley Jenkins. The investigation revealed, and Ms. James admitted, that
she used her employee login credentials to access confidential information regarding her
sister’s active Child Protective Services case and sent an email to her sister’s case
manager and the manager’s supervisor, with copy to her sister; the investigation later
determined that the email contained information maintained in her sister’s file that was
confidential under DCS policy. Ms. James also admitted that she informed her
supervisor of her actions soon after she sent the email.

        On August 22, 2017, Ms. James received a letter, notifying her of DCS
Commissioner Bonnie Hommrich’s (“Commissioner”) decision to terminate her,
effective September 1, stating that she violated section 4.10 of DCS’ Administrative
Policies and Procedures governing Conflicts of Interest2 and Tennessee Department of
Human Resources Rule 1120-10-.03, sections 15, 24, and 26. Ms. James exercised her
right to appeal her termination as granted in the Tennessee Excellence, Accountability,
and Management Act (“TEAM Act”), Tennessee Code Annotated section 8-30-301, et
seq., in accordance with the three-step appeal procedure at section 8-30-318.3

1
  Tennessee Code Annotated section 8-30-202 distinguishes executive service positions in state
government from preferred service positions. Generally, a person holding an executive service position is
an employee at will and serves at the pleasure of the employee’s appointing authority; executive service
positions include any officer or employee appointed by the governor and all positions in the governor’s
office; any deputy commissioner or equivalent authority in each department or state agency; any assistant
commissioner or equivalent authority in each department or state agency; wardens and directors of
correctional facilities and chief officers of mental health institutes; the head of a division or major unit
within a state agency or a regional director or manager for a state agency; and the highest ranking
employee of a state agency. Tenn. Code Ann. § 8-30-202(a), (b). “All other full-time positions in state
service are in the preferred service.” Tenn. Code Ann. § 8-30-202(c).
2
    Section 4.10 provides, in pertinent part:

          “All employees of the Department of Children’s Services are prohibited from any action
          that might result in or create the appearance of:
                  Using public office for private gain
                  Giving preferential treatment to any…employee or relative…”
3
  The TEAM Act grants employees in the preferred service the right to appeal a dismissal, demotion or
suspension. At Step I of the procedure, the employee files a written complaint with the “appointing
authority” that identifies the law, rule, or policy that the employee alleges was violated; the complaint is
then investigated and a written decision rendered. Tenn. Code Ann. § 8-30-318(d), (h)(1)(A). If the
employee is not successful, the employee is permitted at Step II to file the complaint with the
commissioner of human resources, who is to review the complaint and the Step I decision, and issue a
decision. Tenn. Code Ann. section 8-30-318(h)(1)(B). At Step III, the employee (or the agency) may
appeal the decision of the commissioner of human resources to the board of appeals of the department of
                                                   -2-
      Ms. James timely filed a Step I appeal on September 5 pursuant to the Tennessee
Excellence, Accountability, and Management Act (“TEAM Act”), asserting that her
termination did not comport with Tennessee Code Annotated section 8-30-316, which
provides that a preferred service employee can only be dismissed for cause or for the
good of the service. Nicole Ramey, employed in the DCS Office of Civil Rights, who
had been designated to conduct the Step I proceeding, concluded that “DCS management
did not violate any law, rule, or policy in issuing the termination to [Ms. James];
considering all factors, the termination is warranted and is upheld.”

     On October 2, Ms. James filed a timely Step II appeal to the Commissioner of
Human Resources; on October 19, the Commissioner upheld the termination.

       Ms. James filed a timely Step III Appeal, and a hearing was held on February 9
before the Board of Appeals (“the Board”), assisted by Administrative Law Judge Kim
Summers (“ALJ”). The Board entered a final order on February 20, making findings of
fact and stating the following:

                                          Conclusions of Law

        1. DCS alleged that complainant violated the following Department of
           Human Resources rules:

                a. 1120-10-.03(15), participation in any action that would in any
                way seriously disrupt or disturb the normal operation of the agency,
                institution, department or any other segment of state service or that
                would interfere with the ability of management to manage,
                b. 1120-01-.03(24), unauthorized disclosure of confidential
                information,
                c. 1102-10-.03(26), for the good of the service as outlined in T.C.A.
                section 8-30-316 and
                d. DCS Administrative Policies and Procedures no. 14.7 — conflict
                of interest.[4]

        2. The preponderance of the evidence shows complainant’s actions did not
           violate Department of Human Resources rules1120-10-.03 (15) because

human resources, which conducts its proceedings in accordance with the Uniform Administrative
Procedures Act, Tennessee Code Annotated 4-5-322, to determine “if the law, rule, or policy alleged in
the complaint was violated.” Tenn. Code Ann. section 8-30-318(h)(1)(C).
4
  There is no DCS Administrative Policies and Procedure numbered “14.7” in the record. Taken in
context, it appears that the Board intended to refer to policy 4.10, which was cited in the termination letter
and is quoted in footnote 2, supra.
                                                    -3-
   there was no proof in the record that complainant’s conduct “seriously
   disrupt[ed] or disturb[ed] the normal operation” of DCS.

3. The preponderance of the evidence shows complainant’s actions did not
violate Department of Human Resources rules1120-10-.03 (24).

4. The preponderance of the evidence shows complainant’s actions did not
violate Department of Human Resources rules 1120-10-.03 (26), for the
good of the service as outlined in T.C.A section 8-30-316, because DCS did
not take any action to modify, limit or relieve her of duties during the
twenty-eight (28) days following her self-reporting until her termination.

5. The preponderance of the evidence shows complainant’s actions did
violate DCS Administrative Policies and Procedures no. 14.7, conflict of
interest, by creating an appearance of a conflict of interest by using her
position to attempt to help her family member obtain needed services from
DCS.

6. The preponderance of the evidence, based upon the totality of the
circumstances, shows the complainant’s termination is not supported by the
evidence in which complainant was approximately a sixteen (16) year
veteran of DCS; had no prior discipline; self-reported her actions; and DCS
took no action to modify, limit or relieve her of her duties during the
twenty-eight (28) days following her self reporting until her termination on
August 22, 2107.

                                  Determination

       The Board of Appeals determines that complainant’s appeal seeking
the dismissal of complainant’s termination imposed by the Department of
Children’s Services is supported by a preponderance of the evidence and
should be and is hereby MODIFIED to a thirty (30) calendar day
suspension without pay.

       The Department of Children’s Services is ordered to reinstate
complainant to the position she held with the Department of Children’s
Services at the time of her termination. The Department of Children’s
Services is also ordered to delete any and all references to the said
termination from all of complainant’s personnel records, where ever they
may be retained; reimburse complainant for all lost back wages, lost annual
leave, lost sick leave, lost service time except for the period of the thirty
(30) calendar day suspension; and award complainant all other benefits to
which she may be entitled.
                                     -4-
              The Department of Children’s Services is also ordered to pay all of
       complainant’s reasonable attorneys’ fees and costs pursuant to the schedule
       for payment of attorneys’ fees and costs promulgated by the Administrative
       Office of the Court and upon the express approval of the Department of
       Human Resources.

                                               Policy

              The degree of disciplinary action imposed by the Department of
       Children’s Services is not necessary for the Department of Children’s
       Services to maintain an effective and efficient workplace so that it can
       accomplish its statutory mission.

       DCS filed a Petition for Judicial Review of the Final Order of the Board on April
16, 2018, in Davidson County Chancery Court, requesting the court to “reverse the
Board’s Final Order and enter an order upholding the termination of Ms. James, [or]
alternatively, . . . to vacate the Board’s order and remand this matter for further
proceedings . . .” A hearing was held on November 20, and the court entered an Order
and Memorandum on December 13, holding that the Board’s decision was “supported by
substantial and material evidence in the record, conform[ed] with applicable law, [was]
not arbitrary or capricious and was not made upon unlawful procedure.” The court
affirmed the order reinstating Ms. James and awarding her back pay and related benefits.5
DCS appeals.

                                   II. STANDARD OF REVIEW

      Tennessee Code Annotated section 4-5-322(h) of the Uniform Administrative
Procedures Act (“UAPA”) provides the standard of review for courts considering an
administrative decision:

       (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;

5
  Though the order characterized the above relief as being authorized by Tennessee Code Annotated
section 8-30-118, such a section does not exist. We assume the court intended to refer to section 8-30-
318(k) and (l), which address the authority of the Board to award attorney’s fees, back pay, and
reinstatement to a successfully appealing employee.
                                                 -5-
              (3) Made upon unlawful procedure;
              (4) Arbitrary or capricious or characterized by abuse of discretion or
              clearly unwarranted exercise of discretion; or
              (5)(A) Unsupported by evidence that is both substantial and material
              in the light of the entire record.
                  (B) 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.

Tenn. Code Ann. § 4-5-322. A reviewing court should generally defer to an
administrative agency’s decision when it is acting within its area of specialized
knowledge, experience, and expertise. Williamette Indus., Inc. v. Tennessee Assessment
Appeals Comm’n. 11 S.W.3d 142, 146 (Tenn. Ct. App. 1999) (citing Wayne Cnty. v.
Tennessee Solid Waste Disposal Control Bd., 756 S.W.2d 274, 279 (Tenn. Ct. App.
1988)). This Court reviews the factual findings of the Board under the limited provisions
of Tennessee Code Annotated section 4-5-322, and we review matters of law de novo
with no presumption of correctness. Davis v. Shelby County Sheriff’s Dept., 278 S.W.3d
256, 264 (citing Tenn. R. App. P. 13(d); Cumulus Broad, Inc. v. Shim, 226 S.W.3d 366,
373 (Tenn. 2007)).

                                      III. ANALYSIS

       As an initial matter, we address DCS’ argument that the Board’s decision
modifying Ms. James’ termination was in excess of its statutory authority because the
Board did not find that DCS “violated the law, rule or policy specified in [Ms. James’]
complaint.” While acknowledging that Ms. James alleged in her complaint that she was
terminated in violation of Tennessee Code Annotated section 8-30-316 because there was
no “cause” for her termination, DCS argues that the Board’s review “focused exclusively
on DCS’s termination notice and whether the evidence supported the reasons for
termination in the notice.” DCS’ argument is premised on a construction of the TEAM
Act that requires the Board to find that DCS violated Tennessee Code Annotated section
8-30-316 in order to set aside Ms. James’ termination, and that the Board made no such
finding; we do not agree that the statute operates in that fashion under the facts presented.

       The Board of Appeals is established at Tennessee Code Annotated section 8-30-
108; subsection (f) gives it jurisdiction to hear appeals of preferred service employees at
Step III of the appeal process. The Board’s authority relative to such appeals is derived
from the rules and regulations adopted by the Commissioner of the Department of
Human Resources and contained at Tennessee Rules and Regulations 1120-11-.04,
section (3)(f) of which grants the Board the “full authority to overturn, reduce, or amend
the disciplinary action based on the information submitted for consideration, including

                                            -6-
reinstatement of leave and awards of back pay, if appropriate.”6

        Contrary to DCS’ argument, there is no statute or regulation that makes the
Board’s authority contingent upon a determination that DCS itself has violated a law,
rule, or policy; rather, implicit in the authority granted the Board at Step III of the appeal
proceeding is the ability to determine whether the facts and circumstances constitute
“cause” for termination within the meaning of section 8-30-316. The Board acted within
the authority granted it by law and regulation when it assessed the factual and legal
“cause” for Ms. James’ termination, held that the evidence did not support Ms. James’
termination “for cause” within the meaning of section 8-30-316, and granted her relief.
Accordingly, we proceed to review the Board’s decision to reinstate her.7

        Ms. James initiated Step III by executing a form in which she stated the following
as the reason for her appeal:

       The Department of Children’s Services (the “Department”) terminated
       complainant in violation of the provisions of the T.E.A.M. Act of 2012,
       specifically, T.C.A. 8-30-316, Dismissal, demotion or suspension for cause
       and Department of Human Resource Rule 1120-10, Disciplinary action.
       Complainant submits the Department did not have “cause” to discipline
       complainant per the statutory and regulatory sections cited above because
       complainant’s action did not violate any act enumerated in Department of
       Human Resource Rule 1120-10-.03, Examples of disciplinary offenses.
       Complainant further contends that the Department took this disciplinary
       action in violation of the T.E.A.M. Act of 2012.

As relief, Ms. James requested that her job and leave be reinstated and that she receive
back pay.

       At the hearing, the ALJ began by providing preliminary instructions to the Board
relative to the roles of the ALJ and the Board, telling the Board that the “burden of proof”
was on Ms. James, and advising that, consistent with the burden of proof, “[Ms. James]

6
  Tennessee Code Annotated section 8-30-104(a)(2) grants the Commissioner of the Department of
Human Resources the authority to prescribe rules and regulations for the administration and execution of
the state service in accordance with the UAPA; section 8-30-105 provides that the rules adopted have the
force and effect of law.
7
  Our resolution of this issue also addresses the concern raised by DCS that the final order does not
comply with the requirement at Tennessee Code Annotated section 8-30-318, that the Board “conduct
proceedings in accordance with the Uniform Administrative Procedures Act . . . to determine if the law,
rule, or policy specified in the complaint was violated.” The conduct of the proceedings and the Board’s
order complied with the requirements of the statute.

                                                 -7-
will be going first with the opening statements and presentation of their case.”8 DCS’
counsel restated the burden of proof in her opening statement, stating that “it is not the
Department’s burden to prove that there was ample cause to terminate Ms. James, but
rather Ms. James’ burden to prove by a preponderance of the evidence that the
Department violated a law, rule, or policy.” Following the statements of counsel, Ms.
James was the first witness.

        Ms. James testified that DCS had an “open case” in the Knox region that involved
her sister’s child, and her sister had called her to discuss the case; that Ms. James
accessed her sister’s file on the Department’s case management system and determined
that “the prior case manager and current case manager had not been doing their duties to
provide services to the client and to make sure the child himself was safe”; that she sent
the email at issue to the child’s case manager and the manager’s supervisor; that she
reported her actions to her immediate supervisor, Laura Dockery, an hour or two later;
that she admitted her actions in a signed statement she gave as part of the DCS Internal
Affairs investigation; and that following her report and the investigation, she was not
reassigned or restricted from her duties or removed.

       Ms. James acknowledged that she violated DCS administrative policy 9.59; that
the only recipients of the email were the case manager who was assigned to her sister’s
case, the case manager’s supervisor, and her sister; that her action implicated two
provisions of DCS’ Employee Conflict of Interest Statement, a form she signed in 2015
and 2016.10 She testified that her actions complied with DCS policy 4.10 because “when

8
  The ALJ stated that “Our burden of proof, I’m sure you all know, has been in a state of flux over the last
few years that the TEAM Act has been in existence. I believe that we do now have a final decision on the
burden of proof, and it is squarely on the shoulders of the complainant.” We presume that the ALJ was
referring to the case of Tennessee Department of Correction v. Presley, 528 S.W.3d 506 (Tenn. 2017),
decided five months before the hearing.
9
    DCS Administrative Policy 9.5, Access and Release of Confidential Child-Specific Information, states:

                   The Department of Children’s Services (DCS) ensures that records and
          information maintained by DCS are confidential and only accessed or released according
          to State and Federal laws, DCS Rules, Regulations and Policies. The access and release
          of confidential child-specific information, regardless of media, will be limited to
          individuals, agencies and organizations which demonstrate a “need and right to know” or
          received written authorization from the child/youth or their legal representative.
10
  The Employee Conflict of Interest Statement sets out a statement of actions that are to be avoided by the
employee as those that:

          . . . might result in or create the appearance of [. . . ] using public office for private gain;
          giving preferential treatment to any person; impeding government efficiency or economy;
          losing complete independence or impartiality; making a government decision outside of
          official channels; affecting adversely the confidence of the public in the integrity of the
                                                       -8-
[she] recognized . . . that [she] made an error [she] went to her supervisor at the earliest
time [she] could”; that she did not violate Rule 1120-10-.03(15)11 because “no disruption
occurred because [she] was not removed from any of [her] duties . . . it didn’t require any
redistribution of duties to others . . .” ; that termination was not the appropriate action
because she “has done multiple things to help support the development of services to
clients” and has “been doing it for a very long time”; and that some other discipline
would be appropriate. With respect to her overall performance as a DCS employee, she
testified that she had received “valued” performance ratings from 2014 through 2016, as
evidenced by the performance evaluations which were referenced in the Step I decision,12
and that there was no prior disciplinary action on her employment record.

       The next witness, called by Ms. James, was Mary Killion, Youth Service Officer
and Juvenile Court Administrator for Claiborne County Juvenile Court. She testified that
she had observed Ms. James in court; that Ms. James was an honest, diligent worker; that
she had never seen Ms. James be admonished by a judge for her professional behavior;
and that she did not have firsthand knowledge of the reason Ms. James was terminated.

       Following the completion of Ms. James’ proof, DCS proceeded to call Wendy
Forster, DCS Regional Administrator for the Smoky Mountain region, whose testimony
focused on the reason Ms. James was terminated. She testified that Ms. James’ action in
reviewing her sister’s case file and sending the email was serious enough to warrant

          government.

The Statement also contains specific standards prohibiting the use of information obtained in the course
of employment or government property for personal gain, and directing the employee to consult the
Department’s Ethics Compliance Officer “when [the] employee is in doubt as to the proper interpretation
of this conflict of interest statement.” On cross-examination, Ms. James identified “making a government
decision outside of official channels” and “not talking to my attorney first” when asked to identify “[the]
sections [ ] you believe you violated.”
11
     Tenn. Comp. R. & Regs. 1120-10-.03(15) states:

          The following are examples of acts that may warrant disciplinary action. This list is not
          exclusive and shall not be construed to limit an Appointing Authority’s discretion in
          disciplinary matters:
          ***
          (15) Participation in any action that would in any way seriously disrupt or disturb the
          normal operation of the agency, institution, department, or any other segment of the state
          service or that would interfere with the ability of management to manage
12
  The Step I decision in Ms. James’ appeal identified performance evaluations for the periods November
1, 2013-September 30, 2014, October 1, 2014-September 30, 2015, and October 1, 2015-September 30,
2016, as information reviewed by the DCS Commissioner; Ms. James received a “valued performance”
rating on each evaluation. The Step I decision was provided to the members of the Board prior to the
Step III hearing. See Tenn. Code Ann. § 8-30-318(i)(4).

                                                    -9-
termination because “there has to be an awareness of what a conflict of interest is and
being able to determine what is and is not a conflict. . . ” and that Ms. James was aware
of the DCS confidentiality and conflict of interest policies because “there is . . .
supervisory training, and . . . annual reminders [that] this is the policy.” With respect to
the Department’s handling of the matter, she testified that the reason there was a time gap
between the investigation of Ms. James’ conduct and her termination letter being issued
was that “[DCS] had to determine what the extent of the policy violation was . . . and . . .
the severity of the action”; and that the termination had to “get the appropriate approvals
all the way to the Commissioner.” Related to the particular violation, she testified that
that Ms. James violated DCS conflict of interest policy when she became aware that her
sister had a case and proceeded to review the case; that there was not a policy in place, as
of the date Ms. James sent the email, that explicitly restricted Ms. James from accessing
and reading a case file that was outside of her region; and that there were a variety of
disciplinary options that could have been taken by DCS depending on the nature of the
offense. As justification for Ms. James’ termination, Ms. Forster stated that “there has to
be that level of trust that the employee can continue to make sound decisions not based
on emotion. . .” and that DCS should be able to trust that an employee is “able to move
forward and know that they are able to focus on job responsibilities and what falls under
[the employee’s] direct supervision.”

       No further testimony was introduced.13

        Following the closing arguments, the ALJ again instructed the Board relative to
the burden of proof, stating that “at this Step III hearing [Ms. James] now has the burden
of proving by a preponderance of the evidence that the discipline was in violation of a
state law, rule, or policy”; that “in making findings of fact [the Board] must make [its]
own evaluation of the testimony. . . and any documentary evidence admitted”; and that
the Board must “give testimony or other evidence the weight and credibility [it] deem[s]
proper. . . in light of [its] own training and expertise.” After deliberating, the Board
rendered its decision.

       DCS argues that the trial court erred in affirming the Board’s holding; in addition
to the contention that the Board exceeded its authority when it modified the termination
without finding that DCS violated the statute identified by Ms. James in her complaint,
which we have previously resolved, DCS asserts that the Board erroneously placed the

13
   Also introduced as exhibits at the hearing were: Ms. James’ email regarding her sister’s case; Ms.
James’ signed statement admitting that her actions violated DCS policy; DCS’ administrative policies
4.10 Conflicts of Interest, 9.4 Confidential Client-Specific Information, 9.5 Access and Release of
Confidential Client-Specific Information, and 14.13 Confidentiality of Child Protective Services Cases;
Ms. James’ termination letter; the Step I and II decisions; DCS’ Confidentiality Statement and Employee
Conflict of Interest Statement; Tennessee Code Annotated sections 37-1-612, 37-1-409, and 37-5-107; the
Department of Human Resources Code of Conduct; and a screenshot of Ms. James’ sister’s case profile.

                                                - 10 -
burden of proof on DCS, and that the holding that Ms. James did not violate Tennessee
Rules and Regulations 1120-10-.03(24) is unsupported by the evidence.

   A. The Burden of Proof

       DCS contends that the Board’s decision to modify the termination was made on
unlawful procedure in that the Board “effectively shifted the burden of proof to DCS”
rather than Ms. James, and that the Board “was assessing whether the evidence proved
that [Ms. James] had violated the rule or policy – it was not assessing, as it should have
been, whether the evidence proved that she had not violated the rule or policy.”
(Emphasis in original). This argument is without merit.

       In her complaint, Ms. James asserted that her termination violated Tennessee Code
Annotated section 8-30-316 because DCS did not have “cause” to terminate her, and that
her termination “did not violate any act enumerated in Department of Human Resources
Rule 1120-10-.03.” At the hearing, she admitted that her conduct in sending the email
violated DCS policy 9.5 and the DCS Employee Conflict of Interest Statement; thus, the
issue before the Board was whether there was “cause” for her termination within the
meaning of section 8-30-316, i.e., whether the facts justified her losing her employment.
As reflected in the statement of Policy, the Board answered that question in the negative.

       We do not agree with DCS that “an employer’s for-cause termination of a
preferred service employee would violate Tenn. Code Ann. § 8-30-316 only if the
employee did not engage in the conduct that the employer cited as cause for termination”
and that Ms. James’ burden was “to prove that she did not engage in the misconduct cited
by DCS, i.e., that she did not violate the rules and policies listed in her termination
notice.” This argument ignores and would negate the “full authority” given the Board at
Rule 1120-11-.04 “to overturn, reduce or amend the disciplinary action based on the
information submitted for consideration, including reinstatement of leave and awards of
back pay.”

       The evidence before the Board included the facts that gave rise to Ms. James being
disciplined, testimony as to her performance as an employee of DCS, and the reasons
given for her termination; pertinent to this determination, the record shows that Ms.
James was allowed to continue in her capacity as Team Leader without limitation or
modification of her duties for twenty-eight days following her self-report, and that she
had positive performance evaluations and had not been disciplined during her sixteen
year employment with DCS. This is substantial and material evidence that supports the
Board’s decision to modify the penalty for her violation of DCS policy; upon our review,
the Board did not shift the burden of proof to DCS and Ms. James satisfied her burden to
show that the circumstances presented did not establish cause for her dismissal.

   B. Holding With Respect to Rule 1120-10-.03(24)
                                      - 11 -
       DCS contends that the Board’s determination that Ms. James’ action did not
violate Tennessee Rules and Regulations 1120-10-.03(24) is not supported by substantial
and material evidence.

      At the hearing, Ms. James admitted that her actions violated DCS Policy 9.5,
which states:

              The Department of Children’s Services ensures that records and
       information maintained by DCS are confidential and only accessed or
       released according with State and Federal Laws, DCS Rules, Regulations
       and Policies. The access and release of confidential child-specific
       information, regardless of media, will be limited to individuals, agencies
       and organizations which demonstrate a “need and right to know” or
       received written authorization from the child . . . or their legal
       representative.

DCS argues that Ms. James’ admission is evidence that preponderates against the holding
that she did not violate Rule 1120-10-.03(24). Based on our review of the Board’s
deliberations, however, it is clear that the Board did not treat Ms. James’ admission that
she violated DCS policy 9.5 in that manner; rather, the members of the Board considered
the admission and determined that her action did not violate the Rule.

       In the deliberations, member Rita Roberts-Turner stated, in pertinent part, that “the
testimony here was that [Ms. James’ sister] certainly knows everything that was
happening . . . [and] was conveying that to [Ms. James], and [Ms. James] was conveying
that to the people involved in this case.” She considered the Employee Confidentiality
Statement that Ms. James had signed and concluded that the reason Ms. James sent the
email was consistent with the provision in the statement that states: “All information that
I have access to via computer, telephone, files or through employees will be held in strict
confidence and not shared with parties outside the realm identified for carrying out the
responsibilities of my position and insuring care and the securement of services for
program enrollees, clients, and/or employees.” In his discussion of confidentiality, Chair
Jonathan Steen stated that “the idea of confidentiality and the critical nature of
confidentiality is not lost on [him]; however, the person who the information was
disclosed to was a person involved in the case and not some third-party.” Relative to this
item, board member Lee Ann Foster stated that the Board “agreed . . . [Ms. James]
admitted to violating [DCS Policy 9.5].”

       After deliberating, the Board voted on each conclusion of law.14 With respect to

14
  Both parties had previously filed a proposed order. After completion of the testimony, Judge Summers
instructed the members of the Board to discuss the facts, the law, and a potential recommendation
                                               - 12 -
Conclusion of Law 3, Ms. Roberts-Turner quoted Rule 1120-10-.03(24) and moved that
the Board hold that “the preponderance of the evidence shows [Ms. James’] action did
not violate the Department’s rule.” Each Board member voted in favor of the motion.

       Tennessee Rules and Regulations 1120-10-.03(24) states:

       The following are examples of acts that may warrant disciplinary action.
       This list is not exclusive and shall not be construed to limit an Appointing
       Authority’s discretion in disciplinary matters:

               ***
               (24) Unauthorized disclosure of confidential information;

The Board determined that, under the circumstances presented, Ms. James’ act did not
constitute an unauthorized disclosure of the information. As noted earlier, as a reviewing
court, we defer to the Board’s decision and do not substitute our judgment. This is
particularly true where we are reviewing the agency’s interpretation of its own rules. See
Moore v. Neeley, No. W2006-00438-COA-R3-CV, 2006 WL 3371132, at *5 (Tenn. Ct.
App. Oct. 6, 2006) (citing 33 Charles Alan Wright & Charles H. Koch, Jr., Federal
Practice and Procedure § 8353 (2006)). Inherent in the Board’s holding that the Rule
was not violated was the determination that other evidence outweighed Ms. James’
admission that she violated DCS policy. Thus, we conclude that the record contains
substantial and material evidence supporting the Board’s decision.

   C. The TEAM Act

       DCS also contends that the Board’s final order violates the TEAM Act because the
Board “failed to satisfy the statutory requirement that it determine whether the law
specified in [Ms. James’] complaint was violated.” This is an extension of DCS’
argument, which we have previously rejected, that the TEAM Act requires the Board to
find that DCS violated Tennessee Code Annotated section 8-30-316 in order to set aside
the termination. Accordingly, this argument is without merit.

                                         IV. CONCLUSION

      For the foregoing reasons, we affirm the judgment of the Chancery Court. We
remand the case with instructions for the trial court to remand the case to the Board of
Appeals for such further proceedings as may be necessary, in accordance with this


regarding the disciplinary action and, then, to review the parties’ proposed orders to determine which
would be an appropriate guide for crafting the Board’s order. The Board then proceeded to deliberate and
vote separately on each of the conclusions of law which are contained in the Final Order quoted above.
The conclusion pertinent to this discussion is number 3.
                                                - 13 -
opinion.




                    RICHARD H. DINKINS, JUDGE




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