                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     July 10, 2007 Session

       RODOLFO CASTRO v. PEACE OFFICER STANDARDS AND TRAINING
                          COMMISSION, ET AL.

                    Appeal from the Chancery Court for Davidson County
                        No. 06-706-III   Ellen H. Lyle, Chancellor


                    No. M2006-02251-COA-R3-CV - Filed August 11, 2008


The Peace Officers Standards and Training Commission (“POST Commission”) decertified an
officer previously given preliminary certification pending a background check based upon a plea of
guilty and nolo contendere to felonies that were entered and set aside in California decades ago. In
decertifying the officer, the POST Commission relied upon the position that it had no discretion
under its own rules, and that decertification was required. The Chancery Court reversed the POST
Commission for failing to give full faith and credit to the California judgment. We hold that the
POST Commission failed to adopt criteria for exceptions and waivers as required by Tenn. Code
Ann. § 38-8-106. For reasons other than those used by the trial court, we affirm the judgment of the
trial court, but modify the judgment to vacate the POST Commission’s decision to decertify and
remand the matter to the POST Commission to reconsider the officer’s decertification in accordance
with statutory directives.

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

ROBERT S. BRANDT , Sp. J., delivered the opinion of the court, in which PATRICIA J. COTTRELL and
FRANK G. CLEMENT , JR., JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Michael
A. Meyer, Deputy Attorney General; Lynne T. Edgerton, Assistant Attorney General; William R.
Lundy, Jr., Assistant Attorney General, for the appellant, Peace Officer Standards and Training
Commission, et al.

Chandra Noel Targerson Flint, Philip N. Elbert, Kristen V. Dyer, for the appellee, Rudolfo Castro.

                                             OPINION

        This appeal results from the 2005 decertification of Clarksville police officer Rudolfo Castro
by the state’s Peace Officer Standards and Training Commission (“POST Commission”). The POST
Commission decertified Officer Castro as a result of trouble he had with the law in 1972 in his native
California. He was eighteen years old at the time. Officer Castro sought judicial review of the
POST Commission decision pursuant to the Tennessee Administrative Procedures Act (“APA”),
Tenn. Code Ann. § 4-5-101, et seq. The Chancery Court reversed Officer Castro’s decertification.
The POST Commission has appealed. We conclude that the Commission’s rules contradict the
applicable statute and that it has discretion to consider a waiver of Officer Castro’s criminal past.
Accordingly, we vacate the Commission’s decision to decertify Officer Castro and we remand to the
Commission for its consideration in accordance with this opinion.

       Officer Castro became a Clarksville officer in 2003. Before that, he served in the U.S. Army
for twenty-four years and retired at Fort Campbell as a sergeant first class (E-7). By all accounts he
was a competent, well-regarded soldier and leader, and a competent, well-regarded police officer.
According to Clarksville Police Chief Mark Smith, Officer Castro passed the extensive background
check “with flying colors” and is “the kind of person that we need in law enforcement.”

        The decertification process began following Clarksville’s receipt of Officer Castro’s FBI rap
sheet that the city requested as part of its routine background check. It did not reach the Clarksville
police until after Officer Castro had completed his training, received his commission, and served as
a Clarksville police officer for almost a year. The FBI rap sheet shows several robbery and other
charges against Officer Castro in 1972 in several San Francisco Bay area counties. The Clarksville
police immediately launched an investigation that included interviewing Officer Castro and
obtaining records from the California courts.

        Officer Castro had disclosed to the Clarksville police during his background check that he
had trouble as a juvenile in California. While it is easy to see why Officer Castro said that, it is
technically not correct. He was eighteen years old at the time he committed the crimes. According
to Officer Castro, most of the charges were dismissed, but he did plead guilty to one robbery charge
and nolo contendere to another.1 All parties appear to agree on this point. The court sentenced him
under a California youthful offender law that allows qualified defendants between ages eighteen and
twenty-one to be sentenced as juveniles and committed to the custody of the California Youth
Authority. Officer Castro served close to a year, was released on parole, and was ultimately
discharged from the authority’s jurisdiction. He was never again charged with a crime.

        As might be expected, the records of the California courts’ thirty-year-old proceedings are
sketchy. There is what appears to be a minute entry of the Superior Court in San Francisco that
shows that on November 30, 1973, upon motion of the district attorney, two cases against Officer
Castro were dismissed. This was after his discharge from the Youth Authority. The two cases
dismissed were presumably the two robbery charges to which he pled. The FBI rap sheet appears
to reflect this disposition, noting that the conviction was set aside and that the cases were dismissed
“per 1772 W&I.” This apparently refers to the California Welfare and Institutions Code § 1772(a)


1
  On a standard form used for background investigation purposes, Officer Castro acknowledged that he had been “a
suspect, arrested, . . . or convicted of a criminal offense.” Officer Castro further provided information that the criminal
violations were in California.

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which provides:

        (a) Subject to subdivision (b), every person honorably discharged from control by the
        Youth Authority Board who has not, during the period of control by the authority,
        been placed by the authority in a state prison shall thereafter be released from all
        penalties and disabilities resulting from the offense or crime for which he or she
        was committed, and every person discharged may petition the court which committed
        him or her, and the court may upon that petition set aside the verdict of guilty
        and dismiss the accusation or information against the petitioner who shall thereafter
        be released from all penalties and disabilities resulting from the offense or crime for
        which he or she was committed, including, but not limited to, any disqualification for
        any employment or occupational license, or both, created by any other provision of
        law.

(emphasis added).

       It appears that both the conviction and nolo contendere charges were set aside and dismissed
under § 1772(a).

        The anomaly of Officer Castro’s decertification was obvious to everyone who attended the
POST Commission committee hearing. Officer Castro not only avoided any more brushes with the
law, but served his country for twenty-four years in the armed forces and rose to a high non-
commissioned officer rank. Chief Smith explained to the POST Commission that he wants to keep
him on the force. POST Commissioners who spoke at the hearing spoke favorably of Officer Castro.
General Brent Cherry, a member of the Commission, said Officer Castro “did everything right and
he is a great success story.” The California law that allowed the eighteen-year-old to be treated as
a juvenile worked just as its drafters no doubt hoped it would. A troubled teenager rehabilitated
himself and has been a contributing member of society for three decades.

         The POST Commission did not deny Officer Castro’s application on the merits. Instead, the
Commission concluded that under its rules it had no discretion in the matter and that the law required
that Officer Castro be decertified due to the set aside and dismissed the felony pleas in his distant
past. According to General Cherry, his “reading of the rules does not allow a waiver where there is
a felony charge,” and “it is very unfortunate.” General Cherry further stated “[U]nfortunately, as our
rules are written, I don’t believe we have the discretion to grant a waiver in this case. And, I
apologize.” Commissioner Verna Wyatt said, “I don’t think we have a choice.” Commissioner
Pierce said “all we can do is decertify.” After the vote to decertify Officer Castro, Chairman
Fitzgerald said, “there’s an appeal process to Chancery Court, and I think it would be best if you
attempt it. You know, this is a unique situation.” Every single member of the POST Commission,
save one, expressed regret on the record that Officer Castro’s request for a waiver was to be refused.
One Commission member made no comment on the issue. While the POST Commission did not
cite the rule it was relying on at the hearing, the letter to Officer Castro formally notifying him of the
POST Commission’s decision relied on Tenn. Code Ann. § 38-8-104 and Tenn. Rules & Regs. Rule


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1110-2-.04(4).2

        Officer Castro petitioned the Chancery Court to review the POST Commission’s order
decertifying him based on two grounds. First, Officer Castro challenged the Commission’s rules
which the POST Commission apparently relied upon when it held that the rules allowed no
exceptions or waivers to the requirement of Tenn. Code Ann. § 38-8-104(c). Officer Castro’s second
challenge is based on the proposition that the POST Commission did not give full faith and credit
to the California judgment.

        The Chancery Court reversed the POST Commission decision based upon full faith and
credit. The Court found the Commission’s decision to rely solely upon Officer Castro’s two pleas
and not rely upon the later dismissal and the setting aside of the pleas violated the United States
Constitution by failing to give full faith and credit to the California judgment.

                                           I. STANDARD OF REVIEW

       Under the APA, a court may disturb an administrative decision only if 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 procedures;

         4.       Arbitrary or capricious are 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. . . .

Tenn. Code Ann. § 4-5-322(h).

                                      II. STATUTORY REQUIREMENTS

        The General Assembly created the POST Commission as part of a broad scheme to establish
standards and training for law enforcement officers throughout Tennessee. Tenn. Code Ann. § 38-8-
101 et seq. The Commission is given the responsibility to establish minimum standards for officers.
Tenn. Code Ann. § 38-8-104(a)(5). The statutes themselves establish some qualifications. One is
that a person “[n]ot have been convicted of or pleaded guilty to or entered a plea of nolo contendere
to any felony charge or to any violation of any federal or state laws . . . relating to force, violence,


2Rule 1110-2-.04(4) is a procedural rule describing how a decertified officer can request a hearing.

                                                         -4-
theft, dishonesty, gambling, liquor or controlled substances.” Tenn. Code Ann. § 38-8-106(4).

       The General Assembly, however, did not make these disqualifications an absolute bar to
becoming a police officer. It specifically directed the POST Commission to establish criteria for
determining whether to grant a waiver. Tenn. Code Ann. § 38-8-104(e) provides:

       The Commission shall establish criteria for determining whether to grant an
       exception to or to waive the qualifications of § 38-8-106, for a person hired as a
       police officer after July 1, 1987, except that no waiver or exception shall be granted
       for dishonorable discharge from the military, mental illness, or a narcotics violation
       that could result in a felony charge. The Commission’s decisions with regard to
       exceptions or waivers granted under this subsection (e) shall be appealable to the
       chancery court. The Commission shall adopt rules and regulations in accordance
       with the provisions of the Uniform Administrative Procedures Act, compiled in title
       4, chapter 5, to implement the provisions of this subsection (e).

This statutory directive to the POST Commission is mandatory. Except in the instances listed in the
statute, the POST Commission is required to establish criteria for exceptions and waivers.

                                  III. POST COMMISSION RULE

        The POST Commission did not fully comply with the mandate that it establish criteria for
exceptions and waivers to the qualifications of Tenn. Code Ann. §38-8-106. Instead, it adopted a
rule that says that there will be no exceptions and waivers for any felony charge. The rule states:

       Criminal Activity - The Commission may consider a waiver from preemployment
       requirements relating to criminal activity on an individual basis and depending on the
       circumstances.

       1.      Waivers may be granted if the officer has been convicted of or
               pleaded guilty to or entered a plea of nolo contendere to any violation
               of any federal or state law or city ordinance (excluding felony charge
               and domestic violence) with the following charges:

               (i)    relating to force, violence, theft, dishonesty,
                      gambling, liquor (including driving while
                      intoxicated);

               (ii)   or controlled substances when the offense was classed
                      as a misdemeanor.

Rule 1110-9-.04(1).



                                                -5-
         There is no language in the statute that exempts the Commission from the requirement that
it establish criteria for determining whether to grant an exception or waiver in felony cases. When
the commission adopted this rule, it violated Tenn. Code Ann. §38-8-104(e). This statutory violation
is crucial to Officer Castro, for the POST Commission members decided that the rule gave them no
choice, i.e., they could not make an exception and they could not grant a waiver even if they wanted
to. While it appears from the comments of the members that they would never have revoked his
certification if they believed they had a choice, they never reached the merits of Officer Castro’s
case.


        The POST Commission must consider Officer Castro’s case under the remaining valid part
of its rule, the first sentence that provides that it will consider it “on an individual basis and
depending on the circumstances.” Under that remaining valid portion of the rule, the POST
Commission has the discretion to grant an exception or waive the pleas that were set aside and
dismissed.

                         IV. CHALLENGING THE VALIDITY OF THE RULES

         As the Chancery Court discussed in its final order, Mr. Castro had included in his petition
an assertion that the Commission’s decision was arbitrary and capricious because it was based on
a rule that did not create conditions for exemptions where felony guilty pleas were involved, contrary
to the language of the statute. While the trial court decided that it need not resolve that issue in light
of its ruling on the full faith and credit issue, the court nonetheless questioned its authority to
determine the validity of the rule in the procedural context of the case. In this appeal, the
Commission argues that the trial court correctly concluded it had no authority to determine the
validity of the rule in this case.

         The trial court indicated that it was precluded from considering the validity of the
Commission’s rule on exceptions or waivers because Mr. Castro had not petitioned the Commission
for a declaratory order pursuant to Tenn. Code Ann. § 4-5-223 (authorizing “any affected person”
to petition an agency for a declaratory order “as to the validity or applicability of a statute, rule or
order” within the agency’s jurisdiction). That is the Commission’s position in this appeal. As the
trial court noted, such a petition is a prerequisite to obtaining a declaratory judgment from a court
on the validity of a rule or its application to the petitioner’s circumstances. Tenn. Code Ann. § 4-5-
225(b). A different subsection of Tenn. Code Ann. § 4-5-225 describes the type of action to which
the prerequisite applies:

        The legal validity or applicability of a statute, rule or order of an agency to specified
        circumstances may be determined in a suit for a declaratory judgment in the chancery
        court of Davidson County, unless otherwise specifically provided by statute, if the
        court finds that the statute, rule or order, or its threatened application, interferes with
        or impairs, or threatens to interfere with or impair, the legal rights or privileges of the
        complainant.


                                                   -6-
Tenn. Code Ann. § 4-5-225(a).

        Mr. Castro did not file an action for a declaratory judgment.3 Instead, he filed a petition for
judicial review of the agency decision decertifying him as a police officer after a contested case
hearing, pursuant to Tenn. Code Ann. § 4-5-322. The declaratory order requirement of Tenn. Code
Ann. § 4-5-225(b) does not apply to judicial review under Tenn. Code Ann. § 4-5-322. By its own
language, Tenn. Code Ann. § 4-5-225, including the requirement of first asking the agency for a
declaratory order, applies only to suits for declaratory judgment.

        The two types of actions are governed by different statutory provisions that are codified in
different parts of the APA, by different procedures, and by different scopes of trial court decision-
making. In fact, a direct or original action for declaratory judgment cannot be brought in conjunction
with an action that is appellate in nature, such as judicial review under the APA. See Winkler v.
Tipton County Bd. of Educ., 63 S.W.3d 376, 383 (Tenn. Ct. App. 2001); Goodwin v. Metro. Bd. of
Health, 656 S.W.2d 383, 386-87 (Tenn. Ct. App. 1983) (condemning the “joinder of an appeal with
an original action and the simultaneous consideration of both at the trial level”).4

         In the case before us, the agency used the rule in question to decertify Mr. Castro as a police
officer. As the Commission explains, “POST instituted proceedings pursuant to Tenn. Code Ann.
§§ 38-8-104 and 38-8-105, and POST Rule 1110-2-.04(4), to decertify Castro as a peace officer.”
The application of the rule to Mr. Castro’s circumstances was determined in the hearing.5 Judicial
review of an agency decision in a contested case includes, inter alia, consideration of whether the
administrative agency’s findings or decision are in violation of statutory provisions, exceed the
authority of the agency, or are arbitrary or capricious. Tenn. Code Ann. § 4-5-322(h). Application
of a rule that is inconsistent with statutory directive to the agency could be described by any of those
grounds.

       A request for a declaratory order from an agency and a suit for declaratory judgment seek to
have a rule or statute interpreted as applied or its validity determined outside of specific agency
enforcement or regulatory actions. In a case such as the one before us, however, the agency acted


         3
          The Commission characterizes Mr. Castro’s argument that the rule is invalid as a request for a declaratory order
invalidating the Commission’s rule that prohibits certification where any felony guilty plea is involved.

         4
           In Wimley v. Rudolph, 931 S.W .2d 513 (Tenn. 1996), the Supreme Court held that the principle established
in Goodwin and followed in other cases did not affect the resolution of the case before it because in those cases
“plaintiffs, pursuant to administrative appeals, attempted to join original actions for inconsistent relief with the judicial
review provided in the Uniform Administrative Procedures Act.” Id. at 516. However, since the plaintiff in Wimley
sought relief not inconsistent with the APA, the Court declined to apply the Goodwin rule. Id. The Wimley holding does
not affect the continuing validity of the prohibition on combining an original action with an action for judicial review.

         5
           Most cases involving judicial review of an agency decision involve the application of a statute or rule to a
particular party’s circumstances, i.e., the agency has applied a rule or statute. Consequently, requiring a separate petition
to declare the applicability of a rule, one of the subjects included in Tenn. Code Ann. § 4-5-223, would be redundant
and unnecessary.

                                                            -7-
in its regulatory capacity with regard to a particular matter. The Commission already had the matter
of Mr. Castro’s decertification before it, having instituted the proceedings, and, as was required,
scheduled and held a contested case hearing on it. We see no basis for requiring a party in that
situation to initiate a separate administrative proceeding by filing a petition for declaratory order.

         The purpose of the requirement for first asking an agency for a declaratory order is primarily
to give the agency notice of a matter and the opportunity to address that matter. Obviously, that goal
is not relevant to a matter in which the agency has initiated proceedings. Further, while an agency
may refuse to issue a declaratory order, it may also decide to convene a contested case hearing on
the request and, after such a hearing, render a declaratory order. Tenn. Code Ann. § 4-5-223. If the
agency chooses to convene a contested case hearing, its decision is then reviewed under Tenn. Code
Ann. § 4-5-322, the provision governing judicial review of administrative decisions in a contested
case proceeding. Tenn. Code Ann. § 4-5-102(3) (defining contested case as including a declaratory
proceeding); See McNeil v. Cooper, 241 S.W.3d 886, 900 (Tenn. Ct. App. 2007); see also Tenn.
Code Ann. § 4-5-322(a) (providing that judicial review under the chapter on contested cases is the
only available method of judicial review of a final agency decision in a contested case).

         It is not unusual for a party who has been subjected to an agency’s regulatory procedures to
challenge the validity of the rule or statute which the agency has applied to that party’s detriment.
If an administrative agency relies on a rule when it proceeds with an action affecting an individual
(e.g., revocation of a license, denial of a landfill site, etc.), the validity of the rule as well as its
application can be raised. We find no reason why Mr. Castro, for example, who argues that the rule
could not be applied against him, should have been required to file a separate action, either before
the Commission or in court, to challenge the rule that the Commission used to deny him a waiver.
We hold that Tenn. Code Ann. § 4-5-225(a) does not require a separate proceeding.

        In this appeal, the Commission has not argued that Mr. Castro failed to raise the validity of
the rule in the administrative proceeding and, therefore, was precluded from raising it in the trial
court. The Commission did not argue that omission in the trial court either. Mr. Castro raised the
issue of the rule’s compliance with the statute in his chancery court pleadings, including his initial
petition. The Commission did not object or file any pleading asserting that those issues could not
be raised in this action. Instead, after acknowledging Mr. Castro’s challenge to the validity of the
rule, the Commission stated that it contended that the rule in question is valid. Indeed, the
Commission’s brief in the trial court argued that the rule was “well within the bounds of the
Commission’s statutory authority.” Accordingly, we need not resolve the question of whether the
validity of the rule was raised in the administrative proceeding since the Commission has waived any
objection on that basis.

                           V. EFFECT OF THE CALIFORNIA JUDGMENT

        The Chancery Court determined that the POST Commission violated the full faith and credit
clause of the United States Constitution when the Commission failed to give effect to the California
court order setting aside the guilty plea, dismissing the case, and setting aside employment


                                                  -8-
qualifications. According to Officer Castro’s argument, since the California order effectively
removed Officer Castro’s pleas to the charges, the POST Commission was obligated to do likewise
under the full faith and credit clause of the United States Constitution.

       As discussed earlier, we do not believe resolution of this appeal need reach constitutional
proportions since the valid portion of the POST Commission rule does not mandate decertification.

                                          CONCLUSION

        The judgment of the Chancery Court is modified to vacate the decision of the Commission
decertifying Mr. Castro, and the matter is remanded to the POST Commission for its consideration
of the waiver request by the Clarksville Police Department in accordance with statutory directives.
Costs of this appeal are divided equally between the POST Commission and Officer Castro.



                                                      ____________________________________
                                                      ROBERT S. BRANDT, JUDGE




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