                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                              September 14, 2010 Session

  OSCAR PAUL GUESS, III v. CITY OF MANCHESTER, A TENNESSEE
                    MUNICIPALITY, ET AL.

                 Appeal from the Chancery Court for Coffee County
                        No. 09-46   William C. Lee, Judge


              No. M2010-00250-COA-R3-CV - Filed November 15, 2010


Discharged city employee filed a petition for writ of certiorari challenging his termination
by the city. The trial court remanded the case to the board of mayor and aldermen based
upon the court’s determination that there was evidence of bias on the part of one alderman
and that the record did not allow the court to determine the grounds relied upon by the board
in terminating the employee. We have determined that the trial court erred in remanding this
case. The city employee waived the issue of possible bias on the part of one alderman by
failing to raise it at any time during the hearing before the board. Moreover, the board was
not required to make specific findings on the reasons for its decision.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and F RANK G. C LEMENT, J R., J., joined.

Gerald Leighton Ewell, Jr., Tullahoma, Tennessee, for the appellants, City of Manchester,
Tennessee, and the Board of Mayor and Alderman.

Christina Henley Duncan and John Stanley Rogers, Manchester, Tennessee, for the appellee,
Oscar Paul Guess III.

                                        OPINION

                        F ACTUAL AND P ROCEDURAL B ACKGROUND

      Oscar Paul Guess, III, was employed by the City of Manchester (“City”) as its Health
and Codes Administrator beginning in 1989. At a meeting of the city’s Board of Mayor and
Aldermen (“Board”) on December 2, 2008, the Board voted to terminate Mr. Guess’s
employment. There was no discussion prior to the vote, and Mr. Guess had not received
prior notice concerning his proposed termination.

        A few days after the board meeting, the city attorney sent a letter to the Board advising
the mayor and aldermen that Mr. Guess’s position was governed by the city’s personnel rules
and regulations. Under the personnel rules, Mr. Guess was entitled to “an advance written
notice containing the nature of the proposed action, the reasons therefore, and the right to
appeal the charges in writing to the governing body.” The mayor sent a letter to Mr. Guess
informing him of these rights, and Mr. Guess requested a hearing. On December 23, 2008,
the city attorney sent Mr. Guess a letter outlining the following reasons for the proposed
termination:

       1) Selling beer to a minor female on the side of Bushy Branch Road during
       Bonnaroo 2008.

       2) Failing to follow State law and/or State regulations concerning the
       construction of the District Attorney’s Office located on Madison Street.
       Failing to follow the directive of the State Fire Marshall’s Office to pull the
       building permit until conditions were corrected. Stating to the State Fire
       Marshall that you would not stop construction because you did not agree with
       State law. This resulted in the State Fire Marshall taking control of the project
       until the violations were corrected that you refused to correct.

       3) Unprofessional treatment of Mr. Jimmie Teal, a City employee, such that
       supervision of his position had to be transferred.

       4) Subsequently addressing Mr. Teal in a threatening and intimidating manner
       on or about September 22, 2008, stating “you just [expletive] up, there will be
       a new Mayor in four years.” This violated Manchester Municipal Code 4-242.

       5) Failing to follow subdivision plats approved by the Planning Commission
       and insisting upon changes not contained therein. Stating to developers that
       you had sole power to approve or disapprove subdivisions and that a
       subdivision must be built your “way.”

       6) Issuing permits to and allowing unlicensed contractors to build and continue
       to build in the City after being advised of unlicensed status.




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       7) Allowing unlicensed contractors and licensed contractors to have an
       arrangement where the licensed contractor obtained the permit and the
       unlicensed contractor performed all the work.

       8) Lack of professionalism.

                       Hearing before Board of Mayor and Aldermen

       A hearing before the Board was held on January 5, 2009. The City began by
introducing exhibits. Documents from the State Department of Commerce and Insurance and
the Tennessee Board of Licensing Contractors reflected the issuance of building permits by
the City of Manchester to contractors without licenses. A letter from John Constantine, a real
estate developer, detailed complaints about Mr. Guess, including his alleged issuance of
permits to unlicensed and uninsured contractors. Mr. Constantine stated that Mr. Guess did
not follow subdivision plats approved by the planning commission and would require
changes not approved by the commission.

       Richard Depenhart, a retired field supervisor with the State Fire Marshal’s Office,
stated in a letter that he had advised Mr. Guess that the building being constructed in
Manchester for the State District Attorney General’s Office was in violation of state law, but
Mr. Guess refused to pull the building permit and told Mr. Depenhart that he did not agree
with the state law. The State Fire Marshal’s Office then took control of the project to correct
the problems. In a letter written in December 2008, Jimmie Teal, a city employee, described
Mr. Guess’s actions upon being informed by the mayor that Mr. Teal would be moving out
of Mr. Guess’s department. According to Mr. Teal, Mr. Guess “came into my office pointing
his finger and speaking in a loud voice stated ‘you just [expletive] up, there will be a new
mayor in four years’ then turned out walked out.”

       The City’s first witness was Rodney Banks, an officer with the Coffee County
Sheriff’s Department, who testified about his investigation of complaints that Mr. Guess’s
wife and stepdaughter were selling beer without a license in the front yard of the Guess
residence at the time of Bonnarroo, a music festival. Mr. Guess was not present when
Officer Banks went to investigate.

        Mr. Guess then took the stand and testified about some friction between himself and
one of the aldermen, Donnie Thomas. According to Mr. Guess, the friction did not relate to
his official duties but stemmed from personal animosity between Mr. Thomas’s wife and Mr.
Guess’s wife, who had worked together. Mr. Guess had approached Mr. Thomas a few years
earlier in the hallway and attempted to shake his hand, but Mr. Thomas had refused. Mr.
Guess’s attorney questioned him about all of the city’s listed reasons for terminating him.

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Mr. Guess denied any wrongdoing or impropriety and offered his interpretation of the
relevant events.

       Tammy Sue Craig, Mr. Guess’s stepdaughter, testified about the beer-selling incident
and stated that Mr. Guess did not participate in any way.

        Jeff Lowe, a local builder, testified about working on the district attorney’s office
building project. Mr. Lowe also testified that he had been fined by the State for working
after his contractor’s license expired, but he did not think that Mr. Guess had any knowledge
of these problems. He did not think Mr. Guess had ever issued a building permit to him
knowing of his licensing problems.

       Several former city employees and aldermen testified on behalf of Mr. Guess, praising
his professionalism, efficiency, knowledge, courteousness, and service to the city. Alton
Morris, an engineer and developer for many years in Manchester and in other areas, testified
about his positive impressions of Mr. Guess, whom he found to be professional and helpful,
and presented a petition signed by local citizens in support of Mr. Guess.

       After Mr. Guess’s witnesses had testified, the City called Jimmie Teal, city fire
inspector, as a witness. After talking to the State Fire Marshal’s Office, Mr. Teal told Mr.
Guess that the district attorney’s office building was under the supervision of the State Fire
Marshal’s Office because it was leased to the State. Mr. Guess became irritated and stated
that he disagreed with that state law. Mr. Teal then reported back to the State, and Mr.
Depenhart came to talk to Mr. Guess, who refused to pull the building permit on the project.
Mr. Teal also testified about Mr. Guess’s reaction, as described in his letter, when the mayor
transferred him out of Mr. Guess’s office.

      The City also called Brent Bates, a licensed contractor, who testified that information
concerning whether a contractor is licensed can be accessed via the State’s website.

       At the conclusion of the proof, Alderman Thomas moved to terminate Mr. Guess’s
employment with the City. Alderman Norman made a statement in support of Mr. Guess and
stated his opinion that the proposed termination was not related to Mr. Guess’s job
performance. The Board voted 4 to 2 in favor of the termination of Mr. Guess’s employment
with the City.




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                                          Writ of Certiorari

        In February 2009, Mr. Guess filed a petition for writ of certiorari in the Coffee County
Chancery Court,1 and the court issued the writ. The court requested briefs from the parties
as to whether an issue had been raised regarding the recusal of Alderman Thomas or whether
the issue had been waived.

       On October 2, 2009, the court issued a memorandum and order with findings of fact
and conclusions of law. Although no motion for recusal had been made before the Board,
the court noted that, in cases of egregious bias, a tribunal could require recusal sua sponte.
Because the plaintiff had related “specific instances of personal animosity expressed to him
by Alderman Thomas” and Alderman Thomas did not refute those allegations, the court
concluded that Mr. Guess had met his burden of proof to show bias. The court went on to
find that the record was not sufficient to determine whether there was material evidence to
support the Board’s decision. The court remanded the case to the Board “for an individual
vote on each of the grounds listed in it[s] notification to the Plaintiff” and ordered that
“Alderman Thomas will be prohibited in participating in these votes.” In the event that the
composition of the Board had changed, the Court stated that a new hearing would be
required. The court denied the defendants’ motion to alter or amend, and the City and Board
appealed.

       On appeal, the City and Board argue that the trial court applied an incorrect legal
standard in its analysis of the Board’s decision, that the court erred in considering sua sponte
the issue of Alderman Thomas’s participation, and that the Board’s decision should be
affirmed under the rule of necessity. Mr. Guess argues that the trial court erred in failing to
find that the Board exceeded its jurisdiction.

                                       S TANDARD OF R EVIEW

        The scope of review with respect to a common law writ of certiorari is limited. Watts
v. Civil Serv. Bd., 606 S.W.2d 274, 276 (Tenn. 1980); Leonard Plating Co. v. Metro. Gov’t
of Nashville & Davidson County, 213 S.W.3d 898, 903 (Tenn. Ct. App. 2006). A reviewing
court may grant relief only when the board or agency has exceeded its jurisdiction or acted
illegally, arbitrarily, or fraudulently. Tenn. Code Ann. § 27-8-101; McCallen v. City of
Memphis, 786 S.W.2d 633, 638 (Tenn. 1990). The scope of review by the appellate courts
is no broader than that of the chancery court in these cases with respect to evidence presented
before the Board. Watts, 60 S.W.2d at 277.


        1
        The petition included additional claims, but the trial court dismissed all of the claims with the
exception of the writ of certiorari.

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        Reviewing a common law writ of certiorari “does not extend to a redetermination of
the facts found by the board or agency whose decision is being reviewed.” Leonard Plating,
213 S.W.3d at 903. Courts are not permitted to “(1) inquire into the intrinsic correctness of
the decision, (2) reweigh the evidence, or (3) substitute their judgment for that of the board
or agency.” Id. at 903-04 (citations omitted). Rather, the courts must review the board’s
decision to determine whether there is any material evidence to support the decision; “a
decision without evidentiary support is an arbitrary one.” Id. at 904. The determination of
whether the board’s decision is supported by material evidence is a question of law. Id. To
support a board’s decision, the material evidence “must exceed a scintilla of evidence but
may be less than a preponderance of the evidence.” Id.

                                          A NALYSIS

                                              I.

       We begin with the issue of possible bias on the part of Alderman Thomas, one of the
four aldermen who voted in favor of Mr. Guess’s termination.

        A party seeking the recusal of a judge or board member must raise the issue promptly
after the relevant facts become known. See Bean v. Bailey, 280 S.W.3d 798, 803 (Tenn.
2009); Davis v. Tenn. Dep’t of Employment Sec., 23 S.W.3d 304, 313 (Tenn. Ct. App. 1999).
Failure to object in a timely manner generally results in the waiver of a party’s right to
question the judge’s impartiality. Davis, 23 S.W.3d at 313; Kinard v. Kinard, 986 S.W.2d
220, 228 (Tenn. Ct. App. 1998). Our Supreme Court has held that “[a]n objection to a
judge’s competence cannot be made for the first time on appeal.” Dupuis v. Hand, 814
S.W.2d 340, 342 (Tenn. 1991).

        We conclude that the trial court erred in raising the issue of Alderman Thomas’s bias
in the context of this case. At no time during the hearing before the Board did Mr. Guess
make a motion to recuse Alderman Thomas or raise the issue of his bias as a decisionmaker.
Mr. Guess did testify about an incident a few years prior to the termination decision
reflecting personal animosity toward him on the part of Alderman Thomas. Mr. Guess did
not, however, request that Alderman Thomas recuse himself. It was after the case went up
to the chancery court on a petition for writ of certiorari that the issue was brought up by the
court and briefed by the parties. Even assuming that circumstances of egregious bias could
warrant a trial court raising the issue in the context of a petition for writ of certiorari
proceeding, which is essentially appellate in nature, we find no evidence of egregious bias
here. By failing to make a motion for recusal or otherwise raise the issue of Alderman
Thomas’s disqualification at the hearing before the Board, Mr. Guess waived any objection
based upon bias.

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                                              II.

        We must now determine whether the trial court erred in remanding the case to the
Board “for an individual vote on each of the grounds listed in it[s] notification to the
Plaintiff.”

       At the hearing, the Board did not specify which of the eight grounds listed in the
notification to Mr. Guess formed the basis for its decision. In its decision, the trial court
made the following pertinent statements:

       The Board of Mayor and Alderman relied on eight grounds to terminate the
       Plaintiff. This Court is of the opinion that no material evidence was presented
       to justify the termination of the Plaintiff on the grounds that he sold beer to a
       minor female on the side of Brushy Branch Road during Bonnaroo 2008. If
       this was the sole ground upon which the Board of Mayor and Aldermen relied,
       then it acted arbitrarily or capriciously. The Court is also of the opinion that
       sufficient material evidence existed regarding one or more of the other seven
       grounds to uphold the decision of the Board of Mayor and Aldermen under the
       standard of review imposed by law upon the Court. However, from the record
       transmitted to the Court, the Court can not determine which ground or grounds
       were relied upon.

        As the trial court acknowledged, administrative bodies are not required to make
specific findings of fact absent a statute or ordinance requiring them to do so. Moore v.
Metro. Bd. of Zoning Appeals, 205 S.W.3d 429, 436 (Tenn. Ct. App. 2006); Weaver v. Knox
County Bd. of Zoning Appeals, 122 S.W.3d 781, 785 (Tenn. Ct. App. 2003). Under the
common law writ of certiorari, an administrative decision must be upheld if any material
evidence exists to justify it. McCallen, 786 S.W.2d at 641; Watts, 606 S.W.2d at 277; Hill
v. City of Germantown, No. W2009-00308-COA-R3-CV, 2010 WL 1240436, at *16 (Tenn.
Ct. App. Mar. 31, 2010) (no Tenn. R. App. P. 11 application filed). Contrary to the analysis
applied by the trial court, a reviewing court is not to determine the validity of the precise
grounds upon which an administrative body based its decision but only whether there is
material evidence to support the decision. As the trial court found, the administrative record
in this case contains material evidence to support one or more of seven of the grounds given
by the City for Mr. Guess’s termination. Thus, material evidence exists to support the
Board’s decision.

       Lewis v. Bedford County Bd. of Zoning Appeals, 174 S.W.3d 241 (Tenn. Ct. App.
2004), a case cited by the trial court, involved the issue of whether a local zoning board or
the zoning applicant had the responsibility to make a record of evidence sufficient to allow

                                              -7-
effective judicial review. Id. at 243. The court concluded that it was the duty of the board
to preserve and file with the reviewing court an adequate record of the evidence presented
to the board. Id. at 247. Because the record filed by the board was not sufficient to
determine whether material evidence was presented to support the board decision, the court
vacated the board’s decision and remanded for a new hearing. Id. at 246-248. The Lewis
decision does not suggest that a board must specifically state the reasons for its decision.
Where, as in the present case, the evidence presented to the board has been preserved and
provided to the reviewing court, the court can make a determination as to whether there is
material evidence to support the board’s decision. Id. at 247.

                                                 III.

         Mr. Guess argues that the trial court erred in failing to find that the Board exceeded
its jurisdiction. According to Mr. Guess’s interpretation, the mayor, not the Board, had the
authority to terminate Mr. Guess’s employment.

       The City’s charter provides: “The exercise of all powers granted in this Act or by
general law is invested in the Board of Mayor and Aldermen of the City except as otherwise
specifically provided.” Thus, all powers of the City of Manchester are generally vested in
the Board. Mr. Guess relies upon the following provisions of the Personnel Rules and
Regulations found in the Manchester Municipal Code 2 :

       4-233. Dismissal and demotion. The mayor may dismiss or demote an
       employee. . . .
       The employee shall be furnished an advance written notice containing the
       nature of the proposed action, the reasons therefore, and the right to appeal the
       charges in writing to the governing body. This notice shall be furnished at
       least one calendar week prior to the proposed effective date of the action.
       During this period, the employee may be retained on duty status, placed on
       leave, or suspended with or without pay at the discretion of the mayor[.] [I]f
       the employee fails to respond to the advance notice, the proposed action shall
       be effective on the date specified with no need for further action.
       If the employee requests a hearing on the proposed action, the governing body
       shall promptly set a date and time for the hearing and shall carefully consider
       all evidence presented before making a decision. The decision of the
       governing body shall be final.


       2
         Tenn. Code Ann. § 6-3-106, also cited by Mr. Guess, applies to cities chartered under Title 6,
Chapter 1 of the Tennessee Code. The City of Manchester is not organized under those statutes. See 2005
TENN . PRIV . ACTS ch. 74.

                                                 -8-
(Emphasis added). Mr. Guess interprets section 4-233 as providing that only the mayor can
dismiss an employee. We find Mr. Guess’s interpretation of the relevant provisions
unconvincing and illogical.

        The first line of section 4-233 of the municipal code, the source of Mr. Guess’s
argument, uses permissive language (“may”) rather than mandatory language (“shall”). We
find nothing in this language to indicate that only the mayor can terminate an employee.
Moreover, section 4-233 provides that the mayor’s decision is subject to appeal to the
governing body, the Board; in the event of such an appeal, the dismissal does not take effect
until the Board has made its decision. We reject Mr. Guess’s assertion that the Board
exceeded its authority in terminating him.

                                       C ONCLUSION

      The judgment of the chancery court is reversed, and the decision of the Board of
Mayor and Aldermen is affirmed. Costs of appeal are assessed against the appellee, for
which execution may issue if necessary.
                                                       __________________________
                                                        ANDY D. BENNETT, JUDGE




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