                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 October 13, 2009 Session

                      STEPHANIE D. HILL
                             v.
       CITY OF GERMANTOWN, TENNESSEE; GERMANTOWN
     POLICE DEPARTMENT; BOARD OF MAYOR AND ALDERMAN
           OF THE CITY OF GERMANTOWN, TENNESSEE

                An Appeal from the Chancery Court for Shelby County
                 No. CH-07-1858-2     Arnold B. Goldin, Chancellor


                 No. W2009-00308-COA-R3-CV - Filed March 31, 2010


This appeal involves the termination of a municipal police officer. The housemate of the
petitioner police officer accidentally damaged the police officer’s take-home police vehicle.
Although the police officer suspected that her housemate caused the damage, the police
officer nevertheless filed accident and insurance loss reports indicating that the damage was
caused by an unknown driver. About two months later, the police officer and her housemate
had a tumultuous break up. After that, the police officer’s supervisor discovered that the
damage to the police vehicle may have been caused by the housemate. After an internal
affairs investigation, the police officer was charged with violating police department rules
regarding neglect of duty and lack of truthfulness. After a hearing before the municipal
board, the police officer was found to have violated these rules and her employment was
terminated. The city administrator upheld the termination. The police officer then filed the
instant petition for writ of certiorari, challenging the administrative decision. The trial court
granted the petition, holding that the termination of the police officer’s employment was not
supported by material evidence and, therefore, was arbitrary and capricious. The city now
appeals. We reverse, finding that material evidence supported the administrative decision
to terminate the police officer’s employment.

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

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.
Edward J. McKenney, Jr., Memphis, Tennessee, for the appellants, City of Germantown,
Tennessee; Germantown Police Department; Board of Mayor and Aldermen of the City of
Germantown, Tennessee.

Wendy S. Dabbous, Jessica May Thomas, and Clyde Keenan, Memphis, Tennessee, for the
appellee, Stephanie D. Hill.

                                         OPINION

                            F ACTS AND P ROCEEDINGS B ELOW

                                        Background

From February 1997 until July 25, 2007, Petitioner/Appellee Stephanie Hill (“Hill”) served
as a police officer for the City of Germantown. At the time of the events in this case, Hill
was working in the Investigative Unit of the Germantown Police Department. In the course
of her employment, Hill was assigned a five-year-old Ford Taurus as a “take-home” vehicle.
For several years prior to the termination of her employment, Hill lived with Ms Jamie Baker
(“Baker”) and Baker’s children in a home owned by Baker in Collierville, Tennessee.

On January 19, 2007, Baker left the house before Hill did to take her children to school,
driving her Ford Expedition SUV. Around 7:30 a.m., as Hill walked toward her take-home
vehicle in the driveway to leave for work, she noticed damage to the back of the vehicle just
to the left of the license plate. As she drove to work, Hill spoke with Baker twice on her cell
phone and told Baker that she had damage to her car. Their exchange during that
conversation became a subject of dispute, but it involved some discussion of whether Baker
had hit Hill’s take-home police vehicle. On a previous occasion, Baker had hit another of
Hill’s vehicles and did not immediately tell her.

When Hill arrived at work, she reported the damage to her take-home vehicle to her
immediate supervisor, Captain Lee Covey (“Capt. Covey”), the investigator for the Internal
Affairs Unit. She told Capt. Covey that, although she was not 100% sure, she believed that
the damage probably occurred while she was in Jackson the previous day attending a
conference, and that she did not know who hit the car. She did not tell Capt. Covey that she
suspected that Baker may have caused the damage to the vehicle. Capt. Covey told Hill to
file a property accident report with the Jackson Police Department, because that is where she
told him the accident occurred, and to file an incident and insurable loss report with the City
of Germantown.

Later that morning, Hill did as instructed and telephoned the Jackson Police Department; she
reported the accident to Officer James Price (“Price”). Based on the information Hill gave

                                              -2-
him, Price completed a Private Property Accident Report, stating that Hill “was attending a
conference at the Double Tree” hotel the day before the accident and that, between 1:30 and
5:00 p.m., “someone hit her police unit and left the scene.” The report stated that the vehicle
was damaged in the area of the rear bumper, and that the dollar amount of damage was
unknown.1 Price’s report also noted that “[t]here is no suspect, driver or vehicle in this case.”
Hill also submitted to Captain Covey a City of Germantown Supervisor’s Incident and
Insurable Loss Report, indicating that her take-home vehicle was damaged by an unknown
driver in Jackson on the previous day.

During the afternoon on that same day, Hill and Baker had further discussions about the
damage to Hill’s take-home vehicle. The substance of these discussions is also disputed.
Hill again questioned Baker about whether she caused the damage to Hill’s take-home
vehicle, and Baker admitted that she may have done so. Hill asked Baker whether the back-
up sensors in Baker’s SUV had sounded, and whether the other back-up safety features had
been triggered, and Baker said no. When Baker’s children got out of school, Hill asked them
if they remembered whether Baker had backed into her vehicle that morning before school,
and the children did not respond. Hill then asked whether they had heard the back-up sensors
on the vehicle, and they said that they did not.

In mid-March 2007, the relationship between Hill and Baker ended in an acrimonious and
tumultuous manner. At the time, Hill was out of town on personal leave. Baker telephoned
Hill and warned her that if she did not return home immediately she would regret it. When
Hill arrived back at Baker’s Collierville home, she proceeded to move out of the residence.
While Hill was moving her belongings, Baker threatened “to get her job,” indicating that she
had some “ammunition” against Hill. Specifically, Baker threatened to tell Capt. Covey that
she had damaged Hill’s take-home vehicle in January, and that Hill had intentionally reported
that the accident happened otherwise.

On March 13, 2007, Hill called a friend on the Germantown police force, Captain Jodi
Whitfield (“Capt. Whitfield”), who was on vacation with his family at the time. Hill told
Captain Whitfield that she had broken off her relationship with Baker and she was leaving
Baker’s home. Hill also told Capt. Whitfield that Baker was “the one that hit the car,” and
asked him what she should do about the situation. Capt. Whitfield advised Hill to call the
Jackson Police Department, retract the initial erroneous report, and call the Collierville Police
Department to make a private property crash report. Although Hill indicated to Captain
Whitfield that she would take the steps he suggested by Capt. Whitfield, she took no
corrective action at that time.




1
    Repair estimates in the record are between $800 and $900.

                                                     -3-
The next day, March 14, 2007, Baker called Capt. Covey, told him that Hill’s take-home
police vehicle was still in her driveway, and demanded that it be removed. That same day,
Hill called Capt. Covey twice. She told him that she and Baker were “having problems” and
cautioned that Baker might make false accusations against her, alleging abuse of Baker’s
children, drug use, or “anything else.” In the next call, Hill told Capt. Covey that her take-
home police vehicle was missing, and told him that there was a Germantown Police
Department shotgun inside the car.

Several days later, on March 19, 2007, Capt. Covey contacted Capt. Whitfield to obtain the
serial number assigned to Hill’s shotgun so that it could be listed as stolen on the State
computer. In the conversation, Capt. Whitfield speculated that Baker may have had Hill’s
vehicle towed. Capt. Whitfield mentioned to Capt. Covey that, the previous week, Hill had
told him that Baker had damaged Hill’s take-home vehicle. After several more questions,
Capt. Covey learned that Hill had told Capt. Whitfield that Baker caused the damage to the
vehicle that Hill reported in January.2 After learning this, Capt. Covey opened an Internal
Affairs investigation related to the damage to Hill’s take-home police vehicle.

                                     Internal Affairs Investigation

On March 29 and 30, 2007, Capt. Covey took statements from Baker, Hill, and Capt.
Whitfield about the damage to Hill’s take-home vehicle that was discovered on January 19,
2007.

When Capt. Covey asked Baker about the incident, Baker readily admitted that she scraped
Hill’s take-home vehicle that morning before taking her children to school.3 Baker told Capt.
Covey that she “did not see the car. The car didn’t register in my mirrors. The back up
signal on my car didn’t beep. . . . I scraped it with the back rear, I guess you call that the
fender. It basically scraped the dirt since the car was dirty. There wasn’t a whole lot of
anything.” She said that her car was only “scuffed. . . . And [Hill] said that it could be
buffed out. . . . But there’s no dent or anything.” Baker said that she told Hill that day that
she had struck Hill’s police vehicle. She recounted that Hill called her on her cell phone and
said, “ ‘You hit my car,’ and I said, ‘I know. I was going to tell you when I got back.’ ”
Baker explained:




2
 In the conversation, Capt. Covey initially thought that Capt. Whitfield meant that Baker damaged the
vehicle in trying to move it herself from the residence. He later realized that Capt. Whitfield was referring
to the damage to the vehicle that Hill had reported in January.
3
    Capt. Covey interviewed Baker once on the telephone and another time in person.

                                                    -4-
        I told Stephanie. She asked me about it. I said, “Yes.” I was backing out.
        She got very irate and said that I had cost her her take-home car. Then that she
        was going to have to file a false police report, and that I should not ever tell
        anyone she was going to do this. I told her, “Then don’t do it. Just tell them
        I did it.” “Well, if I do that, I’ll lose my take-home car.” That’s the last I
        know anything about it. I don’t know if she ever filed the report.

Capt. Covey asked Baker, “So there wasn’t a delay in letting [Hill] know that you had
accidentally hit her vehicle?” Baker responded, “No.”

Although Baker initially indicated that she had scraped dirt off Hill’s take-home vehicle, she
later stated that she had scraped frost off of Hill’s vehicle, and that “that’s how [Hill] noticed
it when she left for work right after me . . . .” Baker was shown photos of both her SUV and
Hill’s take-home vehicle, and she circled the damage that she believed was caused by the
accident. Baker admitted that, in the past, she accidentally backed into a white truck
personally owned by Hill.

In her interview with Capt. Covey, Baker denied calling Hill and threatening her the day
before she called Capt. Covey to demand that Hill’s take-home police vehicle be removed
from her driveway. When asked whether she had had any discussions with Hill about the
accident at any time after the day it occurred, Baker responded that the only discussion had
taken place on the weekend after the accident, when Hill and her neighbors, Brian and
Kristin Noble, “ragged” and teased Baker about her inability to back up a vehicle without
hitting something.

In his statement, Capt. Whitfield told Capt. Covey about his conversation with Hill on March
13, 2007. He said that, during their conversation, Hill told him that “[Baker] is the one that
hit the car.” He said that he advised Hill to take corrective action, given the fact that Baker
actually caused the damage to the take-home vehicle and the reports filed by Hill stated
otherwise. Capt. Whitfield said that Hill “indicated that’s what she was going to do.” Capt.
Whitfield did not follow up and had not spoken to Hill about the accident since that day.

In the course of Capt. Covey’s investigation, Hill gave three statements to him, all in the
presence of Inspector Rodney A. Bright (“Insp. Bright”).4 As detailed below, Hill’s answers
were conflicting and some needed clarification, so several questions were asked repeatedly.

Initially, Hill claimed that, when she went to her car the morning of January 19, she noticed
scratches, but did not think that the scratches were new because the frost on the car was not

4
 Inspector Bright was the commander over the Investigative Division. By Germantown Police Department
policy, he is allowed to be present if one of his subordinates is the focus of an internal investigation.

                                                  -5-
disturbed. Hill took photographs of the damage and reported it when she arrived at work that
morning. Hill explained that, at the time, she thought the car had been damaged while she
was in Jackson because, although she noticed scratches on her take-home vehicle the
morning of January 19th, she did not think they had been “freshly done.” Hill was upset, did
not know what to do, and did not “want to lose [her] take-home car.” She noted that, when
she filed the accident report in Jackson, she told Officer Price that she was not positive that
the car was hit in Jackson but did not “know where else it could have happened.”

Capt. Covey asked Hill about Baker’s involvement in the damage to the take-home vehicle.
In her first response, Hill indicated that Baker “never mentioned” anything about her
involvement until March:

       [Capt. Covey]: So on the 19th of January, did Jamie Baker advise you that she
       accidentally struck [your take-home vehicle]?
       [Hill]: No. She did not.
       [Capt. Covey]: Okay. At any time, did you notify anyone else that you believe
       that she struck the vehicle?
       [Hill]: I did. While I was out on vacation or went on leave in March, the week
       of March 12 that time when I was gone, Ms. Baker and I are involved in a
       separation. . . . She told me that she was going to notify the Police Department
       that she had hit my car. I said, “Whoa, whoa. You need to back up because
       you haven’t told me anything about this, and I filed my police report with
       Jackson, TN.” I even told her that day I did. She never mentioned it.
       Nothing. I said, “If you’re now telling me you hit my car, why are you just
       telling me now?” She said, “Well, I didn’t want you to be upset with me.” .
       . . Of course, I was real upset cause I didn’t know what happened to my car
       when I filed the report. I didn’t know whether to file it in Collierville or
       whether to file it in Jackson. I knew that I’d been here and home and Jackson,
       so I filed it in Jackson. I looked at her car, and I talked to her after I got home.
       I looked at it, and I didn’t see any damage.

       [Capt. Covey]: When was this?
       [Hill]: This was when I came home that week [in March 2007]. . . .

As the questioning went on, Hill acknowledged that, on January 19, the day of the accident,
she and Baker had several discussions about whether Baker had hit Hill’s vehicle, both
before and after Hill filed the accident and insurance reports. Hill was suspicious that Baker
had caused the damage, because Baker had hit one of Hill’s vehicles on a previous occasion,
so she asked Baker “flat out” whether she had hit Hill’s vehicle. Baker did not readily admit
her involvement, Hill said, because she “didn’t want [Hill] to be upset with [her].” Baker
responded to Hill’s inquiry by saying that she was not sure, but she conceded that she might

                                               -6-
have hit Hill’s vehicle. However, Hill said that Baker also told her that the back-up sensor
and the other safety features in her car did not engage.5 Hill claimed that Baker also
inspected her own car to see whether she had sustained any damage, and determined that she
had not.

Still suspicious, later that day, Hill asked Baker’s children whether their mother had hit Hill’s
vehicle that morning. At one point, Hill told Capt. Covey that the children replied, “No.”
At another point, Hill said that, in response to her inquiry, the children “just kind of looked
at each other” and said, “Well, she got really close, you know.” Hill said that she then asked
the children whether they had heard the back-up sensors sound, and the children said that
they had not. Given these circumstances, Hill said, she concluded that Baker did not actually
hit her vehicle. Hill admitted that she did not personally look at Baker’s vehicle to see
whether it had sustained any damage until after the threatening telephone call from Baker in
March.

Capt. Covey questioned Hill further to try to ascertain when she became aware of the
possibility that Baker might have caused the damage to the take-home vehicle. He asked Hill
to clarify when her discussions with Baker took place:

        [Capt. Covey]: Okay. So on January 19th on that morning, did you call her
        after she’d left with the kids that morning?
        [Hill]: I did. I called her and I asked her flat out because I came out and there
        was –
        [Capt. Covey]: On January 19th?
        [Hill]: I don’t know exactly.
        [Capt. Covey]: We’re talking about 3 months ago. Was it January 19th or was
        it March 12th?
        [Hill]: No. March 12th is – the week of March 12th. I can’t tell you if it’s
        March 12th that day. That week.
        [Capt. Covey]: So the week of January 19th or the week of March 12th?
        [Hill]: We’re talking about March.
        [Capt. Covey]: Okay. On January 19th around 8 a.m., or so, did you call Ms.
        Baker on her cell phone after she had left the house?
        [Hill]: I call her every morning.
        [Capt. Covey]: Okay. On that morning, did you talk to her about any damage
        to [the take-home vehicle]?
        [Hill]: I did.
        [Capt. Covey]: On January 19th?

5
 Hill said that she installed safety features in Baker’s car to alert her to when she is near another object
because, according to Hill, “she does back into stuff.”

                                                    -7-
       [Hill]: I did. If that’s the date, I called. I see you have the Nextel phone. If
       that’s the date.
       [Capt. Covey]: What did you specifically say to her about the damage? We’re
       talking about January 19th.
       [Hill]: Okay. I asked her flat out, “Did you hit my car? Somebody’s hit my
       car.” . . . She didn’t say a word to me. I was just kind of freaked out. I didn’t
       know what to do with my car. I came in. I talked to you.
       [Capt. Covey]: So she did not respond at all when you asked her that question?
       [Hill]: She did not. Actually, I didn’t ask her if she hit my car. I said,
       “Somebody’s hit my car.”
       [Capt. Covey]: But did you ever ask her on January 19th if she hit your car?
       [Hill]: No. I just made the statement, “Somebody’s hit my car.” . . . She never
       came forward and said, “Well, I hit your car.”

Hill then repeated that Baker “never said that [she hit the vehicle] to me until that week of
the [March] 12th whatever.”

Hill related to Capt. Covey that Baker called her in March in the midst of their break up to
threaten that she was going to “cost [Hill] her job,” and that Baker was going to “call the
police department and tell them some stuff.” Hill said that Baker told her that she planned
to tell the Germantown Police Department that she had caused the damage to Hill’s vehicle
that occurred in January. Hill indicated that this was the first time Baker had admitted to Hill
that she hit Hill’s take-home vehicle. Hill said that she responded by telling Baker that “if
you did [hit the vehicle], you need to tell me now because I need to know because I’ve got
to rectify that.” According to Hill, Baker was aware that reporting this information would
be distressing for Hill.

Hill also recounted to Captain Covey her March 13, 2007 conversation with Capt. Whitfield.
Hill indicated that she told Capt. Whitfield in that conversation that she was unsure about
whether Baker actually hit her vehicle:

       I said, “She’s telling me she thinks she’s hit my car.” He said, “Well, do you
       think that she has?” I said, “Well, I haven’t seen any damage on the
       Expedition [Baker’s vehicle]. I think she’s trying to cause me problems at
       work.” I said, “You know, I don’t know why she would even say that she hit
       my car,” but I said, “I’m going to have to check it out.”

Hill recalled that Capt. Whitfield told her at that time that she would need to correct her filed
reports only if she looked at Baker’s vehicle and found damage.




                                               -8-
Initially, Hill told Capt. Covey that she followed Capt. Whitfield’s instructions by calling the
Jackson Police Department to correct her accident report; she said that she left a message for
someone in that office to call her back. Hill told Capt. Covey that she had not yet called the
Collierville Police Department to file a private property crash report. In response to further
questions, Hill could not recall the date on which she left the message at the Jackson Police
Department, and indicated that in fact she may have called the Collierville Police
Department. After still more questioning about the timing and details of her call to the
Jackson Police Department, Hill said: “I’m almost positive I talked to Jackson. Maybe I
didn’t. Maybe I just had that in my notes to do . . . .” She then explained that regardless,
correcting her previously filed report with the Jackson Police Department and filing a report
with the Collierville Police Department was not necessary because, when she looked at
Baker’s SUV, she saw no damage. Later in her statement, Hill allowed that she “should
have” followed Capt. Whitfield’s advice:

       [Capt. Whitfield] told me what to do. I did not follow through with his advice,
       and I should have. After I looked at [Baker’s] Expedition, I knew she didn’t
       do it, so therefore; I didn’t want any more grief on me. I was being selfish.
       I didn’t want any more grief on me.

At all times, in all three statements, Hill maintained that she did not believe that Baker
actually hit the take-home vehicle, but rather that Baker was trying to cause problems for Hill
by saying that she did.
On March 30, 2007, following up on Baker’s statement on the day prior, Capt. Covey
interviewed Baker’s neighbors, Brian and Kristin Noble. At that time, the Nobles
remembered talking with Hill and Baker two to three months earlier about Baker hitting
Hill’s take-home vehicle. Kristin Noble told Capt. Covey that Baker “later on admitted that
she backed into the car, and I guess she didn’t tell [Hill] right away or something. I don’t
know when or what period of time lapsed from when it happened to when she actually told
Stephanie.”

Also on March 30, 2007, Capt. Covey inspected Hill’s take-home police vehicle and Baker’s
SUV and photographed both vehicles. Capt. Covey concluded that, contrary to Hill’s
statements, there was obvious damage to Baker’s vehicle and that the damage to Baker’s
vehicle was consistent with Baker’s statement about how the accident occurred. Ultimately,
Capt. Covey concluded from his overall investigation that Hill had made statements during
the Internal Affairs Investigation that were both inconsistent and untruthful.

On April 4, 2007, as per instructions from her attorney and Capt. Covey, Baker filed an
accident report with the Collierville Police Department. In the report, Baker admitted that
her SUV struck Hill’s take-home vehicle on January 19, 2007.



                                              -9-
                                            Statement of Charges

On April 10, 2007, Capt. Covey and Insp. Bright met with Hill and presented her with a
statement of charges. Hill was charged with a violation of DR 108 (Truthfulness)6 and DR
120 (Neglect of Duty).7 The Truthfulness charge related to Hill’s statements in the Internal
Affairs Investigation, in which she allegedly furnished information that she knew to be
incorrect, false, or deceitful, including information that was inconsistent with the physical
evidence. The Neglect of Duty charge stemmed from the fact that Hill allegedly gave
information to Capt. Covey and made reports to the Jackson Police Department and the City
of Germantown with respect to the damage to her take-home vehicle without disclosing her
suspicion that Baker may have caused the damage, and the fact that Hill failed to correct the
police reports after March 13, 2007, when it is undisputed that Baker told Hill that she had
hit the take-home vehicle.

On April 10, 2007, Capt. Covey and Insp. Bright met with Hill to review Capt. Covey’s
findings of fact and the charges with her. Capt. Covey drew up a Statement of Particulars,
in which he summarized his findings and the basis for the charges against Hill. In the
Statement of Particulars, Capt. Covey said that he found that Hill filed the accident and
insurance reports with the police departments in Jackson and Germantown without informing
anyone in the offices “that Jamie Baker might have caused the damage to [Hill’s] vehicle.”


6
 DR 108 provides that “[a] member shall not give any information, either oral or written, in connection with
any assignment or investigation that is either knowingly incorrect, false, or deceitful.”
7
    DR 120 provides in relevant part:
                   A. Each member, because of his/her rank assignment, is required to perform certain
          duties and assume certain responsibilities. Failure to properly function in these areas
          constitutes neglect of duty. This regulation prohibits any omission or failure to act by any
          member of the Department, whether on or off duty, when such action is required by the
          stated policy, goals, rules, regulations, orders, and directives of this Department. It applies
          to any member who, through carelessness, inefficiency, or design, fails to implement the
          policy goals, rules, regulations, orders, training, and directives of the Department.
          ...
                   D. Employees shall perform their duties in a manner, which will maintain the
          highest standard of efficiency in carrying out the functions and objectives of the department.
          Unsatisfactory performance may be demonstrated by a lack of knowledge of the application
          of laws to be enforced; unwillingness or inability to cooperate with fellow employees and
          to perform assigned tasks; the failure to conform to work standards established for an
          employee’s rank, grade or position; the failure to take appropriate action on the occasion of
          a crime, disorder or other condition deserving police attention; neglect of duty; the display
          of cowardice, absence without leave or excessive tardiness, or the physical or mental
          inability to perform required duties.


                                                       -10-
Given the statements from Baker and the Nobles, and also Capt. Covey’s own observation
of the damage to both vehicles, Capt. Covey concluded that Hill had given false or
misleading testimony in the internal investigation.

In the course of the review meeting, Hill attempted to clarify her earlier statements. She
acknowledged that there was in fact damage to the left rear corner of Baker’s SUV, but
explained that the damage had been caused a few years earlier when Baker backed into an
aluminum fence at a local home show. Hill insisted that, when she had previously told Capt.
Covey that there was no damage to Baker’s SUV, she actually meant that there was no new
damage to the SUV. After this review meeting, Capt. Covey found that Hill, in making these
further statements, had given still more “answers that were knowingly incorrect, false and
deceitful.” He agreed that Baker had emotional reasons not to give truthful statements but
found that Baker’s assertions could “be corroborated through additional means of witnesses
and evidence . . . .”

                                 Administrative Proceedings

A disciplinary hearing on the charges against Hill was conducted before the Germantown
Police Department Hearing Board (“Hearing Board”) on July 12, 2007. At the hearing, Hill
was represented by counsel and was permitted to call and cross-examine witnesses.
At the outset of the hearing, Capt. Covey testified about his involvement in the matter, about
the findings of fact on which the charges were based, and about other aspects of his Internal
Affairs Investigation. The photographs of Baker’s SUV and Hill’s take-home police vehicle
were submitted, as well as other pertinent documents.

Regarding the Neglect of Duty charge, Capt. Covey testified that, under the Germantown
Police Department’s policies, if Hill thought on January 19, 2007, that there was a possibility
that her take-home police vehicle had been damaged by someone other than an unknown
driver, she had a duty to report that suspicion to her superiors in the Department. He said that
Hill’s own statement showed that she either knew, or was aware of the strong possibility, that
Baker hit her vehicle, and that she had a duty to report this. Capt. Covey testified that Hill’s
undisputed failure to file corrected reports with the Jackson and Germantown police
departments was the basis for the neglect of duty charge against her. He stated, “If you had
a belief that there is a possibility that there are two ways something could have happened you
would have a duty to report that.”

Capt. Covey testified that it was his personal belief that Hill did not intend to file false police
reports regarding the accident at the time the reports were filed. However, he believed that,
from the beginning, Hill knew that it was Baker who damaged her take-home vehicle. Capt.
Covey acknowledged that the motivation behind Baker’s testimony might have been based
on the “nasty domestic breakup.” However, Capt. Covey believed that Baker’s testimony

                                               -11-
that she hit Hill’s vehicle was truthful. His belief in this regard was based in part on the fact
that Hill’s testimony was conflicting, inconsistent, and misleading, while Baker’s testimony
was straightforward. In addition, Baker’s testimony was consistent with the physical
evidence and the testimony of the Nobles. Capt. Covey noted as well that, in the course of
her police duties, Hill had given him misleading statements in the past. During the Internal
Affairs Investigation into the damage to Hill’s take-home vehicle, Capt. Covey observed,
Hill made statements to him that were “inconsistent and untruthful.” He explained that
“[t]here are things that she said that didn’t happen that I believe did happen. These
statements she made to me that were inconsistent and misleading.” Hill’s statements, he
asserted, constituted a violation of the Truthfulness provision of the Germantown Police
Department rules.

Baker testified at the Board hearing as well. She reiterated that she hit Hill’s take-home
police vehicle in January 2007, and that she informed Hill of this fact on the day that the
accident happened. The weekend after the accident, Baker said, Hill and Brian Noble were
joking about this incident and about the poor driving skills of both Baker and Kristin Noble.
Baker insisted that the police report she filed in April 2007, claiming responsibility for the
damage, was true and accurate. Baker admitted that she had accidentally backed her SUV
into a gate at a local home show, but claimed that she did not recall whether this prior
collision scratched her SUV at all.

Baker testified that she and Hill were “friends” and denied that they were involved in a
“domestic partnership” or that they slept in the same bedroom. She claimed that Hill had
paid her rent to live in her home, in the form of making the payments on Baker’s SUV.
Baker denied making threats to Hill about her job.

Kristin and Brian Noble also testified at the Board hearing. Kristin Noble said that she
remembered seeing the damage to Hill’s vehicle, but that she believed that the damage was
on the side back panel. Kristin Noble testified that Hill said to her: “Jamie hit [my] car
again.” Although neither Kristin nor Brian Noble could remember particulars about their
conversation with Hill and Baker, they reaffirmed the statements they had given to Capt.
Covey.

Hill testified on her own behalf. In recounting the events of January 19, 2007, Hill said that,
when she came out of her house that morning, she noticed “a few scratches” on the back of
her car, under the frost. She rubbed the scratches with her hand, then retrieved a towel from
the house and rubbed off the frost with the towel and looked at the scratches.8 When Baker
called Hill that morning, Hill commented that she had damage to her vehicle. Hill could not


8
    This information was not included in Hill’s prior statements to Capt. Covey.

                                                     -12-
remember what Baker’s immediate response was, or whether she immediately asked Baker
“flat out” whether she had hit Hill’s vehicle. After Hill filed the reports with the Jackson and
Germantown Police Departments, she asked Baker whether she had hit Hill’s vehicle, and
Baker said she did not think she had hit it. Hill said that she asked Baker several questions,
and that Baker told her that her car’s back-up sensors did not sound, she did not feel a bump,
she did not see Hill’s vehicle move, and Baker’s children, sitting in her vehicle, did not
comment. Hill said that, in response to Hill’s inquiry, the children told her that Baker did not
hit Hill’s car. In light of all this, Hill was satisfied that Baker did not hit her take-home
vehicle. Hill noted that, when she filed the reports with the Jackson and Germantown police
departments stating that the damage was caused the day before in Jackson, she said that she
was not one hundred percent sure that the damage happened in Jackson.

According to Hill, Baker told her for the first time in March that she had caused the damage
to Hill’s take-home vehicle in January. Even after talking to Capt. Whitfield, Hill asserted,
she did not file corrected reports in either Jackson or Germantown because she did not
believe that Baker had caused the damage to her vehicle, and she could not prove that Baker
caused the damage. Hill explained that she “chose to talk to Captain Whitfield other than
Captain Covey” because she trusted Captain Whitfield, but did not trust Captain Covey. Hill
reaffirmed that, based on all of the circumstances, she still did not believe that Baker actually
caused the damage to her vehicle in January 2007.

Hill’s co-worker, Lieutenant Angie Lewis (“Lt. Lewis”), testified at the Board hearing that
she was present at the Germantown Police Department on January 19, 2007 when Hill called
the Jackson Police Office to report the damage to her car. Lt. Lewis helped Hill move out
of Baker’s house, and she testified that Baker was belligerent and threatening to Hill while
Hill was moving out. Lt. Lewis testified in particular that Baker threatened that she was
“going to have [Hill’s] job.”

The parties entered into a stipulation to obviate the need for Capt. Whitfield to testify. They
agreed that, had he testified, his testimony would have been substantially similar to the
statement that he gave to Capt. Covey in the course of the Internal Affairs Investigation.

After hearing the testimony and reviewing the evidence, the Hearing Board sustained the
charges against Hill of Neglect of Duty and Truthfulness. Based on this, the Board
recommended Hill’s dismissal. Germantown Police Chief Richard Hall accepted the
recommendation of the Board and terminated Hill’s employment. As per Germantown
policies, Hill appealed Chief Hall’s decision to the Germantown City Administrator.

On July 24, 2007, the City Administrator heard Hill’s appeal. The Administrator had
previously asked that an accident reconstructionist be sent to inspect the damage to Baker’s
vehicle and compare it to the damage on Hill’s take-home police vehicle. Capt. Covey did

                                              -13-
so, and he accompanied the accident reconstructionist to the site and took photographs of
both vehicles and measurements of the damage. The accident reconstructionist observed that
the damage to both vehicles lined up, and concluded that it was “highly possible that the
collision occurred just as Ms. Baker stated it did.” The report of the accident
reconstructionist was provided to the City Administrator. Based on the report from the
accident reconstructionist “and the detailed volume of testimony and throughout the
investigation,” which by then totaled 441 pages, the City Administrator sustained the charges
against Hill and affirmed the decision of the Chief of Police to terminate her employment.

                                          Trial Court Proceedings

On September 20, 2007, Hill filed the instant petition for writ of certiorari in the trial court,
seeking to have the termination of her employment overturned. She claimed that the acts of
the Respondents — the City of Germantown, the Germantown Police Department, the Board
of Mayor and Alderman of the City of Germantown (collectively, “the City”) — were
arbitrary and capricious, and that the process used violated her state and federal due process
rights. Hill also claimed that her dismissal was not based on material, competent, relevant,
or reliable evidence. She asserted that the job actions taken against her were retaliatory,
arguing that they were for infractions so minor that they must have been “motivated by the
fact that she previously had filed an EEOC complaint against the Germantown Police
Department which was sustained.” In addition, Hill stated that the job actions taken against
her were more severe than the job actions that had been taken with respect to similarly
situated male officers, and that, therefore, the City violated her constitutional right to equal
protection.

The City filed an answer denying the allegations in Hill’s petition, pointing out that Hill was
an employee-at-will and that she had no constitutionally protected property interest in
continued employment with the City of Germantown. The City further asserted that the
decision of the City Administrator was supported by substantial material evidence and was
not arbitrary, capricious, or illegal. The City filed a complete transcript of the administrative
proceedings before the Hearing Board and the City Administrator for the trial court’s review.

On December 9, 2008, the trial court conducted a hearing.9 On February 4, 2009, the trial
court issued lengthy findings of fact and conclusions of law, granting the relief requested in
Hill’s petition.

In its findings, the trial court recounted substantial parts of the testimony, with particular
emphasis on Hill’s testimony about her uncertainty regarding whether Baker had caused the


9
    The appellate record does not include a transcript of that hearing.

                                                       -14-
damage to her take-home police vehicle, as well as Baker’s threats against Hill and her
implausible assertions that she and Hill had not been romantic partners and that she did not
threaten Hill. The trial court then set forth the high standard for judicial review of an
administrative decision such as the City’s decision to terminate the employment of a police
officer, finding that the court’s review was limited to determining whether the City (1)
exceeded its jurisdiction, or (2) acted illegally, arbitrarily, or fraudulently.

The trial court then evaluated the evidence as it related to the specific charges against Hill:

       9. The gravaman of the truthfulness and neglect of duty charges is whether or
       not the Petitioner knew, at the time that she made the report to the Jackson
       Police Department, that the damage to her take-home police vehicle (#329)
       had been caused by Baker.

       10. The evidence in the record is that Petitioner was never certain whether or
       not Baker had actually hit vehicle #329. She had told this to Captains Covey
       and Berke as well as to the Jackson Police Department when she made the
       report. The only way that Petitioner could have violated the Neglect of Duty
       or Truthfulness policies of the Germantown Police Department would be if the
       evidence proved that Baker had told Petitioner on or about January 19, 2007
       that she struck the vehicle and that in spite of knowing the truth Petitioner filed
       a false report. This required the City to credit Banker’s testimony rather than
       Petitioner.

       11. The Court finds from a careful review of this record that Baker’s
       testimony is so lacking in credibility that it could not have been relied upon by
       a reasonable person reviewing this record to support the charges against
       Petitioner. Not only did Baker have a motive and apparent desire to not be
       truthful in order to retaliate against Petitioner because of the breakup of their
       romantic relationship, it is clear to this Court that she was not truthful in either
       her statement or sworn testimony. Baker, in her cross examination, denied that
       she and Petitioner had been in a romantic relationship at the time of this
       incident event though Captain Covey, Captain Whitfield, Captain Berkes, Lt.
       Lewis and presumably the entire Germantown Police Department were aware
       of it. The testimony of Baker’s neighbors, Brian and Kristen Nobles,
       contradicted Baker’s testimony on both the conversations that allegedly took
       place between them as well as the nature of the relationship between Baker
       and Petitioner. Finally, Baker denied ever threatening Petitioner’s job,
       testimony that is directly contradicted by Lt. Lewis. Without Baker’s
       testimony being credible, the case against Petitioner fails.



                                              -15-
(Footnote omitted). The trial court was dismissive of the findings of the accident
reconstructionist, noting that he had opined only that Baker’s version of events was “highly
possible,” rather than giving an opinion that it was “probable.” The trial court thus found
that, to uphold the termination, the evidence would have to show that Hill knew when she
made the damage reports that the damage was caused by Baker. Such a finding, it
determined, could be based only on crediting Baker’s testimony, and Baker’s testimony was
so lacking in credibility that the City could not reasonably rely on it. On this basis, the trial
court ordered that Hill be reinstated to her former position, together with back pay and
benefits. From this order, the City now appeals.

                        I SSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, the City argues that the trial court erred in determining that there was not material
evidence to support the administrative decision to terminate Hill, and in finding that the
City’s decision was arbitrary and capricious. In addition, the City argues that the trial court
reweighed the evidence, inquired into the intrinsic correctness of the lower tribunal’s
decision, made credibility determinations, and substituted its judgment for that of the lower
tribunal, all of which is not permitted under the applicable standard. For these reasons, the
City argues, the trial court’s decision must be reversed.

        On appeal, this Court utilizes the same standard of review used by the trial court in
reviewing the decision of an administrative tribunal under a common law writ of certiorari.10
Watts v. Civil Serv. Bd. for Columbia, 606 S.W.2d 274, 277 (Tenn. 1980) (“The scope of
review by the appellate courts is no broader or more comprehensive than that of the trial
court with respect to evidence presented before the Board.”). The parties agree that the
standard of review applicable to a common law petition for writ of certiorari is limited to
determining whether the municipal authority (1) exceeded its jurisdiction or (2) acted
illegally, arbitrarily, or fraudulently. Citizens for Collierville, Inc. v. Town of Collierville,
977 S.W.2d 321, 323 (Tenn. Ct. App. 1998). The reviewing court may not (1) reweigh the
evidence, (2) inquire into the intrinsic correctness of the lower tribunal’s decision, or (3)
substitute its own judgment for that of the lower tribunal. 421 Corp. v. Metro. Gov’t of
Nashville, 36 S.W.3d 469, 474 (Tenn. Ct. App. 2000). Rather, the court must review the


10
  We review this case under the common law writ of certiorari standard, as opposed to the standard set out
in the Uniform Administrative Procedures Act (“UAPA”), because it is undisputed that Hill was an employee
at will and she was not alleged to be a “civil service employee” within the meaning of Tennessee Code
Annotated § 27-9-114(b)(1). Furthermore, there has been no argument that the administrative decision on
appeal was rendered by a “civil service board” within the meaning of the UAPA. See Davis v. Shelby
County Sheriff’s Dept., 278 S.W.3d 256, 262 (Tenn. 2009); Tidwell v. City of Memphis, 193 S.W.3d 555,
559-60 (Tenn. 2006). Nevertheless, we note that, our decision herein would be the same under either
standard. See Tenn. Code Ann. § 4-5-322 (2005).

                                                  -16-
record to determine whether there is any material evidence to support the action of the of the
administrative tribunal or government official. Watts, 606 S.W.2d at 276-77. “Substantial
and material evidence is ‘such relevant evidence as a reasonable mind might accept to
support a rational conclusion’ and to furnish a reasonably sound basis for decision under
consideration.” City of Memphis v. Civil Serv. Comm’n, 238 S.W.3d 238, 243 (Tenn. Ct.
App. 2007). The administrative decision is “presumed to be valid and a heavy burden of
proof rests upon the shoulders of the party who challenges the action.” Citizens for
Collierville, 977 S.W.2d at 324. If any possible reason exists to justify the administrative
decision, it must be upheld; conversely, if there is no evidence to support the decision, it must
be held to be arbitrary. McCallen v. City of Memphis, 786 S.W.2d 633, 641 (Tenn. 1990).

                                          A NALYSIS

The City argues that the trial court made a basic error by perceiving that, to uphold the
termination of Hill’s employment, the record had to contain material evidence establishing
that, at the time Hill reported the damage to her vehicle, she knew and failed to disclose that
the damage was caused by Baker. Based on this erroneous premise, the City argues, the trial
court overturned the City’s determination as to the credibility of the witnesses and substituted
its order judgment for that of the administrative tribunal. As such, the City argues, the trial
court’s decision was erroneous.

In reviewing the record, it is clear that the Germantown Police Department and the City
consistently interpreted its own rules to require a police officer to disclose not only her
knowledge of how her vehicle was damaged, but also all of the information she had as to
how it may have been damaged. It is also clear that Hill was aware that the Germantown
Police Department expected as much from her as part of her duties. Generally, a court
reviewing an administrative decision gives “great deference and controlling weight” to the
lower tribunal’s interpretation of its own rules. Jackson Express, Inc. v. Tennessee Public
Serv. Comm’n, 676 S.W.2d 942, 945 (Tenn. 1984). Therefore, we must agree with the City
that the trial court erred in holding that “[t]he gravaman of the truthfulness and neglect of
duty charges is whether or not [Hill] knew, at the time she made the report to the Jackson
Police Department, that the damage to her take-home vehicle . . . had been caused by Baker.”
This holding was an erroneous foundation for the remainder of the trial court’s analysis of
the evidence. Consequently, we must evaluate the evidence on the Neglect of Duty and
Truthfulness charges based on the premise that Hill’s duty as a police officer for the
Germantown Police Department required her to be forthcoming and to timely disclose all of
the information she had about the possible cause of the damage to her take-home police
vehicle.




                                              -17-
On this basis, then, we first consider the evidence related to the Neglect of Duty charge. As
noted above, the Neglect of Duty charge applies to Hill’s act of filing accident and insurance
reports on her take-home police vehicle in Jackson and Germantown, respectively, without
disclosing that the damage may have been caused by Baker, and also her failure to correct
these reports once Baker directly admitted that she caused the damage to Hill’s vehicle.

Apart from the trial court’s interpretation of the duties required of an officer with the
Germantown Police Department, the trial court’s decision was also based in large part on its
conclusion that Baker’s testimony was “so lacking in credibility that it could not have been
relied upon by a reasonable person reviewing this record to support the charges against
[Hill].” In other words, the trial court determined that reliance on Baker’s testimony, given
her lack of credibility, did not provide a “reasonably sound basis for the decision under
consideration.” See City of Memphis v. Civil Serv. Comm’n, 238 S.W.3d at 243.

Where the lower tribunal has conducted a hearing and has evaluated the credibility of the
witnesses as they testify, a reviewing court must give great weight to the tribunal’s credibility
determination. See City of Memphis v. Civil Serv. Comm’n, 239 S.W.3d 202, 208 (Tenn.
Ct. App. 2007); City of Memphis v. Civil Serv. Comm’n, 238 S.W.3d at 243; Pruitt v. City
of Memphis, No. W2004-01771-COA-R3-CV, 2005 WL 2043542, at *7 (Tenn. Ct. App.
Aug. 24, 2005). Therefore, both this Court and the trial court are required to accord great
deference to the Hearing Board’s evaluation of the credibility of Baker, Hill, and all of the
witnesses who appeared at the administrative hearing.

Certainly, there is ample justification for the trial court’s skepticism about Baker’s
credibility. Undoubtedly, Baker testified untruthfully that she was not in a romantic
relationship with Hill, and that she did not threaten Hill during their volatile break up.
Baker’s behavior made it clear that she had an “ax to grind” as to Hill and was vindictive.

City officials investigating the damages to Hill’s vehicle were aware from the outset of
Baker’s motivation to cause trouble for Hill. Capt. Covey, who knew the parties involved,
took their statements, and assessed their demeanor during the Internal Affairs Investigation,
acknowledged that Baker was prejudiced against Hill and that she had emotional reasons to
give false testimony against Hill. For this reason, he looked for corroborating evidence,
which consisted of the physical evidence, the statements of the Nobles, the statement of Capt.
Whitfield, and the opinion of the accident reconstructionist. For example, the statements by
the Nobles, while less than precise, make it clear that Hill knew, long before she disclosed
to City officials, that Baker likely caused the damage to her vehicle. Moreover, Capt. Covey
explained to the Hearing Board that he found Baker’s testimony to be straightforward, while
he found Hill’s testimony to be conflicting and misleading. The Hearing Board apparently
agreed. Unless Baker’s testimony is clearly contrary to undisputed facts in the record, we


                                              -18-
are obliged to give appropriate deference to the Hearing Board’s evaluation of her credibility.
 See City of Memphis v. Civil Serv. Comm’n, 238 S.W.3d at 243.

Most importantly, Hill’s own statements support the Neglect of Duty charge. Hill admitted
that she said to the Nobles: “Yeah, [Baker] probably hit my car, and she don’t want me to
know it.” After extensive questioning, Hill admitted that Baker told her that morning that
she might have hit Hill’s vehicle. Rather than disclosing this information to Germantown
Police officials, Hill chose to rely on Baker’s statement that the back-up sensors in her SUV
did not sound. Given all of the statements made by Hill, Baker, Capt. Whitfield, and the
Nobles, as well as the physical evidence on the damage to both vehicles, we find that
material evidence supports the finding that Hill was aware of the possibility that Baker had
caused the damage to her car at the time she filed the damage reports with the Jackson and
Germantown Police Departments, but she failed to include this information in the reports.
Furthermore, even after Baker told her that she definitely caused the damage to the vehicle,
Hill still failed to change her reports to include this information or to file a report with the
Collierville Police Department. Capt. Covey testified that Hill had a duty to file complete
reports and/or to correct her reports, and that her failure to do so constituted a breach of that
duty. Therefore, under all of the circumstances, we find that there was material evidence to
support the City’s finding against Hill on the Neglect of Duty charge.

As noted above, the Truthfulness charge against Hill was based solely on the statements Hill
gave during the course of the Internal Affairs investigation into the damage to her take-home
vehicle. Specifically, the charge was based on the statements given by Hill, deemed to be
conflicting and inconsistent. From our review of the record, there is ample basis for this
conclusion. Initially, Hill said that she did not ask Baker on January 19, 2007 whether she
hit her vehicle. She later stated that she and Baker “got into it” more than once that day and
that Hill repeatedly asked Baker whether she had hit her car. Hill also stated that she did not
ask Baker that morning whether she hit Hill’s vehicle, but merely commented to Baker that
her police vehicle had been hit. At one point, Hill claimed that Baker did not respond to this
statement. Later, Hill said that Baker told her that she might have hit the vehicle, but was
reluctant to tell Hill because she might become upset. Hill initially told Capt. Covey that,
after her discussion with Capt. Whitfield, she called the Jackson Police Department and left
a message so that she could correct her damage report. When pressed further, Hill eventually
admitted that she did not call the Jackson Police Department because she did not believe that
Baker hit her car, and she was being “selfish” and did not “want any more grief on [her].”
Hill also gave varying statements on whether she saw damage to Baker’s vehicle that
corresponded with the damage to Hill’s vehicle. Overall, Hill’s answers to numerous
inquiries changed to such an extent that the questions had to be posed to her repeatedly in an
attempt to get clear, consistent answers, and even now it is difficult to discern a clear picture
of Hill’s account of the events on January 19, 2007 and thereafter. Under these



                                              -19-
circumstances, we find that material evidence supports the administrative finding that Hill
was guilty of violating the Departmental rule on Truthfulness.

In reviewing Hill’s petition, we are required to review the record to determine whether any
material evidence exists in the record to uphold the administrative decision. If any possible
reason exists to justify the administrative decision, it must be upheld. See McCallen, 786
S.W.2d at 641; Watts, 606 S.W.2d at 277. Here, the City has demonstrated the existence of
material evidence in the administrative record to uphold the findings that Hill violated the
rules regarding Neglect of Duty and Truthfulness, which in turn justify the termination of her
employment. Based on our view of the record as a whole, we conclude that the trial court’s
decision granting relief to Petitioner Hill must be reversed.

                                         C ONCLUSION

The decision of the trial court is reversed, and the petition for writ of certiorari is dismissed.
Costs on appeal are to be taxed to Appellee Stephanie D. Hill, for which execution may issue,
if necessary.




                                                     _________________________________
                                                     HOLLY M. KIRBY, JUDGE




                                              -20-
