                                                                                           02/04/2020
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               November 6, 2019 Session

THE ELECTRIC EMPLOYEES’ CIVIL SERVICE AND PENSION BOARD
OF METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON
          COUNTY, TENNESSEE v. BRIAN MANSELL

                Appeal from the Chancery Court for Davidson County
                  No. 18-0671-II    Russell T. Perkins, Chancellor
                      ___________________________________

                           No. M2019-00413-COA-R3-CV
                       ___________________________________

This appeal arises from the decision of the Metropolitan Government of Nashville and
Davidson County Electric Power Board to terminate a Nashville Electric Service
(“NES”) cable splicer/working foreman. The foreman allegedly approved fraudulent
timesheets for a Metropolitan Nashville Police Department officer, who performed traffic
control at NES jobsites for a private contractor. After NES preferred charges against the
foreman and suspended him without pay, the board referred the matter to an
administrative law judge (“the ALJ”) for adjudication. Following a two-day
administrative hearing, the ALJ made numerous findings of fact and conclusions of law
in a 55-page report. The ALJ found that the foreman’s job description did not include
verifying the accuracy of the timesheets, NES had not trained the foreman on how to
verify the accuracy of the timesheets, and a majority of the inaccurate timesheets could
be explained by NES’s common practice of rounding up hours at the end of an officer’s
shift. Although there was evidence that the officer overstated his hours, the ALJ found
the evidence was insufficient to establish the foreman knowingly approved any false
timesheets. Accordingly, the ALJ recommended that the charges of termination be denied
and that the foreman be reinstated without back pay. After reviewing the ALJ’s report,
the board rejected his recommendation and approved NES’s termination of the foreman.
However, the board did not make its own findings of fact or express disagreement with
the ALJ’s findings. After the foreman filed his petition for judicial review, the trial court
reviewed the administrative record and heard arguments of counsel. In its final order, the
trial court concluded that “NES’s lack of proof and the apparent acceptance of time-
approval practices combine here to demonstrate a lack of substantial and material
evidence to uphold the Board’s decision to terminate.” Thus, the trial court reversed the
board’s decision, adopted the ALJ’s Report in toto, and directed that the foreman “be
reinstated, without backpay.” On appeal, the board contends the trial court applied
incorrect principles of law and reweighed the evidence. We disagree. The Charter of the
Metropolitan Government of Nashville and Davidson County requires the Electric Power
Board to reduce its findings to writing when taking disciplinary action against an
employee. In this case, the board rejected the recommendation of the ALJ without
making alternative findings of fact to support or explain its reasoning. Thus, the only
findings of fact, credibility determinations, and conclusions of law in the administrative
record are those of the ALJ. Because the ALJ’s findings are supported by substantial and
material evidence, we conclude that NES failed to prove by a preponderance of the
evidence that the foreman knowingly approved false timesheets for the police officer. We
also conclude that a reasoning mind could not have reached the same conclusion as the
board under a proper application of the controlling legal principles. Accordingly, we
affirm the decision of the trial court.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which RICHARD
H. DINKINS and CARMA DENNIS MCGEE, JJ., joined.

Robert W. Horton, Mary Leigh Pirtle, and Laura Israel Smith, Nashville, Tennessee, for
the appellant, Electric Employees’ Civil Service and Pension Board.

Michelle Blaylock Owens, Nashville, Tennessee, for the appellee, Brian Mansell.

                                     OPINION

                                I.   BACKGROUND

       NES provides electrical power to customers in downtown Nashville through an
underground electrical infrastructure that NES maintains. At all times relevant to this
appeal, the Metropolitan Government of Nashville & Davidson County (“Metro”)
required NES to have a uniformed Metropolitan Nashville Police Department (“MNPD”)
officer at each downtown worksite for traffic control to ensure the safety of the NES
workers and the public. To comply with this mandate, NES contracted with a private
business, FlagPros, which provided officers as and when requested by NES.

       To document his or her service, each officer would prepare and submit a timesheet
to the worksite’s crew foreman before the end of the officer’s shift. The timesheet was
then submitted to an underground supervisor. NES provided the timesheets, each of
which had only one signature line for approval. Although the title “NES Supervisor” was
printed below the signature line, the crew foreman was expected to sign the timesheet
before passing it to the underground supervisor. In turn, the supervisor indicated his
approval by initialing the timesheet. Thereafter, the timesheet was submitted to NES
accounting. Further, NES maintained the timesheets for verification purposes. FlagPros
kept track of the officer’s time separately and invoiced NES for its officers’ services.

                                          -2-
       From 2012 to 2016, Brian Mansell, a cable splicer working foreman for NES,
worked as the crew foreman for one of five NES “Network” crews that worked in
downtown Nashville under the Construction and Maintenance (“C&M”) section of NES.
Mr. Mansell reported to the underground supervisor, Chuck Reinitz. Mr. Reinitz, in turn,
reported to a group superintendent, who reported directly to the C&M operations
manager. The C&M section had two operations managers during the relevant period. Ty
Jones served in that position until October 2015, at which time Eric Lewis became the
operations manager.

       In 2015, Mr. Jones investigated allegations that FlagPros’ officers were being
compensated for services they did not provide, including allegations that Mr. Mansell
knowingly signed false timesheets submitted by MNPD Officer Michael Moultry. In
August of that year, Mr. Mansell admitted he approved timesheets for two days when
Officer Moultry was on vacation, June 18 and 19, 2015, and a timesheet for June 12,
2015, which showed Officer Moultry worked a full day when he worked only a half-day.
Based on these facts, NES promptly suspended Mr. Mansell without pay for five days.

       Meanwhile, MNPD learned of the allegations that Officer Moultry and others
submitted false timesheets to NES. MNPD conducted an investigation and compared the
officers’ NES timesheets with MNPD payroll records. By the end of the investigation,
MNPD found over 200 NES timesheets that included hours for which both MNPD and
NES had paid the officers. Upon being confronted with this information, Officer Moultry
resigned, and four other police officers were fired.

        In November of 2016, MNPD provided NES with a spreadsheet that summarized
the hours reported by the officers to each employer. Eric Lewis, the new C&M operations
manager, determined that 10 employees were responsible for approving the overlapping
NES timesheets, including Mr. Mansell and Supervisor Reinitz. Mr. Lewis found that Mr.
Mansell approved over 90 timesheets for Officer Moultry, nearly all of which were
initialed by Supervisor Reinitz. Additionally, Supervisor Reinitz independently signed
another 15 timesheets for Officer Moultry.

       Except for Officer Moultry’s June 12, 18 and 19, 2015 timesheets, for which Mr.
Mansell had already been disciplined, Mr. Mansell denied that he knowingly approved
any false timesheets. Nevertheless, Mr. Lewis sent a letter to the Electric Power Board
(“the Board”) in February 2017, recommending termination charges against Mr. Mansell
for violation of NES Policy 67 and NES Rule 6.05 by “knowingly submitting inaccurate
timesheets.” Following a due process hearing, Mr. Mansell was suspended pending
resolution of the matter.

      Mr. Lewis also recommended a 10-day suspension for Mr. Reinitz, but the charges
were dismissed at Mr. Reinitz’s due process hearing.

                                         -3-
          II.   THE CONTESTED CASE HEARING AND RECOMMENDATION

      Mr. Mansell’s contested case was assigned to administrative law judge Clark
Spoden (“the ALJ”) to conduct a contested case hearing. Mr. Mansell opposed
termination because he denied knowingly submitting any false timesheets before June 12,
2015; he had already been punished for knowingly approving false timesheets submitted
by Officer Moultry for June 12, 18, and 19, 2015; and there were no charges for
timesheets submitted after June 19, 2015.

       Following a two-day evidentiary hearing in August 2017, the ALJ issued a 55-
page report with his findings and recommendation. The ALJ found the majority of the
allegedly fraudulent timesheets were immaterial because, based on the testimony of
current and former crew foremen and underground supervisors, it was common practice
to pay officers through the end of the workday even if the NES crew left a jobsite early.
More significantly, the ALJ found that the testimony of Hayes Baker, one of NES’s key
witnesses, was not believable. Mr. Baker’s testimony was the only direct evidence that
Mr. Mansell knew the remaining timesheets were not accurate.

       Although NES asserted that it was Mr. Mansell’s duty to verify the accuracy
of the timesheets at issue before approving them, the ALJ found the evidence on this
point was equivocal at best. The letter preferring charges against Mr. Mansell stated
that the crew foreman and the supervisor had a responsibility to verify the accuracy
of the officers’ timesheets. Further, the timesheets had only one signature line for an
“NES Supervisor.” Nevertheless, it was undisputed that Mr. Mansell was instructed
to sign the timesheet. The only other instruction given to Mr. Mansell was to add a
work-order number.

       Additionally, the ALJ found that Mr. Mansell’s job description did not include
overseeing the work of the police officers or verifying the accuracy of the officers’
timesheets. Mr. Mansell’s job description as an NES “Cable Splicer Working
Foreman” stated that his primary duties were to oversee and coordinate “the work of
employees to accomplish assigned tasks,” to provide “input in the evaluation of
employees and train employees as required,” and to oversee “the work of others in
accomplishing these tasks.” (Emphasis added). The ALJ found it material that NES
defined “others” as NES employees, and it was undisputed that the police officers
provided by FlagPros were not NES employees.

     The ALJ also found significant the lack of instructions provided to Mr.
Mansell:

      No written or oral instructions were given to Mr. Mansell with regard to
      his alleged duty to verify FlagPros’ officers’ timesheets. He was never
      told that it was his duty to verify the time on the FlagPro’s timesheets or
                                          -4-
      the import of his signature on the timesheets. The only instruction given
      to Mr. Mansell regarding the FlagPros’ timesheets was to insert the
      work order number on the document.

Thus, not only was assuring the accuracy of Officer Moultry’s time not within Mr.
Mansell’s job description, Mr. Mansell was never given instructions on how to
accomplish the task properly. Accordingly, the ALJ concluded that NES had no
reasonable expectation that its crew foremen would monitor or verify the accuracy of
the officers’ timesheets.

      Based on the foregoing and other findings in his 55-page report, the ALJ
concluded that NES failed to prove Mr. Mansell engaged in misconduct that warranted
termination and recommended that Mr. Mansell be reinstated but without back pay.

                     III.   THE POWER BOARD’S DECISION

        NES management appealed the ALJ’s recommendation to the Board. Each party
presented arguments to the Board at a hearing in March 2018, after which the matter was
deferred for one month. During its April 2018 meeting, the Board voted 4 to 1 to reject
the ALJ’s recommendation and to terminate Mr. Mansell’s employment. Although the
Board’s review of the case was limited to the evidence introduced during the contested
case hearing, it rejected the ALJ’s recommendation without making or adopting its own
specific findings of fact to identify the factual basis for its decision. The only basis
identified and approved by a formal vote of the Board was to approve the management’s
decision to terminate Mr. Mansell:

      Upon motion by Member Schott and seconded by Vice Chairman
      Campbell, the motion passed 4 to 1 to overturn the ALJ’s decision and to
      uphold the decision of Management to terminate Mr. Mansell. Member
      Paz-Bernstein did not vote in favor of the motion.

       Although the foregoing is the only official action the Board took concerning Mr.
Mansell, the minutes from the Board’s April 2018 meeting reveal that two Board
members expressed concerns about employee honesty, NES employee “culture,” and the
“integrity of this institution.” Board member Clinton Gray noted that Mr. Mansell
“admittedly lied about something” and expressed concern that reinstating him would set
the wrong example. Following a few questions to counsel, Ms. Schott motioned to reject
the ALJ’s recommendation:

      I’ve heard—I’ve read much of the record and briefs. We have had a lot of
      questions and discussions about culture. Statements have been made about
      the culture at NES and the culture of employees in the positions that we’ve
      been discussing, the culture at the police department and references have
                                          -5-
      been made to decisions with respect to NES employees, [m]anagement
      decisions, decisions made by the police department.

      My view in making this motion in the way I am is that I’m looking at this
      particular instance with Mr. Mansell and there’s no organization, whether
      it’s NES, the police department, the civil service employees, financial
      institutions, law firms that wants a discussion about culture and integrity
      and honesty to be occurring with respect to that organization, and so my
      motion to reject the ALJ’s decision is based particularly on evidence and
      arguments I reviewed with respect to Mr. Mansell.

      Board member Robert Campbell seconded the motion, explaining his reasoning as
follows:

      [I]t’s a very close call, . . . I think the integrity of the institution is critical. I
      think saying what we stand for is critical. I am convinced by the
      preponderance of the evidence that Mr. Mansell knew he was doing
      something wrong and did it intentionally. And while there may be some
      cultural things that were going on in terms of some of these .5s and
      covering, rounding up and down—which I see. I think there were things
      beyond that; his conduct beyond that was intentional. By reports and by his
      supervisor reports and everything else, he’s been a great employee and I
      hate that it’s come to this. But I think in weighing everything in a balance,
      we do have to stand—stand behind the fundamental premise of integrity
      and honesty in the organization. I am, frankly, a little bit more concerned
      that we didn’t have more severe discipline for others who did, you know,
      that—that were not playing by the rules, but I’m somewhat convinced that
      a lot of those were much more gray in terms of sort of a cultural kind of
      rounding up sort of a concept where I think it’s not so much the case for
      Mr. Mansell.

       In June 2018, Mr. Mansell appealed the Board’s decision by filing a Petition for
Judicial Review with the Davidson County Chancery Court. After reviewing the
administrative record and hearing arguments from both parties, the trial court entered its
final order on January 31, 2019. Noting there were no written findings by the Board, the
trial court adopted the ALJ’s findings of fact in toto and concurred with the ALJ’s
conclusion that the evidence was insufficient to establish that Mr. Mansell knowingly
violated any NES policy. Accordingly, the trial court reversed the Board’s decision to
terminate Mr. Mansell and ordered his reinstatement without back pay. This appeal
followed.



                                               -6-
                                     STANDARD OF REVIEW

        This court reviews employment decisions by civil service boards “in conformity
with the judicial review standards under the Uniform Administrative Procedures Act, § 4-
5-322.” Tenn. Code Ann. § 27-9-114(b)(1); see also City of Memphis v. Civil Serv.
Comm’n of Memphis, 238 S.W.3d 238, 242 (Tenn. Ct. App. 2007). Judicial review of
such decisions is confined to the administrative record, and the board’s findings are
entitled to considerable deference. See Metro. Gov’t of Nashville & Davidson Cty. v.
Shacklett, 554 S.W.2d 601, 604 (Tenn. 1977). “However, an agency should expect closer
judicial scrutiny of its findings of fact when the agency disagrees with a hearing officer’s
or administrative judge’s findings of fact.” McEwen v. Tennessee Dep’t of Safety, 173
S.W.3d 815, 823 (Tenn. Ct. App. 2005). “While the courts will not abandon the
substantial and material evidence standard of review, they may view the evidence
supporting the agency’s findings of fact as less substantial than it would otherwise be had
the agency and the hearing officer or administrative judge reached the same conclusion.”
Id. (citations omitted).

         Under Tenn. Code Ann. § 4-5-322, a court may reverse or modify a board’s ruling
if its findings, inferences, conclusions, or decisions are:

       (1)      In violation of constitutional or statutory provisions;

       (2)      In excess of the statutory authority of the agency;

       (3)      Made upon unlawful procedure;

       (4)      Arbitrary or capricious or characterized by abuse of discretion or
                clearly unwarranted exercise of discretion; or

       (5)(A) Unsupported by evidence that is both substantial and material in the
              light of the entire record.

Id. § 322(h).

       This appeal arises from the trial court’s order; nevertheless, we review the Board’s
decision relative to the administrative record and not the trial court’s order. See Tenn.
Code Ann. § 4-5-322(h).

                                             ANALYSIS

      The determinative issues in this appeal are: (1) whether the Board was required to
reduce to writing the findings of fact and conclusions of law upon which it relied to
suspend, dismiss, or otherwise punish Mr. Mansell; (2) whether the findings of fact are
supported by substantial and material evidence; and (3) “whether a reasoning mind could
                                              -7-
reasonably have reached the conclusion reached by the [Board], consistent with a proper
application of the controlling legal principles.” See McEwen, 173 S.W.3d at 820.

           I.    FINDINGS OF FACT ARE REQUIRED BY THE METRO CHARTER

        Mr. Mansell argues that the Board’s failure to issue a written order violates the
contested case procedures under the Uniform Administrative Procedure Act (“UAPA”),
Tenn. Code Ann. §§ 4-5-301 to -325, which require agencies to render a final order with
“conclusions of law, the policy reasons therefor, and findings of fact for all aspects of the
order, including the remedy prescribed,” id. § 314. The Board contends that it is exempt
from the UAPA’s contested case procedures under Tenn. Code Ann. § 27-9-114(a)(2),
which provides that the UAPA’s contested case procedures “shall not apply to municipal
utilities boards.” While we agree that § 27-9-114 exempts the Board from the UAPA’s
contested case procedures, we have determined that the Charter of the Metropolitan
Government of Nashville and Davidson County (“the Metro Charter”) requires the Board
to reduce its findings to writing when taking disciplinary action.1

                        A. Contested Case Procedures under the UAPA

       Under the UAPA’s contested case procedures, ALJs have decision-making
authority, including the authority to issue an “initial order,” Tenn. Code Ann. § 4-5-
314(b), which may become the final order by operation of law without being reviewed
and approved by the agency, see McEwen, 173 S.W.3d at 821 (citing Tenn. Code Ann. §
4-5-315(a)). If, however, the agency reviews an initial order, the agency is required to
prepare and file its own final order. See id. (citing Tenn. Code Ann. §§ 4-5-314(a), -
315(g)).

       Because the agency has superior authority to that of the ALJ, the agency’s
decision-making authority is not circumscribed by the ALJ’s initial order. Id. at 822.
Further and significant to the present issue, because the agency possesses its own fact-
finding authority, “it may make its own factual determinations, and it may substitute
its judgment for that of the [ALJ.]” Id. (citations omitted) (emphasis added).
Nevertheless, when an agency reviews an initial order, the “agency should not ignore


       1
          It is undisputed that the UAPA’s judicial-review provision, Tenn. Code Ann. § 4-5-322, applies
to our review of the Board’s decisions. See NES Rule § 7.093 (“Appeals are governed by Tenn. Code
Ann. 27-9-114 and TCA 4-5-322, and Appendix III, Article 43, Section 11 of the Metropolitan Charter”);
Mitchell v. Elec. Employees’ Civil Serv. & Pension Bd. of Metro. Gov’t of Nashville & Davidson Cty.,
No. M2018-00186-COA-R3-CV, 2019 WL 211921, at *6 (Tenn. Ct. App. Jan. 16, 2019) (deciding the
case in accordance with Tenn. Code Ann. §§ 27-9-114 and 4-5-322).



                                                 -8-
the findings of fact and credibility determinations contained in an initial order.” Id.
at 823 (emphasis added). The “agency must base its findings of fact exclusively on the
evidence introduced during the contested case hearing or on matters that have been
officially noticed.” Id. at 822 (citing Tenn. Code Ann. § 4-5-314(d)). Further and
significantly, the “agency’s final order must also identify any differences between its
findings of fact and conclusions of law and those in the initial order.” Id. (citing
Tenn. Code Ann. § 4-5-315(i)) (emphasis added).

                                B. NES Disciplinary Proceedings

        When Nashville and Davidson County formed a metropolitan government, the
legislation that created NES was incorporated as Appendix III of the Metro Charter.
Metro. Elec. Power Bd. v. Metro. Gov’t of Nashville & Davidson Cty., 309 S.W.3d 474,
476 (Tenn. Ct. App. 2008).2 Article 43 of Appendix III “creates a civil service system
exclusively for NES employees.” Id. at 477. Although this system “gives the Board the
authority to promulgate rules relating to NES employees, including rules regarding
discharge, compensation, and promotion,” Moore v. Nashville Elec. Power Bd., 72
S.W.3d 643, 647 (Tenn. Ct. App. 2001), the Board’s authority is “bound by the terms and
limitations contained in the Metro Charter,” Kiger v. Nixon, No. 01A01-9511-CH-00501,
1996 WL 512031, at *6 (Tenn. Ct. App. Sept. 11, 1996); see Moore, 72 S.W.3d at 647
(“NES is governed entirely by the Nashville and Davidson County Charter.”).

       The terms and limitations contained in Article 43 include a basic procedure for the
discipline of NES employees that requires the Board to reduce its findings to writing:

      10.       Charges against any employee of the electric power board of the
                metropolitan government may be preferred by any person except a
                member of said board. Upon charges being preferred against any
                employee, such employee in the discretion of the general manager,
                may thereupon be suspended, pending disposition thereof.

                Charges against employees of said electric power board shall be
                filed or brought exclusively before the electric employees’ civil
                service and pension board. Any charges filed against any employee
                shall be in writing, and shall be filed in such form and manner as the
                board may by its rules from time to time prescribe. . . .



      2
          NES was created by private act in 1947. Metro. Elec. Power Bd., 309 S.W.3d at 476.



                                                 -9-
                                       .       .            .

       11.     Upon any charge against any employee being filed with said board,
               it shall, according to its own rules, determine the merits thereof
               and reduce its findings to writing, and may either suspend,
               dismiss, or otherwise punish the employee against whom such
               charge is made. . . .

Metro Charter, App’x III, Art. 43, §§ 10–11 (current through Nov. 27, 2019), available at
https://library.municode.com/tn/metro_government_of_nashville_and_davidson_county/c
odes/charter?nodeId=THCH_APCH_AR43.

        In exercising its authority under the Metro Charter, the Board promulgated the
Rules for Employees of Nashville Electric Service (“NES Rules”), including its own rules
for determining the merits of charges against employees. Under § 7.08 of the NES Rules,
the Board may refer charges “to an Administrative Law Judge designated by the Board
for hearing.” After the hearing’s conclusion, the ALJ must “prepare and file with the
Secretary of the Board a Report and recommend findings and conclusions.” Id. § 7.083.
The Board must then “decide the case, based on the Record and the Administrative Law
Judge’s Report.” Id. § 7.084. “The Board may adopt, modify, or reverse, in whole or in
part, the recommendations in the Administrative Law Judge’s Report, or may remand the
matter for the taking of such additional evidence and reporting thereon, as the Board
deems necessary.” Id. § 7.084.

       Thus, like agencies operating under the UAPA’s contested case procedures, the
Board must render a written final decision.3 Under either procedural framework, this
requirement may be satisfied by the ALJ’s “initial order.” Unlike an initial order under
the UAPA, however, an ALJ’s report and recommendation in NES disciplinary
proceedings cannot become the Board’s final order by operation of law without being
reviewed by the Board. Also, unlike the UAPA, the NES Rules neither require the Board
to render a final order nor identify “any difference between such order and the initial
order.” Thus, a Board may modify or reverse an ALJ’s recommendation without
rendering its own final order. For purposes of judicial review, however, we must presume
the Board approved of the ALJ’s findings absent a written order to the contrary. This is
because the NES Rules and Tenn. Code Ann. § 27-9-114 require us to apply the UAPA’s


       3
          If the Board does not refer the matter to an ALJ, the Board must make its own formal findings
and conclusions. See id. § 7.082 (“The Board’s formal findings and conclusions shall, when approved by
it, become a part of the Record in the case.”).



                                                   - 10 -
standard for judicial review when considering Board disciplinary decisions. See Tenn.
Code Ann. § 27-9-114(b)(1); NES Rules § 7.093.

                         C. UAPA’s Standard of Judicial Review

       Under the UAPA’s standard for judicial review, reviewing courts must consider
whether the application of the controlling legal principles to the agency’s findings would
lead a rational person to reach the same conclusion as the agency. See McEwen, 173
S.W.3d at 820. “Without findings of fact a reviewing court is unable to determine
whether the decision reached by an administrative agency follows as a matter of law from
the facts stated as its basis, and whether the facts so found have any substantial support in
the evidence.” Levy v. State Bd. of Examiners for Speech Pathology & Audiology, 553
S.W.2d 909, 912 (Tenn. 1977) (quoting USV Pharm. Corp. v. Sec’y of Health, Ed. &
Welfare, 466 F.2d 455, 462 (D.C. Cir. 1972)). Accordingly, the requirement that an
agency make findings of fact “is not a mere technicality but is an absolute necessity
without which judicial review would be impossible.” CF Indus. v. Tennessee Pub. Serv.
Comm’n, 599 S.W.2d 536, 541 (Tenn. 1980) (quoting Levy, 553 S.W.2d at 911).

        When the agency renders its own decision, “it is the agency’s final order, not the
initial order that is the subject of judicial review.” McEwen, 173 S.W.3d at 822.
However, the initial order is not rendered insignificant. To the contrary, the initial order
remains “a relevant and important part of the administrative record.” Id. at 824. In
particular, the initial order is significant to the judicial review process for determining
whether there was sufficient evidentiary support for the agency’s decision:

       While a reviewing court must focus its attention on the agency’s final
       order, it may consider the initial order when determining whether the
       agency’s final order has sufficient evidentiary support. See 3 Admin. Law
       & Prac. § 11.10[3](a), (b), at 73. If the record contains evidence sufficient
       to support the conflicting findings of the agency and the hearing officer or
       the administrative judge, the agency’s findings must be allowed to stand
       even though the court might have reached a different conclusion on its own.
       Kopack v. NLRB, 668 F.2d 946, 952 (7th Cir.1982); Dep’t of Health &
       Mental Hygiene v. Shrieves, 641 A.2d at 908.

Id. at 824.

       As established by the foregoing, the Board was required to make findings of fact,
see Metro Charter, App’x III, Art. 43, § 11, which requirement affords the reviewing
court the means to determine whether the Board’s decision “follows as a matter of law
from the facts stated as its basis, and whether the facts so found have any substantial
support in the evidence.” Levy, 553 S.W.2d at 912. In the case at bar, the Board did not
reject or modify the ALJ’s findings and did not make any findings of fact that conflict
                                           - 11 -
with the ALJ’s findings of fact. Instead, following a brief discussion in which two Board
members expressed their individual reasoning, the Board voted to reject the ALJ’s
recommendation—but not his findings of fact—and uphold the recommendation of NES
management without attempting to reach a consensus on its reasoning.

       Because the only findings of fact in the record are those set forth by the ALJ, we
shall determine whether the record contains substantial and material evidence that
supports the facts so found and whether the Board’s decision follows, as a matter of law,
from the required factual findings. See McEwen, 173 S.W.3d at 820.

                II.    THE FINDINGS OF FACT IN THE ADMINISTRATIVE RECORD

       The first inquiry in this contested case appeal is whether the ALJ’s conclusion that
NES failed to establish that Mr. Mansell knowingly approved false timesheets submitted
by a police officer before June 12, 2015, was supported by substantial and material
evidence.4 In November 2017, the ALJ issued his Report, which contained numerous and
specific findings of fact based on the witness testimony and documentary evidence
presented at the administrative hearing.

                 A. Credibility Determination Regarding Key Witness

      To begin with, the trial court found no direct evidence that Mr. Mansell
knowingly accepted or submitted falsified timesheets on Officer Moultry’s behalf.
Although NES asserted Mr. Mansell’s crewmate, Hayes Baker, witnessed the
exchange of falsified timesheets, the ALJ found that Mr. Baker was not a credible
witness:


        4
          Mr. Mansell was disciplined in August 2015 for approving Officer Moultry’s timesheets for
June 12, 18, and 19, 2015, and, significantly, Mr. Mansell has not been accused of approving any false
timesheets submitted by any officer since June 2015. While Mr. Mansell’s knowing approval of the June
12, 18, and 19, 2015 timesheets would be relevant in fashioning his discipline, it is neither relevant nor
material in determining whether NES established that Mr. Mansell knowingly approved any false
timesheets prior to June 12, 2015. Former C&M Operations Manager, Ty Jones, also testified that Mr.
Mansell’s prior discipline for similar acts was a factor to be considered in determining the appropriate
punishment for additional misconduct. We also acknowledge the Board’s contention the ALJ and the trial
court erred by applying the doctrine of industrial jeopardy, which prevents the punishment of an
employee twice for the same misconduct. We find it unnecessary to address this issue because neither the
ALJ nor the trial court applied the doctrine in the manner the Board argues. Moreover, NES did not base
the present charges against Mr. Mansell on the June 12, 18, and 19 timesheets. As the ALJ noted,
“Timesheets for June 12, 18, 19, 2015, the dates that Mr. Mansell admitted [to] submitting false
timesheets, are not included in [the evidence], and were not presented at the Final Hearing.”



                                                 - 12 -
      86.    NES called Mr. Hayes Baker on rebuttal. Hayes Baker was the
             C&M crew member who was on Mr. Mansell’s team and is who
             reported the complaint to Ty Jones at NES that prompted NES to
             commence action about the FlagPros’ officers’ timesheets. . . .

      87.    On cross-examination, Mr. Baker asserted that there were a
             number of occasions when Mr. Moultry would turn in a timesheet
             to Mr. Mansell and leave. Mr. Baker then claimed that there
             might have been thirty (30) such occasions. . . .

      88.    This proof was contradicted by the testimony of Chuck Reinitz,
             NES supervisor. Mr. Reinitz doubted whether there were ever
             substantial lengths of time in which FlagPros’ officers were
             simply not present to work the NES C&M crew to which he was
             assigned.

      89.    Another supervisor confirmed that it was very unusual for a
             downtown network crew to function without a FlagPros officer
             present for any substantial amount of time.. ..

      90.    Mr. Baker’s testimony was very difficult to believe. His
             testimony was rambling and difficult to follow at times. The gist
             of his testimony (and apparently his biggest gripe about the
             Moultry affair) was that Mr. Moultry would appear at work, turn
             in his timesheet, and leave. While this would be consistent with
             the records on some of the dates in question . . . it is hardly
             consistent with the testimony of the two undisciplined NES
             supervisors who both attested that almost never could a crew get
             away with not having a FlagPros’ officer present for all or nearly
             all of an entire workday. Mr. Baker testified that this happened in
             the range of thirty (30) times.

      Significantly, the Board did not address the ALJ’s finding that Mr. Baker was
not a credible witness when it rejected the ALJ’s recommendation to deny the
charges for termination.

        “When [an] agency conducts a hearing and can evaluate the witnesses as they
testify, this Court gives the tribunal’s credibility determinations great weight.” City of
Memphis v. Civil Serv. Comm’n, 239 S.W.3d 202, 208 (Tenn. Ct. App. 2007) (citing
Pruitt v. City of Memphis, No. W2004-01771-COA-R3-CV, 2005 WL 2043542, at *7
(Tenn. Ct. App. Aug. 24, 2005)). “[A]ppellate courts will not re-evaluate a trial judge’s
assessment of witness credibility absent clear and convincing evidence to the contrary.”
                                          - 13 -
Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). We find no basis to
re-evaluate the ALJ’s assessment of Mr. Hayes’s credibility.

                    B. Responsibility for Verifying Timesheets

       Moreover, the ALJ found the evidence was insufficient to establish that Mr.
Mansell was responsible for verifying the hours on Officer Moultry’s timesheets.
This is significant because, as the ALJ noted, the fundamental premise of NES’s
charges against Mr. Mansell was the assertion that Mr. Mansell, as the crew foreman,
had an affirmative duty to verify the officers’ timesheets before approving them.
After reviewing the record, we have determined that the evidence supports the ALJ’s
finding.

       It was undisputed that NES provided the timesheets for each police officer to
complete, sign, and turn in to the crew foreman at the end of the officer’s shift.
Manifestly, by completing the form, the police officer was affirmatively representing
that the officer worked the hours he or she claimed to have worked at an NES jobsite
on that day. In Officer Moultry’s case, the ALJ found that Officer Moultry would
complete and leave the timesheet in Mr. Mansell’s truck before leaving the jobsite.

       It was also undisputed that the crew foreman would sign the officer’s
timesheet at a line entitled “NES Supervisor Signature,” and then submit it to a
supervisor who would initial the timesheet. Significantly, the ALJ found that the only
other instruction that Mr. Mansell was given was to add a work-order number, and no
explanation was given to Mr. Mansell as to the import of his signature. The ALJ also
found it material that Supervisor Reinitz initialed 90% of the timesheets that Mr.
Mansell signed for Officer Moultry and independently signed another 15 timesheets
that Mr. Mansell did not sign.

       Moreover, the letter preferring charges against Mr. Mansell stated that the
crew foreman and the supervisor had a responsibility to verify the accuracy of the
officers’ timesheets. The letter stated, in pertinent part, “[T]he NES supervisor or
working foreman overseeing the worksite is responsible for verifying the [FlagPros’]
officers’ timesheets to ensure that the officer provided the traffic control services for
the NES worksite.” At first, former C&M operations manager, Ty Jones, confirmed
this fact in his testimony at the final hearing. However, Mr. Jones later changed his
testimony by stating that the supervisor had no responsibility for verifying the
timesheets. Mr. Jones explained that Mr. Mansell’s signature represented an
“approval,” whereas the supervisor’s initials had no significance other than to
“acknowledge” that it was received.

      Finally, Mr. Mansell’s job description did not include overseeing the work of
contractors, who operated alongside NES employees at the jobsite, or verifying the
                                         - 14 -
contractors’ payroll reports. Mr. Mansell’s job description as an NES “Cable Splicer
Working Foreman” stated that his primary duties were to oversee and coordinate “the
work of employees to accomplish assigned tasks,” provide “input in the evaluation of
employees and train employees as required,” and oversee “the work of others in
accomplishing these tasks.” The ALJ found that NES defined “others” as NES employees
and it was undisputed that the police officers were not NES employees. Thus, Officer
Moultry was not someone Mr. Mansell was to oversee.

       Based on our review of the record, we find the evidence supports the ALJ’s
determination that Mr. Mansell was not responsible for verifying the information on the
officers’ timesheets.

                            C. End of Shift Discrepancies

      Even if Mr. Mansell was responsible for verifying the timesheets, the ALJ
found that the majority of Officer Moultry’s timesheets were not materially
inaccurate because the timesheets conformed with an unwritten practice of accepting
timesheets for a full day of work, even when the NES crew left the jobsite early:

      66.    There was some testimony during his cross-examination that Mr.
             Moultry may have left early from time to time, but according to Mr.
             Mansell, paying the FlagPros officer through 2:30 even if the team
             broke from the jobsite early was well accepted practice.

      67.    Mr. Reinitz, the supervisor, testified that the FlagPros officers came
             and left at the same time every day. TR. Vol. 1, 253:10-13 (“Q. Mr.
             Reinitz, did the officers have a set schedule, pretty much come and
             leave at the same time every day? A. Yes.”). Further, Mr. Reinitz
             knew that by sometime in 2014 Mr. Moultry had become a
             lieutenant and had to clock in at MNPD at 2:00 p.m. Nevertheless,
             Mr. Reinitz initialed over 90% of the timesheets for which NES
             asserts Mr. Mansell should be terminated for approving, and signed
             another fifteen (15) timesheets—fourteen of which have either the
             same identical 30 minute (.50 hour) discrepancy or worse. 15 NES
             Exs. 4 & 5.

      74.    NES offered no specific proof that it was a practice that was
             unacceptable to NES for the FlagPros officers to be paid for the 2:00
             to 2:30 time period even if they were not in the street working with
             the crews. No supervisor testified that they made it clear to the
             working foremen that the end time on the timesheets had to
             correspond to the time that the FlagPros officer left the worksite.

                                         - 15 -
             Further, no supervisor testified that they made it their practice to be
             at a C&M jobsite from time to time to see when the crews broke and
             the FlagPros officers left to see if the timesheets were being
             submitted properly. Instead, the supervisor simply initialed and
             signed timesheets routinely that had the FlagPros officers working
             through 2:30 despite the fact that he knew that Mr. Moultry had been
             promoted to lieutenant at MNPD and that his shift started there at
             2:00 p.m.

                                         .            .   .

      78.    Although NES has not disregarded the .5 increments in its arguments
             in this case in which it seeks Mr. Mansell’s termination, the proof
             regarding the acceptability of the .5 increments in the
             contemporaneous records, signed by an NES supervisor, as well as
             Mr. Jones’ “agreement” at the Due Process hearing regarding the
             marginal relevance of those discrepancies, and the other proof in this
             case, indicate that the numerous .5 increment overlaps between Mr.
             Moultry’s FlagPros’ timesheet and his attendance record at MNPD
             was not a material discrepancy and most likely was an accepted
             practice at the time.

      Based on this evidence, the ALJ found that Mr. Mansell was acting in
accordance with C&M’s usual practices:

      Mr. Mansell testified that normally, the crew was finished at the
      worksite by 2:00 each day. While this does not explain why he
      approved timesheets that paid for time through 2:30, it demonstrates
      that he thought it was an acceptable practice to approve such time. See
      TR. Vol. p. 390:4–25. Further, and significantly, if the crew left the
      street at 1:50 or so, the working foreman considered the FlagPros
      officer to be on standby for the remainder of the normal work shift. TR.
      Vol. 1, p. p. 391:20-22.

       The evidence supports the ALJ’s finding that acceptance of timesheets for a
full day of work was a common and permissible practice even when the crew left the
jobsite early. This finding is bolstered by the fact that all but five of the 200 plus
timesheets showed the reporting officer as working a full shift, either from 7:30 a.m.




                                             - 16 -
to 1:30 p.m. or 8:30 a.m. to 2:30 p.m.,5 and at no time prior to June 2015 had anyone
in the NES hierarchy questioned the accuracy of the timesheets.

       In City of Memphis v. Civil Service Commission, this court explained the standard
of review outlined in Tenn. Code Ann. § 4-5-322 as it pertains to the factual findings as
follows:

        Upon confirming that an agency has employed the proper legal principles
        in the case under review, this Court must then consider the disputed factual
        findings and address whether the agency had a reasonably sound basis for
        making those findings. Like the trial court, this Court applies the substantial
        and material evidence standard in reviewing the agency’s findings of fact.
        Substantial and material evidence is “such relevant evidence as a
        reasonable mind might accept as adequate to support a rational conclusion
        and such as to furnish a reasonably sound basis for the decision under
        consideration.”

         As directed by the statute, we take into account whatever in the record
        fairly detracts from the weight of the evidence, but we may not substitute
        our own judgment on questions of fact by re-weighing the evidence. When
        the agency conducts a hearing and can evaluate the witnesses as they
        testify, this Court gives the tribunal’s credibility determinations great
        weight.

City of Memphis, 239 S.W.3d at 207–08 (internal citations omitted).

       Having considered the disputed facts and credibility determinations, which are
both substantial and material, we conclude that the administrative record contains
relevant evidence that provides a sound basis for the ALJ’s findings of fact. See id.

                                III.    THE BOARD’S CONCLUSION

      Based on the above and numerous other findings, the ALJ recommended the
charges of termination be denied and, instead, that Mr. Mansell be reinstated without
back pay. Nevertheless, without making findings of fact that differed with those of the
ALJ which are supported by substantial and material evidence, the Board rejected the


        5
          During 2014, officer shifts went from 8:30 a.m. to 2:30 p.m. In January 2015, the shift changed
to 7:30 a.m. to 1:30 p.m.



                                                 - 17 -
ALJ’s recommendation and voted to uphold the decision of NES management to
terminate Mr. Mansell. Thus, we know the Board disagreed with the ALJ’s recommended
discipline; however, we do not know the specific facts upon which the Board based its
decision to terminate Mr. Mansell.

       As noted earlier, we may modify or reverse an administrative decision if it is
“[a]rbitrary or capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion.” Tenn. Code Ann. § 4-5-322(h)(4). “Agency decisions not
supported by substantial and material evidence are arbitrary and capricious.” Jackson
Mobilphone Co., Inc. v. Tennessee Pub. Serv. Comm'n, 876 S.W.2d 106, 110 (Tenn. Ct.
App. 1993) (citations omitted). A decision is also arbitrary and capricious if it “is not
based on any course of reasoning or exercise of judgment, or . . . disregards the facts or
circumstances of the case without some basis that would lead a reasonable person to
reach the same conclusion.” City of Memphis v. Civil Serv. Comm’n of City of Memphis,
216 S.W.3d 311, 316 (Tenn. 2007) (quoting Jackson Mobilphone Co., Inc., 876 S.W.2d
at 110–11). Moreover, we may reject an administrative agency’s determination if a
reasonable person would necessarily arrive at a different conclusion based on the
evidence. Martin v. Sizemore, 78 S.W.3d 249, 276 (Tenn. Ct. App. 2001).

       When the contested case was assigned to the ALJ, it became his responsibility to
determine whether NES had shown, by a preponderance of the evidence, a reasonable
basis for NES’s recommendation to terminate the employment of Mr. Mansell. See NES
Rules § 7.083; Tennessee Dep’t of Correction v. Pressley, 528 S.W.3d 506, 522 (Tenn.
2017) (recognizing that the party who initiates contested case proceedings generally is
assigned the burden of proving that the allegations are true by a preponderance of the
evidence). The record contains substantial and material evidence that fully supports the
ALJ’s findings of fact, his conclusions of law, and his recommendation to reinstate Mr.
Mansell without back pay rather than terminate his employment. Thus, had the Board
adopted the ALJ’s recommendation and a petition for judicial review had been filed, it
would have been incumbent on the reviewing court to affirm the decision of the ALJ.
However, it is not the ALJ’s conclusion that we are reviewing.

       Once management appealed the ALJ’s decision, the Board had the responsibility
to determine whether NES management had shown, by a preponderance of the evidence,
a reasonable basis for its recommendation to terminate the employment of Mr. Mansell.
See id. As noted earlier, because the Board disagreed with the ALJ, the Board’s decision
is subject to closer judicial scrutiny. See McEwen, 173 S.W.3d at 823. In such cases, we
will not abandon the substantial and material evidence standard of review, but we may
view the evidence supporting the agency’s findings of fact as less substantial than it
would have been had the agency and the administrative judge reached the same
conclusion, particularly, as is the case here, when it concerns credibility determinations.
Id.
                                          - 18 -
       Although the Board was entitled to make its own decision, the Board should not
have ignored the ALJ’s findings of fact and credibility determinations. See id. As we
have repeatedly stated in this opinion, the Board did not make its own findings of fact.
See NES Rule 7.085. The only decision in its final order was to reject the recommended
discipline and uphold the recommendation of NES management.

       Significantly, the Board did not discuss and apparently did not consider the ALJ’s
findings of fact, including the following three findings that are both substantial and
material:

       65. Mr. Mansell testified that he acknowledged the three (3) days upon
       which he made wrongful approvals of Mr. Moultry’s time that he admitted
       to in [June] 2015 and for which he was disciplined on August 24, 2015
       (five-day suspension without pay), but he generally denied that the other
       timesheets were false.

       64. Mr. Moultry did not testify in this case. Although NES presented the
       summary by MNPD showing when Mr. Moultry was paid for working at
       MNPD (NES Ex. 3), there was little or no proof that Mr. Moultry was
       not present and working for FlagPros on the days and at the times
       shown on the FlagPros’ timesheets in Exhibit 7.

       85. No specific proof was presented at the Final Hearing, however,
       that Mr. Mansell knew he had received false timesheets for these six
       dates or for any date other than the three dates in June 2015 for
       which he confessed his misconduct and for which he had already
       been punished.

(Emphasis added).

        Although Board member Clinton Gray noted that Mr. Mansell “admittedly lied
about something,” neither he nor the Board identified any fact in the record to support
this belief—other than Mr. Mansell’s admission that he approved false timesheets for
June 12, 18, and 19, 2015, for which he had already been disciplined. Further, although
Ms. Schott made the motion to reject the ALJ’s recommendation at the April Board
meeting and stated that “[w]e have had a lot of questions and discussions about culture,”
and that no organization “wants a discussion about culture and integrity and honesty to be
occurring with respect to that organization,” she too failed to identify any specific fact to
support a finding that Mr. Mansell had engaged in conduct during the relevant period that
adversely affected the culture, integrity, or honesty of NES and would justify termination
of his employment.

                                           - 19 -
       Indeed, the Board members were justified in seeking to protect and preserve a
culture of integrity and honesty among its employees. Nevertheless, even a bona fide
concern that a bad culture existed is no justification to terminate a scapegoat, that is, to
punish an employee for alleged but unproven conduct that not only was widely believed
to be correct but also condoned by his supervisor.

       The ALJ found (1) there was no direct evidence to refute Mr. Mansell’s testimony
that he did not know the timesheets were inaccurate; (2) crew foremen were never given
responsibility to verify the timesheets’ accuracy; and (3) it was a well-accepted practice
among crew foremen and their supervisors to accept timesheets for a full days’ work,
even if the crew left the jobsite early. Considering these significant findings of fact,
with which the Board did not differ, as well as numerous other findings of fact by the
ALJ that are supported by substantial and material evidence in the record, we
conclude that the Board’s decision disregards the facts of this case and is not supported
by substantial or material evidence. See City of Memphis, 238 S.W.3d at 243 (citing City
of Memphis, 216 S.W.3d at 315). Moreover, the Board failed to identify a basis for its
decision that would lead a reasonable person to reach the same conclusion. Therefore, the
Board’s decision to reject the recommendation of the ALJ and to terminate Mr. Mansell’s
employment was arbitrary and capricious. See id. (citing City of Memphis, 216 S.W.3d at
315).

      Accordingly, we affirm the trial court’s decision to reverse the decision of the
Board and order the reinstatement of Mr. Mansell’s employment without back pay.

                                       IN CONCLUSION

      The judgment of the trial court is affirmed, and this matter is remanded for further
proceedings consistent with this opinion. Costs of appeal are assessed against the Board.


                                                     ________________________________
                                                    FRANK G. CLEMENT JR., P.J., M.S.




                                           - 20 -
