                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                             August 4, 2009 Session

        SHAWN CUNNINGHAM, v. CITY OF CHATTANOOGA d/b/a
                 CHATTANOOGA CITY COUNCIL

                Direct Appeal from the Chancery Court for Hamilton County
                No. 07-0991      Hon. Howell N. Peoples, Chancellor, Part 2



              No. E2008-02223-COA-R3-CV - FILED SEPTEMBER 11, 2009



The Chattanooga Police Department terminated petitioner’s employment as a policeman for the City
of Chattanooga. Petitioner appealed to the City Commission, whose hearing panel upheld his
termination. He filed a Petition for Certiorari with the Chancery Court which was granted, and then
filed a Motion for Summary Judgment which the Trial Court also granted inter alia on the grounds
that the City Council employed unlawful procedures which violated petitioner’s rights to a fair,
impartial and unbiased appellate panel. We affirm the Judgment of the Trial Court and remand.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court affirmed and
remanded.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which CHARLES D. SUSANO ,
JR., J., and JOHN W. MCCLARTY , J., joined.


Kenneth O. Fritz, Chattanooga, Tennessee, for appellant, City of Chattanooga d/b/a Chattanooga
City Council.

Jack Benson, Jr., Chattanooga, Tennessee, for appellee, Shawn Cunningham.


                                           OPINION

                                          Background

                Petitioner/appellee, Shawn Cunningham, was relieved from duty with pay from his
position as an officer for the Chattanooga Police Department on May 4, 2007. He was charged with
improper procedure, neglect of duty and failure to comply with the law. A disciplinary hearing was
held and the charges were sustained by the Chief of Police and petitioner’s employment with the
Chattanooga Police Department was terminated .

               Petitioner appealed the termination and a hearing was conducted before three City
Council members of the respondent/appellant, the Chattanooga City Council. Council members
were Debbie Gaines, Linda Bennett and Manuel Rico. The panel voted two to one to sustain the
termination of petitioner’s employment.1

                 Petitioner filed a Petition for a Writ of Certiorari in Chancery Court, and claimed that
based on comments made at the hearing by Councilman Ricco that were extraneous to the issues
before the council it was obvious that the Councilman had wrongly received ex parte
communications regarding petitioner’s performance as an officer. Petitioner claimed these actions
were “contrary to his ethical duties as a hearing officer and were prejudicial to petitioner. Further,
that the city council acted in violation of his constitutional and statutory rights and provisions; upon
unlawful procedure and in excess of their statutory authority.

                Subsequently, petitioner took the deposition of Councilman Manuel Ricco wherein
the facts surrounding the City Council’s review of the Police Department’s termination of petitioner
were explored. Based on Councilman Ricco’s testimony, petitioner filed a motion for summary
judgment, contending that Councilman Ricco made several admissions in his deposition that showed
that his actions as an administrative hearing officer were made upon unlawful procedure,
characterized by an abuse of discretion, and violated petitioner’s constitutional rights to a fair,
impartial and unbiased panel. Petitioner supported his motion with a statement of undisputed facts.
The pertinent facts set forth are as follows:

                1.      Councilman Rico heard “things” about petitioner before the hearing but felt
                        he could be fair to petitioner.

                2.      Councilman Rico could have stated that Shawn Cunningham was a “dirty
                        cop” to other before the October 29, 2007 hearing.

                3.      Resolution No. 21194 of The City of Chattanooga Police Department
                        prohibits ex-parte communications by members of the Chattanooga City
                        Council and requires members who do receive ex-parte communications to
                        follow certain procedures to make the communications and its source known.

                4.      Councilman Rico did not know he was to make the ex-parte communications
                        known as required by Resolution No. 21194 and he did not do so.

                5.      Councilman Rico would have recused himself from the review panel had he


        1
        Ms. Gaines voted against termination and Ms. Bennett and Mr. Rico voted to sustain the
termination.

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                       known of the requirements of Resolution No. 21194.

               6.      Councilman Rico admitted that he might have been biased against Mr.
                       Cunningham because the councilman had worked with and trusted the
                       administration of the Chattanooga Police Department.

               7.      Councilman Rico asked questions at the hearing about profiling and probable
                       cause although he knew Mr. Cunningham’s termination was not based on
                       these issues. Resolution No. 21194 prohibits the Council members from
                       asking questions on issues that were not raised by the parties.

               8.      Councilman Rico applied the wrong burden of proof even though he knew
                       the burden of proof was otherwise.

               Respondent, City of Chattanooga, disputed most of the material facts set forth by
petitioner. Specifically, it disputed that Councilman Rico had ‘heard things” about Mr. Cunningham
before the hearing; that he had told others that Mr. Cunningham was a “dirty cop”; that he engaged
in ex parte communications; that he was biased against Mr. Cunningham; that he asked questions
at the hearing that were not consistent with Resolution No. 21194 and; that Councilman Ricco
applied the wrong burden of proof.

                Following a hearing on the motion for summary judgment, the Chancellor entered a
Memorandum Opinion granting the motion and setting aside the action of the City Council that
affirmed the termination of employment of petitioner, and remanded the case for a new hearing
before a different panel of City Council members.

               The Trial Court in its Memorandum noted that Resolution No. 21194, titled “A
Resolution Adopting Administrative Regulations for Conduct of Employee Disciplinary Hearing,
governs the conduct of the disciplinary hearing conducted in this case by the three city council
member panel. Paragraph 10 of the Resolution provides that the initial burden of proof by a
preponderance of the evidence is with the executive (city agency) on the issue of the cause of the
disciplinary action. The burden then shifts to the employee to prove that the punishment is
disproportionate to the offense. Council members may ask the witnesses questions to clarify their
testimony, but shall not inquire into matters not presented by either party. The Court then noted that
paragraph 6 of the Resolution prohibits ex parte communications to or by the members of the City
Council regarding issues in the proceeding while the proceeding is pending without notice and
opportunity for all parties to participate in the communications. If any member of the Council should
receive an ex parte communication, the member must place in writing that communication in the
record.

                  The Trial Court observed that the petitioner claimed that the unlawful procedures
followed by the City Council violated his rights to a fair, impartial and unbiased panel. The Court
said that “It is axiomatic that due process requires the opportunity of the party charged to be heard


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at a meaningful time and in a meaningful manner, before an impartial tribunal.” Cooper v.
Williamson County Bd. of Educ., 803 S.W. 2d 200, 202 (Tenn. 1990), citing Hortonville Joint School
Dist. No. 1 v. Hortonville Educ. Assoc., 426 U.S. 319, 333, 96 S.Ct. 893, 901- 02, 47 L.Ed2d 18
(1976); Withrow v. Larkin, 421 U. S. 35, 46, 95 S.Ct. 1456, 1463 - 64, 43 L. Ed. 712 (1975). The
Trial Court stated that under Tennessee law, there is a rebuttable presumption that public officials
perform their duty with honesty and integrity, and in the manner prescribed by law, and the party
claiming bias has the burden of proof. Cooper, 803 S. W.2d at 127; Williams v. American Plan
Corp. 216 Tenn. 435, 441, 392 S.W.2d at 920, 923; Jackson v. Aldridge, 6 S.W.3d 501, 503 (Tenn.
Ct. App. 1999); Martin v. Sizemore, 78 S.W. 3d 249, 266 (Tenn. Ct. App. 2001).

               Trial Court then reached the following conclusions:

               1.      The trial court found that Councilman Rico admitted in this deposition that
                       he presumed the allegations of the administration were true and placed the
                       burden of proving innocence on the petitioner. This action by the
                       Councilman was contrary to the burden of proof set out in Resolution No.
                       21194.

               2.      Councilman Rico received ex parte communications concerning the hearing
                       and he failed to put the communication in writing in the record. These
                       actions violated Resolution No. 21194.

               3.      Councilman Rico asked questions at the hearing about matters that had not
                       been presented by either party. Resolution No. 21194.

              The Trial Court, relied on Cauthern v. City of White Bluff, No. M1198-00991-COA-
R3-CV, 2002 WL 1389583 (Tenn. Ct. App. Jun. 27, 2002), and noted the divergent roles council
members are required to fill as follows:

               The procedures adopted by a legislative body for the conduct of its business and its
               decisions regarding a particular legislative issue are not subject to the same standard
               of review routinely used to review the fairness of judicial or administrative
               proceedings. In judicial and administrative proceedings, the litigants are entitled to
               the cold neutrality of an impartial tribunal. Davis v. Liberty Mut. Ins. Co., 38 S.W.3d
               560, 564 (Tenn.2001) (judicial tribunal); Martin v. Sizemore, No. M1997-00203-
               COA-R3-CV, 2001 WL 950190, at *6 (Tenn.Ct.App. Aug.22, 2001) (No Tenn.
               R.App. P. 11 application filed) (administrative tribunal); Kinnard v. Kinnard, 986
               S.W.2d 220, 227 (Tenn.Ct.App.1998) (judicial tribunal). Thus, judges and members
               of administrative tribunals must step aside when their impartiality might reasonably
               be questioned. Chumbley v. People's Bank & Trust Co., 165 Tenn. 655, 659, 57
               S.W.2d 787, 788 (1933) (judges); Tennessee Cable Television Ass'n v. Tennessee
               Public Serv. Comm'n, 844 S.W.2d 151, 164-65 (Tenn.Ct.App.1992).



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               The same cannot be said for the legislative arena. Persons seeking essentially
               legislative decisions from legislative bodies are not entitled to the same degree of
               impartiality. Members of legislative bodies are not acting like judges when they
               consider a proposed change in an existing zoning ordinance. As this court has pointed
               out:

               Legislators, however, do what legislators do; they listen to their constituents; they test
               the wind; they try to please as many people as possible, consistent with the
               constitution and good conscience. And they are not to be condemned for doing so.
               That is their job. Day v. City of Decherd, 1998 WL 684533 at *3.

Cauthern at * 2 -3.

               The Trial Court then concluded that Councilman Rico, in his role as a member of the
reviewing panel, did not abide by the rules that apply to judges and that his actions precluded the
petitioner from receiving a hearing based upon lawful procedures. Further, because a change in
Councilman Rico’s vote would have led to a different result of the appeal, the Court ruled that Mr
Cunningham had met his burden of proving a violation of his right to a fair and impartial hearing.

               On appeal, the issues raised by the City of Chattanooga are:

               A.      Whether it was reversible error for the Trial Court to find that the
                       Chattanooga City Council engaged in ex parte communications?


               B.      Whether it was reversible error for the Trial Court to hold that petitioner was
                       not given a fair and impartial hearing when the Chattanooga City Council
                       engaged in ex parte communications and asked questions during
                       deliberations outside the scope of the hearing and applied a burden of proof
                       he created?

               C.      Whether the Trial Court exceeded its jurisdiction ?

               Procedurally, we do not review this appeal using the standards of review normally
associated with common-law writs of certiorari because the issues before us are based upon a
summary judgment. See, Jeffries v. Tennessee Dept. of Correction, 108 S. W. 3d 862, 868 (Tenn.
Ct. App. 2002).


              The Court reviews a summary judgment motion de novo as a question of law without
any presumption of correctness. Finister v. Humboldt General Hosp., Inc., 970 S.W. 2d 435, 437
(Tenn. 1998). The evidence and all reasonable inferences are viewed in the light most favorable to
the nonmoving party. Byrd v. Hall, 847 S.W. 2d 208-210 (Tenn. 1993).


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                At the outset we note that the City of Chattanooga addressed at length in its brief the
merits of the Police Department’s termination of Mr. Cunningham’s employment and the City
Council’s sustaining of the termination and even stated that the issue before the Trial Court was
whether there was evidence to support the Council’s decision to sustain the termination. On this
record, the merits of the termination action were not before the Trial Court in its consideration of the
Motion for Summary Judgment, and are not before this Court. The sole issue raised by the
petitioner at the Trial Court was whether Councilman Ricco’s actions as an administrative hearing
officer were made upon unlawful procedure which violated petitioner’s constitutional rights to a fair,
impartial and unbiased panel. Thus, the question of whether the Department rightly or wrongly
terminated Mr. Cunningham’s employment or whether the Council erred when it sustained the
Department’s action is not under consideration on this appeal.


               The parties agree that the conduct of City Council members sitting as hearing officers
in appeals by employees of the City of Chattanooga is governed by Resolution No. 21194. The
provisions in Paragraph 10 of the Resolution are important to the issues under consideration here:


               The parties shall be afforded the opportunity to make either written or oral opening
               arguments. The Executive shall first go forward with his proof and shall bear
               the burden of proof by a preponderance of the evidence on the issue of cause for
               the disciplinary action and compliance with Charter provisions relating to discipline
               based upon impermissible political or religious reasons. The employee shall bear
               the burden of proving by a preponderance of the evidence that the punishment
               administered is proportionate to the offense with due consideration given to the
               employee’s prior disciplinary and performance record. Upon the conclusion of the
               Executive’s proof, the employee shall have the opportunity to call witnesses and
               present proof. Following their direct examination of witnesses, they shall be cross-
               examined by the other party, and witness shall be subject to re-direct and re-cross.
               The City Council members may ask witnesses such questions as are necessary to
               clarify their testimony, but shall not inquire into matters not presented by either
               party.
(Emphasis supplied).


                Councilman Rico admitted in his deposition that he put the burden of proof as to
whether the termination was error on Mr. Cunningham. He clearly and unequivocally stated that
“when a person comes in . . . at a hearing, what they have to do is prove to me that they’re wrong .
. . . I’m saying you [meaning the disciplined employee] prove to me that what their [the city’s]
allegations is wrong and I’ll vote with you, but if you don’t have enough proof to show me that
they’re wrong, well, then I have to go with those people because they work with you.” Councilman
Rico’s testimony demonstrates that he put the initial burden of proof on the petitioner to prove his
innocence instead of on the Police Department in violation of Paragraph 10. The Trial Court did not
err when it held the evidence showed that Councilman Rico applied the wrong burden of proof and

                                                  -6-
violated the provisions of the Resolution.


                The Trial Court also correctly held that Councilman Rico had violated the procedures
set forth in Resolution 21194 when he raised questions at the hearing regarding racial profiling and
whether the officer made stops without probable cause. These issues raised by the Councilman were
never presented by either of the parties and, indeed, were entirely unrelated to any of the reporting
infractions that were at issue in making the termination decision.


                The evidence also showed that Councilman Rico admitted in his deposition that he
approached his duty as a review hearing officer with unabashed bias. Mr. Rico stated that he knew
and trusted the “good people” at the Police Department who made the termination decision and he
admitted at the hearing that “maybe I’m biased because I have worked with these people” and “[i]t’s
just hard for me to go against the administration that I know and trust.”


                In support of the Trial Court’s holding that unlawful procedures followed by the City
Council violated Mr. Cunningham’s constitutional rights to a fair, impartial and unbiased panel, the
Trial Court correctly stated that it is axiomatic “that due process requires the opportunity of the party
charged to be heard at a meaningful time and in a meaningful manner, before an impartial tribunal.”
The Trial Court further observed that under Tennessee law, there is a rebuttable presumption that
public officials perform their duty with honesty and integrity, and in the manner prescribed by law,
and the party claiming bias has the burden of proof. In this case, the petitioner rebutted the
presumption accorded to the City Council.


               The City of Chattanooga argues that the Trial Court did not have jurisdiction to
receive new and additional evidence from the deposition testimony of Councilman Rico because the
deposition was not part of the record from the hearing. This argument is contrary to the plain
language of Tenn. Code Ann. § 4-5-322 (g). Under the statute the Trial Court had authority to
allow and consider the deposition of Councilman Rico in addition to the record from the
administrative hearing because the allegation made by petitioner was that irregularities in the
procedure before the City Council prevented him from having a fair hearing.


               Tenn. Code Ann. § 4-5-322(g)(1) and (3) provide the Trial Court with the authority
to reverse the City Council’s decision and to remand for consideration by another review panel
because the evidence showed that petitioner was prejudiced by the Council’s decision which was in
violation of constitutional law and made upon unlawful procedure. The procedural provisions set
forth in Resolution 21194 are designed to assure that a person in petitioner’s position, appearing
before the Chattanooga City Council has an opportunity to be heard at a meaningful time and in a
meaningful manner, before an impartial tribunal. The facts relied upon by the Chancellor to remand
for a new hearing before another panel are not in dispute, and the conclusions to be drawn from them
permit a reasonable person to reach only one conclusion, that the petitioner’s due process rights were

                                                  -7-
violated based on the bias of Councilman Rico and the Councilman’s misapplication of the burden
of proof and the line of questioning violated the procedures set forth in Resolution 21194. The Trial
Court properly granted summary judgment in favor of petitioner on these grounds.


                While the Trial Court also found Councilman Rico had received ex parte
communications, it is not clear from Councilman Rico’s deposition whether any such
communications took place. His responses were vague and contradictory and its not possible to
know when he heard any ex parte communications. His testimony is confusing, and since we are
required to take the strongest legitimate view of the testimony against the motion, this ground is not
appropriate for summary judgment. However, the other grounds are a proper basis for the grant of
summary judgment and the cause will be remanded to the Council to conduct another hearing in
accordance with the rules and statutes.


               The cost of the appeal is assessed to the City of Chattanooga.




                                                       _____________________________
                                                       HERSCHEL PICKENS FRANKS, P.J.




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