                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                         January 23, 2003 Session

                MICHAEL HIGGINS v. SHERIFF A. C. GILLESS, JR.

                   A Direct Appeal from the Chancery Court for Shelby County
                  No. 109954-3   The Honorable D. J. Alissandratos, Chancellor


                      No. W2001-02829-COA-R3-CV - Filed February 19, 2003


        Petitioner, off-duty deputy sheriff, was arrested during bust of known drug house for
possession of drug paraphernalia. Upon deputy sheriff’s arrest, Internal Affairs twice ordered
petitioner to submit to drug test. At time of requests, petitioner did not have assistance of counsel;
however, two Sheriff’s Association representatives were present and available for consultation.
Petitioner refused both orders, but on third day following arrest, after consulting with an attorney,
voluntarily requested drug test. Department refused request, and subsequently charged petitioner
with insubordination, possession and use of illegal drugs, and conduct unbecoming an officer. After
hearing before the Deputy Chief, petitioner was terminated. Civil Service Merit Board upheld
termination, and petitioner filed common law writ of certiorari with chancery court. Chancery court
affirmed the Civil Service Merit Board. We affirm.

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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and HOLLY KIRBY LILLARD, J., joined.

Kevin Bernstein, Memphis; Alan Bryant Chambers, Memphis for Appellant, Michael Higgins

Alan G. Crone, James J. Webb, Jr., Memphis, For Appellee, Sheriff A. C. Gilless, Jr.

                                                    OPINION

        On February 25, 1997, three officers from the Memphis Police Department conducted a buy-
bust operation1 at a rooming house on East Olive Street in Memphis, Tennessee. The rooming house
was a known center for drug activity. During the operation, the officers detained several subjects
in the hallway of the house. According to Officer Caesar R. Polk (“Officer Polk”), at some point


         1
          Officer Caesar R. Polk testified that a buy-bust operation is an “operation where undercover officers make
drug buys from a crack d ealer o r marijuana dealers while undercover.” Once an exchange of money (usually marked)
and drugs has taken place, and the dealer has been identified, the exchanging officer gives a “takedown signal” and the
remaining und ercover o fficers enter the scene to mak e arrests.
during the bust, while officers were detaining the subjects, a door was bumped open. Inside the
opened room the officers found petitioner, Deputy Michael Higgins (“Higgins”), in possession of
illegal narcotics and drug paraphernalia. 2

         According to Officer Polk, he viewed petitioner through the open door, sitting in a chair
holding a glass straightshooter crack pipe. As the first officer into the room, Officer Polk witnessed
Higgins stand up and drop the pipe at his feet. Officer Polk further observed a gun, later identified
as petitioner’s service revolver, lying on the floor a short distance from where the crack pipe landed,
and discovered two rocks of crack cocaine and “crack residue” on a coffee table less than a foot away
from where Higgins was sitting. Officer Polk and Officer Wiley Taylor (“Officer Taylor”), who also
participated in the bust, both asserted that Higgins told them that he had just finished smoking a rock
of cocaine. At the time of his arrest, Higgins was dressed in a white t-shirt and his green uniform
pants.

        Petitioner Higgins is a 23-year veteran of the Shelby County Sheriff’s Department. At the
time of his arrest, Higgins was employed as a deputy sheriff with the department. Higgins was not
on duty on February 25, because he had called in sick. Higgins explains that he was present at the
East Olive Street rooming house because he was looking for a friend to work on his car. When he
couldn’t locate his friend, Higgins noted that a woman named Brenda Cook (“Cook”), the alleged
tenant/occupier of the room in which Higgins was discovered, offered to call petitioner’s friend, and
allowed him to wait around until his friend showed.3 As he was waiting, Higgins testified that he
consumed a substantial amount of alcohol.

         Based on petitioner’s statement and the physical evidence gathered at the scene, Higgins was
placed under arrest and escorted to the Shelby County Jail. The evidence in the record is undisputed
that, at the time of his arrest, Higgins was cooperative and under control.4 When he arrived at the
Shelby County Jail, Higgins was met by Lieutenant William J. Howard (“Lieutenant Howard”).
Lieutenant Howard, as instructed by Inspector Jimmy P. Tucker (“Inspector Tucker”) of the Shelby
County Sheriff’s Office, Internal Affairs Division, proceeded to relieve petitioner of duty. Higgins
was subsequently charged with possession of drug paraphernalia and possession of a controlled
substance and detained.



         2
          Initially, the officers were not aware that Higgins was a deputy sheriff with the Shelb y County Sheriff’s
Departm ent. At so me p oint du ring the b uy-bust o peration, petitioner info rmed them o f this fact.

         3
           During his cross examination testimony befo re the M erit Board, H iggins stated that he visited the rooming
house for the additional purpose of loaning Brenda Cook money. Higgins testified that he had met Cook on a few other
occasion s. Higgins further acknowledged that he only had “some change” on his person when he arrived at the rooming
house, and could not remember exactly how much money he had agreed to loan Cook.

         4
            The parties dispute whe ther H iggins exhibited signs of intoxication. Officer Renwick Cowins (“Officer
Cowins”) testified that Higgins appeared to be intoxicated, “more on drugs” than alcohol. Higgins insists that he
exhibited no signs of intoxication, and cites to the testimony of Officer Taylor, who admitted that he could not “sense
that [petitioner] was intoxicated.”

                                                         -2-
        Later that evening, Higgins was released on his own recognizance. Shortly after petitioner’s
release, Inspector Tucker and Captain Hughes of the Internal Affairs Division approached Higgins
and ordered a “drug test from him, a drug screen urinalysis according to policy 5-19925 of Shelby
County Sheriff’s Office.” Two representatives from the Deputy Sheriff’s Association were present
on behalf of petitioner Higgins when the direct order was given. No lawyer was present on Higgins
behalf at the time of the order.6

        Higgins refused Inspector Tucker’s order to submit to a drug test, and now asserts that his
primary reason for doing so was a need and desire to speak with counsel so that the charges against
him might be explained or clarified. The next day, February 26, 1997, Inspector Tucker asked
Higgins to return for a second meeting at the Internal Affairs office. During this meeting, Tucker
clarified that the request of February 25 was a direct order to submit to an immediate drug test. After
Higgins acknowledged that he understood the February 25 “request” to be an order, petitioner was
ordered to submit to a urinalysis exam for a second time. Higgins again refused. According to
Inspector Tucker, Higgins confirmed that he understood that his refusal to take the test would
constitute insubordination.

       In the evening hours of February 26, Higgins contacted his attorney, W. Otis Higgs
(“Higgs”). On February 27, 1997, after conferring with his attorney, Higgins voluntarily returned



         5
             In pertinent part, po licy 5-1992 provide s:

                    W henever there shall be reaso nable suspicion or probable cause of any employee
                    of the Shelby County Sheriff’s Department as using or under the influence of any
                    controlled substance other than alc ohol, it shall be the policy of She lby Co unty
                    Sheriff’s Department to request that such employee voluntarily submit to a
                    urinalysis drug screen test. Sho uld the emp loyee refuse to subm it to such a test after
                    being ordered to do so he or she shall be charged with insubordination, relieved of
                    duty with pay and given notice of a date and time of administrative hearing on the
                    insubordination charge.

         6
          Article V I (7), Internal Investigation Procedures, of the Mem orandum of Understanding between Shelby
County Sheriff’s Department and the She lby Co unty Deputy Sheriff’s Association, I.U .P.A. Local 58, A.F.L.-C.I.O .,
provides:

                    In all cases where an employee is to be interrogated concerning an alleged violation
                    which, if proven, may result in his criminal prosecution, he shall be afforded a
                    reaso nable opportunity and facilities to contact and consult privately with an
                    Association representative and/or an attorney of the employee’s choice, either of
                    whom may be p resent during the interrogation.

(emphasis added).

Despite this provision, Inspector Tucker testified that it was not the policy and practice of the Association or the S heriff’s
Department to have an atto rney present on be half of the employee during the time in which drug screenings are offered
to the accused officer.

                                                              -3-
to the Internal Affairs office and requested a drug test. Higgins’ request was denied on the basis that
he “had passed up his opportunity and would not be given a test through the Department.”

        After Higgins’ request to submit to urinalysis was denied, the case was assigned to Sergeant
Cash of Internal Affairs. Inspector Tucker testified that Sergeant Cash completed the investigation
by taking statements from Higgins and the officers involved in petitioner’s arrest. Based on this
investigation, the following charges were levied against Higgins: (1) insubordination; (2) conduct
unbecoming an officer; and (3) possession and use of illegal drugs.

        Within a week of the incident and Internal Affairs’ completion of the investigation, Deputy
Chief Don Wright (“Chief Wright”) conducted a Loudermill Hearing to address and evaluate the
three charges assessed against Higgins. After examining the investigation report from Internal
Affairs, the statements of officers Polk, Taylor, and Cowins, the police reports filed in this case, and
hearing testimony from petitioner Higgins, Chief Wright ordered the termination of Higgins’
employment. Chief Wright later testified at the Civil Service Merit Board hearing that all three
charges independently supported a decision of termination.

        Higgins appealed his termination to the Shelby County Civil Service Merit Board (“Merit
Board”), and a hearing was held before this board on June 19, 1997. On July 7, 1997, the Merit
Board entered a published decision sustaining Higgins’ termination, and finding petitioner guilty
“[w]ith regard to the charges.”7 The Merit Board further noted that “[i]t is the opinion of the Board
that the Petitioner was completely aware of the nature, activities, and character of the people that
frequented this particular rooming house.”

       On September 5, 1997, Higgins filed a Petition for Writ of Certiorari in chancery court.8
Additionally, Higgins petitioned the court for grant of a statutory appeal of the Merit Board’s
decision to sustain termination, “for the purpose of reviewing the legality of his discharge....”
Higgins relied on the following allegations in support of his petition:

                           Sheriff’s Department supervisors demanded that Deputy
                   Higgins take a drug test. Deputy Higgins refused to take the test
                   because there was no reasonable suspicion to justify the test, the
                   Sheriff’s Department demand appeared to be a criminal investigation,
                   and because a deputy sheriff has a right to seek advice of counsel


         7
            The M erit Board ’s decisio n states: “W ith regard to the charges, the Board finds the P etitioner guilty.” All
three charges, insubordination, conduct unb ecoming an officer, and possession and use of illegal drugs, are set forth
imme diately above the aforementioned statement. Although the decision does not specifically provide a statement of
guilt for each individual charge, the general language and format of the op inion makes eviden t the fact tha t the M erit
Board found Higgins guilty of all three charges.

         8
           A motion to dismiss the cause for lack of prosecution was filed and subsequently granted by the chancery court
in an Ord er entered June 2, 200 0. On Aug ust 7, 2000 , petitioner filed a Motion to Set Aside Dismissal. The chancery
court granted the m otion and reinstated the matter for trial.

                                                            -4-
       under the Memorandum of Understanding between the Sheriff and
       the Deputy Sheriff’s Association. After obtaining counsel he offered
       to take the test, at a time when meaningful results could have been
       obtained; but the Sheriff’s Department refused to let him.

               Deputy Higgins was charged by the Sheriff’s Department with
       insubordination, conduct unbecoming an officer, and possession and
       use of drugs. He was terminated by the Sheriff’s Department.

       ******************************************************

               The decision of the Shelby County Civil Service Merit Board
       of July 7, 1997 is not supported by the evidence, is arbitrary and
       capricious, and is contrary to law.

               The finding of the Board ... is that Deputy Higgins “was aware
       of the nature, activities, and character of the people that frequented
       this particular rooming house.” This finding is not supported by
       evidence in the record. The finding shows that termination was
       sustained by the board based on unbecoming conduct by presence at
       the rooming house, and was not based on possession or use of drugs,
       or the refusal to take a drug test.

In its Final Order entered October 17, 2001, the chancery court held:

               This matter came on to be heard upon the Petition of Deputy
       Michael Higgins as an appeal from a decision of the Shelby County
       Civil Service Merit Board, and upon having considered statements of
       counsel, the pleadings filed in this case, and the record as a whole, it
       is the opinion of this Court that the Civil Service Merit Board did not
       violate any of Petitioner’s rights to due process of law and that the
       Civil Service Merit Board did not act fraudulently, illegally, or
       arbitrarily. Furthermore, substantial and material evidence exists in
       the record to support the decision of the Civil Service Merit Board.

           IT IS, THEREFORE, ORDERED, ADJUDGED, AND
       DECREED that:

               The decision of the Shelby County Civil Service Merit Board
       upholding the termination of Petitioner Deputy Michael Higgins from
       the Shelby County Sheriff’s Department is hereby affirmed. Costs
       are assessed against Petitioner, against whom execution may issue if
       necessary.


                                         -5-
       Higgins appeals, presenting the following issues for review, as quoted from his brief:

               1. Whether the Chancery Court erred in finding that the
               administrative agency acted legally based on substantial and material
               evidence in the record.

               2. Whether the appellant deputy was denied his employment right of
               consultation with counsel under the policy and past practice of the
               Sheriff’s Department.

Upon our review of the record and the briefs submitted, we rephrase the issue as follows: Whether
there is material evidence in the record to support the Merit Board’s decision to uphold petitioner
Higgins’ termination.

        Under the common law writ of certiorari:

               The writ of certiorari may be granted whenever authorized by law,
               and also in all cases where an inferior tribunal, board, or officer
               exercising judicial functions has exceeded the jurisdiction conferred,
               or is acting illegally, when, in the judgment of the court, there is no
               other plain, speedy, or adequate remedy. This section does not apply
               to actions governed by the Tennessee Rules of Appellate Procedure.

T.C.A. § 27-8-101 (2000). In Armstrong v. Tenn. Dep’t of Corr., No. M2000-02328-COA-R3-CV,
2001 WL 618603, at *1 (Tenn. Ct. App. June 7, 2001), this Court said:

                       As the trial court correctly pointed out, the scope of review
               under a common law writ of certiorari is very narrow. It does not
               involve an inquiry into the intrinsic correctness of the decision of the
               tribunal below, but only as to whether that tribunal has exceeded its
               jurisdiction, or acted illegally, fraudulently or arbitrarily. See Powell
               v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn. Ct.
               App. 1994); Yokley v. State, 632 S.W.2d 123 (Tenn. Ct. App. 1981).
               The writ is not available as a matter of right, but is granted under
               unusual or extraordinary circumstances. Clark v. Metro Gov’t of
               Nashville, 827 S.W.2d 312, 316 (Tenn. Ct. App. 1991). Its grant or
               denial is within the sound discretion of the trial court. Boyce v.
               Williams, 389 S.W.2d 272 (Tenn. 1965).

        Judicial review of the decision of a lower board or tribunal under the common law writ of
certiorari “may be had only when the trial court finds that the Board has acted in violation of
constitutional or statutory provisions or in excess of its own statutory authority; has followed
unlawful procedure or been guilty of arbitrary or capricious action; or has acted without material


                                                 -6-
evidence to support its decision.” Watts v. Civil Serv. Bd., 606 S.W.2d 274, 277 (Tenn. 1980). “On
appeal, [an appellate court’s] scope of review is the same; it ‘is no broader or more comprehensive
than that of the trial court with respect to evidence presented before the Board.’” Gross v. Gilless,
26 S.W.3d 488, 492 (Tenn. Ct. App. 1999) (quoting Watts v. Civil Serv. Bd., 606 S.W.2d 274, 277
(Tenn. 1980), cert. denied, 450 U.S. 983, 101 S. Ct. 1519, 67 L. Ed. 2d 818 (1981)).

         If petitioner’s argument is interpreted as “nothing more than an attack on the intrinsic
correctness of the board’s decision and an effort to have the courts reweigh the evidence presented
to the board,” such argument must fail as a common law writ of certiorari “cannot be used to raise
these sorts of issues.” Robinson v. Clement, 65 S.W.3d 632, 637 (Tenn. Ct. App. 2001) (citing
Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478, 480 (Tenn. 1997); Powell v. Parole Eligibility
Review Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994)). Granting petitioner the benefit of the
doubt, we proceed with our analysis, and address whether there is material evidence in the record
to justify Higgins’ termination.

        Based on our review of the record, we conclude that the Merit Board’s decision to terminate
Higgins for insubordination and possession and use of illegal drugs was supported by material
evidence.9 Beginning first with the charge of insubordination, we find material evidence in the
record to support termination on the grounds that petitioner, in violation of Department Policy 5-
1992, refused two separate direct orders from Internal Affairs to submit to drug testing. In contesting
the legality of the insubordination charge, petitioner first alleges that he did not interpret Internal
Affairs’ February 25 “request” as a direct order to submit to urinalysis. Petitioner’s assertion is
directly contradicted by his sworn testimony at the June 19, 1997 hearing before the Merit Board,
in which he stated:

                 Q: And do you recall Inspector Tucker saying then “Did you
                 understand that was a direct order to be drug screened” and you said
                 “Yes, sir”?

                 A: Yes, sir.

                 Q: And then he said “You understand that” and you said “Yes, sir”
                 again. Do you recall that?

                 A: Yes, sir.

        Petitioner next argues that his refusal to comply with the February 25 and 26 orders did not
constitute insubordination as Article VI (7) of the Memorandum of Understanding provides an
employee accused of using illegal drugs with the right to delay testing until he has had an opportunity
to confer with a lawyer. Pursuant to Article VI (7), an employee “shall be afforded a reasonable


        9
           We note that Higgins did not appeal the legality of the Merit Board’s decision to upho ld pe titioner’s
termination on the grounds of conduct unbecom ing an officer.

                                                       -7-
opportunity and facilities to contact and consult with an Association representative and/or an
attorney of the employee’s choice,” when said employee is being interrogated for a violation that
may result in criminal prosecution. (emphasis added). Higgins asserts that despite his efforts, he
was unable to contact attorney Higgs until late on the evening of February 26. Petitioner further
insists that he immediately approached Inspector Tucker on February 27, after consulting with Higgs,
and volunteered to submit to urinalysis.
         We are unpersuaded by Higgins’ argument that he was unjustly terminated for
insubordination, where his refusal to submit to testing was validated by the fact that he had not yet
had the opportunity to confer with counsel. Although Higgins did not have the presence or
assistance of counsel at the February 25 and 26 interviews, the evidence is undisputed that two
Association representatives were present at each interview. Article VI (7) provides accused
employees with a right to contact and consult with an Association representative and/or an attorney
of the employee’s choosing. The incorporation of the term and/or leads this court to conclude that
the presence of counsel is not necessarily required at an interrogation where the accused employee
is provided with the assistance of his Association representatives. This conclusion is further
buttressed by Inspector Tucker’s testimony that it is not the policy or practice of the Association or
the Sheriff’s Department to have an attorney present on behalf of the employee during the time in
which drug screenings are offered to the accused officer.

        Moreover, despite Higgins’ claim that he was not afforded a reasonable opportunity to
contact and consult with an attorney, there is no evidence in the record to indicate that petitioner, or
the Association representatives acting on his behalf, explicitly requested the presence or assistance
of counsel at either of the February interviews. This fact is made evident by the following passage
from petitioner’s cross examination testimony before the Merit Board:

               Q: Okay. I’ll just ask it this way. Is it your testimony here today that
               at the interview with Inspector Tucker that you told him the reason
               I’m turning this down is I want to consult with an attorney before I
               take a test?

                A: I don’t know if I told him or not because I was talking – I had my
                Union representation with me, but I know that I was telling them that.
                I don’t know if I just – you know, face to face with Inspector Tucker
                did it myself, you know, without lying or perjuring myself, but that’s
                what I wanted, you know, that’s what I wanted. I wanted some of
                these [charges] cleared up, Counselor.

                Q: Did you hear your Union representative tell Inspector Tucker that
                before we do anything else Mr. Higgins wants to talk to his lawyer
                about this?

                A: I don’t recall, Counselor.



                                                  -8-
               Q: All right. Well, if it was so, if that was one of your primary
               concerns why didn’t you make sure that was understood?

               A: Oh, I did. I did through my Union representation.

Although Higgins testified that he advised his Association representatives of his desire to have
assistance of counsel, there is no evidence in the record to suggest that the representatives relayed
Higgins’ request for an attorney to Inspector Tucker. Having failed to explicitly notify Internal
Affairs of his need or desire for assistance of counsel, Higgins cannot now successfully challenge
his termination for insubordinate behavior on the grounds that he was entitled to refuse testing under
Article VI (7) until given the opportunity to confer with an attorney.

         We take further issue with petitioner’s transparent effort to manipulate the “reasonable
opportunity” standard espoused in Article VI (7). Higgins maintains that despite his reasonable
efforts, he was unable to contact attorney Higgs until the evening of February 26. Higgins further
notes that upon conferring with Higgs, he immediately approached Inspector Tucker on February 27
to request a drug test.

        Under the circumstances of this case, we find that three days was an unreasonable amount
of time to delay the ordered drug test. Higgins had a reasonable amount of time, between the first
order of February 25 and the second order of February 26, to contact and confer with counsel.
Assuming as true Higgins’ statement that he was unable to get in touch with attorney Higgs, we find
no reason that petitioner could not have contacted and retained equally qualified representation. In
fact, during his testimony, Higgins stated that he directed his Association representatives to contact
Higgs or attorney Alan Chambers, petitioner’s counsel in the case at bar. However, there is no
evidence in the record to suggest that Higgins attempted to contact attorney Chambers on his own
accord.

        More importantly, if this court were to adopt petitioner’s interpretation of the department’s
policy, the drug testing procedures and safeguards available to the department would no longer have
any utility, as employees suspected of intoxication could delay testing for weeks on end under the
ruse that their attorney of choice was unavailable for consultation or out of the country on business.
Prompt testing is necessary where an employee has been accused of being under the influence of
illegal narcotics and, therefore, despite the rather vague language of Article VI (7), a cut-off point
must be established to prevent accused employees from engaging in unreasonable delay that could
hinder the accuracy and utility of the approved testing measures.

       For these reasons, we find that there is material evidence in the record to support the Merit
Board’s decision to uphold petitioner’s termination on insubordination grounds.

       Higgins next asserts that there is no material evidence in the record to support the
“underlying drug offense” upon which termination was partially based and subsequently upheld.
Specifically, Higgins argues: (1) conflicting evidence exists as to whether petitioner had actual


                                                 -9-
physical possession of the glass straightshooter pipe; (2) “there is no proof in the record that the
rocks on the coffee table were cocaine;” and (3) there is conflicting evidence in the record as to
whether Higgins admitted, at the scene, to smoking a rock of cocaine.

        The three arguments asserted above essentially boil down to a question of credibility. In
rendering its decision to affirm petitioner’s termination, the Merit Board was forced to assess and
weigh the credibility of the testifying parties. When the resolution of the issues in a case depends
upon the truthfulness of a witness, the trial judge or trier of fact, who has the opportunity to observe
the witnesses in their manner and demeanor while testifying, is in a far better position than this Court
to decide those issues. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. Sp. Workers Comp.
1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 19997) The weight, faith, and
credit to be given to any witness’s testimony lies in the first instance with the trier of fact, and the
credibility accorded will be given great weight by the appellate court. Id. See also In re Estate of
Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).

        With regard to petitioner’s first argument, whether petitioner had actual physical possession
of the pipe, the Merit Board noted the following factual findings in its Published Order:

                Officer Polk testified that while he was in the hallway with the
                subjects, a door to one of the rooms opened. Officer Polk stated he
                looked into the room and saw the Petitioner sitting in a chair with a
                glass shooter crack pipe in his hand.

                Officer Polk testified that when the Petitioner realized that he was a
                policeman, he dropped the crack pipe on the floor.

                Officer Cowins testified that he did not actually see the crack pipe in
                the Petitioner’s hand because he was in the hallway most of the time
                with the other subjects.

                Officer Taylor testified that he did not see the crack pipe in the
                Petitioner’s hands. Officer Taylor explained that a crack pipe was
                recovered from the floor close to Petitioner’s feet.

                The Petitioner testified that he never noticed the crack cocaine on the
                table nor did he have a crack pipe in his hand.

In finding Higgins guilty of possession and use of drugs, the Merit Board apparently attributed
greater weight, faith, and credit to the testimony of Officers Polk and Taylor, than that of petitioner.
Considering the record as a whole, and giving proper deference to the weight, credit, and faith
awarded the above cited evidence by the Merit Board, we find that the testimony of the officers
regarding petitioner’s physical possession of the pipe is material evidence to support the board’s
decision to terminate Higgins for possession and use of drugs.


                                                 -10-
        Petitioner’s second argument is equally without merit. Higgins contends that there is no
evidence in the record to prove that the substance(s) found on the coffee table was rock cocaine. The
Merit Board entered the following findings of fact concerning the nature of the substance(s) found
on the coffee table directly in front of Higgins:

               Officer Polk explained that he and another officer noticed a substance
               on a coffee table that appeared to be crack cocaine. Officer Polk
               stated that the coffee table was right in front of Petitioner.

               Officer Polk testified that the substance was taken to the lab and
               tested positive for crack cocaine.

               Officer Cowins stated that he did notice the substance that appeared
               to be crack cocaine on the coffee table.

               Officer Taylor testified that he did not notice a substance that
               appeared to be crack cocaine on the coffee table. Officer Taylor
               stated that he was present in the lab when the substance was tested
               and it was determined that it was crack cocaine.

               The Petitioner testified that he never noticed the crack cocaine on the
               table nor did he have a crack pipe in his hand.

In weighing this evidence, the Merit Board was apparently persuaded by the testimony of the three
officers that the substance(s) on the coffee table was, in fact, crack cocaine. Considering the record
as a whole, and giving proper deference to the weight, credit, and faith awarded the above cited
evidence by the Merit Board, we find that the testimony of the officers regarding the nature of the
crack cocaine found on the coffee table is material evidence to support the board’s decision to
terminate Higgins for possession and use of drugs.

       Petitioner’s final argument contesting the legality of his termination for smoking crack
cocaine. We quote the following factual findings of the Merit Board in regard to this argument:

               Officer Polk testified that the Petitioner stated he had just finished
               smoking a rock (crack cocaine) and he was not involved in what
               happened outside the room.

               Officer Taylor testified that he heard the Petitioner state that he had
               just finished smoking a rock.

Higgins maintains that he never made any statement to the effect that Officers Polk and Taylor
testified. Regardless of petitioner’s insistence that he never admitted to smoking rock cocaine, the
Merit Board apparently awarded a significant amount of weight, faith, and credit to the statements


                                                -11-
of the testifying officers. Considering the record as a whole, and giving proper deference to the
weight, credit, and faith awarded the above cited evidence by the Merit Board, we find that there is
material evidence in the record to support the board’s decision to terminate Higgins for possession
and use of drugs.

        In conclusion, we find that there is material evidence in the record to support the Shelby
County Civil Service Merit Board’s decision upholding petitioner Michael Higgins termination on
the grounds of insubordination and possession and use of illegal drugs. Accordingly, the Order of
the chancery court is affirmed. Costs of appeal are assessed against petitioner Michael Higgins and
his surety.


                                              __________________________________________
                                              W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                               -12-
