                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   January 7, 2003 Session

 CLINTON LIEN v. METROPOLITAN GOVERNMENT OF NASHVILLE
                 and DAVIDSON COUNTY, ET AL.

                    Appeal from the Chancery Court for Davidson County
                       No. 01-126-II   Walter C. Kurtz, Chancellor



                    No. M2002-00721-COA-R3-CV - Filed March 4, 2003


Chief Emmett H. Turner, of the Metropolitan Government of Nashville and Davidson County Police
Department, discharged Appellant from employment as a police officer for certain violations of
various rules and regulations. The officer appealed his discharge and, after a hearing, the
Administrative Law Judge reduced his penalty to a thirty day suspension. The appeal was further
heard before the Civil Service Commission, which reversed the ALJ and upheld the dismissal of the
officer. The Chancery Court of Davidson County upheld the action of the Civil Service
Commission. The officer appeals, and we affirm the judgment of the trial court.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S., and
DON R. ASH , SP . J., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Clinton Lien.

Karl F. Dean and William Michael Safley, Nashville, Tennessee, for the appellee, Metro
Government of Nashville and Davidson County.


                                            OPINION

        Clinton Lien was a metro police officer from August 16, 1993 until April 21, 1999, when he
was discharged by metro police Chief Emmett H. Turner on charges of running a swinger’s club,
downloading pornography on company time, and bringing discredit upon the police force. Mr. Lien
appealed his dismissal, and an administrative hearing took place on February 7 and 8, 2000, before
an Administrative Law Judge who, on September 10, 2000, rendered an Initial Order in which he
overturned the decision of Chief Turner to fire Mr. Lien and, instead, imposed upon him a thirty day
suspension. Metro appealed the Administrative Law Judge Order to the Civil Service Commission
and that Commission, by a vote of three to one, reversed the Administrative Law Judge decision and
upheld Chief Turner’s action in discharging Mr. Lien. The appeal by Mr. Lien was to the Chancery
Court of Davidson County where the administrative record was filed on March 2, 2001. The case
was argued before Honorable Walter C. Kurtz, Circuit Judge sitting by interchange, on February 1,
2002, and taken under advisement. The trial judge rendered judgment on February 20, 2002,
upholding the action of the Civil Service Commission, and Mr. Lien timely appealed.

        Because we are dealing with the future of a veteran metropolitan government police officer
in a case where an Administrative Law Judge has held in his favor and because the vote in the Civil
Service Commission was a divided vote, we have left nothing to chance in reviewing the extensive
record in this case. The only issue asserted before this Court is whether the action of the Civil
Service Board in allowing the submission of extraneous evidence, subsequent to the hearing, of
minor previous infractions by Mr. Lien was prejudicial and reversible error rather than harmless
error. The action of the Civil Service Commission in this respect was clearly erroneous, but a
harmless error analysis cannot be made without careful consideration of the entire record, taking into
account all of the evidence that was before the Commission.

        The standard of review in this Court is the same standard that was applicable to the review
by the trial judge.

              The scope of review in this Court is the same as in the trial court, to review
       findings of fact of the administrative agency upon the standard of substantial and
       material evidence. DePriest v. Puett, 669 S.W.2d 669 (Tenn.Ct.App.1984).
       Although what amounts to “substantial and material” evidence provided for in T.C.A.
       § 4-5-322(h) is not clearly defined. It is generally understood that “it required
       something less than a preponderance of the evidence, (citations omitted) but more
       than a scintilla or glimmer.” Wayne County v. Tennessee Solid Waste Disposal
       Control Bd., 756 S.W.2d 274, 280 (1988).

Gluck v. Civil Serv. Comm’n, 15 S.W.3d 486, 490 (Tenn. Ct. App. 1999).

       The extensive Memorandum of the learned trial judge left no stone unturned in the
consideration of this case, and since we cannot improve upon it, we adopt it in relevant part as the
Opinion of this Court as follows:

               This is an appeal from the Civil Service Commission of the Metropolitan
       Government of Nashville and Davidson County (“CSC”) rendered November 16,
       2000, pursuant to the Uniform Administrative Procedures Act. The petitioner is
       challenging his termination of employment as a Metropolitan Police Officer. The
       petition for judicial review was filed in the chancery court on January 12, 2001.1 The
       undersigned Judge is sitting by interchange per Order of January 7, 2002. Both



       1
           The administrative record was filed with the Court on March 2, 2001.

                                                        -2-
        parties have filed extensive and excellent memoranda of law. The case was argued
        before the Court on February 1, 2002, and taken under advisement.
                The plaintiff in this case contends that the decision of the CSC is illegal,
        arbitrary, and capricious and that the decision of the CSC was unsupported by the
        evidence in the record. Specifically, the Petitioner claims that:

                  ....

                  2.       There is no articulated procedure in the Metropolitan
                           Government of Nashville and Davidson County Civil Service
                           Rules, policy number 6.8 A-1, or Article 12.05 of the
                           Metropolitan Charter to guide the Civil Service Commission
                           in reviewing the initial order which led to the Civil Service
                           Commission acting arbitrarily and capriciously and rendering
                           a decision that was unsupported by the evidence in the record
                           thus violating the petitioner’s right to due process warranting
                           a reversal of the decision; and

                  3.       The expansion of the record by the Civil Service Commission
                           to include prior disciplinary actions of the petitioner was
                           arbitrary and capricious and unsupported by substantial and
                           material evidence in the record violating the petitioner’s due
                           process rights.

                  4.       The act of expanding the record to include prior disciplinary
                           acts of the petitioner by the Civil Service Commission
                           amounted to the Commission using rule making instead of
                           adjudication thus violating the petitioner’s right to due
                           process and warranting reversal by this Court.2

         (Petitioner’s Memorandum, pp. 13, 16, 22, and 25)

                The Police Chief terminated the petitioner for cause. The petitioner appealed
         to the CSC. The CSC is established by Article 12 of the Metropolitan Charter.
         Section 12.05 states in part:

                  No employee in the classified service may be terminated, or
                  suspended from the service, or demoted in pay grade, except for cause
                  and after a hearing before the department head or other appointed
                  authority, with prior reasonable notice, in writing, of the proposed


        2
            The court considers No. 4 as just another way to raise the co mpla int made in No. 3. The four (4) issues
prese nted are taken from the sectio n head ings in the p etitioner’s brief.

                                                        -3-
       action and the reasons therefore, .... Any employee terminated from
       the classified service or suspended or demoted in pay grade, by his
       simple written request to the commission, shall have the action
       reviewed by the commission. If the commission does not approve the
       action, it may modify or reverse it, and provide whatever recompense
       is indicated, which shall not exceed net loss of earnings. In a review
       by the commission of any disciplinary action, the disciplinary
       authority shall bear the burden of proof of just cause for discipline.

Section 12.07(h) states in part:

       The disciplinary action within the classified service. Rules with
       respect to such action shall provide that when an employee requests
       a review of disciplinary action taken against him, as provided in
       Section 12.05 above, such employee shall be furnished a copy of the
       basis of his discipline not less than fifteen days prior to such hearing,
       and said rules may provide for the amendment of grounds for
       discipline upon reasonable notice to the employee.

       It shall be mandatory that the rules provide that the judgment and
       findings of the commission on all questions of fact, in the hearing of
       charges proffered against any classified employee under provision of
       this article, shall be final and shall be subject to review only for
       illegality or want of jurisdiction, excepting only cases where the
       classified employees have been dismissed from the service by
       judgment of the commission, in which case such dismissed employee
       may prepare and file the record of the proceedings, including the
       transcript certified by the chairman of such commission, in the circuit
       and chancery courts of Davidson County, ....

The CSC itself has adopted rules governing disciplinary proceedings. The rules

governing disciplinary proceedings, in cases of an appeal of a dismissal, require a

hearing before an administrative law judge (“ALJ”) from the office of the Secretary

of State. The ALJ then conducts a hearing and enters an “initial order.” Rules of the

CSC then require:

       The commission shall review the initial order of the administrative
       judge or hearing officer sitting alone. Written notice of the review
       will be included in the initial order.


                                         -4-
The CSC then receives briefs from the parties, hears argument, and then renders a

“final order.” Judicial review of the CSC is then to the chancery court pursuant to

the provisions of T.C.A. § 4-5-322. See T.C.A. § 27-9-114. See, e.g., Gluck v. Civil

Service Comm’n., 15 S.W.3d 486(Tenn. Ct. App. 1999)(the demotion of police

officer by Metropolitan CSC affirmed).

       It is repeated time and again in the appellate decisions that this Court’s scope

of review on an administrative appeal pursuant to T.C.A. § 4-5-322 is limited. The

scope of review is explained as follows:

       The scope of review in this Court is the same as in the trial court, to
       review findings of fact of the administrative agency upon the standard
       of substantial and material evidence. DePriest v. Puett, 669 S.W.2d
       669 (Tenn. Ct. App. 1984). Although what amounts to “substantial
       and material” evidence provided for in T.C.A. § 4-5-322(h) is not
       clearly defined. It is generally understood that “it requires something
       less than a preponderance of the evidence, (citations omitted) but
       more than a scintilla or glimmer.” Wayne County v. Tennessee Solid
       Waste Disposal Control Bd., 756 S.W.2d 274, 280 (1988).

       While this Court may consider evidence in the record that detracts
       from its weight, the court is not allowed to substitute its judgment for
       that of the agency concerning the weight of the evidence. T.C.A. §
       4-5-322(h), Pace v. Garbage Disposal Dist., 54 Tenn.App. 263, 266,
       390 S.W.2d 461, 463 (1965). The evidence before the tribunal must
       be such relevant evidence as a reasonable mind might accept as
       adequate to support a rational conclusion and such as to furnish a
       reasonable sound basis for the action under consideration. Pace, 54
       Tenn.App. at 267, 390 S.W.2d at 463.

Gluck, 15 S.W.3d at 490.

       T.C.A. § 4-5-322 governing this review states in part:

       (g) The review shall be conducted by the court without a jury and
       shall be confined to the record. In cases of alleged irregularities in



                                         -5-
       procedure before the agency, not shown in the record, proof thereon
       may be taken in the court.
       (h) The court may affirm the decision of the agency or remand the
       case for further proceedings. The court may reverse or modify the
       decision if the rights of the petitioner have been prejudiced because
       the administrative 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)     Unsupported by evidence which is both substantial
               and material in the light of the entire record.
       In determining the substantiality of evidence, the court shall take into
       account whatever in the record fairly detracts from its weight, but the
       court shall not substitute its judgment for that of the agency as to the
       weight of evidence on questions of fact.
       (i) No agency decision pursuant to a hearing in a contested case shall
       be reversed, remanded or modified by the reviewing court unless for
       errors which affect the merits of such decision.

       Petitioner was employed as a Metropolitan Police Officer beginning August

16, 1993, until his termination by Chief of Police, Emmett Turner, on April 21, 1999.

Chief Turner ’s April 13, 1999, letter to petitioner set out a number of factual

allegations for disciplinary action against the plaintiff, which included his operation

of an adult sexual entertainment facility, dispensing alcohol without a license, failing

to have an off-duty employment request on file, bringing discredit upon the Police

Department by operating a swingers club, and using a Department computer to view

and download pornography.

        Petitioner appealed his termination pursuant to Civil Service Rules and

requested a hearing before an ALJ. The Metropolitan Government (“Metro”) filed

its charges and specifications and proceeded on six (6) charges. A two (2) day



                                          -6-
hearing was held before the ALJ beginning on April 7, 2000, where the ALJ heard

from fifteen (15) witnesses. Subsequently the ALJ issued a lengthy “initial order”

making findings of fact.3 The ALJ concluded that termination was too harsh a

punishment and decided that a suspension of thirty (30) days was more appropriate.

           A summary of the detailed twenty-four (24) page opinion is outlined as

follows:

           1.       Charge: Appellant operated an adult swinger’s club in violation of a

                    U.S. District Court injunction.

                    - NOT SUBSTANTIATED.

           2.       Charge: Appellant gave away alcoholic beverages at his club.

                    - DOUBTFUL PROOF.

           3.       Charge: Appellant did not receive official permission to operate the

                    club. - PROVED, BUT MANY POLICE OFFICIALS KNEW

                    WHAT HE WAS DOING.

           4.       Charge: Appellant’s operation of the adult swinger’s club brought

                    discredit upon the           Police Department.            - PROVED, BUT

                    MITIGATED BY THE DEPARTMENT’S INACTION AND

                    FAILURE TO FOLLOW CORRECT PROCEDURE.

           5.       Charge: Appellant produced and circulated a flyer for a teen club he

                    operated which stated it was “owned, operated, and secured by a




3
    An “initial order” is addressed at T.C.A. § 4-5-314 and the review of an “initial order” at T.C.A. § 4-5-315.

                                                   -7-
               Metro Police Officer.”          - PROVED, BUT FLYER NEVER

               CIRCULATED.

       6.      Charge: Appellant downloaded pornography and viewed it on police

               computers. - PROVED.

As to Charge number 6, the ALJ stated and then concluded:

               Of all the facts proven, this was the most serious of the
       charges. The only reason that this, combined with the other proven
       charges, should not result in dismissal is because of Appellant’s
       previous spotless record from his employment dating from August
       1993. Not only did he never have any previous discipline, but he
       never received a performance evaluation in any category of less than
       satisfactory. It is appropriate under the facts here to give Appellant
       the maximum allowable suspension.

                In order to ensure uniformity of discipline, and ascertain
       appropriate discipline, this Judge had input from many other judges
       in this office who have handled Metro Civil Service cases. The final
       decision to suspend for thirty days is actually more severe than if this
       had been a consensus opinion.

       Metro sought review of the “initial order” of the ALJ and requested that the

CSC reject the thirty (30) day suspension recommended by the ALJ and terminate the

petitioner. Metro requested that the CSC reverse the “conclusion” of the ALJ and

indicated that it did not appeal the factual determination. Metro asserted “that such

conduct is not conduct that should be tolerated and therefore [the petitioner] should

be terminated from his employment.” The Metro attorney stated to the CSC:

               The Department acknowledges however, that there were two
       of the particular charges which would be considered the most serious
       of the violations committed by Mr. Lien. These two particular
       charges include: the using of company time and company equipment
       to download pornography and secondly, bringing discredit upon the
       Police Department. Now, unquestionably the ALJ found Mr. Lien


                                         -8-
         guilty of both these charges. The discredit to the Police Department
         charge resulted from Mr. Lien’s operation of a sex club in which an
         admission was paid by patrons to enter and engage in open sexual
         activity with other patrons.

         The CSC first met on October 10, 2000, to review the “initial order” of the

ALJ. Mr. Lien was represented by counsel and the Police Department by attorney

Michael Safley. The matter was heard on argument of counsel. The Chairman of the

CSC defined the scope of the hearing as follows:

         We are here to review the record that the Administrative Law Judge
         had. On these facts, I believe, we are entitled to accept these facts
         and look at those facts and make a judgment about the disposition on
         those facts. I mean... Chief Turner made one judgment. The
         Administrative Law Judge made an entirely different judgment and
         now it is before this Commission to review these judgments and to
         make our own determination based on the facts.

During the discussion between the CSC members and counsel, one of the CSC

members questioned whether the ALJ’s finding that the petitioner had a “spotless

record” was correct in that there was an article in the record from The Tennessean

that supposedly indicated that the petitioner had been disciplined a number of times

since joining the force in 1993. The petitioner’s lawyer objected and the Chairman

ruled:

         O.K., we are going to rule evidentiary speaking, that we will not
         consider anything The Tennessean article says about his prior record
         Mr. Roberts. [Petitioner’s attorney]. You are exactly right. I haven’t
         seen the article and certainly [will] not consider that. So anything that
         ... we are again bound by the findings of fact that the Administrative
         Law Judge found even in this case if they are correct or incorrect.

As the proceeding reached an end, one of the CSC members stated that he had not

read the ALJ’s decision and asked that the matter be postponed. Counsel agreed that


                                           -9-
        a postponement would be appropriate and the proceeding was reset for November 14,

        2000.

                   When the case was called on November 14th, the Chairman announced that

        the CSC had “expanded the record to include Mr. Lien’s personnel record.” The

        petitioner objected. The discussion, however, continued related to the charges

        against the petitioner and the Chairman pointed out that, while the prior disciplinary

        matters involving the petitioner were “minor,” he did not have a “spotless record” as

        the ALJ had found.4           As to the ALJ’s finding that the petitioner had a “spotless

        record,” the Chairman stated “now that’s simply wrong.”

                   The CSC continued to discuss the case until a vote was taken, and by a vote

        of three (3) to one (1) the CSC voted to overturn the “initial order” of the ALJ and

        reinstate Chief Turner’s decision for termination. The CSC then on November 16,

        2000, entered a brief Final Order which states in pertinent part as follows:

                   Based on consideration of the Technical Record and Order as issued
                   by Administrative Law Judge Robert Fellman, it is hereby
                   ORDERED that the decision entered by the Administrative Law
                   Judge to reduce the disciplinary action to a thirty (30) day suspension,
                   be REVERSED, and the Appointing Authority initial decision to
                   dismiss Mr. Lien, shall be UPHELD by this Commission and
                   considered FINAL. 5

        When reviewing an “initial order” the CSC is “not bound to accept the findings and

        recommendations of hearing examiners.” See Sanderson v. University of Tennessee,



        4
            The reco rd sho wed discipline for two (2) traffic violations and a failure to appear in court.

        5
            This final ord er do es not comply with the requirements of T .C.A. § 4-5-315 (i) and 4-5-314(c). This
deficiency is, however, not alleged as error by the petitioner.

                                                           -10-
1997 WL 718427, *5 (Tenn. App. Nov. 19, 1997). Here, the CSC and the parties

accepted the factual findings of the ALJ, but the CSC, as is appropriate, substituted

its judgment as to the appropriate action to be taken.

....

                          II. Lack Of Articulated Standards

       As near as the Court can determine, the petitioner’s complaint is that the CSC

makes its decision without any standards and, therefore, the decision is subjective

and arbitrary. This contention is confusing because it does not allege that the CSC’s

decision was arbitrary compared to the punishment imposed for other like

disciplinary infractions but, rather, goes off on a tangent about there being no

“articulated procedures ... to guide the Commission” in making its decision. The

petitioner asserts that there should be criteria by which the CSC can make a

determination between those cases that warrant reprimand, a short suspension, a long

suspension, or termination. Without such standards the petitioner argues that the

decision can be nothing but subjective, arbitrary, and inconsistent with the policy of

the civil service laws.

       The Metropolitan Charter has created the civil service system and has charged

the CSC to oversee and review the decisions of department heads related to employee

discipline as being consistent with the departmental rules and civil service laws. The

Court is unaware of any legal authority which requires that specific written criteria

be adopted governing the choice of sanctions for employment rule infractions.




                                        -11-
        If a government employer has a choice of sanctions available for the violation

of an employment rule, it would only be a finding of arbitrariness that would allow

a court to “second guess” the administrative decision maker. It is the CSC itself that

is the primary protector of the employee against the arbitrary action of his department

head.

        The determination of arbitrariness within the structure of an administrative

law decision is to compare the decision at issue with the precedent in prior cases.

See Pierce, supra at § 11.5 (Unexplained Departures From Precedent). Thus, if an

agency treats individuals differently, it must acknowledge and explain that difference

in treatment or be subject to a determination of arbitrariness. Id. When an agency

does not have a sufficient record of precedents or the record of precedents is not

made, there is no occasion to find that the decision was arbitrary. Id.

        In his brief the petitioner cites page 330 of the record and contends that he

asked the CSC to consider disciplinary actions taken against other police officers in

like cases. That contention is not exactly correct. Counsel on page 330 argued that

“[the ALJ] looked at the previous disciplinary action of other employees to see what

would happen to them when they did not fill out a form one fifty. And at that point,

he mitigated the termination of Clinton Lien by determining that other employees that

had committed the same act were not terminated.” This comment was in reference

to the minor offense of failing to file the paperwork related to petitioner’s second job.

Both the ALJ and the CSC found this offense to be minor compared to the viewing




                                          -12-
and downloading of pornography by the use of a government computer and the

operation of a “swinger ’s” club.

       Although not referred to in petitioner’s brief, the more important comment

was made by Mr. Roberts to the CSC when he stated:

       With no standards by which this action could be taken [,] [t]wenty
       three other disciplinary matters were gone into at this evidentiary
       hearing. In part of Chief Turner’s own deposition, with people who
       had committed similar violations, or more severe violations nobody
       received termination. They all received either reprimands or one or
       two days off with pay. (TR at 302).

This comment again referred to discipline for failure to file the form 150, one of the

minor infractions at issue. (See ALJ Order at p. 8). Mr. Roberts then later said:

       If you read the record, you will find that there ... that some rather
       exhaustive testimony was introduced during Chief Turner’s
       deposition. And he testified by deposition. In which the disciplinary
       actions regarding other Officers were gone into. Some of them much
       more serious than any that Officer Lien was accused of. Including in
       one case brandishing a firearm in a bar after drinking. That Officer
       was not terminated. That brings discredit to the Police Department.
       Losing a weapon to someone else. Those were testified to
       extensively and those punishments were far less than termination.
       There was no consistency as to the punishments given and that is in
       part the basis of Officer Lien’s appeal. (TR at 309).

There was proof in the record, brought in during Chief Turner’s testimony, of

disciplinary action taken against other officers for a wide variety of violations. (TR

575-587, 589-611). None of these, however, involved examples which resulted in

termination of officers. (TR 616). Chief Turner was then asked why he terminated

the petitioner and not the other officers whose situations he had been asked about:




                                        -13-
       Q. Would you explain, why is there a difference between one - or
       two-days’ suspension for the type of offenses to some people and in
       Mr. Lien’ s case he got termination?

       A. Well, I think what you have to take into consideration is that those
       were single incidents that occurred. Although some of the officers or
       some of the employees may have had prior charges, they were single
       situations that had occurred during the course of their employment.

       Q. And how does that compare to Mr. Lien?

       A. Well, I think if you compare those individuals with what Mr. Lien
       was doing – and certainly I don’t think any of those individuals were
       operating a sexually oriented business. In my view, none of those
       people were charged with viewing sexually explicit documents on a
       computer, they were not charged with operating a private business
       that was engaged in sexually oriented affairs. And in my opinion, Mr.
       Lien’s business certainly brought a discredit to the police department,
       and I felt very strongly that the offenses that he had committed or the
       rules that he had violated certainly were serious enough to warrant
       termination.

(TR 617-18).

       The record does not suggest that the ALJ or the CSC disregarded petitioner’s

evidence as to disciplinary decisions regarding other police officers. In fact, the ALJ

probably went too far in making the comparison of this case with other cases. The

ALJ’s comment on page 23 of his opinion that he had “input” from other judges in

his office, in an effort to ascertain what had happened in other cases, is of dubious

legality. See T.C.A. § 4-5-304(a)(b) and T.C.A. § 4-5-314(d).

       In determining discipline of an employee, “supervisors have discretion on

how to discipline the employee.” Gluck, 15 S.W.3d at 490-91. As the issue was

articulated and presented by the petitioner, the Court finds no due process violation.




                                         -14-
            III. Expansion Of The Record By The CSC To Include

               Prior Disciplinary Actions Against The Petitioner.

        The CSC initially met in October 2000 and because a Commissioner had not

read the findings of facts and conclusions of law entered as the “initial Order” of the

ALJ, the matter was continued until November 14, 2000. As the November hearing

opened, it was announced by the Chairman that the CSC, itself, had obtained the

personnel file of the petitioner so as to inquire into his prior disciplinary proceedings.

The petitioner objected to the CSC’s augmentation of the record. Mr. Safley stated

that he had not requested this augmentation and actually did not think that the prior

disciplinary actions against the petitioner were of much importance.

        The CSC Chairman explained that the ALJ had found that the petitioner had

no prior disciplinary actions against him and part of the basis of his recommendation

for only a suspension was petitioner’s “spotless” record. An article from The

Tennessean was in the record which indicated that the petitioner had some prior

disciplinary problems. Therefore, the CSC, on its own motion, sought out and

procured the filing of petitioner’s personnel record. Mr. Safley stated “I have not

made such a motion. The police department has not requested that. That doesn’t

mean that the Commission can do that but it is not pursuant to any motion that I have

come and laid before you.” Chairman Farmer stated: “No. I requested his personnel

record be made a part of the record so that it has some clarification about that.” The

Chairman then later stated “[i]t was my understanding and continues to be my

understanding that [the] Civil Service Commission has the power and authority under


                                          -15-
         the code to expand the record in every disciplinary case that is brought to us to

         include an employee’s past disciplinary record.”

                  The issue before the Court, then, is whether or not the CSC can expand the

         record as was done in this case.

                  The Court concludes that it was impermissible for the CSC to expand the

         record. The brief filed by Metro in this case cites to no rule, statute, or case in

         support of the argument that the CSC can expand the record. The Court is of the

         opinion that in considering the statute, T.C.A. § 4-5-315 (b)-(h) governing an appeal

         from an initial order, the statute does not contemplate further proof being presented

         before the agency or commission reviewing an initial order. The Court reaches that

         conclusion by reference to the provision found in subpart (e) which states “[t]he

         agency shall afford each party an opportunity to present briefs and may afford each

         party an opportunity to present oral argument.” Furthermore, in subpart (g) the

         statute states that the agency may render a final order or “may remand the matter for

         further proceedings with instructions to the person who rendered the initial order.”6

         The Court is of the opinion that this statute contemplates that the reviewing agency

         or commission shall review the “initial order” on the record before the ALJ. If it is

         necessary to take further proof, the case has to be remanded back to the ALJ. The

         Court would further note, in a discussion of agency review of the initial order, there

         was no mention of the reviewing body’s ability to hear additional evidence or to



         6
            The rule o f statutory construction is “expressio unius est exclusio alterius,” The expession of one thing
exclud es the other. See Vulcan Materials Co. v. Gamble Const. Co., 56 S .W .3d 5 71, 5 76 (Tenn.Ap p.20 01).

                                                        -16-
augment the record on its own motion. See Kratzke, A Review of Contested Case

Provisions of the Uniform Administrative Procedures Act, 13 U. Mem. L. Rev. 552,

582-84 (1983).

       Furthermore, the Tennessee Rules of Evidence apply to this case. See T.C.A.

§ 4-5-313. T.R.E. 614(a) only allows a judge (and a Commissioner) to call a witness

in “extraordinary circumstances.” That rule would also apply to the production of

documentary evidence. Documentary evidence is only properly admissible after a

witness lays a foundation. As one commentator on Tennessee law has stated:

       Under the Anglo American trial process, lawyers for the parties have
       the responsibility of deciding which witnesses to call and what
       questions to ask. The judge is a neutral participant who generally
       refrains from direct involvement in the presentation of proof, other
       than to rule on objections by counsel.

Cohen, Sheppeard and Paine, Tennessee Law of Evidence § 6.14.1 (4th ed. 2000).

Here, it is important to remember that counsel for Metro did not ask for the

admission of the personnel file nor did counsel for Metro rely, in any way, on the

petitioner’s prior disciplinary record. In fact, counsel for Metro specifically stated

that he did not feel that the prior disciplinary record was important because the prior

infractions were so minor.

       This case is akin to State v. Brock, 940 S.W.2d 577 (Tenn. Crim. App. 1996)

where the judge called a witness in order to fill a gap in the state’s proof. The trial

judge had noted that no one had proven the victim’s age, a necessary element in a

statutory rape case. The judge, therefore, recalled a witness to present evidence as

to the victim’s age. The appellate court found this to be error. The Court, here, finds


                                         -17-
that even if the statutory prohibition is disregarded, the CSC erred by augmenting the

record on its own motion. See also J.F. v. State, 718 So.2d 251, 252 (Fla. App.

1998)(trial court departs from position of neutrality when it sua sponte orders the

production of evidence that the [party] itself never sought to offer into evidence).

       Metro has argued that even if the CSC was in error in augmenting the record,

that the error was harmless. See Hoover v. State Bd. of Equalization, 579 S.W.2d

192 (Tenn. App. 1978)(if an administrative agency commits harmless error, the

reviewing court cannot use it as a proper basis for reversal of the agencies decision);

Berke v. Chattanooga Bar Assoc., 436 S.W.2d 296, 304 (Tenn. App. 1968); and

T.C.A. § 4-5-322(h).

       Metro cites specific quotations from CSC members stating that they did not

consider the petitioner’s prior disciplinary record in reaching their decision. Metro

is correct. Even though it was error for the CSC to include past disciplinary

documents in the record, such inclusion was harmless.            There is “sufficient

competent evidence” to support the decision of the CSC. The following comments

of the various Commissioners are uncontradicted by the record.            During the

deliberation of this matter, the following statements were made:

       COMMISSIONER RACHEL: What I see in looking at the entire
       case is separate incidents, but all of them reflect on a lack of
       judgement (sic) on the part of the employee. Even though they are
       separate and different in regards to what happened. Even the last
       comment relative to the form one fifty, in my opinion, reflects a lack
       of judgement (sic) on his part. I still think that the issue down
       loading the pornography in and of itself should warrant
       separation. It also shows a lack of judgement (sic). So, I don’t
       know what the other incidents have been to other employees who


                                         -18-
       have used technology for their own personal benefit that’s identical
       or not. But that incident alone, in my opinion, warrants separation.
       (TR. p.335)(emphasis added)

       VICE-CHAIRMAN CORBITT:              Well, I happen to agree with
       Commissioner Rachel. Also, I agree with the ALJ that the
       disciplinary actions, the supplemental information that we
       received doesn’t weigh relative to me in ultimate disciplinary
       action. I happen to agree that we have the right to request that
       information and we always have. And in spite of the arguments we
       heard that there was a precedent where we couldn’t expand upon the
       record, we’ve always had the option or the right to request the
       personnel file and additional information regarding an employee. I
       don’t agree with the Judge’s ultimate decision in overturning the
       termination. At the appropriate time, I will vote accordingly. (TR.
       p. 335-336)(emphasis added)

       CHAIRMAN FARMER:              What we have in front of us here is a
       Police Officer operating a swingers club. Not getting permission to
       do that. Bringing discredit upon the Police Department. I ...clearly
       that is something that I believe would be, in my opinion, bringing
       discredit upon the Police Department. Using the computer on duty
       to down load Adult pornography is serious enough offense in and
       of itself to warrant dismissal and I agree with Commissioner Rachel
       on that issue as well.

               I’m not considering the disciplinary record ...prior
       disciplinary record as having any particular medigation (sic) or
       one way or the other in this case. Because as I said it is so minor,
       but we will make it a part of the record. (TR. p. 337)(emphasis
       added)

       As evidenced by the above passages, each Commissioner felt that the actions

of the petitioner, specifically the downloading of pornography on a Department

computer while on duty, warranted dismissal of employment. Commissioners

Corbitt and Farmer even went further and specifically stated that the prior

disciplinary actions that were added to the record played no role in their decision to

terminate the employment of Mr. Lien. The CSC voted three (3) to one (1) to


                                        -19-
       overturn the judgment of the ALJ and reinstate termination of employment as the

       appropriate punishment.       The three votes came from the above quoted

       Commissioners. The information concerning the petitioner’s past disciplinary record

       played no role in the decision of the CSC.



                                         IV. Conclusion

               The Court concludes as follows:

               ....

               2.      The Court finds no due process violation related to petitioner’s

       allegation that the decision rendered by the CSC was somehow standardless.

               3.      The Court finds that while it was error to augment the record, that

       error was harmless. There is material evidence to support the decision of the CSC.

               The order of the CSC is affirmed. Costs are taxed to the petitioner.

        The ALJ, in his findings of fact, described the materials downloaded by the Mr. Lien from
a computer also operated by the secretary in the warrants division of the police department. He
observed, “[m]ost of the pictures were of nudity alone, similar to those found in Playboy. But some
of the pictures arguably could be considered pornographic, although none showed the ultimate sex
act.”

        The ALJ has confused Playboy magazine with Hustler magazine. In observing that, under
the criminal laws of the United States, the First and Fourteenth Amendments to the Constitution of
the United States provided protection for everything except “hard-core pornography,” Justice Potter
Stewart observed, “I shall not today attempt further to define the kinds of material I understand to
be embraced within that shorthand description; and perhaps I could never succeed in intelligibly
doing so. But I know it when I see it.” Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964)
(Stewart concurring).

      Downloading pornography - - hard-core, soft-core, or medium-core - - - on one’s own
computer, in the privacy of one’s own home is one thing. Downloading such materials on a
computer assigned to another employee of the police department on department time and leaving the


                                               -20-
disk for perusal by other employees of the department who might not share Appellant’s enthusiasm
for such erotic display of the female body is quite another thing.

         In the final analysis, Mr. Lien asserts on appeal a single issue that the admitted error of the
Civil Service Board in allowing the record to be supplemented, post-hearing, by materials related
to his prior minor disciplinary infractions justifies reversal. Considering the entire record in the case,
it clearly does not, as the error is harmless.

       The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as may be necessary. Costs of the cause are assessed against Appellant.



                                                         ___________________________________
                                                         WILLIAM B. CAIN, JUDGE




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