                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                   May 2, 2011 Session

            DAVID G. YOUNG, ET AL. v. CITY OF LAFOLLETTE

                Appeal from the Chancery Court for Campbell County
                     No. 09-103    Billy Joe White, Chancellor


                No. E2010-00653-COA-R3-CV - FILED - MAY 20, 2011




This case stems from the suspension and later termination of David G. Young (“Young”)
from his position as City Administrator for the City of LaFollette (“LaFollette”). Young filed
a petition for writ of certiorari in the Chancery Court of Campbell County (“the Trial Court”).
The Trial Court ruled in favor of Young and annulled the LaFollette proceedings that resulted
in Young’s suspension and termination. The Trial Court also awarded Young, as the
prevailing party, certain discretionary costs. LaFollette appeals. We hold that LaFollette did
not act fraudulently, illegally, or arbitrarily in its termination of Young’s employment. We
reverse.


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


D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P . F RANKS,
P.J., and C HARLES D . S USANO, J R., J., joined.


Emily A. Cleveland and Jon G. Roach, Knoxville, Tennessee, for the appellant, the City of
LaFollette.

David H. Dunaway, LaFollette, Tennessee, for the appellee, David G. Young, individually
and as City Administrator for the City of LaFollette.
                                             OPINION

                                            Background

               Young was appointed City Administrator by LaFollette’s City Council. In
2009, City Clerk Lynda White (“White”) submitted a grievance concerning Young’s alleged
conduct to LaFollette’s Mayor and City Council. White’s allegations took the form of four
categories: 1) concerns that she would be physically harmed by Young based in part on an
incident whereby he “rose to his feet and towered over” her; 2) sexual harassment by Young
in the form of certain sexual remarks and insinuations made to White, sometimes in the
presence of others; 3) verbal and non-verbal aggression by Young; and 4) being required to
work extra hours for which she was not compensated.

              LaFollette, after consulting its City Attorney and the District Attorney, chose
Fire Chief Gary Byrd as the investigator for the White grievance. Having known both Young
and White for many years, Byrd recused himself and delegated the investigation to Ernie Hill,
another LaFollette employee. Hill interviewed witnesses and later submitted the collected
information to the LaFollette City Council. Young submitted a written response concerning
the White grievance directly to the LaFollette City Council.

               On August 4, 2009, the Lafollette City Council took up the White grievance.
Council members reviewed White’s grievance and questioned her. Young and his attorney
were present and made statements. No cross examination was permitted. Hill answered
questions regarding his investigation. The City Council voted 3-2 to suspend Young pending
further factual review. Young subsequently filed a Petition for Writ of Certiorari in the Trial
Court seeking review of his suspension by LaFollette. On September 1, 2009, the LaFollette
City Council voted 3-2 to terminate Young’s employment. Young filed an Amended Petition
for Writ of Certiorari in the Trial Court following his termination.

                 After a hearing, the Trial Court entered an order on February 22, 2010, finding
             1
and holding :

                       1.      That the actions of the Respondent, City of
                 LaFollette, on August 4, 2009 and September 1, 2009 are null
                 and void as to the Petitioner, David G. Young.

                        2.      The Court finds that the Petitioner, David G.


       1
        We have omitted portions of the order that, while visible, are marked through and accompanied by
what apparently are the Chancellor’s signed initials.

                                                  -2-
Young, at all times mentioned herein was an employee of the
City of LaFollette, and that the Petitioner had certain property
rights in expected continued employment, and that the
proceedings held by the Respondent, the City of LaFollette,
were ultra vires inasmuch as the Respondent, City of LaFollette,
did not follow its own established procedures and regulations
for the handling of grievances, and the discipline that was given
to the Petitioner, David G. Young.

                               %%%

       4.      The Court further finds that there was not
adequate cause to terminate the Petitioner, David G. Young,
from his position as City Administrator, and specifically finds
that there was insufficient evidence of alleged sexual
harassment, nor was there any other cause to justify termination
of the Petitioner, David G. Young.

       5.     The Court further finds that by conducting a
hearing or judicial tribunal and allowing witnesses to testify
against the Petitioner in support of a grievance filed by the City
Recorder, Lynda White, that the City of LaFollette was
otherwise required to comply with its own established
procedures, as well as due process under the U.S. and Tennessee
Constitutions.

       6.     The Court finds that the Petitioner, David G.
Young, has met the requisites, standards, and requirements for
this Court having granted a Writ of Certiorari.

                               %%%

        8.     That this Court has exercised its supervisory
jurisdiction on the basis of a Writ of Certiorari, and has
restricted its examination into the external validity of the
proceedings held on August 4, 2009 and September 1, 2009 by
the Respondent, City of LaFollette.

      9.     That after reviewing the entire records of the
proceedings held by the Respondent, City of LaFollette, the

                               -3-
              Court finds that the statements made in the Petition for
              Certiorari are taken as true, and that the Respondent, City of
              LaFollette through its actions taken on August 4, 2009 and
              September 1, 2009 acted illegally, arbitrarily, and without
              sufficient material evidence to warrant any discipline against the
              Petitioner, David G. Young.

                     10.    The Court further finds that there is no other
              adequate remedy at law for the Petitioner, David G. Young, and
              that there was good cause for granting the Writ of Certiorari
              issued by the Court in this cause.

                             It is therefore ORDERED, ADJUDGED AND
              DECREED that the proceedings conducted by the Respondent,
              City of LaFollette on August 4, 2009 and September 1, 2009 as
              they pertain to the Petitioner, David G. Young, are annulled….

             On March 16, 2010, after another hearing, the Trial Court entered an order
awarding certain discretionary costs to Young. LaFollette appeals. We reverse.

                                         Discussion

              Though not stated exactly as such, LaFollette raises one overall issue on
appeal: whether the Trial Court erred when it granted Young’s Petition for Writ of Certiorari
after finding and holding that LaFollette acted illegally, arbitrarily and without sufficient
material evidence when it suspended Young and later fired him.

               Our Supreme Court has articulated the standard of review in common law writ
of certiorari cases such as this one:

                      “In such actions the reviewing court is limited to inquiry
              as to whether the administrative agency acted fraudulently,
              illegally or arbitrarily. Hoover Motor Express Company v.
              Railroad and Public Utilities Commission, 195 Tenn. 593, 261
              S.W.2d 233 (1953).

                                             ***

                    Under the common law writ of certiorari, questions of
              law only will be reviewed by the courts. An action of an

                                             -4-
             administrative agency which is not supported by any evidence
             is arbitrary and void and may be quashed on common law writ
             of certiorari. Whether or not there is any material evidence to
             support the action of the agency is a question of law to be
             decided by the reviewing court upon an examination of the
             evidence introduced before the agency. Any additional evidence
             offered to the reviewing court is limited to the question of
             whether the agency exceeded its jurisdiction or acted
             fraudulently, illegally or arbitrarily. Hoover Motor Express Co.,
             Inc. v. Railroad & Public Utilities Commission, 195 Tenn. 593,
             261 S.W.2d 233 (1953). People's Bank of Van Leer v. Bryan, 55
             Tenn.App. 166, 397 S.W.2d 400 [401]; Bayside Warehouse Co.
             v. Memphis, 63 Tenn.App. 268, 470 S.W.2d 375; Brown v.
             Tenn. Real Estate Comm., Tenn.App. 1972, 494 S.W.2d 506,
             cert. den. 414 U.S. 877, 94 S.Ct. 54, 38 L.Ed.2d 122.”

              In the trial court, under the common law writ, reversal or modification
      of the action of the Civil Service Board 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 evidence to support its decision. The trial court does not weigh the
      evidence. The scope of review by the appellate courts is no broader or more
      comprehensive than that of the trial court with respect to evidence presented
      before the Board.

Watts v. Civil Serv. Bd. for Columbia, 606 S.W.2d 274, 276-77 (Tenn. 1980).

               Review on a common law writ of certiorari is very narrow, and we will not
inquire into the intrinsic correctness of LaFollette’s decisions. As we have stated:

      Tennessee Code Annotated § 27-9-101 provides for judicial review of a
      decision by any local board or commission by the filing of a petition for a
      common law writ of certiorari. See Lafferty v. City of Winchester, 46 S.W.3d
      752, 758 (Tenn. Ct. App. 2000); Wilson County Youth Emergency Shelter v.
      Wilson County, 13 S.W.3d 338, 342 (Tenn. Ct. App. 1999); Walker v.
      Metropolitan Bd. Of Parks And Recreation, Nos. M2007-01701-COA-R3-CV,
      M 2008-01226-COA-R3-CV, M2008-02218-COA-R3-CV,
      M2008-01748-COA-R3-CV, 2009 WL 5178435 at *18 (Tenn. Ct. App. Dec.
      30, 2009) (Petitions to Rehear Denied Jan. 11 and 26, 2010) (Rule 11 perm.

                                            -5-
       app. denied June 30, 2010).

       The scope of review under the 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. McCallen v. City of
       Memphis, 786 S.W.2d 633, 638 (Tenn. 1990); Hutcherson v. Lauderdale
       County Bd. of Zoning Appeals, 121 S.W.3d 372, 375 (Tenn. Ct. App. 2003);
       Lafferty v. City of Winchester, 46 S.W.3d at 759. A court does not have the
       authority to re-weigh the evidence or to substitute its own judgment for that of
       the Commission. Hoover, Inc. v. Metro Bd. Of Zoning Appeals, 924 S.W.2d
       900, 904 (Tenn. Ct. App. 1996). If there is no material evidence to support a
       tribunal's action, it is arbitrary or illegal. Harding Academy v. Metropolitan
       Government of Nashville, 207 S.W.3d 279, 283 (Tenn. Ct. App. 2006); Wilson
       County Youth Emergency Shelter v. Wilson County, 13 S.W.3d at 342; Sexton
       v. Anderson County, 587 S.W.2d 663, 667 (Tenn. Ct. App. 1979).

       The trial court's review of the evidence is confined to the administrative
       record, except that additional evidence may be introduced for the sole purpose
       of determining whether the tribunal below has exceeded its jurisdiction, or
       acted illegally, fraudulently or arbitrarily. Tenn.Code Ann. § 27-9-111(b);
       Watts v. Civil Serv. Bd. for Columbia, 606 S.W.2d 274, 277 (Tenn. 1980);
       Hemontolor v. Wilson County Board of Zoning Appeals, 883 S.W.2d 613, 618
       (Tenn. Ct. App. 1994).

       Our review of the evidence on appeal can be no broader or more
       comprehensive than the trial court's review. Watts v. Civil Serv. Bd. for
       Columbia, 606 S.W.2d at 277; Jacks v. City of Millington Bd. of Zoning
       Appeals, 298 S.W.3d 163, 167 (Tenn. Ct. App. 2009).

Shute v. Metropolitan Government of Nashville, Davidson County, No.
M2009-01417-COA-R3-CV, 2010 WL 3064362, **3-4 (Tenn. Ct. App. August 5, 2010) R.
11 app. perm. appeal denied December 7, 2010. We, therefore, will examine the process by
which LaFollette terminated2 Young to determine whether LaFollette acted fraudulently,
illegally or arbitrarily.



       2
         While this case stems from both the suspension and termination of Young as City Administrator,
we believe the suspension was subsumed into the termination. Resolution of the termination will be
dispositive.

                                                 -6-
               Before we review LaFollette’s actions, we note that Young’s employment
status with LaFollette never was established by the Trial Court. The Trial Court, while
finding that Young had “certain property rights in continued employment,” never specified
the nature of those property rights or how they were created. We, however, must and will
keep to the narrow review for common law writs of certiorari as our resolution of that issue
is dispositive of this appeal.

                The record contains a purported employment contract for a term signed by
Young with LaFollette. Our purpose herein is not to determine the validity of that contract.3
We are fundamentally interested only in whether LaFollette acted fraudulently, illegally, or
arbitrarily in its actions taken regarding Young. From the contract:

       (e)    Power and Authority of Mayor and Council. Nothing in this
       Agreement shall be deemed to restrict the exercise of the power of the Mayor
       and Council under the LaFollette Municipal Code to remove the City
       Administrator at any time, but such removal shall not relieve the City from the
       obligation to make payments due City Administrator under the provisions of
       Paragraph 4 of this Agreement.

               Although LaFollette may or may not owe Young money under the terms of the
contract, the contract, nevertheless, clearly emphasizes that it does not restrict LaFollette’s
ability to terminate Young’s employment “at any time.”

              We next examine the City of LaFollette Personnel Rules and Regulations
(“Handbook”) as it relates to LaFollette’s right to terminate employees. A policy statement
preceding the Handbook provides:

       This Personnel Policy Manual has been prepared to provide a central reference
       source for identifying and communicating the policies and procedures to all
       employees of the City of LaFollette. No provision of these policies or any
       policies adopted by the City of LaFollette shall be construed as an employment
       agreement or legal contract. Employment with the City of LaFollette is at will
       (i.e. it may be terminated at any time, with or without cause, either by the
       employee or by the City of LaFollette). The City of LaFollette, however, will
       not terminate any employee for reasons that violate State or Federal Law.
       These policies are subject to revision in the light of continuing experience and
       it is your responsibility to bring to your supervisor’s attention any difficulties
       you have in understanding of these policies.

       3
           We are aware of a parallel case in Circuit Court that may address issues related to this contract.

                                                      -7-
      The City of LaFollette reserves the right to modify or change these policies at
      its sole discretion without notice.

             The Handbook further provides:

      Nothing in the personnel rules and regulations document shall be deemed to
      give employees any more property rights in their jobs than may already be
      given by the City Charter. The City reserves the right to alter or to change any
      or all of these rules without prior notice to employees.

The Handbook appears to preclude any limitation on LaFollette’s right to terminate
employees. Young nevertheless contends that the LaFollette proceedings are fatally flawed
because LaFollette disregarded its own established procedures in the Handbook, namely: 1)
White’s grievance bypassed the first three stages of a four stage grievance process and
LaFollette made no findings of fact regarding her grievance; and 2) LaFollette disregarded
its normal disciplinary procedures in terminating Young. As our review is limited to those
proceedings conducted by LaFollette with respect to Young, we will address the Handbook
as it pertains to him.

           Young’s reliance on the Handbook is misplaced. LaFollette argues that the
Handbook does not even apply to Young. We agree. The Handbook exempts:

             1.     All Elected Officials

             2.     Members of the Appointed Boards and Committees

              3.     Consultants, Advisors and Legal Counsel rendering temporary
professional service

             4.     City Attorney

             5.     Independent Contractors

             6.     Volunteer personnel appointed without compensation

             7.     City Judge

Though the City Administrator is not specifically listed as exempt, the Handbook, however,
further defines “Exempt Service”:



                                            -8-
       The elected positions of Mayor, council members, and those individuals who
       serve at the pleasure of the elected officials who appointed them to their
       positions; board and commission members; people employed as consultants or
       counsel rendering temporary professional services; and positions involving
       seasonal, temporary, emergency, or voluntary employment or appointments to
       whom the rules and regulations are not applicable.

               Pursuant to the LaFollette City Charter, “[t]he City Council may appoint and
fix the salary of the City Administrator, who shall serve at the will of the City Council.”
Thus, as an individual serving “at the pleasure of the elected officials who appointed” him,
Young, as City Administrator, was exempt from the provisions of the Handbook.

               Nothing in the Handbook prohibited LaFollette from suspending or terminating
Young’s employment, nor was the Handbook even applicable to Young. Further, nothing
in the contract, which, again, we need not and do not make a determination regarding its
validity, prohibited LaFollette from suspending or terminating Young’s employment.

             We now look to the Charter of the City of LaFollette, which states, concerning
removal of the City Administrator:

       Section 8. Removal. The City Administrator shall not be removed from
       office, other than for misconduct in office, during or within a period of ninety
       (90) days next succeeding any general municipal election held in the city at
       which election a member of the City Council is elected or when a new city
       Councilman is appointed; the purpose of this provision is to allow any newly
       elected or appointed member of the City Council or a recognized City Council
       to observe the actions and ability of the City Administrator in the performance
       of the powers and duties of his office. After the expiration of the ninety-day
       period aforementioned, the City Administrator may be removed only by a
       majority vote of the City Council as then constituted.

There is no evidence that LaFollette exceeded its authority under the City Charter. The
record does not reflect any proximate municipal elections that would run afoul of the Charter
provision. Furthermore, the LaFollette City Council voted 3-2 to terminate Young. In doing
so, LaFollette abided by the applicable provision in the City Charter requiring a majority vote
by its City Council to remove the City Administrator.

              Young criticizes the public hearing at which White’s grievance was heard by
the LaFollette Mayor and City Council, arguing that, in part, because he was unable to cross
examine witnesses, his due process rights were violated. This argument is unavailing. As

                                              -9-
we have discussed, LaFollette had the right to terminate Young’s employment in accordance
with the City Charter. Neither the contract nor the Handbook limited LaFollette’s right to
terminate Young’s employment. No public hearing, let alone a formal trial, was necessary
for LaFollette to remove Young as City Administrator.

               Our review here is narrow, and we need not determine whether the evidence
presented to the LaFollette City Council was adequate to sustain an allegation of sexual
harassment or any other allegation. Every salient fact in the record shows that LaFollette had
the right to terminate Young’s employment by a majority vote of the City Council. The
contract did not purport to restrict LaFollette’s ability to terminate Young’s employment.
The Handbook emphasized that it was a document subject to change at any time and did not
limit LaFollette’s right to terminate Young’s employment. In any event, as we have
discussed, the Handbook did not apply to Young. Finally, LaFollette acted according to its
City Charter when it terminated Young’s employment by majority vote of the City Council.
We hold that the Trial Court erred in holding that LaFollette acted illegally, arbitrarily, and
without sufficient material evidence.4

                                               Conclusion

              The judgment of the Trial Court is reversed, and this cause is remanded to the
Trial Court for collection of the costs below. Costs on appeal are taxed against the Appellee,
David G. Young.




                                                           _________________________________
                                                           D. MICHAEL SWINEY, JUDGE




       4
           Our holding also reverses the Trial Court with respect to discretionary costs awarded to Young.

                                                    -10-
