                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  July 19, 2012 Session

                 CITY OF MEMPHIS v. JASON MORRIS, ET AL.

             Direct Appeal from the Chancery Court for Shelby County
            No. CH-06-1334/CH-07-0039     Arnold B. Goldin, Chancellor


              No. W2011-02519-COA-R3-CV - Filed September 14, 2012


A Memphis police officer was terminated after he was involved in a physical altercation with
his girlfriend during which she sustained facial injuries. The Civil Service Commission
upheld the termination, and the chancery court affirmed. In the initial appeal to this Court,
we remanded for the Commission to make findings of fact and conclusions of law. The
Commission issued an amended decision with additional findings. Upon reviewing the
amended decision, the chancery court reversed the termination and reinstated the officer.
The City appeals, arguing that the Commission’s decision was supported by substantial and
material evidence. The officer presents numerous arguments in support of his assertion that
reversal of the Commission was proper. We affirm the order of the chancery court in part,
but we vacate the reinstatement of the officer and reinstate the Commission’s decision to
uphold termination.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.

Herman Morris, Jr., City Attorney, Zayid A. Saleem, Assistant City Attorney, Memphis,
Tennessee, for the appellant, City of Memphis

Deborah Godwin, Memphis, Tennessee, for the appellee, Jason Morris
                                        OPINION

                          I.   F ACTS & P ROCEDURAL H ISTORY

        Jason Morris was employed by the City of Memphis Police Department for
approximately thirteen years. The incident that led to his termination occurred on February
23, 2003. Officer Morris was involved in an argument and physical altercation with his then-
girlfriend, Ms. Morgan, at her apartment in Memphis. Later that day, either Ms. Morgan or
one of her co-workers reported the incident to the Internal Affairs Bureau of the Memphis
Police Department.

       Following an investigation by the Internal Affairs Bureau, on April 10, 2003, Officer
Morris was charged with violating two Departmental Regulations. Because of the physical
altercation with Ms. Morgan, Officer Morris was charged with violating DR-104, regarding
“Personal Conduct,” which provides:

       The conduct of each member, both on and off duty, is expected to be such that
       it will not reflect adversely on other members, the Department, the City of
       Memphis, or the law enforcement profession. This regulation applies to both
       the professional and private conduct of all members. It prohibits any and all
       conduct which is contrary to the letter and spirit of departmental policy and
       procedure which would reflect adversely upon the Department or its members.
       It includes not only all unlawful acts by members but also acts which, although
       not unlawful in themselves, would violate the Law Enforcement Code of
       Ethics, and would degrade or bring disrespect upon the member or the
       Department.

Officer Morris was also charged with a violation of DR-108, regarding “Truthfulness,” based
upon the allegation that he was untruthful in a statement he gave to the Internal Affairs
Bureau regarding the incident. DR-108 provides:

       A member shall not give any information, either oral or written, in connection
       with any assignment or investigation that is either knowingly incorrect, false
       or deceitful.

According to the statement of charges, Officer Morris had told investigators that he did not
contact Ms. Morgan after the incident, but their investigation revealed that he had sent her
several text messages.

       An administrative hearing was held before Deputy Chief L.A. Godwin on June 5,

                                             -2-
2003. At the hearing, Officer Morris conceded that a struggle had taken place between him
and Ms. Morgan, and he claimed that his elbow had struck her eye. He said that, at the time,
he knew he had hit something but he did not know it was her eye. Regarding the charge of
untruthfulness, Officer Morris claimed that he was only asked whether he had left messages
on Ms. Morgan’s answering machine, and he was never asked about text messages. Chief
Godwin sustained both charges and ordered that Officer Morris be terminated, with the
following explanation:

       This incident reflects a pattern of behavior that is inconsistent with traits
       required to be a police officer. The actions of Officer Morris of striking the
       complainant either by elbow or fist reflect adversely upon the Memphis Police
       Department, thus placing him in violation of D.R. - #104 Personal Conduct.
       In addition, his denial of leaving messages when asked by the Investigator
       places him in violation of D.R. - #108 Truthfulness. After careful
       consideration of the evidence presented before me, I am therefore sustaining
       the charge[s] of D.R. - #104 - Personal Conduct and D.R. - #108 Truthfulness
       and the action ordered is termination.

       The reason for this discipline is based upon this officer's actions and conduct
       in this incident, as well as his past disciplinary record, which includes several
       sustained administrative charges including Personal Conduct, Neglect of Duty
       and violation of departmental Sick Abuse Policy.

Officer Morris was terminated effective June 6, 2003.

        Officer Morris appealed his termination to the Civil Service Commission. Pursuant
to the City Charter, he requested that his hearing before the Civil Service Commission be
postponed until pending criminal charges against him were resolved. As a result, the hearing
before the Civil Service Commission did not take place until September 22, 2006, three years
after his termination. The City of Memphis made several attempts to serve Ms. Morgan with
a subpoena to testify, but she was unable to be served, as she had apparently moved outside
the State of Tennessee. However, an investigating officer from the Internal Affairs Bureau,
Lieutenant Angela Jenkins, had met with Ms. Morgan on the day of the incident, and she
testified about her observation of Ms. Morgan’s injuries. Lt. Jenkins testified that when she
arrived on the scene, she observed Ms. Morgan crying and saw a darkened bruise underneath
her left eye. Lt. Jenkins said that while she was on the scene, she observed that the bruise
became “a lot more darkened than it originally was upon our first arrival.” According to Lt.
Jenkins, Ms. Morgan stated that she had other injuries as well. Lt. Jenkins testified that Ms.
Morgan had a reddish spot and bruising underneath the front part of her neck, a reddish area
on the back of her neck, and bruising on the side of her neck. Lt. Jenkins produced

                                              -3-
photographs that she had taken of Ms. Morgan’s injuries and she also attempted to draw a
diagram of the injuries with a pen as she described them. Lt. Jenkins testified that she took
a statement from Ms. Morgan, but she did not testify about the content of the statement. She
testified that Ms. Morgan declined medical treatment and signed a refusal to prosecute form.

       Chief Godwin also testified. As the hearing officer at the pre-termination
administrative hearing, Chief Godwin explained that he decides whether to sustain charges
by considering the investigative file prepared by the Internal Affairs Bureau in conjunction
with the statements made during the hearing. In this case, Chief Godwin said he decided to
terminate Officer Morris for the DR-104 Personal Conduct violation because Officer
Morris’s statements about the incident were inconsistent with the evidence located in the
investigative file, such as the photographs of Ms. Morgan’s injuries. Chief Godwin testified
that he considers an officer’s “disciplinary resume” when considering the appropriate
punishment for a violation because “[i]t’s part of progressive discipline.” He said that in
Officer Morris’s case, he considered the fact that Officer Morris was disciplined in 1999 for
another “domestic violence situation” that was similar to this one. At that time, Officer
Morris had also been charged with violating DR-104 Personal Conduct, and he received a
five-day suspension. Chief Godwin said that, according to an internal memo he reviewed
regarding the 1999 incident, Officer Morris apologized and acknowledged that he would
work hard to avoid such physical altercations in the future. He noted that although Officer
Morris was arrested at the time of the 1999 incident, Officer Morris was placed “on AG's
diversion, which is not regarded as a conviction,” and the charges were dismissed.

       After discussing the 1999 incident, Chief Godwin testified that he would have
terminated Officer Morris based upon the 2003 Personal Conduct violation, alone, even if
Officer Morris had no prior disciplinary record. He explained that domestic violence is not
tolerated by the Memphis Police Department because it is inconsistent with being a police
officer, who should enforce the laws and assist victims, and he said that this incident had cast
a negative image upon the police department.

       Chief Godwin explained that both of the charges against Officer Morris were
“termination offenses,” and he said that Officer Morris was terminated based upon each
individually sustained charge. In other words, he explained, “I terminated him on the
personal conduct, and I terminated him on the truthfulness.” Chief Godwin said that the
basis of the Truthfulness charge was that Officer Morris had denied making contact with Ms.
Morgan after the incident when he had in fact sent her text messages. Upon further
questioning with a verbatim transcript of Officer Morris’s statement to the investigators,
Chief Godwin conceded that Officer Morris was asked: “Did you call Ms. Morgan after this
disturbance that occurred on the 24th and leave messages on her answering machine that you
had ruined your life and ruined him (sic)?” Officer Morris simply answered, “No, I did not.”

                                              -4-
Chief Godwin said he had no evidence to prove that Officer Morris did in fact leave a
message on an answering machine.

        Before the Commission, counsel for the City moved to introduce into evidence the
investigative file prepared by the Internal Affairs Bureau and relied upon by Chief Godwin
during the previous administrative hearing. The investigative file contained, among other
things, the statement of charges, internal memoranda regarding the investigation, documents
relating to the 1999 incident, and the statement taken from Ms. Morgan. Counsel for Officer
Morris initially objected on the basis of hearsay but stated:

       I would object to it being offered for the truth of the matters contained therein.
       It contains multiple levels of hearsay. It is -- if it is only being offered for
       proof of the fact that those are, in fact, the documents that Director Godwin
       reviewed and based his decision on, then for that sole purpose, I think they can
       come in for that purpose.

Counsel for the City agreed that the “sole purpose” of introducing the investigative file was
the latter reason stated by counsel for Officer Morris, and the Commission entered the
investigative file in evidence for that limited purpose.

      Officer Morris testified as well. He explained the circumstances surrounding the
physical altercation as follows:

       A.     We had an incident on February 24th of 2003 where she got irate
              because I was going to break up with her for good. She started throwing
              things, and I was trying to leave and she grabbed a hold of me, and I
              was trying to get her off of me.
       Q.     Okay. And what happened after that?
       A.     Well, the incident – when I tried to leave, I reached down to get my
              bag, and she grabbed a hold of me and went behind me and got a hold
              of my waist. And I was trying to get her off of me. I swung like that
              (indicating), and next thing I knew, she was running to her room –
       Q.     Okay.
       A.     – wanting me to leave.

Officer Morris then reenacted the altercation for the Commission, using a third person who
was present in the courtroom as a stand-in for Ms. Morgan. He explained:

       A.     And she kept grabbing a hold of me, trying to see what was in the bag.
              Finally, I was, like, just – just get off me, like that (indicating).

                                              -5-
       Q.     Okay.
       A.     And the next thing I knew, my elbow made contact with some part of
              her body. I do not know where.
       Q.     So your elbow made contact with some part of her body?
       A.     Yes.
       Q.     Did you later on find out what part of the body it made contact with?
       A.     I did later on that day.
       Q.     What part of the body made contact with it?
       A.     My elbow made – supposedly made contact with her eye, her left eye,
              I believe.

Officer Morris said that he did not see Ms. Morgan’s face after his elbow struck her because
he left to go to work and she went to her bedroom. He said the next time he saw Ms. Morgan
was seven to ten days after the incident, and at that time, he noticed “a little bit” of bruising
on her face.

        Following the hearing, in November 2006, the Commission issued a written decision
sustaining both charges against Officer Morris and upholding his termination. However, its
written findings were basically limited to a statement that “the disciplinary action taken by
the City in terminating Mr. Morris' employment was reasonable under the circumstances” and
that the Commission “cannot second guess Director Godwin's conclusion that the personal
conduct of Mr. Morris, under all the circumstances, justified the disciplinary action taken.”

       In January 2007, Officer Morris filed a petition for review in chancery court. In
February 2009, the chancery court entered an order upholding the decision to terminate
Officer Morris. The court first concluded that the Truthfulness charge should have been
dismissed because there was no evidentiary basis for sustaining it. Nevertheless, the court
found substantial and material evidence to uphold termination for the Personal Conduct
charge, considering Chief Godwin’s testimony that he would have terminated Officer Morris
on that charge alone.

      On appeal to this Court, we concluded that it was impossible to review the
Commission’s decision due to its lack of findings of fact, as we could not discern whether
the Commission applied the proper legal principles. As a result, in December 2009, we
vacated the decision of the chancery court and remanded for entry of an order remanding to
the Commission, with instructions to issue a decision containing findings of fact and
conclusions of law.

       In January 2011, the Commission issued an “Amended and Restated Decision” that
included factual findings. The Commission found that Officer Morris and Ms. Morgan were

                                               -6-
involved in a physical altercation, and that Officer Morris claimed that he had accidentally
elbowed her in the left eye. It found that Ms. Morgan was observed by a co-worker later that
morning with physical injuries indicative of domestic violence, and that the co-worker either
called or convinced Ms. Morgan to call the Internal Affairs Bureau. The Commission noted
that Lt. Jenkins went to Ms. Morgan’s apartment to investigate, and she observed her injuries
and took her statement. The Commission found that Lt. Jenkins observed injuries to Ms.
Morgan’s left eye, her face, chin and neck, and that the injuries worsened during their
meeting. The Commission then concluded that “Ms. Morgan’s physical injuries were
consistent with her description of Mr. Morris’ attack on her and were not consistent with his
allegation of an ‘accidental elbow.’” It further found that “[t]he City established by a
preponderance of the evidence that Mr. Morris’ conduct on February 23, 2003 constituted
acts of domestic violence, constituted violations of DR-104 – Personal Conduct, and brought
discredit on MPD.” Regarding the Truthfulness charge, the Commission concluded that
Officer Morris gave “unclear or deceptive” answers during the investigation and was
“inconsistent, and untruthful in his statements[.]” Ultimately, the Commission found that the
City had established by a preponderance of the evidence that termination was reasonable and
justified under all the circumstances.

        Officer Morris then filed another petition for review in chancery court. Upon
reviewing the record and the Amended and Restated Decision of the Commission, the
chancery court found that “there was not substantial or material evidence to support the
Commission's findings that the Petitioner was guilty of either acts of domestic violence in
violation of DR-104 or that he was untruthful in violation of DR-108.” The court noted that
Officer Morris had denied assaulting Ms. Morgan and claimed that he accidentally elbowed
her while attempting to extricate himself from her hold. The court also noted that the
investigative file containing Ms. Morgan’s statement “was entered into evidence solely for
the limited purpose that it was relied upon by Deputy Chief Godwin, but was not entered for
the truth of the matters asserted therein.” The court concluded that Ms. Morgan’s statement
“was not part of the record that could be considered by the Civil Service Commission.” As
a result, it concluded, “The only evidence in the record therefore was the testimony of Jason
Morris who denied striking Ms. Morgan and photos which did not establish that Officer
Morris intentionally struck Ms. Morgan or that he was guilty of domestic violence.” The
court further found that Officer Morris “did not have the opportunity to confront and cross
examine his accuser [Ms.] Morgan.” In conclusion, the chancery court found that there was
not substantial and material evidence to support termination, and it reversed the decision of
the Commission and ordered that Officer Morris be reinstated. The City timely filed a notice
of appeal to this Court.




                                             -7-
                                   II.    I SSUES P RESENTED

        On appeal, the City of Memphis contends that the chancery court erred in concluding
that the Commission’s decision was unsupported by substantial and material evidence,
arbitrary, and capricious. We note, however, that the City limits its argument on appeal to
the sufficiency of the evidence to support the Personal Conduct charge, and it does not
present any argument to suggest that the trial court erred in concluding that there was
insufficient evidence to sustain the Truthfulness charge. As a result, we will not review the
trial court’s decision in that regard, and it is hereby affirmed. We will limit our review to the
issues surrounding the Personal Conduct charge and the ultimate decision to terminate
Officer Morris.

       The appellee, Officer Morris, also raises several issues on appeal. He argues that
reversal of the Commission’s decision was proper because it was unsupported by substantial
and material evidence, arbitrary, and capricious. In addition, he claims that reversal was
proper because he was denied due process when “he was not provided the opportunity to
confront his accuser.” Finally, Officer Morris argues that the record of an expunged criminal
matter was improperly considered by Chief Godwin and by the Commission.

      For the following reasons, we vacate the reinstatement of Officer Morris and reinstate
the Commission’s decision to uphold termination.

                                III.     S TANDARD OF R EVIEW

       On appeal, we review the Commission’s decision using the same standard of review
used by the chancery court. Davis v. Shelby County Sheriff's Dep’t, 278 S.W.3d 256, 264
(Tenn. 2009). Judicial review is governed by the Uniform Administrative Procedures Act,
Tenn. Code Ann. § 4-5-322. See Tenn. Code Ann. § 27-9-114(b)(1).

       (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)(A) Unsupported by evidence that is both substantial and material in the

                                               -8-
       light of the entire record.
       (B) 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 the
       evidence on questions of fact.

Tenn. Code Ann. § 4-5-322. “‘Substantial evidence is not limited to direct evidence but
may also include circumstantial evidence or inferences reasonably drawn from direct
evidence.’” Crawford v. Dep’t of Finance & Admin., No. M2011-01467-COA-R3-CV,
2012 WL 219327, at *5 (Tenn. Ct. App. W.S. Jan. 24, 2012) (quoting Wayne Co. v. Tenn.
Solid Waste Disposal Control Bd., 756 S.W.2d 274, 280 (Tenn. Ct. App. 1988)).
“Substantial and material evidence” has been defined as “such relevant evidence as a
reasonable mind might accept to support a rational conclusion and such as to furnish a
reasonably sound basis for the action under consideration.” Macon v. Shelby County Gov’t
Civil Serv. Merit Bd., 309 S.W.3d 504, 509 (Tenn. Ct. App. 2009). It requires “‘something
less than a preponderance of the evidence, but more than a scintilla or glimmer.’” Id.
(quoting Wayne County, 756 S.W.2d at 280). We may reject the Commission’s factual
findings “only if a reasonable person would necessarily reach a different conclusion based
on the evidence.” Davis, 278 S.W.3d at 265 (citing Martin v. Sizemore, 78 S.W.3d 249, 276
(Tenn. Ct. App. 2001)). However, the “substantial and material evidence” standard still
requires a “searching and careful inquiry” that subjects the Commission’s decision to close
scrutiny. Freedom Broadcasting of TN, Inc. v. Tenn. Dep't of Revenue, 83 S.W.3d 776,
781 (Tenn. Ct. App. 2002). A court's deference to an agency or commission's expertise is
“‘no excuse for judicial inertia.’” Willamette Indus., Inc. v. Tenn. Assessment Appeals
Comm'n, 11 S.W.3d 142, 147 (Tenn. Ct. App. 1999) (quoting Wayne County, 756 S.W.2d
at 279). A decision that is not supported by substantial and material evidence is, by
definition, arbitrary and capricious. Outdoor Resorts at Gatlinburg, Inc. v. Utility Mgmt.
Review Bd., No. E2011-01449-COA-R3-CV, 2012 WL 1267858, at *5 (Tenn. Ct. App. Apr.
13, 2012) (citing Jackson Mobilphone Co. v. Tenn. Pub. Serv. Comm'n, 876 S.W.2d 106, 110
(Tenn. Ct. App. 1993)).

                                      IV.   D ISCUSSION

                          A.   Substantial and Material Evidence

        First, we will consider the City’s assertion that the chancery court erred in concluding
that the Commission’s decision was not supported by substantial and material evidence. The
City argues that the record contained substantial and material evidence to support the
Commission’s finding that Ms. Morgan’s multiple injuries “were consistent with her
description of Mr. Morris’ attack on her and were not consistent with his allegation of an

                                              -9-
‘accidental elbow.’” Pointing to the testimony of Lt. Jenkins and the photographs of Ms.
Morgan’s injuries, the City claims that there is adequate evidentiary support for the
Commission’s conclusion that Officer Morris’s conduct “constituted acts of domestic
violence” and violated DR-104 – Personal Conduct. Officer Morris, of course, argues that
the Commission’s decision is unsupported by substantial and material evidence. He claims
that because the investigative file containing Ms. Morgan’s statement was entered into
evidence only to show the documents that were relied upon by Chief Godwin, and not for the
truth of the matters asserted, then, according to Officer Morris, his testimony that he did not
intentionally strike Ms. Morgan was “unrefuted.” Officer Morris argues that the Commission
effectively adopted Chief Godwin’s reliance upon Ms. Morgan’s statement in the
investigative file even though it was not admitted for the truth of the matters asserted.

       As previously noted, counsel for Officer Morris raised a hearsay objection when
counsel for the City moved to introduce the investigative file prepared by the Internal Affairs
Bureau, but she stated, “if it is only being offered for proof of the fact that those are, in fact,
the documents that Director Godwin reviewed and based his decision on, then for that sole
purpose, I think they can come in for that purpose.” The investigative file was entered into
evidence for this limited purpose. The statement given by Ms. Morgan was contained within
the investigative file, but it was never admitted into evidence for the truth of the matters
asserted therein. Therefore, if the only evidence before the Commission of Ms. Morgan’s
description of the incident came from the statement in the investigative file, we would likely
conclude that the Commission erred in finding that Ms. Morgan’s injuries were “consistent
with her description of Mr. Morris’ attack on her.” However, that is not the situation we
have before us. During the hearing before the Commission, counsel for Officer Morris
questioned Chief Godwin regarding the content of Ms. Morgan’s statement and elicited
testimony from him regarding Ms. Morgan’s version of the incident. The following
exchange took place between counsel for Officer Morris and Chief Godwin:

       Q.      Wouldn't you say that if Officer Morris struck Ms. Morgan with his
               fists on — or twice – I believe she gave some indication that he struck
               her twice in the eye with his fist – that she would have had a little m
               ore of a black eye than what's shown there?

       [Counsel for the City]:      Objection. Objection. Mr. Chairman, she's asking
       him to speculate . . . .

       Mr. Chairman:          Restate the question.

       [Counsel for Officer Morris]:        I can lay a little more of the foundation. But the
       question was –

                                               -10-
Mr. Chairman:        Okay. Well, let’s start – let’s do that.

Q.     Well, over the years of your being a police officer, have you observed
       numerous individuals who’ve been hit in the eye with a fist?
A.     I’ve seen individuals that have been beaten or struck, yes.
...
Q.     And the question was: Given Officer Morris’ size and Ms. Morgan’s
       size, if he had struck her with his fist in her eye, she would have had a
       much bigger bruise than what she had?

[Counsel for the City]: Objection. Once again, Mr. Chairman, he’s – she’s
asking him to speculate . . . .

Mr. Chairman:        I’m concerned a little bit right now because we have not
                     examined the statement of Ms. Morgan –

[Counsel for the City]:    Right.

Mr. Chairman:        – and so, all we know is that there was a flying elbow.
                     So I guess, are we going – now supposed to consider the
                     statement of Ms. Morgan?

[Counsel for Officer Morris]: The investigative file, which is in evidence –
I realize you haven't had a chance to look at it – but indicates that Ms. Morgan
stated that he hit her in the face with his fist.

MR. CHAIRMAN:          Okay.

Q.     Is that – is that fair to say?
A.     Yeah. I – again, I haven't read it in a while, but that's – I can —
Q.     Is that what you recall, that she indicated –
A.     Yeah –
Q.     – that he hit –
A.     – but I can't remember –
Q.     – her in the face –
A.     – everything she said. Yeah.
Q.     Okay. Thank you.
A.     I can't remember her statement.
Q.     Would you agree with me that she indicated that he hit her in the face
with his fist?

                                      -11-
       A.   (Nods head affirmatively.)
       Q.   Would you like to look at the summary, because it's in here?
       A.   Yeah. I – well, I mean, it's just been so long.
       Q.   Look at the summary. Third paragraph.
       A.   Okay.
       (WHEREUPON, THE ABOVE-MENTIONED DOCUMENT WAS PASSED
       TO THE WITNESS. )
       Q.   "Ms. Morgan stated Officer Morris had hold of her hair and hit her in
            the face with his fist."
       A.   That's – yes, ma'am.
       Q.   Is that what it says?
       A.   Yes, ma'am.

Clearly, counsel for Officer Morris elicited testimony from Chief Godwin about the content
of Ms. Morgan’s statement in order to advance her theory that if Officer Morris had truly
struck her with his fist, Ms. Morgan would have had a bigger bruise. During this exchange,
counsel for Officer Morris brought to light the content of Ms. Morgan’s statement, going so
far as to quote a portion of the statement during her questioning in order to have Chief
Godwin confirm that Ms. Morgan had in fact said that Officer Morris hit her in the face with
his fist. Because counsel for Officer Morris elicited this testimony, we cannot say that the
Commission erred in considering it, and ultimately rejecting the premise of counsel’s “bigger
bruise” argument. Instead, the Commission concluded that “Ms. Morgan’s physical injuries
were consistent with her description of Mr. Morris’ attack on her and were not consistent
with his allegation of an ‘accidental elbow.’”

       In addition to the evidence of Ms. Morgan’s “description” of the incident, the
Commission also noted the fact that Ms. Morgan had injuries to not only her left eye but also
her face, chin and neck. These multiple injuries were documented in photographs and
described and diagramed by Lt. Jenkins. Furthermore, the Commission was able to assess
Officer Morris’s credibility during his testimony about the incident, and it had the unique
opportunity to observe Officer Morris’s reenactment of the incident using a “stand-in” for
Ms. Morgan. Obviously, the Commission did not believe Officer Morris’s story about an
“accidental elbow.” “When [an] agency conducts a hearing and can evaluate the witnesses
as they testify, this Court gives the tribunal's credibility determinations great weight.” City
of Memphis v. Civil Serv. Comm'n of City of Memphis, 238 S.W.3d 238, 243 (Tenn. Ct.
App. 2007) (citing Pruitt v. City of Memphis, No. W2004-01771-COA-R3-CV, 2005 WL
2043542, at *7 (Tenn. Ct. App. Aug. 24, 2005)).

       Considering all of the evidence before the Commission, we find substantial and
material evidence to support its findings that Ms. Morgan’s injuries were consistent with her

                                             -12-
description of Mr. Morris’ attack on her and were not consistent with his allegation of an
“accidental elbow,” and therefore Officer Morris’s actions “constituted acts of domestic
violence” and violated DR-104 – Personal Conduct. A reasonable person could certainly
conclude that Officer Morris’s conduct reflected adversely on the Memphis Police
Department and the law enforcement profession. Chief Godwin testified that this incident
did in fact cast a negative image on the Police Department, and he explained that domestic
violence is not tolerated by the Department because it is inconsistent with being a police
officer, who is supposed to enforce laws and assist victims.

        Having found substantial and material evidence to support the Commission’s finding
that Officer Morris violated DR-104, we now consider whether this violation, in addition to
the surrounding circumstances, furnished a reasonable basis for his termination. City of
Memphis v. Cattron, No. W2010-01659-COA-R3-CV, 2011 WL 1902167, at *5 (Tenn. Ct.
App. May 13, 2011). Section 246 of the Memphis City Charter provides that “[t]he City may
terminate, suspend, or demote an employee for just cause. . . . Just cause shall exist when the
employer had a reasonable basis for the action taken.” Section 248 of the Charter states that
on appeal to the Civil Service Commission, “[t]he burden of proof required to sustain the
action of the City shall be by a preponderance of the evidence. If, after a presentation of the
proof, the commission finds that there exists a reasonable basis for the disciplinary action
taken, the action of the City shall be sustained.” Therefore, the Commission was required
to affirm the City’s decision to terminate Officer Morris if the City had proven, by a
preponderance of the evidence, that it had a reasonable basis for terminating Officer Morris.
The Commission found, in its Amended and Restated Decision, that the City had established
by a preponderance of the evidence that the discipline of termination was reasonable and
justified under all the circumstances. On appeal, Officer Morris argues that this finding was
arbitrary and capricious and characterized by an abuse of discretion.

       He first argues that the “Hearing Summary” prepared by Chief Godwin reflects that
he was terminated “for the combined alleged infractions of DR-104 and DR-108,” and
therefore, if he did not violate DR-108, “he should not have been discharged.” We disagree
with this characterization of the proceedings. Chief Godwin simply stated in the Hearing
Summary that he was “sustaining the charge of D R - #104 - Personal Conduct and D.R. -
#108 Truthfulness and the action ordered is termination.” Chief Godwin testified during the
hearing before the Commission that both of the charges against Officer Morris were
“termination offenses” and that Officer Morris “was actually terminated on both charges
individually.” In other words, he explained, “I terminated him on the personal conduct, and
I terminated him on the truthfulness.” Chief Godwin also testified that he would have
terminated Officer Morris for the Personal Conduct violation even if he had no prior
disciplinary history. As such, we reject the assertion that Officer Morris was only terminated
because Chief Godwin found “combined violations” of DR-104 and DR-108.

                                             -13-
        Next, Officer Morris challenges Chief Godwin’s statement, in the Hearing Summary,
that this incident reflected “a pattern of behavior that is inconsistent with traits required to
be a police officer.” Chief Godwin noted that Officer Morris’s disciplinary record included
“several sustained administrative charges including Personal Conduct, Neglect of Duty and
violation of departmental Sick Abuse Policy.” Officer Morris argues that the only “relevant”
discipline in his record was the 1999 suspension for his violation of DR-104, and he claims
that one previous relevant incident cannot constitute a “pattern” of conduct. Officer Morris
also points out that the Commission found, in its Amended and Restated Decision, that he
“had been charged four times with violations of DR 104 - Personal Conduct, three of which
had been sustained, in addition to numerous other disciplinary infractions.” He argues that
there is no substantial and material evidence in the record to support this factual finding, as
the only instances of discipline that were discussed at the Commission hearing were the 1999
suspension for violation of DR-104 and a neglect of duty charge, although his “Officer
Performance Reports” also indicated past abuse of the sick leave policy. From our review
of the record, it appears that the Commission likely made its factual finding based upon a
“Statement of Charges” that listed Officer Morris’s disciplinary history and was attached to
a memorandum that was entered into evidence by counsel for Officer Morris. According to
this document, the 2003 incident with Ms. Morgan led to Officer Morris’s fourth charge for
a violation of DR-104, and it was the third DR-104 charge to be sustained. It appears that
Officer Morris had been disciplined in some form or another on twelve occasions. Thus, the
Commission’s factual finding regarding Officer Morris’s disciplinary history was incorrect
to the extent that it stated that he had been charged four times with violating DR-104 prior
to this incident. However, it was not grossly inaccurate. In any event, the crux of Officer
Morris’s argument regarding his disciplinary history is that there is no substantial and
material evidence to support a finding that termination, “rather than some lesser form of
discipline, was reasonable under the circumstances.” However, we are only charged with
reviewing the Commission’s finding that there was “a reasonable basis” for terminating
Officer Morris, and we are limited by the narrow scope of review of Tennessee Code
Annotated section 4-5-322. “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.” Lien v. Metropolitan
Government of Nashville, 117 S.W.3d 753, 761 (Tenn. Ct. App. 2003); see also Nixon v.
City of Murfreesboro, No. M2009-01347-COA-R3-CV, 2010 WL 2730565, at *14 (Tenn.
Ct. App. July 9, 2010) (explaining that under the UAPA, the court’s task was to determine
whether the decision to terminate the petitioner’s employment was an abuse of discretion,
not whether another result might have been proper). We are not inclined to simply substitute
our judgment for that of the Commission on the choice of an appropriate sanction:

             It is settled law that sanctions lawfully applied by an administrative
       agency are subject only to very limited judicial review. Butz v. Glover

                                              -14-
        Livestock Comm'n Co., 411 U.S. 182, 185-86, 93 S.Ct. 1455, 1458 (1973);
        Woodard v. United States, 725 F.2d 1072, 1077 (6th Cir. 1984); McClellan v.
        Bd. of Regents, 921 S.W.2d 684, 693 (Tenn. 1996). Because “the relation of
        remedy to policy is peculiarly a matter of administrative competence,” Phelps
        Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852 (1941), the courts
        should not second-guess the severity of sanctions imposed by an administrative
        agency when, after review, it is apparent that those sanctions were lawfully
        applied in circumstances of sufficiently satisfactory evidence. Robertson v.
        Tenn. Bd. of Social Worker Certification & Licensure, No.
        M2004-00647-COA-R3-CV, 2005 WL 3071571, at *7 (Tenn. Ct. App. Nov.
        15, 2005) perm. app. granted (Tenn. May 30, 2006); Wright v. Tenn. Bd. of
        Exam'rs in Psychology, No. M2003-01654-COA-R3-CV, 2004 WL 3008881,
        at *6 (Tenn. Ct. App. Dec. 28, 2004), perm. app. denied (Tenn. June 27, 2005);
        Mosley v. Tenn. Dep't. of Commerce & Ins., 167 S.W.3d at 318-322.

Armstrong v. Metro. Nashville Hospital Authority, No. M2004-01361-COA-R3-CV, 2006
WL 1547863, at *3 (Tenn. Ct. App. June 6, 2006);1 see also Gross v. Gilless, 26 S.W.3d 488,
495 (Tenn. Ct. App. 1999) (acknowledging that the Shelby County Civil Service Merit
Board’s decision to terminate a sheriff’s department employee rather than to impose a lesser
degree of discipline appeared harsh, but stating that the Court was “not in a position to
second-guess the disciplinary action chosen”). Here, we find that the sanction imposed was
warranted in law and justified in fact. Finding a reasonably sound factual basis for the
disciplinary action taken, we cannot say that the Commission erred in upholding the decision
to terminate Officer Morris.

        Finally, Officer Morris argues that “[a]n employee cannot be disciplined a second time
for the same offense.” This argument is apparently due to Chief Godwin’s testimony that he
considers an officer’s “disciplinary resume” when considering the appropriate punishment
for a violation because “[i]t’s part of progressive discipline.” We find no impropriety in the
consideration of Officer Morris’s disciplinary resume when determining the appropriate
punishment. “While prior disciplinary actions have no bearing on whether an employee has
engaged in work-related conduct that warrants discipline, an employee's prior conduct, both

        1
           Armstrong involved an employee of the Metropolitan Nashville General Hospital whose
termination was upheld by the Metropolitan Nashville Hospital Authority. The Metropolitan Nashville
Hospital Authority “serves as the functional equivalent of the Civil Service Commission with regard to
employees of the Metropolitan Nashville General Hospital.” 2006 WL 1547863, at *2. Therefore, the
Uniform Administrative Procedures Act governed both the administrative and judicial proceedings in
Armstrong. The employee filed a petition for judicial review in chancery court, and on appeal to this Court,
she argued that she should have been suspended or demoted rather than discharged. We declined to second-
guess the decision to terminate. Id. at *4.

                                                   -15-
good and bad, can be considered when determining what the appropriate disciplinary action
should be.” Kelly v. Tenn. Civil Serv. Comm'n, No. M1999-00168-COA-R3-CV, 1999 WL
1072566, at *4 (Tenn. Ct. App. Nov. 30, 1999) (citing Tenn. Dep't of Human Servs. v.
Mahon, No. 01A01-9504-CH-00143, 1995 WL 581086, at *4 (Tenn. Ct. App. Oct. 5, 1995));
see also Maasikas v. Metro. Gov’t of Nashville & Davidson County, No.
M2002-02652-COA-R3-CV, 2003 WL 22994296, at *7 (Tenn. Ct. App. Dec. 22, 2003)
(finding that an employee’s past disciplinary record was properly used to enhance the penalty
for his conduct). This issue is without merit.

                               B.     Right to Confront the Accuser

        Next, we will consider Officer Morris’s assertion that the Commission’s decision
“violated [his] right to confront his accuser.” Officer Morris argues that because the City
failed to “present” his accuser, Ms. Morgan, he did not have the opportunity to confront her
or cross-examine her. In response, the City argues that Officer Morris was not denied the
right to confront his accuser, as Officer Morris had the opportunity to subpoena Ms. Morgan
and made no attempt to do so. The City claims that it was not its burden to “present” Ms.
Morgan for Officer Morris to confront or cross-examine. The City further argues that Officer
Morris had an opportunity to cross-examine Ms. Morgan during his previous criminal trial,
and it claims that he could have introduced Ms. Morgan’s criminal trial testimony if he
desired to do so.

       Both parties cite Kirkwood v. Shelby County Gov’t, No. W2005-00769-COA-R9-CV,
2006 WL 889184 (Tenn. Ct. App. Apr. 6, 2006) in support of their arguments. That case
involved an employee of the Shelby County Sheriff’s Department, Mr. Kirkwood, who
appealed his termination to the Civil Service Board. Id. at *1. Mr. Kirkwood’s co-workers
who made accusations against him gave statements during an internal investigation by the
Sheriff’s Department, and by stipulation, their transcribed statements were entered into
evidence. None of those accusers appeared in person at the hearing. Id. at *2. The Board
upheld Mr. Kirkwood’s termination, and he sought review in chancery court, arguing that his
employer had “relied solely on the work product of an internal affairs investigation . . . over
Petitioner's objection as to the hearsay nature of the evidence.” 2 Id. at *3. The chancery
court held that “the Board's failure to require any live testimony of Shelby County employees
who made accusations against the former employee was a violation of [the] employee's due
process rights to cross-examine his accusers, and that the obligation to call the accusers is


        2
         Apparently, the employee’s attorney objected at some point to the hearsay nature of the statements
obtained during the investigation, but later stipulated to the admission into evidence of those same
statements. On appeal, we noted that the attorney’s actions “waived any hearsay objection.” Kirkwood,
2006 WL 889184, at *9.

                                                   -16-
that of the employer and not that of the employee.” Id. at *1. On appeal, we vacated the
chancery court’s decision. Regarding the obligation to call witnesses, we explained:

       Shelby County has no obligation to call accusers of an employee at a Review
       Board hearing. Rather, Shelby County has only the obligation of meeting its
       burden of proof. Accordingly, we find that there exists no obligation on the
       part of Shelby County to call Mr. Kirkwood's Accusers. There only exist[s] the
       burden of going forward and establishing a prima facie case against the
       employee, which Shelby County successfully met in the present case.

Id. at *6. Next, we considered whether the Board’s failure to require any live testimony of
those who made accusations against Mr. Kirkwood resulted in the denial of his “opportunity
to confront and cross-examine the witnesses against him.” Id. We acknowledged that in
Case v. Shelby County Civil Service Merit Bd., 98 S.W.3d 167, 174-75 (Tenn. Ct. App.
2002), this Court held that “due process mandates that a classified civil service employee
whose employment may be terminated only for cause must be afforded the opportunity to
confront and cross-examine the witnesses against him at the post-termination hearing where
the facts giving rise to termination are in dispute or where the severity of the discipline is
challenged.” However, we said it is important to note that an employee must only be
afforded “the opportunity” to confront and cross-examine the witnesses against him.
Kirkwood, 2006 WL 889184, at *8. “[T]hat ‘opportunity’ is a right that may be lost or
waived by the employee.” Id. Examining the facts before us, we found that Mr. Kirkwood
had the opportunity to cross-examine the witnesses who did testify. With regard to the co-
workers who did not appear, we found that the employee waived his hearsay objection to
their testimony by stipulating to its admission, and we noted that there was obviously no need
for the County to present live testimony because of the stipulation to the entry of the
transcribed statements. Id. at *9. We then noted that Mr. Kirkwood “chose not to issue
subpoenas to have those witnesses present during the Review Board hearing in order to cross
examine them on their transcribed statements.” Id. In sum, we concluded:

              The record reveals, without question, that Mr. Kirkwood was provided
       an adequate opportunity to confront his Accusers. Mr. Kirkwood
       cross-examined Inspectors Cash and Peete. Mr. Kirkwood had the opportunity
       to examine Lt. Ducrest, but declined to do so. Mr. Kirkwood had the
       opportunity to subpoena . . . those who had given testimony against him. He
       did not. Mr. Kirkwood's failure to capitalize on his opportunity to examine
       those who made accusations against him was not the result of the County's
       conduct, but was instead the product of his own attorney's tactical decisions.
       Fundamental fairness required that Mr. Kirkwood be given fair opportunity to
       confront his Accusers and to test the strength of the evidence against him.

                                             -17-
       However, the decision to take advantage of the opportunity ultimately rested
       with Mr. Kirkwood, and he must bear the responsibility for waiving his
       opportunity to confront his accusers. Mr. Kirkwood was afforded the
       opportunity to examine his Accusers and was not denied his rights under
       Article I, § 8 of the Tennessee Constitution and the Due Process Clause of the
       Fourteenth Amendment to the United States Constitution.
Id.

        As in Kirkwood, we conclude, in the case at bar, that the City had no obligation to
“present” the accuser at the hearing. Rather, the City only had the obligation of meeting its
burden of proof; it had the burden of going forward to establish a prima facie case against
the employee. It attempted to do so by presenting the testimony of Lt. Jenkins and Chief
Godwin. As for Officer Morris’s assertion that the City violated his due process right to
confront his accuser, we find no merit in his argument. Counsel for Officer Morris cross-
examined both Lt. Jenkins and Chief Godwin. The City did not rely upon the testimony of
Ms. Morgan to establish its case. Ms. Morgan did not testify, and the City did not introduce
her statement for the truth of the matter asserted. As previously discussed, it was counsel for
Officer Morris who elicited testimony about Ms. Morgan’s statement and effectively put Ms.
Morgan’s statement before the Commission for its consideration. In conclusion, we find that
Officer Morris was “afforded the opportunity to confront and cross-examine the witnesses
against him.” He cross-examined the witnesses who testified at trial and was afforded the
opportunity to test the strength of the evidence against him. Officer Morris cannot complain
that he was unable to confront one of the “witnesses against him” when that person did not
testify, her written statement was not introduced for the truth of the matter asserted, and it
only came into consideration due to the tactical decision of his own attorney. There was no
denial of due process in this case.

                                     C.    Expungement

       Finally, Officer Morris argues that expunged records were erroneously maintained in
the investigative file considered by Chief Godwin, and he claims that these records
influenced the disciplinary action taken against him. As we have noted, in 1999, Officer
Morris was suspended for five days due to a violation of DR-104 Personal Conduct that arose
out of another domestic violence incident. The investigative file relied upon by Chief
Godwin contained several documents related to this incident such as internal memoranda and
items regarding the disciplinary charge, but it also included several documents relating to
Officer Morris’s arrest based on the same incident. The record before us contains an
“Affidavit of Complaint” for the criminal charge of “assault/domestic violence” along with
an arrest ticket. At the hearing before the Commission, Chief Godwin acknowledged that
the investigative file also contained an order of dismissal indicating that the criminal charges

                                              -18-
were dismissed with prejudice after Officer Morris successfully completed a diversion
program. He also recalled reviewing a document indicating that the criminal charges were
expunged. Counsel for Officer Morris then asked Chief Godwin if he was familiar with a
Tennessee statute that, according to counsel, indicates that expunged charges cannot be used
for any purpose, to which Chief Godwin responded, “I didn’t use them. I didn’t use the
charges – his charge to terminate him.” Chief Godwin said that he did see the document
regarding the expunged charges and that he could not “erase it from [his] memory” simply
because it was expunged, but, he added, “what I am saying is it was not the purpose of
termination.” Chief Godwin explained that what he took into consideration was the fact that
Officer Morris had a previous violation of DR-104, and he said that he did not consider the
criminal act.

        From our review of the record, we conclude that the decision to terminate Officer
Morris was not made because of the fact that he was arrested in 1999, participated in a
diversion program, and obtained dismissal of the charges. Chief Godwin testified that he did
not consider the criminal act, but the fact that Officer Morris had a previous violation of DR-
104. He further testified that he would have terminated Officer based solely on the 2003
incident with Ms. Morgan, even if Officer Morris had no disciplinary history. Moreover,
when Officer Morris argued before the Commission that the expunged records should not be
considered, the Commission agreed. Its written decision states that “[t]he Commission
agreed with the arguments of Mr. Morris' counsel that it could not consider the matters
involved in the diversion and expungement of the 1998 alleged occurrence.” Upon
considering the other evidence presented, the Commission upheld termination. Considering
the entire record, we find that Chief Godwin’s knowledge of the expunged records from 1999
was harmless and did not influence his decision. See Tenn. Code Ann. § 4-5-322(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 that affect the merits of such decision.”).


                                     V.   C ONCLUSION

       For the aforementioned reasons, we affirm the chancery court’s finding that there was
insufficient evidence to sustain the Truthfulness charge, but we vacate the reinstatement of
Officer Morris and reinstate the Commission’s decision to uphold termination due to the
Personal Conduct violation. Costs of this appeal are taxed to the appellee, Jason Morris, for
which execution may issue if necessary.


                                                    _________________________________
                                                    ALAN E. HIGHERS, P.J., W.S.

                                             -19-
