                                                                                         07/30/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                              September 17, 2019 Session

         JOHN GARCIA v. SHELBY COUNTY SHERIFF’S OFFICE

                 Appeal from the Chancery Court for Shelby County
                     No. CH-18-0274 Jim Kyle, Chancellor
                     ___________________________________

                           No. W2018-01802-COA-R3-CV
                       ___________________________________


A sheriff’s office demoted an employee for failing to follow official policies and
procedures during an arrest. The employee appealed to the civil service merit board.
After a hearing, the board found the employee had neglected his duty as the ranking
officer at the scene of the arrest. But the board modified the disciplinary action to a 30-
day suspension and ordered the employee’s reinstatement to his former rank. The
employee then sought judicial review. The chancery court determined that the board’s
decision was arbitrary and capricious and modified the disciplinary sanction. We
conclude that the board’s decision was not arbitrary and capricious. So we reverse.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and CARMA DENNIS MCGEE, J., joined.

E. Lee Whitwell and Bridgett L. Stigger, Memphis, Tennessee, for the appellant, Shelby
County Sheriff’s Office.

Thomas E. Hansom, Memphis, Tennessee, for the appellee, John Garcia.


                                       OPINION

                                            I.

                                            A.

       Shortly before midnight on October 20, 2016, the Shelby County Sheriff’s Office
arrested Jamie McGehee on an out-of-state misdemeanor warrant. When advised by the
jail that Ms. McGehee could not be held on an out-of-state misdemeanor warrant, the
officer who transported Ms. McGehee conferred with his superiors. He then booked
Ms. McGehee on a domestic violence charge. The domestic violence charge was later
dismissed.

       Ms. McGehee’s arrest prompted an internal investigation by the Sheriff’s Office.
The Sheriff’s Office determined that Lieutenant John Garcia, among others, had violated
applicable policies and procedures. So the Sheriff’s Office demoted Lieutenant Garcia to
the rank of patrolman.

       Lieutenant Garcia appealed the disciplinary action to the Shelby County Civil
Service Merit Board. The Sheriff’s Office argued that the demotion was justified because
Lieutenant Garcia had violated two standard operating rules or SORs: SOR 101,
Compliance with Regulations, and SOR 120, Neglect of Duty.1 SOR 101 authorized
disciplinary action against an employee for violation of any applicable policy, law, or
regulation. SOR 120, Neglect of Duty, required employees to perform certain duties and
to assume certain responsibilities. The scope of an employee’s duty varied based on rank
and assignment. Employees with supervisory responsibilities such as Lieutenant Garcia
were held to a higher standard. Any failure to properly supervise subordinates “through
deliberateness, carelessness, neglect, or inefficiency” constituted a neglect of duty.

       The Merit Board conducted an evidentiary hearing at which it heard from multiple
witnesses. During the course of the hearing, a more complete picture of the events
leading up to and surrounding the arrest emerged.

       On October 17, 2016, Sergeant Matthew Keaton of the Sheriff’s Office learned of
an out-of-state misdemeanor warrant against Ms. McGehee. At the time, Ms. McGehee
lived in the home of Sheriff’s Office Deputy Paul Stojanovic, who was in a relationship
with Ms. McGehee. Sergeant Keaton advised Deputy Stojanovic that, if the relationship
was to continue, the warrant needed to be cleared.

      On October 20, sometime before Ms. McGehee’s arrest, Sergeant Keaton spoke to
Deputy Stojanovic again about Ms. McGehee’s still outstanding warrant. During this
conversation, Deputy Stojanovic told Sergeant Keaton about an incident the previous day
in which Ms. McGehee allegedly threw a drink on Deputy Stojanovic and slapped his
face.




        1
         The Sheriff’s Office determined that Lieutenant Garcia also violated a third rule: SOR 103, Aid
Another to Violate Regulations. But no proof was offered at the Merit Board hearing to substantiate this
charge.

                                                   2
       Later that night, Lieutenant Garcia agreed to accompany Sergeant Keaton and
Deputy Adam Malenky to Deputy Stojanovic’s home to arrest Ms. McGehee on the
outstanding warrant. Each officer arrived in a separate vehicle. Deputy Stojanovic also
came to secure dogs that were at his home.

       Sergeant Keaton arrested Ms. McGehee, and Deputy Malenky transported her to
the county jail. When Deputy Malenky learned that Ms. McGehee could not be held on
the out-of-state misdemeanor warrant, he notified Sergeant Keaton. Sergeant Keaton told
the deputy to “hang tight” because “there was always more than one way to skin a cat.”
So Deputy Malenky awaited further instruction outside the jail with Ms. McGehee.

       Lieutenant Garcia, Sergeant Keaton, and Deputy Stojanovic were still at the scene.
Sergeant Keaton decided to charge Ms. McGehee with domestic violence—simple
assault based on the October 19 incident Deputy Stojanovic had reported. Lieutenant
Garcia supported this decision. Sergeant Keaton completed the paperwork for the arrest
on the computer in the patrol car of Deputy Stojanovic, the purported victim of the
domestic violence.

       Sheriff’s Office policy required the officer in charge to notify its Bureau of
Professional Standards and Integrity (“BOPSI”) whenever an employee was involved in a
domestic violence incident.      In such instances, BOPSI assumed administrative
responsibility of the scene and relieved the involved officer of duty and secured his
weapon. Lieutenant Garcia, as the highest-ranking officer on the scene, notified dispatch
of an “on duty domestic,” and dispatch notified BOPSI.

       Lieutenant Anthony Buckner,2 the on-call representative for BOPSI, spoke with
Lieutenant Garcia. Lieutenant Garcia related the claims that Ms. McGehee had thrown
wine or some kind of drink on Deputy Stojanovic the day prior. But when Lieutenant
Buckner asked if the local police were involved, he recalled Lieutenant Garcia
responding that “we’re trying to keep this on a hush, and we have [Ms. McGehee] in
custody on a warrant out of Mississippi.” From the conversation, Lieutenant Buckner
understood that Ms. McGehee was arrested on an outstanding warrant, not a domestic
violence charge. So BOPSI did not take charge of the investigation. He told Lieutenant
Garcia to provide him with a report.

      Lieutenant Garcia filed a field commander’s incident summary in the early hours
of October 21, which he emailed to Lieutenant Buckner. According to the summary,
Deputy Stojanovic reported a domestic assault on October 20. Although mentioning the
misdemeanor warrant, the summary stated that Sergeant Keaton “placed suspect
McGehee in handcuffs and took her into custody on a straight simple assault D[omestic

        2
          At the time, Lieutenant Buckner held the rank of sergeant. He held the rank of lieutenant at the
time he testified before the Merit Board.
                                                    3
Violence] charge.” According to Lieutenant Buckner, the incident summary report was
when he first learned that the officers involved were making an arrest for domestic
violence.

       A subsequent BOPSI investigation concluded that Lieutenant Garcia had failed to
follow policies and neglected his duty by making inconsistent statements about
Ms. McGehee’s arrest, entering false information in the police database, and failing to
ensure that the officers on the scene conducted a proper domestic abuse investigation.
BOPSI found that Lieutenant Garcia’s incident summary report did not accurately
describe the events surrounding Ms. McGehee’s arrest. And, before making a domestic
violence arrest, Sheriff’s Office policy required a thorough investigation, which did not
occur.

        Lieutenant Buckner testified that the inconsistencies in Lieutenant Garcia’s
incident report went beyond mere mistakes. He believed that Lieutenant Garcia had
provided inconsistent facts about an arrest in an official report. And he faulted
Lieutenant Garcia for not thoroughly investigating the alleged domestic violence claim
and taking a statement from Ms. McGehee and making photographs. Lieutenant Buckner
also questioned Lieutenant Garcia’s judgment in allowing Sergeant Keaton to write the
arrest report on the alleged assault victim’s computer.

       Lieutenant Garcia maintained that he did his best to comply with the policies and
procedures of the Sheriff’s Office. He had very little investigative experience. And the
experience he had was in investigating property crimes. As he understood the rules, after
notifying BOPSI of the “on duty domestic,” he had to refrain from further involvement in
the investigation and BOPSI was to “take it from there.” In his view, he fulfilled his duty
by sending a copy of his incident summary report to Lieutenant Buckner.

       Lieutenant Garcia pointed out that   it was Sergeant Keaton’s decision to charge
Ms. McGehee with domestic violence,         although he acknowledged supporting the
decision. Lieutenant Garcia expressed no    concern that the alleged assault had occurred
the day prior to the arrest. And he saw     no problem with using Deputy Stojanovic’s
computer to write the arrest report.

       Assistant Chief Mark Dunbar served as the hearing officer for Lieutenant Garcia’s
disciplinary proceeding. Chief Dunbar found that Lieutenant Garcia’s decision-making
the night of Ms. McGehee’s arrest fell short of the standard expected of a lieutenant. And
he found Lieutenant Garcia guilty of violating SOR 101, Compliance with Regulations;
SOR 120, Neglect of Duty; and a third SOR. Although under Sheriff’s Office guidelines
the violations could have led to Lieutenant Garcia’s termination, Chief Dunbar
determined that a demotion of two ranks to patrolman was a more appropriate discipline.


                                            4
       Before the Merit Board, Chief Dunbar described Lieutenant Garcia as “a pretty
good officer” with only one prior disciplinary incident. And he agreed that the situation
Lieutenant Garcia faced the night of Ms. McGehee’s arrest was unusual. He also
acknowledged that there had been only one other “double-demotion” in his thirty-three
years with the Sheriff’s Office.

       The Merit Board modified the demotion to a 30-day suspension. And it ordered
the Sheriff’s Office to reinstate Lieutenant Garcia to his rank and to reimburse him for
any lost wages. The Board found the Sheriff’s Office did not meet its burden of proving
“just cause” for a demotion. But Lieutenant Garcia had “violated SOR 120-Neglect of
Duty by failing to exercise command and control of the scene when he and Keaton went
forward with the domestic violence arrest.” Among other things, the Board found that,
“[a]s ranking officer on the scene, [Lieutenant] Garcia was not sufficiently in complete
command of the situation.”

                                            B.

       Lieutenant Garcia petitioned the chancery court for a writ of certiorari. The
petition alleged that “the County failed to adduce proof at the hearing before the Merit
Board to sustain the adverse action taken against Petitioner . . . .” So he argued that the
Merit Board’s decision was “arbitrary, capricious, illegal, and an abuse of discretion, and
unsupported by a reasonable basis and/or by substantial and material evidence/facts.”

       The chancery court affirmed the Merit Board’s factual findings. Even so, the
court determined that the decision was arbitrary and capricious because the Merit Board
“handle[d] Petitioner’s actions differently than similar actions.” And the punishment was
too harsh in light of “Petitioner’s service record” and “the Merit Board’s handling of
similar matters.” Because “Petitioner’s actions clearly show[ed] a lack of good
judgment,” the court agreed that some sanction was warranted. The court upheld the
suspension but ordered the Neglect of Duty violation removed from Lieutenant Garcia’s
personnel file.

                                            II.

       The Sheriff’s Office contends that the trial court’s ruling should be reversed
because the trial court modified the Merit Board’s decision based on evidence outside the
administrative record. Lieutenant Garcia responds that, even if the trial court erred in
considering outside evidence, we should affirm the court’s finding that the Merit Board’s
decision was arbitrary and capricious. He submits that the Merit Board’s decision was
arbitrary and capricious based on the evidence in the administrative record alone. And he
asks that his suspension be overturned.


                                            5
       Like the chancery court, we review disciplinary decisions of the Shelby County
Civil Service Merit Board using the judicial review standards in the Administrative
Procedures Act (“APA”). See Tenn. Code Ann. § 27-9-114(a) (2017); Davis v. Shelby
Cty. Sheriff’s Dep’t, 278 S.W.3d 256, 262 (Tenn. 2009). The reviewing court may
reverse or modify an agency 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
       light of the entire record.

Tenn. Code Ann. § 4-5-322(h) (Supp. 2019).

       Unless the petitioner raises a procedural issue, judicial review is confined to the
administrative record. See Tenn. Code Ann. § 4-5-322(g); StarLink Logistics Inc. v.
ACC, LLC, 494 S.W.3d 659, 668 (Tenn. 2016). Here, the petitioner did not allege any
procedural issues, and no new evidence was offered in the trial court. So judicial review
is limited to the evidence presented to the Merit Board. See Tenn. Code Ann. § 4-5-
322(g).

        We agree with the Sheriff’s Office that the administrative record contains no
evidence to support a finding that the Merit Board “handled Petitioner’s actions
differently from similar actions.” The chancery court apparently based its finding on
evidence outside the record.3 The reliance on such evidence was not proper. See In re
Billing & Collection Tariffs of S. Cent. Bell, 779 S.W.2d 375, 379 (Tenn. Ct. App. 1989)
(declining to review evidence not in the administrative record); Freeman v. City of
Chattanooga, No. E2010-01286-COA-R3-CV, 2011 WL 1197676, at *2 (Tenn. Ct. App.
Mar. 31, 2011) (“As the Trial Court found, however, petitioner did not show or allege
any procedural irregularities by the panel, and thus the Court properly confined its review
to the administrative record.”).

       Reviewing the administrative record alone, we consider Lieutenant Garcia’s claim
that the Merit Board’s decision was arbitrary and capricious. An arbitrary and capricious

       3
          At oral argument, counsel suggested that the trial court based its finding on statements of
counsel about the outcomes of appeals by Deputy Stojanovic and Sergeant Keaton to the Merit Board.

                                                 6
decision represents “a clear error in judgment.” Jackson Mobilphone Co. v. Tenn. Pub.
Serv. Comm’n, 876 S.W.2d 106, 110-11 (Tenn. Ct. App. 1993). Such a decision “is not
based on any course of reasoning or exercise of judgment or . . . disregards the facts or
circumstances of the case without some basis that would lead a reasonable person to
reach the same conclusion.” Id. at 111 (citation omitted). In reviewing the evidence, we
“take into account whatever in the record fairly detracts from the weight of the evidence,
but we may not substitute our own judgment on questions of fact by re-weighing the
evidence.” See Davis, 278 S.W.3d at 265 (citing Tenn. Code Ann. § 4-5-322(h)(5)(B)).

       Lieutenant Garcia contends that the decision was arbitrary and capricious because
the administrative record does not support a finding that he failed to do anything required
by a policy or procedure of the Sheriff’s Office. See Mitchell v. Madison Cty. Sheriff’s
Dep’t, 325 S.W.3d 603, 618 (Tenn. Ct. App. 2010) (“A decision that is not supported by
substantial and material evidence is necessarily arbitrary and capricious.”). He notes that
the Merit Board included among its findings that he “followed the policies and
procedures and made decisions based on good faith and using his own judgment.” And
Chief Dunbar acknowledged that the circumstances surrounding the arrest were
“convoluted” and “unclear.”

        But the Merit Board prefaced its finding that Lieutenant Garcia followed policies
and procedures by the finding that he “was not sufficiently in complete command of the
situation.” Lieutenant Garcia was the ranking officer on the scene and responsible for the
other officers’ actions. The requirement that supervisory employees “properly supervise
subordinates” falls squarely within SOR 120, Neglect of Duty.

        The Merit Board also found that Lieutenant Garcia “fail[ed] to exercise command
and control of the scene when he and Keaton went forward with the domestic violence
arrest.” According to Assistant Chief Dunbar, once Lieutenant Garcia learned that
Ms. McGehee could not be held on the out-of-state misdemeanor warrant, he had two
viable options. He could have ordered Ms. McGehee released from custody and returned
to Deputy Stojanovic’s home. Or he could have released her while making arrangements
for the couple to be separated overnight. Instead, he allowed Sergeant Keaton to change
the basis for the arrest to domestic violence so that Ms. McGehee could be held in the
jail. He did not ensure that evidence to support the new charge was documented. And he
let Sergeant Keaton complete the arrest report on the official computer of the purported
assault victim.

                                           III.

       The chancery court erred in modifying the Merit Board’s decision based on
outside evidence. The decision was not arbitrary or capricious. So we reverse the
decision of the chancery court and remand with instructions to affirm the decision of the
Merit Board.
                                          7
    _________________________________
    W. NEAL MCBRAYER, JUDGE




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