                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   August 8, 2002 Session

    JUDY RODRIGUEZ v. THE METROPOLITAN GOVERNMENT OF
             NASHVILLE AND DAVIDSON COUNTY

              A Direct Appeal from the Chancery Court for Davidson County
              No. 01-403-III   The Honorable Ellen Hobbs Lyle, Chancellor



                   No. M2001-02500-COA-R3-CV - Filed October 16, 2002


       Municipal employee filed a petition for review of civil service commission order terminating
her employment. The chancery court affirmed the order of the commission, finding that the record
contained substantial and material evidence to support the termination. The employee has appealed.
We affirm.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

Phillip L. Davidson, Nashville, For Appellant, Judy Rodriguez

Kelli A. Hass, Rita M. Roberts-Turner, Nashville, For Appellee, Metropolitan Government of
Nashville and Davidson County

                                           OPINION

        Judy Rodriguez (“Rodriguez”) was terminated by Defendant, Metropolitan Government of
Nashville and Davidson County (“Metropolitan”), after eight and one half years of service as a
civilian employee with the Metropolitan Police Department. At the time of her termination,
Rodriguez was employed in the department’s Records and Teleserve Division, where she had access
to confidential information concerning police operations.

       In September of 1998, during the course of a drug investigation involving Laurie Perry, the
mother of Rodriguez’s grandson, vice officers received a tip from a confidential informant
concerning possible criminal evidence located at Rodriguez’s home. Vice officers learned that
Rodriguez received approximately $16,000.00 in cashier’s checks from Perry. According to the
information, the checks were stashed in a storage box underneath Rodriguez’s bed. A subsequent
search of Rodriguez’s home substantiated the informant’s tip.

         On September 16, 1998, officers from the Metropolitan Police Department interviewed
Rodriguez at work regarding her association with Perry. Rodriguez admitted to holding the money
for Perry, but insisted that her association with Perry was turbulent and limited only to instances in
which Rodriguez picked up her grandson for court-ordered visitation. Rodriguez further
acknowledged that she was aware that Perry had at least one prior drug arrest in 1991.1 Although
Rodriguez admitted that the money belonged to Perry, she denied receiving the money from Perry,
forcing the officers to probe Rodriguez for the identity of the person who delivered the checks. After
initially refusing to identify the courier, Rodriguez, at the urging of the vice officers, broke silence
and identified her friend, James Powell, as the person who delivered the checks for Perry. Rodriguez
claimed that Powell told her that Perry wanted Rodriguez to hold the money because someone had
tried to break into Perry’s home to steal the money.2

         The officers also questioned Rodriguez about her association with her son, Ricky Rodriguez
(“Ricky”). Specifically, the officers inquired into whether Rodriguez was aware of Ricky’s prior
drug arrests and current involvement in “the marijuana business.” After denying knowledge of
Ricky’s present involvement with drugs and answering a few background questions regarding her
boyfriend William Smith (“Smith”), Rodriguez consented to the officers’ request to search her home
for the checks. The search produced the checks, but uncovered no other evidence linking Rodriguez
with any potential crime.

        Upon concluding their search of Rodriguez’s home, the officers asked Rodriguez to
participate in two controlled calls, one to Perry, and the other to Powell. With vice officers present
and recording the conversation, Rodriguez first telephoned Perry to inform her of the search and
seizure of the money. During this conversation, Perry made “suspicious or damaging” statements
that “concerned” vice officers.3 Specifically, the officers were concerned with Rodriguez’s statement


         1
           According to FB I Identification Reports contained in the record, Perry was charged in 1990 with felony
possession of marijuana and sentenced to one year of probation. That same year, Perry was charged with possession
of a controlled substance for resale and fined $250.00.

         2
             The parties dispute Rodriguez’s understanding and explanation of the reasons Perry wanted her to hold the
mon ey. Rodriguez contends that her explanation to Metropolitan was that Perry was scared that someone was trying to
steal the money, and that the money was intended for Rodriguez’s grandson’s education. Metropolitan asserts that
Rodriguez has offered two different exp lanations for why Perry wanted her to hold the m oney. Acco rding to
Metrop olitan, Rodriguez initially told officers that Powell told her Perry wanted her to keep the money because someone
had tried to break into P erry’s home, mentioning nothing of her grandso n’s education. Me tropolitan asserts that it wasn’t
until after her September 16 meeting with the officers that Rodriguez “adopted” the story about her grandson’s education.
In her initial order, the administrative law judge agreed with Metropolitan, finding that Rodriguez had offered two
different explanations for ho lding the checks.

         3
           In her review of the record, the administrative law judge concluded that the vice officers were “concerned”
by statem ents ma de by Rodriguez that the y found “suspicious or dam aging.”

                                                            -2-
that if she “had known that [the money was dope money] I could have put it somewhere else.” The
officers were further concerned by Rodriguez’s suggestion that she and Perry get together to
determine what Rodriguez was going to tell the police about the money.

        Rodriguez made a second controlled call moments later to Powell. During the conversation,
Rodriguez informed Powell of her interview with Metropolitan officers and the fact that she had
revealed Powell’s involvement. Powell responded by stating, “I got to clean my house out.”4 Powell
further asserted that he would corroborate Rodriguez’s statement to officers that she was told by
Powell that the money was being entrusted to Rodriguez because someone tried to break into Perry’s
home. The monitoring officers interpreted Powell’s statement as evidence that Rodriguez’s story
was fabricated.

       On June 8, 1999, Rodriguez was charged with violating General Order 95-19, Section VI,
Personal Behavior, Part T - Association with Criminals, which states:

                  An employee shall not knowingly associate with persons convicted
                  of felonious criminal offenses or those who have shown a pattern of
                  criminal behavior, except in the performance of duty.

Metropolitan found that Rodriguez violated this order as a result of her knowing association with
Perry, Rodriguez’s two sons, Ricky and Gary Rodriguez (“Gary”), and Smith, all of whom had prior
felony convictions.

        On March 11, 1999, Rodriguez voluntarily consented to a polygraph examination. Captain
Joe Ogg (“Ogg”) of the Internal Security Section administered the examination. Although Ogg
stated that it was his belief that Rodriguez truthfully revealed that she did not know or suspect that
the checks came from the sale of drugs, he failed to ask Rodriguez about her associations with Perry,
Ricky, Gary, or Smith. A continuation polygraph was administered on April 29, 1999, but the results
of the examination were lost.

       Following Metropolitan’s investigation into the charges, a hearing was held before the
department’s disciplinary board on July 23, 1999. After listening to evidence presented by
Rodriguez and the investigating officers, the board recommended that Rodriguez be terminated
pursuant to Chapter 6, Section 6.7(11), for violation of General Order 95-19, Section VI, Personal
Behavior, Part T - Association with Criminals. Assistant Chief Charles Smith concurred with the
board’s recommendation and ordered termination of Rodriguez’s employment effective July 24,
1999.



         4
          Upon hearing this statement, vice officers immediately proceeded to Po well’s home. Once there, officers
discovered Rodriguez’s son, Gary Rodriguez, whom they found to be in possession o f marijuana. T he vice officers also
detained Randy W ard on the scene when they found a bo x of pills that they co nsidered d rug paraphernalia in his
possession.

                                                         -3-
        Rodriguez appealed her termination to the Civil Service Commission (“Commission”) on
July 27, 1999. Administrative Judge Margaret Robertson (“ALJ”) was assigned to the appeal, and
a hearing was held on March 8, 2000. On July 31, 2000, the ALJ entered an initial order upholding
Rodriguez’s termination. The ALJ found that Metropolitan had just cause to find Rodriguez guilty
of violating General Order 95-19, as she knowingly associated with Perry, Smith, and her two sons,
which association violated Chapter C, Section 6-7 (11) of the Rules of the Metropolitan Civil Service
Commission providing for disciplinary action, including discharge.

        On August 23, 2000, Rodriguez opposed the ruling of the ALJ and appealed the decision to
the Civil Service Commission. On September 12, 2000, the Commission held a review of the initial
order. At this hearing, Rodriguez petitioned the Commission to enter the Internal Affairs Security
Investigation file for this case into the Technical Record. Rodriguez argued that the file was not
originally entered into the record or considered by the judge. On September 25, 2000, the
Commission remanded this issue to the ALJ for a determination of whether the file was entered into
the record and appropriately considered by the judge, and, if not, whether there was an excusable
reason justifying the omission.

        Without the aid of the ALJ’s guidance, both parties agreed on October 10, 2000, that the
Internal Affairs file should be placed into the record. On November 6, 2000, the ALJ refused to
consider the results from Rodriguez’s polygraph tests, and denied her request to enter the tests into
the Technical Record. On December 12, 2000, the Commission considered Rodriguez’s appeal and,
by final order, affirmed the initial order terminating Ms. Rodriguez’s employment.

        Rodriguez petitioned the chancery court for review of the Commission’s final order. By
order filed July 16, 2001, the court affirmed the Commission’s decision, finding that there was
substantial and material evidence in the record to support the Commission’s conclusion that
Rodriguez knowingly associated with Perry and violated the subject general order. As a result of this
finding, the court determined that it was unnecessary to consider whether Rodriguez knowingly
associated with Smith or her two sons. Upon the trial court’s denial of Rodriguez’s motion alter or
amend the judgment, Rodriguez appeals and presents four issues for review, as stated in her brief:

               (1) Whether there was substantial and material evidence in the record
               to support a finding that Rodriguez knowingly associated with felons
               or persons involved in criminal activity;

               (2) Whether the ALJ’s refusal to consider the admission of the
               Internal Affairs file into evidence constituted an abuse of discretion
               which adversely affected Rodriguez’s right to a fair hearing;

               (3) Whether the ALJ’s refusal to admit Rodriguez’s polygraph results
               into evidence was an abuse of discretion that adversely affected her
               right to a fair hearing; and



                                                -4-
               (4) Whether General Order 95-19, Section VI, Part 7, was
               unconstitutional as applied to Rodriguez.

       Ms. Rodriguez asserts in her first issue that there was no substantial or material evidence to
support a finding that she violated general order 25-19, Section VI, Section T. The standard of
review for the chancellor on appeal of administrative proceedings is governed by T.C.A. § 4-5-322
(h)(1998) as follows:

               The court may affirm the decision of the agency or remand the case
               for further proceedings. The court may reverse or modify the
               decision if the rights of the petitioner have been prejudiced because
               the administrative findings, inferences, conclusions or decisions are:

               (1) In violation of constitutional or statutory provisions;
               (2) In excess of the statutory authority of the agency;
               (3) Made upon unlawful procedure;
               (4) Arbitrary or capricious or characterized by abuse of discretion or
               clearly unwarranted exercise of discretion; or
               (5) Unsupported by evidence which is both substantial and material
               in the light of the entire record.

               In determining the substantiality of evidence, the court shall take into
               account whatever in the record fairly detracts from its weight, but the
               court shall not substitute its judgment for that of the agency as to the
               weight of the evidence on questions of fact.

         The scope of review in this Court is the same as in the trial court, to review findings of
fact of the administrative agency upon the standard of substantial and material evidence. Gluck v.
Civil Serv. Comm’n, 15 S.W.3d 486 (Tenn. Ct. App. 1999). Although what amounts to substantial
and material evidence is not clearly defined by the subject statute, it is generally understood that “it
requires something less than a preponderance of the evidence, (citations omitted) but more than a
scintilla or glimmer.” Wayne County v. Tennessee Solid Waste Disposal Control Bd., 756 S.W.2d
274, 280 (Tenn. Ct. App. 1988). “Substantial evidence is not limited to direct evidence but may also
include circumstantial evidence or the inferences reasonably drawn from direct evidence.” Id. at
280.

        Although this Court may consider evidence in the record that detracts from the weight of the
evidence, the Court is not allowed to substitute its judgment for that of the agency concerning the
weight of the evidence. T.C.A. § 4-5-322 (h); see also Gluck v. Civil Serv. Comm’n, 15 S.W.2d
486 (Tenn. Ct. App. 1999). The evidence before the administrative body must be such relevant
evidence as a reasonable mind might accept as adequate to support a rational conclusion such as to
furnish a reasonable sound basis for the action taken. Id. at 490.



                                                  -5-
        The technical record in this case includes, among other documents, a written transcript of
Rodriguez’s recorded interview with vice officers on September 16, 1998, transcripts of the
controlled calls Rodriguez made to Perry and Powell later that day, and a transcript of the hearing
held before the ALJ in March of 2000. Based on the evidence contained within these documents,
we uphold the chancery court’s determination that there is substantial and material evidence in the
record to find that Rodriguez violated the general order prohibiting knowing association with felons
or persons engaged in a course of criminal conduct.

        To summarize Rodriguez’s position in this case, she contends that Metropolitan lacked any
factual evidence to establish that she engaged in a knowing association with Perry. Stated
differently, Rodriguez argues that she had no knowledge or reason to believe that the money was the
proceeds of illegal drug sales. Rodriguez further argues that she was aware of Perry’s 1991 drug
conviction, but maintains that she did not know or have reason to believe that Perry was a “major
player” in the drug dealing industry at the time she accepted the money. The documents in the record
cast a suspicious light on Rodriguez’s argument. The transcript of proceedings provides the richest
source of substantial and material evidence refuting Rodriguez’s story and supporting the
Commission’s decision to terminate.

        During the course of the administrative hearing, several individuals were called to testify
before the ALJ. Among those called were Lieutenant Percy Smith, Assistant Chief Charles Smith,
Officer Jesse Franklin Burchwell, and Rodriguez. The testimony offered by Lieutenant Smith,
Assistant Chief Smith, and Officer Burchwell painted a consistent and rational picture of a knowing
association between Rodriguez and Perry. Lieutenant Smith and Assistant Chief Smith both
concluded that Rodriguez’s acceptance of the cashier’s checks from Powell, on behalf of Perry,
constituted strong evidence of a knowing association. They further testified that Rodriguez’s
“inconsistent” explanations for the reasons Perry asked her to hold the money cast suspicion upon
Rodriguez’s claim that she lacked any knowledge that criminal activity was afoot. Lieutenant Smith
noted that in her original statement given to Vice on September 16, 1998, Rodriguez stated that Perry
wanted her to hold the money because “someone was breaking in her house and she didn’t want
anything to happen to it.” It wasn’t until after this initial statement, that Rodriguez mentioned that
Perry wanted her to hold the money because it was for Rodriguez’s grandson’s education.5 Assistant
Chief Smith noted Rodriguez subsequently offered a third explanation for the money, claiming it was
from Perry’s business.

       In their testimony, the Assistant Chief Smith and Officer Burchwell both concluded that
Rodriguez was aware, or at least should have been aware based on the circumstances, that the money
was the proceeds of past drug deals. Assistant Chief Smith noted that the money itself “was very
unusual because it was in cashier’s checks, and there were safer ways of taking care of that money
such as in bank accounts....” Officer Burchwell testified that the fact that Perry used a third party


         5
          Rodriguez argues that her explanation is not inconsistent. She contends that the money was fo r her grandson’s
education and she wa s holding it because Perry was afra id that the money would be lost if som eone tried to break into
her home again.

                                                          -6-
to deliver the money to Rodriguez, and the fact that Rodriguez hid the money in a safe box
underneath her bed, created an air of suspicion with regard to the source or purpose of the money.

        Rodriguez’s personal relationship with Perry also raised suspicion among law enforcement
officials. To reiterate, the record indicates that Perry is the mother of Rodriguez’s grandson. Ricky
Rodriguez is the father of the child, however, he and Perry never married. In his testimony,
Lieutenant Smith noted that he found it “strange” that Perry would entrust Rodriguez, a non-family
member, with $16,000.00 in spite of their admittedly tense and often unfriendly relationship.

        Rodriguez’s hesitance to identify Powell, and her controlled conversation with him on
September 16, were also considered by law enforcement officials as evidence that Rodriguez was
knowingly associated with convicted felons or persons involved in a pattern of criminal activity.
During his direct examination, Lieutenant Smith expressed concern regarding this hesitation, and
stated that if “things are on the up-and-up” Rodriguez should not have felt like she had to hide
Powell’s identity. Assistant Chief Smith shared the Lieutenant’s suspicions, noting that during the
controlled call Powell responded to news that police had questioned Rodriguez about the money by
stating “I got to clean my house out.” Immediately after Powell offered this statement, the Chief
noted that Vice proceeded to Powell’s home and discovered drugs on the premises. The Chief
concluded that “the nature of the call was such that it made me think that she would have known that
the money was drug money.”

        In her cross examination of Rodriguez at the administrative proceeding, Metropolitan’s
counsel highlighted suspicious events that the Commission considered substantial and material
evidence to support its decision to terminate. Specifically, Metropolitan pointed out that Rodriguez
unexpectedly received $16,000.00 in cashier’s checks from a third party, but never bothered to
contact Perry to ask her exactly why she was to hold the money. Furthermore, Rodriguez admitted
that she didn’t even know Powell and Perry were acquaintances when she received the money, yet
she never questioned Powell as to why he was chosen to deliver the money. Metropolitan reiterated
its concern as to why Perry would entrust Rodriguez with $16,000.00 when the women, according
to Rodriguez’s testimony, hadn’t spoken in months and did not share a friendly relationship.
Rodriguez had no explanation for Perry’s decision, other than to suggest that the money was
allegedly for her grandson’s education.

        Metropolitan also questioned Rodriguez regarding her handling of the money. According
to her testimony, Rodriguez failed to ask Perry why she hadn’t put the money in a bank account or
safe deposit box for safekeeping; nor, did Rodriguez take these actions by her own initiative. In
addition, Rodriguez admitted that she did not know how long she was supposed to keep the money,
and did not contact Perry to find out.
         After analyzing the evidence contained in the trial record, we find that evidence relied upon
by the Commission furnishes a “reasonably sound basis for the action under consideration.” We find
that the record contained substantial and material evidence that Rodriguez violated General Order
95-19, Section VI, Personal Behavior, T - Association with Criminals, by knowingly associating with
Perry. Finding that Rodriguez violated General Order 95-19 by her association with Perry, we


                                                 -7-
conclude, as the chancery court did, that it is unnecessary to determine whether there is substantial
and material evidence in the record to support a conclusion that Rodriguez knowingly associated
with Smith or her two sons.

        Accordingly, the order of the chancery court is affirmed. Costs of the appeal are assessed
against the appellant, Judy Rodriguez, and her surety. The remaining issues are pretermitted.




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




                                                -8-
