Duff L. Brumley v. City of Cleveland, Tennessee

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

March 5, 2013 Session

DUFF L. BRUMLEY v. CITY OF CLEVELAND, TENNESSEE

Appeal from the Circuit Court for Bradley County

No. V-10-908 W. Neil Thomas, III, Judge

No. E2012-00002-COA-R3-CV-FILED-APRIL 23, 2013

A detective with the City of Cleveland filed a petition for common-law writ of

certiorari with the Circuit Court, seeking review of the City Manager’s ruling affirming the

City’s decision to terminate his employment. At the hearing before the trial court, the

petitioner proffered new and additional evidence that was not presented to the City Manager.

The trial court sustained the City’s relevancy objection and allowed the petitioner to make

an extensive offer of proof. We hold that the trial court did not abuse its discretion in

excluding the new and additional evidence, that there is material evidence supporting the City

Manager’s decision, and that the City Manager did not act arbitrarily or capriciously in

deciding to uphold the City’s decision to fire the petitioner. We therefore affirm the

judgment of the trial court.

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

Case Remanded

T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.

S USANO, J R., P.J. and J OHN W. M CC LARTY, JJ., joined.

W. Gerald Tidwell, Jr., Chattanooga, Tennessee, for the appellant, Duff L. Brumley.

Emily A. Cleveland and Robert H. Watson, Jr., Knoxville, Tennessee, for the appellee, City

of Cleveland, Tennessee.

OPINION

I. Factual and Procedural Background

From 1997 until 2010, Duff Brumley was employed as an officer for the Cleveland

Police Department. In 2010, while working as a detective in the narcotics unit, Mr. Brumley

was approached by two members of the 10th Judicial District Drug Task Force (“DTF”), who

informed him of their suspicions that the DTF Director, Mike Hall, might be abusing

prescription medications. Later, according to Mr. Brumley, a Criminal Court judge told him

that Director Hall appeared to be under the influence while obtaining the judge’s signature

in chambers. Mr. Brumley decided to investigate the matter and obtained personal

information, including the social security number and date of birth, for Director Hall and two

other DTF agents through the Criminal Justice Portal database.

Mr. Brumley gave Director Hall’s personal information to pharmacist Mike Birdwell,

his friend and neighbor, and asked Mr. Birdwell to check the Prescription Monitoring

Program (“PMP”) database1 to determine if Director Hall’s prescription drug purchases were

suspicious. Mr. Birdwell passed the information to two other pharmacists because he did not

have access to a computer to check the PMP database. The pharmacists checked Director

Hall’s prescription drug purchase history and determined that it did not raise any suspicion

of illegal activity. Mr. Birdwell supplied Mr. Brumley this information and according to Mr.

Brumley, he then ended his investigation of Director Hall.

On June 22, 2010, District Attorney General R. Steven Bebb sent Cleveland Police

Chief Wes Snyder a letter stating, inter alia, the following:

Please be advised that we have become aware of an incident involving

Detective Duff Brumley. It appears that Detective Brumley illegally instigated

a search of the Patient Monitoring Database for information on Mike Hall, the

Director of the 10th Judicial Drug Task Force. Detective Brumley’s actions

have been confirmed through an investigation by the Tennessee Bureau of

Investigation.

....

1

This database was created by the Tennessee General Assembly as part of the Controlled Substance

Monitoring Act of 2002. See Tenn. Code Ann § 53-10-301 to -311. The parties and witnesses in this case

referred to it as the “Prescription Monitoring Program Database” or “Patient Monitoring Database,” and it

is also known as the Controlled Substance Monitoring Database. See Tenn. Code Ann. § 53-10-304(a); Tenn.

Comp. R. & Regs. 1140-11-.01 & .02. The legislature has provided that “[i]nformation sent to, contained

in, and reported from the database in any format is confidential . . ..” Tenn. Code Ann. § 53-10-306(a).

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Please accept this letter as notice that from this date forward the District

Attorney General’s Office will not accept any case files for prosecution from

Detective Brumley. . . . Please also accept this letter as a request that an

internal investigation be commenced by the Cleveland Police Department into

these matters as soon as possible.

On June 23, 2010, Chief Snyder assigned Detective Brian Pritchard to conduct an

Internal Affairs (“IA”) investigation of Mr. Brumley. Following the IA investigation, Det.

Pritchard concluded that Mr. Brumley’s actions violated Cleveland Police Department

policies and state law. On August 17, 2010, Chief Snyder notified Mr. Brumley that his

employment was terminated effective August 24, 2010. The City of Cleveland provided the

following grounds for its termination decision: (1) Mr. Brumley’s “failure to notify CID

Lieutenant of [his] investigation of Mike Hall and failure to generate a departmental case

number”; (2) misuse of the Criminal Justice portal to obtain the personal information of Mike

Hall and three other persons, and in disclosing Mike Hall’s personal information to Mike

Birdwell; (3) violation of Tenn. Code Ann. § 39-16-404;2 (4) violation of Tenn. Code Ann.

§ 53-10-306;3 (5) his investigation of the DTF director was “outside [the] scope of his job”

and “should have been forwarded to a higher authority, such as the TBI, DEA, FBI, or DA’s

office”; (6) failure to follow Cleveland Police Department policies; and (7) two letters from

District Attorney General Bebb stating, among other things, that “Detective Brumley will not

be called as a witness by the State of Tennessee in any criminal proceeding in this District”

such that he “has no credibility with this Office.”

Mr. Brumley appealed his employment termination by requesting a hearing before the

City Manager in accordance with the City of Cleveland’s employee grievance procedure.

The appeal hearing took place before City Manager Janice Casteel on August 24, 2010. Mr.

Brumley was represented by counsel at the appeal hearing. The primary participants during

the appeal hearing were Chief Snyder and Det. Pritchard; Mr. Brumley declined to make a

statement based on his counsel’s advice. City Manager Casteel considered the statements

2

Tennessee Code Annotated section 39-16-404 provides that “[a] public servant commits an offense

who, by reason of information to which the public servant has access in the public servant’s official capacity

and that has not been made public, attains or aids another to attain a benefit.”

3

Tennessee Code Annotated section 53-10-306 provides that “[i]nformation sent to, contained in,

and reported from the [Controlled Substance Monitoring] database in any format is confidential,” and “[a]ny

person who knowingly uses, releases, publishes, or otherwise makes available to any other person or entity

any information submitted to, contained in, or obtained from the database for any purpose other than those

specified in this part is guilty of a Class A misdemeanor.” Tenn. Code Ann. § 53-10-306(a), (k)(2).

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presented at the hearing and the documents contained in the submitted administrative record,

including Det. Pritchard’s IA investigation file. On August 30, 2010, the City Manager

affirmed the decision to terminate Mr. Brumley’s employment.

Mr. Brumley filed an application for writ of certiorari with the Circuit Court for

Bradley County on October 27, 2010. The trial court conducted a hearing on November 17,

2011, at which Mr. Brumley proffered a substantial amount of new evidence not presented

to or considered by City Manager Casteel during the administrative appeal hearing. The City

of Cleveland objected to the additional evidence on the grounds that it was irrelevant and

beyond the proper scope of the court’s review under a common-law writ of certiorari. The

trial court sustained the City’s objection and allowed Mr. Brumley to make an offer of proof.4

After reviewing the administrative record of the hearing before City Manager Casteel, the

trial court entered an order finding that all of the grounds for termination were supported by

material evidence except the allegation that Mr. Brumley violated Tennessee Code Annotated

section 39-16-404, which provides that “[a] public servant commits an offense who, by

reason of information to which the public servant has access in the public servant’s official

capacity and that has not been made public, attains or aids another to attain a benefit.” The

trial court affirmed the City Manager’s decision upholding the City’s decision to terminate

Mr. Brumley’s employment.

II. Issue Presented

Mr. Brumley appeals, raising the issue of whether the trial court erred in refusing to

admit his proffered evidence at his common-law certiorari hearing, which evidence was not

presented to the City Manager during his earlier administrative appeal hearing.

III. Standard of Review

In this appeal we review the trial court’s decision denying Mr. Brumley relief upon

his petition for writ of certiorari. The Tennessee Supreme Court, in Heyne v. Nashville

Board of Public Education, 380 S.W.3d 715, 729 (Tenn. 2012), has recently examined the

standard of review of a court’s decision under common-law writ of certiorari and reaffirmed

the longstanding principle that such a review is narrow and “extremely limited.” Woods v.

4

Although the trial court did not explicitly state that it sustained the City’s objection and excluded

the proffered evidence, it is clear from the court’s comments at the hearing that this was its ruling. For

instance, the trial court stated at the beginning of the hearing, “I think they’re entitled to make an offer of

proof so that . . . if it goes to the Court of Appeals, [it] will decide whether or not I should have admitted that

proof.” The trial court repeatedly referred to the proffered evidence as “an offer of proof” and, in its later

order to supplement the record on appeal, specified that “these documents are included in the record on

appeal as an offer of proof only by the petitioner.” (Emphasis added).

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Metro. Dev. & Hous. Auth. Bd. of Comm’rs, 345 S.W.3d 903, 911 (Tenn. Ct. App. 2011).

The Heyne Court instructed that

[t]he judicial review available under a common-law writ of certiorari is limited

to determining whether the entity whose decision is being reviewed (1)

exceeded its jurisdiction, (2) followed an unlawful procedure, (3) acted

illegally, arbitrarily, or fraudulently, or (4) acted without material evidence to

support its decision. Harding Acad. v. Metropolitan Gov’t of Nashville &

Davidson Cnty., 222 S.W.3d at 363; see also Stewart v. Schofield, 368 S.W.3d

457, 463 (Tenn. 2012). We have explicitly approved the use of the

common-law writ of certiorari to provide judicial relief from (1) fundamentally

illegal rulings, (2) proceedings inconsistent with essential legal requirements,

(3) proceedings that effectively deny parties their day in court, (4) decisions

that are beyond the decision-maker’s authority, and (5) decisions that involve

plain and palpable abuses of discretion. State v. Lane, 254 S.W.3d at 355

(quoting Willis v. Tennessee Dep’t of Corr., 113 S.W.3d 706, 712 (Tenn.

2003)). However, we have also held that:

the common law-writ [of certiorari] . . . may not be resorted to

for the correction of technical or formal errors, not affecting

jurisdiction or power, or for the correction of defects that are not

radical, amounting to an illegality that is fundamental, as

distinguished from an irregularity.

State ex rel. McMorrow v. Hunt, 137 Tenn. 243, 249, 192 S.W. 931, 933

(1917).

A common-law writ of certiorari proceeding does not empower the

courts to redetermine the facts found by the entity whose decision is being

reviewed. Tennessee Waste Movers, Inc. v. Loudon Cnty., 160 S.W.3d 517,

520 n. 2 (Tenn. 2005); Cooper v. Williamson Cnty. Bd. of Educ., 746 S.W.2d

176, 179 (Tenn. 1987). Accordingly, we have repeatedly cautioned that a

common-law writ of certiorari does not authorize a reviewing court to evaluate

the intrinsic correctness of a governmental entity’s decision. See, e.g., Stewart

v. Schofield, 368 S.W.3d at 465; Arnold v. Tennessee Bd. of Paroles, 956

S.W.2d 478, 480 (Tenn. 1997). Similarly, we have noted that reviewing courts

may not reweigh the evidence or substitute their judgment for the judgment of

the entity whose decision is being reviewed. See, e.g., State v. Lane, 254

S.W.3d at 355 (quoting Robinson v. Clement, 65 S.W.3d at 635); Harding

Acad. v. Metropolitan Gov’t of Nashville & Davidson Cnty., 222 S.W.3d at

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363.

Heyne, 380 S.W.3d at 729.

This is not Mr. Brumley’s first appeal of an application for writ of certiorari resulting

from his dissatisfaction with an employment-related decision by the City of Cleveland. In

2010, Mr. Brumley was unhappy with the City’s decision to require him to undergo 28 days

of retraining to improve his interpersonal and communication skills, so he appealed the trial

court’s ruling affirming the City Manager’s decision and raised the same issue as presented

in this appeal. See Brumley v. City of Cleveland, No. E2010-00840-COA-R3-CV, 2011 WL

1326239 (Tenn. Ct. App. Apr. 7, 2011) (“Brumley I”). In Brumley I, this court stated, inter

alia,

We apply an abuse of discretion standard of review in determining whether or

not the trial court erred in excluding the introduction of additional evidence in

a writ of certiorari review. Weaver v. Knox County Bd. of Zoning Appeals, 122

S.W.3d 781, 784 (Tenn. Ct. App. 2003). “Generally, the admissibility of

evidence is within the sound discretion of the trial court.” Mercer v.

Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004). “The trial court’s

decision to admit or exclude evidence will be overturned on appeal only where

there is an abuse of discretion.” Id. “A court abuses its discretion when it

causes an injustice to the party challenging the decision by (1) applying an

incorrect legal standard, (2) reaching an illogical or unreasonable decision, or

(3) basing its decision on a clearly erroneous assessment of the evidence.” Lee

Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). “Courts have

limited the introduction of additional evidence to the question of whether the

Board exceeded its jurisdiction or acted illegally, arbitrarily or capriciously.”

Weaver, 122 S.W.3d at 786 (quoting Hemontolor v. Wilson County Bd. of

Zoning Appeals, 883 S.W.2d 613, 618 (Tenn. Ct. App. 1994)).

Brumley I, 2011 WL 132639 at *4. In addressing the issue of whether the trial court abused

its discretion to exclude the evidence not presented to the City Manager, we are mindful of

the well-established standard that “[a]ny additional evidence offered to the reviewing court

is limited to the question of whether the agency exceeded its jurisdiction or acted

fraudulently, illegally or arbitrarily.” Watts v. Civil Serv. Bd. for Columbia, 606 S.W.2d 274,

277 (Tenn. 1980).

IV. Analysis

Mr. Brumley does not argue that the City Manager’s action exceeded her jurisdiction

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or that it was illegal. Although Mr. Brumley does argue that the additional evidence he

attempted to introduce with the trial court demonstrates that the City Manager’s action was

“arbitrary,” it is largely an attempt to persuade the trial court to reevaluate the merits of the

City’s decision and reach a different conclusion. We hold that the trial court properly

declined the invitation to evaluate the intrinsic correctness of the City Manager’s decision

and did not abuse its discretion by excluding Mr. Brumley’s proffered new and additional

evidence. As we stated in Brumley I, “[e]xtrinsic evidence cannot be introduced to show that

the administrative action was wrong . . . [t]he issue is not whether Brumley conducted a

proper investigation, but rather whether the City Manager acted arbitrarily or capriciously.”

2011 WL 1326239 at *5.

Mr. Brumley’s offer of proof consisted of the following: (1) his own live testimony,

including his recollection of the events surrounding his investigation of Director Hall; (2) the

live testimony of six other witnesses, including pharmacist Birdwell, four former or current

law enforcement officers, and the City Attorney; (3) the deposition testimony of Kim

Harmon, a Tennessee Bureau of Investigation (“TBI”) agent; (4) documentation from two

earlier and generally unrelated criminal cases in which Mr. Brumley was involved as a

witness; and (5) documentation from an earlier TBI investigation of Chief Snyder. Our

review of the administrative record and the testimony in the offer of proof establishes that

very few, if any, of the facts of Mr. Brumley’s investigation that led to his termination are

disputed. Mr. Brumley’s argument is that his investigation was properly conducted and that

he did nothing wrong or inappropriate. He therefore contends that the City should not have

terminated his employment. For instance, in an effort to discredit the allegation that he

should have informed his superior officer of his self-initiated investigation of Director Hall

and should have opened a case file, Mr. Brumley presented the testimony of Matt Jenkins,

a Cleveland police officer, and Abe Hayes, a retired Cleveland police officer, who each

testified that it was not common practice for officers to open a case file and inform their

superior officers of criminal investigations that are in the early preliminary stage.

Mr. Brumley also offered the deposition testimony of Kim Harmon, a TBI agent who

trained other law enforcement agents to investigate prescription abuse cases. Agent Harmon

testified that at the time Mr. Brumley conducted the investigation of Director Hall, the TBI

was training agents that it was proper and legal to ask a pharmacist to check the PMP

database to see if a person’s prescription drug history raised any suspicion of criminal

activity. Agent Harmon further testified that shortly after Mr. Brumley’s investigation,

however, it was determined that such an informal inquiry without a court order would be

improper and unlawful. At the administrative appeal hearing before City Manager Casteel,

Chief Snyder stated that neither Agent Harmon nor anyone else from the TBI had ever

provided the Cleveland Police Department with any training regarding the PMP database.

Agent Harmon’s proffered testimony thus bears limited relevance to the issue of whether the

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City Manager acted arbitrarily. Det. Pritchard testified at the administrative appeal hearing

that “according to the Board of Pharmacy’s attorney, you cannot ask a pharmacist or initiate

conversation with a pharmacist to indulge or look into that database. It must be done by a

court order signed by the DA and the judge.”

Chief Snyder also testified at the administrative hearing that the two letters from

District Attorney General Bebb, which were placed into the administrative record for City

Manager Casteel’s consideration, played a significant role in the decision to terminate Mr.

Brumley’s employment. General Bebb’s June 22, 2010 letter to Chief Snyder stated in part

that “from this date forward the District Attorney General’s office will not accept any case

files for prosecution from Detective Brumley.” General Bebb’s July 15, 2010 letter to Chief

Snyder informed him as follows in pertinent part:

Detective Brumley will not be called as a witness by the State of Tennessee in

any criminal proceeding in this District. Detective Brumley has no credibility

with this Office and as such will not be called to testify to anything under oath.

. . This decision is based on the current investigation as well as prior

documented instances of Detective Brumley’s credibility being called into

question, at both the state and federal levels.

No one from the District Attorney General’s office was called to testify, either in the

administrative hearing or the hearing before the trial court, to discuss or explain the “prior

documented instances of Detective Brumley’s credibility being called into question.” Mr.

Brumley argues that the prior instances are regarding two earlier criminal cases in which he

was involved—the prosecution of Michael Younger at the state level, and of Tiffany H. Little

at the federal level. Mr. Brumley proffered extensive portions of the records in these earlier

cases in an attempt to show that his credibility was wrongly called into question by General

Bebb. We conclude that this evidence is irrelevant to the pertinent question before the court,

“whether the City Manager acted arbitrarily or capriciously.” Brumley I, 2011 WL 1326239

at *5.

On appeal, Mr. Brumley complains that because he did not have the power to cause

subpoenas to be issued to compel witnesses to attend his administrative hearing, he was

unfairly denied the opportunity to present evidence. In its memorandum and order, the trial

court addressed this argument as follows:

[Mr. Brumley] has argued that he did not have the ability to subpoena

witnesses to the hearing before Janice Casteel, that he was rushed to hearing

and that because of the pendency of the possibility of a criminal action against

[Mr. Brumley] he could not testify. All of these arguments raise issues of due

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process regarding the manner in which the hearing before Janice Casteel was

held. No such argument, however, appears in any pleading before the Court.

The City responds to Mr. Brumley’s arguments by asserting that it “gave him an opportunity

to present whatever evidence he wanted” and that he “never requested additional time to

accommodate his need to procure these witnesses.” The transcript of the administrative

hearing reveals that Mr. Brumley never raised the issue of not being able to call a witness or

present any additional proof. At the close of the hearing, the City Attorney asked Mr.

Brumley’s counsel, “did you want to give anything else to Ms. Casteel for her

consideration?” Mr. Brumley’s counsel responded with a request to obtain and include a

copy of Mr. Brumley’s job description, which the City provided and included in the record.

Mr. Brumley never made a complaint, objection, or argument during the administrative

hearing that he wanted to submit other additional proof in any form, and therefore he cannot

now be heard to complain about the failure to offer any additional evidence.

The administrative record before the City Manager contains material evidence

supporting her decision to uphold the termination of Mr. Brumley’s employment, including,

among other things, Chief Snyder’s testimony that Mr. Brumley’s investigation “was

inappropriate and well out of any protocol of legitimate law enforcement activities,” Det.

Pritchard’s testimony and his IA investigative file, and the District Attorney General’s letters

explaining that his office would accept no files for prosecution from then-Detective Brumley

and that he “has no credibility with this Office.” “‘Material evidence’ is relevant evidence

that a reasonable person would accept as adequate to support a rational conclusion. The

amount of material evidence required to support a board’s or agency’s decision must exceed

a scintilla of evidence but may be less than a preponderance of the evidence.” Brumley I,

2011 WL 1326239 at *6 (quoting Leonard Plating Co. v. Metro. Gov’t of Nashville &

Davidson Cnty., 213 S.W.3d 898, 904 (Tenn. Ct. App. 2006)). As we stated in Brumley I,

it is not our role to question the wisdom of the City Manager’s decision. It is

sufficient that the City Manager relied on material evidence. . . .

As we have discussed, our review in this case is exceedingly narrow.

We may not substitute our own judgment for that of the City Manager.

Nothing in the record suggests that the City Manager was motivated by animus

towards Brumley. . . . We agree with the Trial Court that the City Manager

rendered a decision based on material evidence and did not act arbitrarily or

capriciously.

V. Conclusion

Regarding the instant action seeking judicial review, we conclude that the trial court

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properly determined that the City Manager reached a decision based on material evidence and

did not act arbitrarily or capriciously. The judgment of the trial court is affirmed, and this

case is remanded to the trial court, pursuant to applicable law, for enforcement of the trial

court’s judgment and collection of costs assessed below. The costs on appeal are assessed

against the Appellant, Duff L. Brumley, and his surety, for which execution may issue if

necessary.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

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