Richard Jennings v. City of Smithville

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 11, 2011 Session

RICHARD JENNINGS v. CITY OF SMITHVILLE, ET AL.

Appeal from the Chancery Court for Dekalb County

No. 2010017 Ronald Thurman, Chancellor

No. M2010-02442-COA-R3-CV - Filed August 11, 2011

The Board of Mayor and Aldermen of the City of Smithville suspended and ultimately

terminated the chief of police because they were unhappy with his efforts to combat the drug

and crime problems in the City. The police chief filed a writ of certiorari and asked the trial

court to order the City to reinstate him because he was terminated without cause. The trial

court concluded there was sufficient evidence in the record to justify the City’s decision and

dismissed the complaint with prejudice. The police chief appealed, and we conclude the trial

court did not abuse its discretion in dismissing the petition for writ of certiorari.

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

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which A NDY D.

B ENNETT and R ICHARD H. D INKINS, JJ., joined.

Kerry Knox, Thomas H. Castelli, Murfreesboro, Tennessee, for the appellant, Richard

Jennings.

Daniel Hurley Rader, IV, Cookeville, Tennessee, for the appellees, City of Smithville and

Smithville Board of Mayor and Aldermen.

OPINION

I. B ACKGROUND

Richard Jennings was the chief of police for the City of Smithville (the “City”) from

1994 until sometime in 2004, and then again from 2007 until 2009. On September 14, 2009,

the City of Smithville Board of Mayor and Alderman (“BOMA”) held a meeting, referred

to as a workshop, to discuss, among other things, Mr. Jennings’ performance as the chief of

police. Mr. Jennings participated in this meeting, but the record does not indicate whether

or not he had any advance notice of the issues to be discussed at the meeting.

A. W ORKSHOP H ELD ON S EPTEMBER 14, 2009

During the meeting, Mr. Meeks, one of the aldermen, asked Mr. Jennings questions

about programs Mr. Jennings had in place to combat Smithville’s problems with drugs and

theft. Mr. Jennings admitted he did not have any specific programs in place and said he did

not have enough money in the budget to implement such a program or to pay overtime to his

officers to put such a program into place. Mr. Jennings explained that his budget had been

cut from the previous year, but Mr. Meeks disputed this by stating the police budget dated

June 30, 2010, was nearly $28,000 more than it had been the previous year. The mayor

confirmed this by stating no department in the city experienced a budget cut for the 2009-10

year.

Mr. White, another alderman, then started discussing a meeting he had had with Mr.

Jennings a year earlier to discuss the crime and drug problem in Smithville. At that time Mr.

Jennings had said he was short-handed. The BOMA responded by hiring another officer.

Mr. Jennings then indicated he still needed an additional officer before he would be able to

put a program into effect to combat the drug problem. In an effort to provide Mr. Jennings

with the staff he needed, the BOMA hired another officer a couple of months later. Mr.

Jennings indicated during the workshop that he has been able to do some drug stings after

these two additional officers were hired, but not as much as he would like.

Mr. Meeks stated that Mr. Jennings has eleven officers, which is two or three more

than the City had in the three years before Mr. Jennings became the police chief in 2007. Mr.

Meeks suggested Mr. Jennings should be able to put concrete programs into effect to address

the crime and drug problems in Smithville with that number of officers. Mr. Jennings

objected, stating he has only nine officers on his staff. Mr. Meeks then listed the officers

included on Mr. Jennings’ schedule, which totaled eleven. Mr. Jennings offered no

explanation for why he did not know the number of officers in his department.

Mr. White then discussed the fact that he has had some complaints from members of

the community about the police officers. Mr. White explained that some individuals have

complained they do not feel comfortable talking with the officers and fear retaliation by

them.

-2-

B. L ETTER D ATED N OVEMBER 12, 2009

By letter dated November 12, 2009, the City notified Mr. Jennings that he was being

suspended without pay, pending termination. The City informed Mr. Jennings in the letter

that the reason for his suspension was “Dereliction of Duties/Negligence.” The City then

listed eleven reasons supporting its suspension of Mr. Jennings:

1. In the past two years, as Police Chief, you have not developed a

comprehensive plan to combat the crime problems in the City of

Smithville, as evidenced by your admission to the board at the

workshop of September 14, 2009. You have not reached out to other

agencies for help in combating these problems.

2. You were given two additional officers by the previous board with your

promise that you then would be able to do drug investigations. To date,

this has not happened.

3. At the workshop on September 14, 2009, you did not know how many

officers you had employed in the department, as evidenced by the DC

of the meeting.

4. You have 4 or 5 officers – including yourself and the investigator-on-

duty on the day shift. You could have used some of these officers to

work drug operations.

5. Your claim that the police department’s budget has been cut is not

substantiated by the 2008-2009 city budget. In fact, there was an

increase in the police department’s budget over the previous year’s

budget. Also, your claim that all of your overtime has been cut is not

true. You are still having overtime in your department.

6. There has been little progress made toward having a better-trained

Police Force in specialized areas.

7. Community relations between your office and the public have

deteriorated over the last two years.

8. You have not been a “working chief” out patrolling, issuing traffic

tickets, answering calls for service, and making arrests.

-3-

9. You have authorized the use of a police vehicle for the transportation

of civilians out of the area of authority of the Smithville Police

Department.

10. It is the responsibility of all department heads to be available for call

out at all times. You advised that you turn off your city cell phone

when you leave for the day.

11. You have demonstrated lack of adequate supervision of officers.

C. D ISCIPLINE B OARD H EARING N OVEMBER 17, 2009

On November 17, 2009, a three-man Discipline Board was convened to consider Mr.

Jennings’ suspension and pending termination. The board consisted of the Mayor, Mr.

Meeks, and Mr. Hendrixson, who was the Secretary/Treasurer. Mr. Jennings attended this

meeting and was given the opportunity to respond to the City’s letter dated November 12.

Mr. Jennings read a prepared statement that included the following:

I have received the allegations lodged against me by Police Commissioner

Meeks. If these allegations were true and if you looked at them individually

or all together, they do not rise -- remotely rise to the level of cause that would

require my termination from the City of Smithville. I’ve operated at all times

within the scope of my authority as Police Chief.

The Discipline Board voted 2 to 1 to suspend and terminate Mr. Jennings from the

position of Chief of Police.

D. B OARD OF A LDERMEN H EARING D ECEMBER 7, 2009

Mr. Jennings then requested a hearing before the full Board of Alderman at its next

regular meeting, which took place on December 7, 2009. During this meeting, three

community members addressed the board and expressed their concern about how the City

was treating Mr. Jennings. They each expressed their satisfaction with Mr. Jennings as the

Chief of Police and their hope that he would be retained in that position. Next, Mr. Jennings’

attorney elicited testimony from Mr. Jennings to respond to the City’s stated reasons for its

decision to terminate Mr. Jennings:

Q: Chief Jennings, Item No. 1 states that in the past two years as Police

Chief, you have not developed a comprehensive plan to combat the

crime problems in the City of Smithville, as evidenced by your

-4-

admission to the Board at the workshop of September 14, 2009. You

have not reached out to other agencies for help in combating these

problems. Can you explain to the Board when it was that you were

asked to develop a comprehensive plan to combat the crime problems

in Smithville?

A: I’ve never been asked to do that.

Mr. Jacobs was one of the aldermen at this meeting, and he stated that everyone on

the Board has gone to Mr. Jennings and begged him to make changes within his department

to combat the drug problem and put more effort into crime investigation, which he described

as being at zero for some time in their county. At the end of the hearing four aldermen voted

to terminate Mr. Jennings. One alderman abstained. The Mayor did not cast a vote.

II. T RIAL C OURT P ROCEEDINGS

Mr. Jennings then filed a petition for writ of certiorari with the Chancery Court of

DeKalb County. Mr. Jennings asserted the decision by the BOMA to terminate him was

fraudulent, arbitrary, and capricious. Mr. Jennings asked the trial court to order the BOMA

to restore him to his position as Chief of Police for the City of Smithville.

Following a hearing on September 24, 2010, the trial court made the following

findings of fact:

The Court finds that the issues leading to Chief Jennings’ termination

from the City of Smithville arise from problems with drugs and burglary in

Smithville, Tennessee. Both sides recognized these issues as problems . . . .

The Court found that Councilman White had discussed this problem with

Chief Jennings the year before, and that additional officers were hired and the

problems were still there. . . . [T]he overtime limitation was placed after these

additional hires were made because the City was still having significant

overtime within the police department but were not seeing satisfactory results

relating to the drug and burglary problems to justify the overtime.

The Court finds that the November 12, 2009 letter apprised Chief

Jennings of the reasons for his suspension and complied with any due process

requirement of notice, and that Chief Jennings requested and subsequently had

a hearing before the Board of Aldermen on December 7, 2009. The Court

finds that, at that December 7, 2009 meeting, multiple members of the Board

discussed the problems and they referenced the discussion in the September

-5-

14, 2009 Workshop. The Court finds from the record that the Board was not

satisfied with the efforts Chief Jennings made to address these problems, if

any, subsequent to that Workshop, and the Board’s dissatisfaction with Chief

Jennings’ performance was the reason for the termination.

The court then reached the following conclusions of law:

The Court does not find that the Board acted fraudulently, illegally,

arbitrarily or capriciously. . . . The Court finds from looking at what was

discussed at the September 14, 2009 Workshop and in the suspension letter

and from the discussion that took place at the December 7, 2009 Meeting, the

chief issue is Chief Jennings’ efforts to handle, or his failure to handle, the

drug and burglary problem in the City of Smithville. The Court further finds

that the Board was dissatisfied with Chief Jennings’ efforts, and this

dissatisfaction led to Chief Jennings’ termination. The Court finds there is

material evidence in the record to support and justify the Board’s action in

terminating Chief Jennings.

It is therefore ORDERED, ADJUDGED, AND DECREED that the

decision of the City of Smithville Board of Mayor and Aldermen is affirmed

in all respects. The Court finds that this matter should be dismissed with full

prejudice.

III. I SSUES ON A PPEAL

Mr. Jennings appealed the trial court’s dismissal of his petition to the Court of

Appeals, arguing the trial court erred in concluding his termination was supported by cause.

He also argues the trial court erred in considering the transcript of the workshop held in

September, suggesting the transcript should not be considered part of the administrative

record.

IV. A NALYSIS

A. S TANDARD OF R EVIEW

The common law writ of certiorari provides an avenue for a court to review an

administrative decision. Tenn. Code Ann. §27-8-101; Demonbreun v. Metropolitan Bd. of

Zoning Appeals, 206 S.W.3d 42, 46 (Tenn. Ct. App. 2005). It is an extraordinary judicial

remedy and is not available as a matter of right. B & B Enterprises of Wilson Co. v. City of

Lebanon, 2004 WL 2916141, at *2 (Tenn. Ct. App. Dec. 16, 2004) (citing Robinson v.

-6-

Traughber, 13 S.W.3d 361, 364 (Tenn. Ct. App. 1999), Flite v. State Bd. of Paroles, 925

S.W.2d 543, 544 (Tenn. Ct. App. 1996), and Boyce v. Williams, 389 S.W.2d 272, 277 (Tenn.

1965)).

When a trial court reviews an administrative decision, the action of the administrative

body may be reversed or modified only if the court determines the action was: “(1) in

violation of constitutional or statutory provisions; (2) in excess of statutory authority; (3) an

unlawful procedure; (4) arbitrary or capricious; or (5) unsupported by material evidence.”

Demonbreun, 206 S.W.3d at 46 (citing Massey v. Shelby County Retirement Bd., 813 S.W.2d

462, 464 (Tenn. Ct. App. 1991)); Christmas v. Town of Smyrna, 2010 WL 4962900, at *2

(Tenn. Ct. App., Dec. 6, 2010). Additionally,

In proceedings involving a common law writ of certiorari, illegal, arbitrary, or

fraudulent actions include: 1) the failure to follow minimum standards of due

process; 2) the misrepresentation or misapplication of a legal standard; 3)

basing a decision on ulterior motives; and 4) violating applicable constitutional

standards.

Harding Academy v. the Metropolitan Government of Nashville and Davidson County, 222

S.W.3d 350, 363 (Tenn. 2007) (citing Hoover, Inc. v. Metro Bd. of Zoning Appeals, 924

S.W.2d 900, 905 (Tenn. Ct. App. 1996)).

On appeal, the scope of our review is no broader than that of the trial court.

Demonbreun, 206 S.W.3d at 46; Christmas, 2010 WL 4962900, at *2. We review the trial

court’s decision to grant or deny relief pursuant to a petitioner’s common law writ under the

abuse of discretion standard. B & B Enterprises of Wilson Co., 2004 WL 2916141, at *2

(citing Hall v. McLesky, 83 S.W.3d 752, 757 (Tenn. Ct. App. 2002) and Robinson v. Clement,

65 S.W.3d 632, 635 (Tenn. Ct. App. 2002)).

B. T HE BOMA’S D ECISION WAS S UPPORTED BY C AUSE

Section 4-205(7) of the Code of Ordinances for the City of Smithville provides in part:

The City of Smithville may dismiss an employee for just cause that is

for the good of the city service. Reasons for dismissal may include, BUT

SHALL NOT BE LIMITED TO: misconduct, negligence, incompetence,

insubordination, unauthorized absences, falsifications of records, violation of

any of the provisions of the charter, ordinances, or these rules.

With the exception of a Reduction Force (RIF), full time employees and

-7-

non-elected officials will be terminated only for “cause.” When it has been

determined that an employee’s conduct warrants termination, the department

head, with the concurrence of the mayor, will suspend the employee, without

pay, until a hearing can be conducted. When an employee is suspended

pending termination, a hearing will automatically be held within three (3)

working days of the suspension. The hearing will be conducted by a board

consisting of the mayor (chairman), department commissioner, and the

secretary-treasurer. The employee will be afforded an opportunity to state

his/her case and explain his/her position in the matter. At the conclusion of the

hearing, the board will decide whether the suspension was warranted. . . . If

the board upholds the suspension, the employee is terminated. If the employee

is not satisfied with the action of the hearing board, the employee may, in

writing, request a hearing before the board of mayor and aldermen at its next

scheduled meeting.

Mr. Jennings does not argue the City and the BOMA failed to follow the procedure

set forth above prior to terminating him. He argues only that the City and the BOMA did not

have cause to dismiss him. We have addressed the meaning of “cause” in the context of

dismissing an employee for cause in the case Lawrence v. Rawlins, 2001 WL 76266 (Tenn.

Ct. App. Jan. 30, 2001). In that case we wrote:

Cause exists only where the termination is objectively reasonable. The types

of “cause” that warrant an employee’s termination include an employee’s

inattention to his or her duty to look after the employer’s best interests or

performance of an action inconsistent with the employer-employee

relationship. Any action by an employee that injures or tends to injure the

employer’s business, interests, or reputation will justify dismissal. Actual loss

is not essential; it is sufficient if, from the circumstances, it appears that the

[employer] has been, or is likely to be, damaged by the acts of which complaint

is made.

We have concluded that an employee has been terminated for cause if

the employee’s termination stems from a job-related ground. A job-related

ground includes any act that is inconsistent with the continued existence of the

employer-employee relationship. Thus, an employee has been terminated for

cause if the termination stems from the employee’s failure to follow a

supervisor’s directions, poor job performance, or failure in the execution of

assigned duties.

Lawrence v. Rawlins, 2001 WL 76266, at *5 (internal citations and quotations omitted).

-8-

Mr. Jennings argues the City and the BOMA failed to “relate Chief Jennings’s

termination to its ‘cause.’” In taking this position, Mr. Jennings seems to ignore the City’s

letter dated November 12, 2009, which stated that Mr. Jennings was being suspended for

“Dereliction of Duties/Negligence.” The City then listed eleven instances of Mr. Jennings’

dereliction of duty and/or negligence in performing his duties.

The reasons the City lists in support of its decision to suspend and ultimately terminate

Mr. Jennings are objectively reasonable and stem from job-related grounds. Lawrence v.

Rawlins, 2001 WL 76266, at *5. The transcripts from the workshop and subsequent hearings

support the trial court’s findings that Mr. Jennings was suspended and terminated primarily

due to his failure to address Smithville’s drug and crime problems to the satisfaction of the

City and BOMA, even after the BOMA hired two additional officers for this specific

purpose. Several aldermen stated they had spoken with Mr. Jennings at different times

during his tenure as Chief of Police about their concerns with the drug and crime problems

in the City. The record is unequivocal that the City and BOMA were dissatisfied with Mr.

Jennings’ efforts to address these problems as well as with his overall job performance as the

Smithville Chief of Police.

After reviewing the transcripts of the workshop and subsequent hearings, we cannot

say the City and BOMA’s decision to terminate Mr. Jennings was in violation of

constitutional or statutory provisions; exceeded statutory authority; resulted from an unlawful

procedure; was arbitrary or capricious; or was unsupported by material evidence. See

Demonbreun v. Metropolitan Bd. of Zoning Appeals, 206 S.W.3d at 46 (action of the

administrative body may be reversed or modified only upon a determination that the action

satisfies one of these five factors). We therefore conclude the trial court did not abuse its

discretion in dismissing Mr. Jennings’ petition for writ of certiorari. See Guess v. City of

Manchester, 2010 WL 4629594, at *5 ((Tenn. Ct. App. Nov. 15, 2010) (administrative

decision must be upheld if any material evidence exists to justify it).

C. T HE W ORKSHOP T RANSCRIPT IS P ART OF THE “P ROCEEDINGS IN THE C AUSE”

Mr. Jennings next makes the argument that the trial court erred in considering the

transcript of the workshop on September 14, 2009, and that this transcript should not be a

part of the record in this case. Mr. Jennings cites Tennessee Code Annotated section 27-9-

109 in support of his position. This statute, entitled “Transcript of proceedings,” provides:

(a) Immediately upon the grant of a writ [of certiorari], the board or

commission shall cause to be made, certified and forwarded to such court a

complete transcript of the proceedings in the cause, containing also all the

proof submitted before the board or commission.

-9-

The term “proceedings” is not defined by the statute, and Mr. Jennings does not

explain why the transcript of the workshop should be excluded from the record. The City

and BOMA set forth the concerns they had with Mr. Jennings’ performance during the

workshop on September 14, and the concerns they raised at the workshop led to the

November 12 letter and to the ultimate decision to terminate Mr. Jennings’ employment with

the City. The workshop was conducted by the same aldermen who ultimately voted to

terminate Mr. Jennings on December 7, and the transcript of the December 7 hearing referred

to what was discussed during the workshop. We believe it was entirely appropriate for the

trial court to consider the transcript from the workshop. See B & B Enterprises of Wilson

Co., 2004 WL 2916141, at *4 (planning commission erred in failing to submit to reviewing

court transcript of all meetings discussing subdivision at issue, especially where missing

transcripts provided reasons for commission’s decision).

V. C ONCLUSION

For the reasons stated above, we affirm the trial court’s decision to deny Mr. Jennings

relief and to dismiss his complaint with prejudice. Costs shall be taxed to Mr. Richard

Jennings, for which execution may issue if necessary.

_________________________________

PATRICIA J. COTTRELL, JUDGE

-10-