The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 8, 2008
SHELBY COUNTY SHERIFF'S DEPARTMENT v. MICHAEL HARRIS
Direct Appeal from the Chancery Court for Shelby County
No. CH-06-0951-3 Kenny W. Armstrong, Chancellor
No. W2008-00202-COA-R3-CV - Filed February 10, 2009
Shelby County Sheriff’s Deputy appealed the termination of his employment for violation of SOR-
104–Personal Conduct to the Civil Service Merit Board. The Board modified the punishment to
suspension without pay. The Sheriff’s Department appealed the Board’s modification to the Shelby
County Chancery Court, which upheld the Board’s decision. The Sheriff’s Department appeals. We
affirm.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Affirmed
J. STEVEN STAFFORD , J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S.,
and HOLLY M. KIRBY , J., joined.
Martin Zummach, Germantown, TN, for Appellant, Shelby County Sheriff’s Department
Linda Kendall Garner, Memphis, TN, for Appellee, Michael Harris
OPINION
Since approximately 1987, Appellee Michael Harris has been employed by the Appellant
Shelby County Sheriff’s Department as a Deputy Sheriff. On February 21, 2005, Internal Affairs
initiated an investigation of Mr. Harris.1 The investigation originated from a complaint lodged by
Ms. Belinda Johnson. According to the Report filed by the Internal Affairs Department, in her
February 21, 2005, tape-recorded interview, Ms. Johnson alleged that:
[S]he was sitting downstairs outside [the] General Sessions
Court Room.... She stated that while sitting there Harris asked her,
“What are you doing here?” She replied, “I am waiting on my
lawyer.” Johnson stated that Harris walked away, returned
approximately (15) fifteen minutes later and asked her to follow him.
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The investigation was opened at the request of the Chief Deputy William Oldham.
She stated [that,] as she and Harris were walking, she saw her lawyer.
Johnson stated that she walked over to her attorney and made the
statement, “I don’t know what this officer want[s] with me.” She
advised that her attorney answered back saying, “I don’t know
either.” The question was asked, “Did your attorney see you walking
with Harris?” She replied, “Yes, he did see me.” Johnson stated that
Harris led her to a locked office located in a little hallway beside
Division (8) eight.... Johnson stated, “he sat down and I sat down.
He asked me, what was my name? Wh[ere] was my other half[] at
and I told him that he was locked up you know. He asked me, how
long had he been locked up. I told him since November and I told
him he would be getting out next month.” She stated, “He proceeded
to tell me he would like to be very discreet about things that he do
[sic] and asked me could he see me outside the courts? And I stood
up and told him I think I better go because...I might miss...court and
he was telling me that the judge in Division 11, she’s cool...she
wasn’t going to be bad on me and I told him I said well you can say
that, I can’t, I already missed a court date. So as I stood up he
reached for my skirt to try to pull it up to ask me are there any more
tattoos up under my skirt and I pushed his hand and walked out [of]
the office. I went to my lawyer and told my lawyer what happened.”
(Internal citations omitted).
The Report indicates that, in his tape-recorded statement, Ms. Johnson’s attorney Mark
Mesler confirmed that he had seen Officer Harris with his client, and that Ms. Johnson had asked
him what Officer Harris wanted with her. Mr. Mesler further stated that Ms. Johnson later told him
that Officer Harris had tried to pull up her skirt.
Officer Harris was interviewed by Internal Affairs on March 31, 2005. His relevant
testimony was as follows:
[Officer Harris] stated that he first encountered Ms. Johnson
when he went down stairs to locate the Spanish Interpreter.... He
stated that he put the Spanish Interpreter on notice that they needed
him in Division 11.... Harris stated that, “I came out [and saw] this
lady with this short pink outfit...well she was acting jittery or
whatever.” He stated that he asked Johnson if she was ok, [to] which
she replied, “Yes.” He then asked her who was her attorney, she
replied, “Mark Mesler.” He advised that he called for Mark Mesler
on his radio, [and] did not get a response from any officers in the
other courtrooms that they had seen Mesler. Harris stated to Johnson,
“Come walk with me.” The question was asked, “Did she [tell] you
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at anytime that she needed you or wanted your help? He replied,
“No. This is something that I voluntarily took upon myself to do.”
He also stated that he called for Mesler on his cellular telephone but
did not make contact with him. Once inside the office he stated he
asked her [] for her name and what she was doing down here. He
stated that he was just making conversation when she made the
comment; she has a case over in Division 11. The question was
asked, “Did you grab her hand or arm or anything?” He replied,
“Now to say that I did not shake her hand or something to that affect,
I can’t remember. And I can’t say no I did not do it. But if I did it
was not in a sexual manner.” The question was asked, “So you
brought up the tattoo?” Harris replied, “Yes.” The question was
asked, “Did you put your hands on any part of her while she was in
the office? He replied, “The entire time this lady was in my office,
I did not put my hand on her, no.” The question was asked, “Was it
work related or personal?” Harris replied, “A combination of the
two.”
(Internal citations omitted).
Based upon the foregoing testimony, Officer Harris was charged with violating SOR 104–
Personal Conduct, which provides:
The conduct of each employee, both on and off duty, is expected to
be such that it will not reflect adversely on other employees, the
SCSO, Shelby County, or the law enforcement profession. This
regulation applies to both the professional and private conduct of all
employees. It prohibits any and all conduct, which is contrary to the
letter and spirit of SCSO policy, and procedure, which would reflect
adversely upon the SCSO or its employees. It includes not only all
unlawful acts by employees 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 employee or
the SCSO.
Officer Harris was informed of the charges against him and a Loudermill hearing was held
on June 16, 2005. By letter of June 22, 2005, Officer Harris was notified that he was found guilty
of all charges, and that his employment with the Shelby County Sheriff’s Department was being
terminated effective June 27, 2005.
Officer Harris appealed the Department’s decision to the Civil Service Merit Board. The
Board heard the case on March 21, 2006. In its decision, the Board found, in relevant part:
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It is the opinion of the Board, after review of the facts as presented by
management and the Petitioner in the hearing, that there is evidence
presented to find [Officer Harris] guilty of violating the policies and
procedures as outlined in the charges. It is also the opinion of the
Board that termination of [Officer Harris] was excessive.
* * *
IT IS, THEREFORE, the decision of the Board to modify the
termination to a suspension without pay from June 27, 2005 through
December 8, 2005. [Officer Harris] will be returned to work
immediately with back pay beginning December 9, 2005.
On May 15, 2006, the Shelby County Sheriff’s Department filed a petition for writ of
certiorari in the Shelby County Chancery Court, seeking review of the Board’s decision to modify
Officer Harris’ punishment. The trial court entered an Order on January 8, 2008, finding that,
“[a]fter argument of counsel and review of the entire record, the Court finds substantial and material
evidence to support the decision of the [Board] and affirms said decision.” The court explained its
reason for the decision in its ruling from the bench, which was incorporated by reference into the
Order. The relevant findings are as follows:
[F]rom my review of the record, I find that there was no specific
delineated rule of the procedure that was violated by Officer Harris
with respect to his conduct in escorting this female litigant from the
room. The Board found such conduct, however, to be a violation of
the Sheriff’s Department policy of unbecoming personal conduct.
I further find that Officer Harris admitted he exercised bad
judgment in a situation [] which ultimately allowed certain criminal
charges against him and that such charges against an officer adversely
affected the Sheriff’s Department in the public domain.
Officer Harris has been acquitted of the criminal charges.
Nonetheless, I find [] from all the evidence produced at the hearing
that the Board–it would appear from the evidence that Officer Harris
had violated the Department’s personal conduct policy.
With respect to the Board’s decision to modify the
punishment, in fact, from termination to suspension, I find and
conclude that modification by the Board was supported by substantial
and material evidence in the record.
In light of the officer’s 19 year record performance and
because of the acquittal of all criminal charges that we mentioned,
I’m going to affirm the modification by the [Board] from termination
to suspension....
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The Sheriff’s Department appeals and raises one issue for review as stated in its brief:
Whether the Chancery Court erred in failing to reverse the decision
of the Shelby County Civil Service Merit Review Board when the
Board found Mr. Harris guilty of the charge leveled against him, yet
modified the Shelby County Sheriff’s Department decision to
terminate Mr. Harris.
The Civil Service Merit System was established for employees of Shelby County by Chapter
110, Private Acts 1971. The Act establishes a Civil Service Merit Board, Private Acts, ch. 110, § 3,
494 (1971), with the power and duty to hear employee appeals following removal, suspension or
reduction in rank. Private Acts, ch. 110, § 6(d), 497 (1971). The Board has the power to affirm,
modify or revoke an order of discipline appealed to it. Private Acts, ch. 110, § 23, 505-06 (1971).
“The Board's power to modify the sanctions imposed is of necessity a power that must be exercised
within the discretion of the Board and is a judgment call based upon the nature and severity of the
employee's action.” Austin v. Shelby County Government, Register's Office, 761 S.W.2d 298
(Tenn. Ct. App. 1988).
Tennessee Code Annotated Section 27-9-114 extends judicial review to civil service board
proceedings that affect the employment status of civil servants. See Tenn.Code Ann. § 27-9-114
(Supp. 2006); Tidwell v. City of Memphis, 193 S.W.3d 555, 559 (Tenn.2006). This Code provision
requires compliance with the judicial standards of review set out in the Uniform Administrative
Procedures Act (UAPA), as codified at Tennessee Code Annotated Section 4-5-322. Tenn. Code
Ann. § 27-9-114(b)(1). Under the UAPA, administrative agency decisions are subject to non-jury
review in chancery court, with a scope limited to the administrative record. Tenn.Code Ann. §
4-5-322(g) ( Supp.2006) (providing, however, that review of procedural errors need not be limited
to the administrative record). Subsection (h) specifies the scope of judicial review as follows:
(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
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(5)(A) Unsupported by evidence which is both substantial and
material in the light of the entire record.
Tenn.Code Ann. § 4-5-322(h) ( Supp. 2006).
Therefore, the decision of the Civil Service Merit Board may be reversed or modified only
when “the Board has acted in violation of constitutional or statutory provisions or in excess of its
own statutory authority; has followed unlawful procedure or been guilty of arbitrary or capricious
action; or has acted without substantial and material evidence to support its decision.” Watts v. Civil
Serv. Bd. for Columbia, 606 S.W.2d 274, 277 (Tenn.1980); Gross v. Gilless, 26 S.W.3d 488, 492
(Tenn.Ct.App.1999). Tennessee Code Annotated Section 4-5-322(h)(5)(B), states that, “[i]n
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(h)(5)(B) (2005).
The statute does not define “substantial evidence,” but Tennessee courts have generally defined the
term as “something less than a preponderance of the evidence, but more than a scintilla or glimmer.”
See, e.g., Wayne County v. Tennessee Solid Waste Disposal Control Bd., 756 S.W.2d 274, 280
(Tenn.Ct.App.1988). Stated differently, substantial evidence is “‘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.’” Southern Ry. Co. v. State Bd. of Equalization, 682
S.W.2d 196, 199 (Tenn.1984) (quoting Sweet v. State Tech. Institute at Memphis, 617 S.W.2d 158,
161 (Tenn.Ct.App.1981)).
In this case, we have the Board exercising the power granted to it to modify the sanctions
(i.e., termination of Officer Harris’ employment) imposed by the Sheriff’s Department. However,
the fact that the Board exercised this discretion does not, necessarily, lead to a conclusion that it
abused its discretion. The finding that Officer Harris’ actions violated SOR-104 is not appealed.
The question, therefore, is what punishment to impose, and to whom (as between the Sheriff’s
Department and the Board) that decision should fall. We concede that, in this case, there were
myriad punishments that could have been imposed, with the most severe being termination of
employment. Although the Sheriff’s Department arrived at this punishment, the Board (in its
discretion) reviewed the facts and determined that the less severe punishment of suspension without
pay should apply. We cannot lose sight of the fact that the Board is vested with the authority to
review departmental decisions, and we are unable to reverse the Board’s decision absent a finding
that the Board acted outside its own statutory authority, followed unlawful procedure, acted in an
arbitrary or capricious manner, or acted without substantial and material evidence to support its
decision. We find none of these violations in the actions of the Board in this case. The record
contains no evidence from which to conclude that Officer Harris’ actions in taking Ms. Johnson into
his office violated any departmental policy. Furthermore, there were no witnesses (other than Officer
Harris and Ms. Johnson) to what happened inside that room. Given Officer Harris’ history with
the Sheriff’s Department, his nineteen year tenure, and the fact that he was ultimately acquitted of
any criminal wrongdoing, we conclude that there is substantial and material evidence to support the
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Board’s decision to modify his punishment. From the totality of the circumstances, we cannot
conclude that the Board acted outside its authority, or in an arbitrary or capricious manner.
For the foregoing reasons, we affirm the order of the trial court. Costs of this appeal are
assessed against the Appellant, Shelby County Sheriff’s Department and its surety.
. ___________________________________
J. STEVEN STAFFORD, J.
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