City of Memphis v. Civil Service Commission

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

January 18, 2007 Session

CITY OF MEMPHIS v. THE CIVIL SERVICE COMMISSION OF THE

CITY OF MEMPHIS, ET AL.

Direct Appeal from the Chancery Court for Shelby County

No. CH-06-0305-3 D.J. Alissandratos, Chancellor

No. W2006-01880-COA-R3-CV - Filed April 4, 2007

This administrative appeal arises out of the termination of Officers Mauricio Hearns’s (Officer

Hearns), Henry Gray, Jr.’s (Officer Gray), Dorian Branch’s (Officer Branch), and Derick Jones’s

(Officer Jones) (collectively “the officers”) employment with the City of Memphis Police

Department (the Department) following their purchases of stolen Samsung televisions and digital

video disc (DVD) players for their personal use. The Department terminated the officers’

employment after finding a violation of DR-104 Personal Conduct. The Civil Service Commission

of the City of Memphis (the Commission) ruled that the termination was unreasonable disciplinary

action and reversed the City’s decision. The City appealed to Shelby County Chancery Court, where

the chancellor reversed the Commission’s decision, finding it to be arbitrary and capricious. We

hold that the Commission’s decision was unsupported by substantial and material evidence and

therefore arbitrary. We affirm.

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

Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, J., and HOLLY

M. KIRBY , J., joined.

Leigh H. Thomas and Thomas E. Hansom, for the appellants, Mauricio Hearns, Henry Gray, Jr.,

Dorian Branch and Derick Jones.

Sara L. Hall, City Attorney, and Gerald L. Thornton, Senior Assistant City Attorney, for the appellee,

City of Memphis.

OPINION

This appeal arises out of the termination of Officers Mauricio Hearns’s (Officer Hearns),

Henry Gray, Jr.’s (Officer Gray), Dorian Branch’s (Officer Branch), and Derick Jones’s (Officer

Jones) (collectively “the officers”) employment with the City of Memphis Police Department (the

Department) following their purchases of stolen Samsung televisions and digital video disc (DVD)

players for their personal use.

On several occasions prior to the instant action, Claude Maurice Spivey (Mr. Spivey) and

Robert McEwen (Mr. McEwen), at times accompanied by another co-conspirator, broke into the

Samsung warehouse and took a significant amount of equipment, including big screen televisions

and DVD players. They entered the warehouse undetected by virtue of their employment with ADT,

the security company that provided services for the Samsung warehouse at that time.

When Mr. McEwen contacted Officer Branch to tell him that his friend, Mr. Spivey, had

big screen televisions for sale at wholesale prices, Officer Branch said he was interested in

purchasing one. Officer Branch knew Mr. McEwen from college and believed him to be a licensed

vendor of clothing and shoes. He also knew both men to be employees of ADT and understood that

Mr. Spivey had obtained the equipment wholesale through his job there. Officer Branch paid

$1,000 in cash for one big screen television and one DVD player. The equipment was delivered to

his home at approximately ten o’clock at night. Officer Branch testified that Mr. Spivey had

delivered the television and left by the time he arrived at home and met Mr. McEwen. He received

no sales receipt and did not think to check the serial number on the television. Mr. McEwen asked

Officer Branch if he could leave two of his televisions in the home overnight and stated that he could

pick them up after moving into a new apartment the following day. Officer Branch agreed to keep

them overnight and testified that neither this request nor the timing of the delivery seemed odd to

him.

Officer Branch knew that Officer Hearns had been looking for a big screen television and

called to tell him about the opportunity through Messrs. McEwen and Spivey. Officer Hearns then

agreed with his roommate, Officer Gray, to split the cost of the television and DVD player: Officer

Hearns paid $200, and Officer Gray $800, all in cash. Officer Gray testified that he knew Mr. Spivey

worked for ADT and acquired the equipment through his job. Officer Hearns testified that Mr.

Spivey delivered the equipment at midnight and set it up before accepting payment. Officer Gray

noticed that Mr. Spivey had delivered the equipment on the back of a small pickup truck. Neither

officer remembered requesting or receiving a receipt or any other paperwork that evening, nor did

they look for a serial number. Moreover, neither officer perceived the manner of delivery or any

other aspect of the transaction as suspicious. Officer Hearns testified that he did not suspect Mr.

Spivey of illegal activity because he knew that Officer Hearns was a police officer. Moreover, both

Officer Gray and Officer Hearns stated they relied on Officer Branch’s decision to purchase from

Mr. Spivey and, as a result, believed the transaction to be legitimate.

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Officer Jones acquired his Samsung television independently of the other officers. He knew

Mr. Spivey as the head of security for a nightclub on Beale Street and had become acquainted with

him after responding to calls there. Mr. Spivey approached Officer Jones and offered the equipment

for $1,000, but Officer Jones declined on account of the high price. He later negotiated a price of

$600 for a television only and took delivery of it at eleven o’clock at night from a U-Haul truck.

Officer Jones testified that he thought he was purchasing a used television but, upon seeing it was

new, asked Mr. Spivey about it. Mr. Spivey told him not to worry, and then Officer Jones paid him.

At trial, Officer Jones stated that he never questioned the legality of the transaction because Mr.

Spivey knew he was a commissioned police officer.

Shortly thereafter, Mr. McEwen made the mistake of taking a stolen Samsung television to

a shop for repair. The owner or employee of the repair shop deduced the television had been stolen

and contacted the police. Police officers seized the television and arrested Mr. McEwen. Everything

unraveled from there: Mr. Spivey and the other co-conspirator were arrested, and the Auto Cargo

Theft Task Force (the Task Force) then learned of the officers’ involvement in the matter. After

being contacted by the Task Force, Officer Branch surrendered the equipment to authorities and gave

a statement. Mr. Spivey could not name Officers Hearn and Gray but identified their apartment

where members of the Task Force then entered and confiscated the equipment. Officer Jones saw

a newscast on the television about the arrest of those involved in the Samsung warehouse thefts and

called his attorney, who urged him to contact the Task Force immediately. He did so and voluntarily

surrendered his television to the authorities. When recovered by the Task Force, all of the officers’

televisions revealed scratched out (and undetectable) serial numbers. All officers disavowed any

knowledge of this fact.

As a result of these events, the Department charged the officers with the violation of

Memphis Police Department Rule-104 Personal Conduct (DR-104 Personal Conduct), which

provides as follows:

The conduct of each member, both on and off duty, is expected to be such that it will

not reflect adversely on other members, the Department, the City of Memphis, or the

law enforcement profession. This regulation applies to both the professional and

private conduct of all members. It prohibits any and all conduct which is contrary to

the letter and spirit of the departmental policy and procedure which would reflect

adversely upon the Department or its members. It includes not only all unlawful acts

by members 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 member of the Department.

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On April 10, 2002,1 Deputy Chief A. L. Gray (Chief Gray) conducted a consolidated

administrative hearing and ultimately terminated their employment. At the time of termination,

Officers Branch and Hearns had been police officers for four (4) years, Officer Jones for three (3)

years and two (2) months, and Officer Gray for ten (10) months. They appealed to the Civil Service

Commission, which heard the consolidated matter on June 10, 2005 and rendered its decision on

December 19, 2005. The Commission unanimously restored the officers’ positions with back pay

and benefits. The City of Memphis (the City) then filed a petition for a writ of certiorari and

supersedeas in Shelby County Chancery Court and presented its case on July 20, 2006. In a written

order dated August 15, 2006, incorporating his previous oral ruling, the chancellor granted the relief

sought by the City and reversed the Commission’s decision, finding it arbitrary and capricious. In

the court’s opinion, no “reasonably prudent police officer [would] buy a TV from an absolute

stranger who works at ADT - - which is a security service, it is not a wholesale outlet, it is not the

arm of Samsung, it is not Samsung’s outlet store - - and take delivery of that in the dead of night[.]”

The chancellor noted that law enforcement officers are and should be held to a higher standard than

average citizens with respect to such matters and suggested that the poor judgment exhibited in this

case would erode the public confidence in law enforcement. And, in the chancellor’s opinion, the

undisputed facts rendered the Commission’s decision arbitrary and warranted a reversal.

We agree. Upon a thorough review of the record, we find that the City carried its burden in

proving a violation of DR-104 Personal Conduct and that the Civil Service Commission’s decision

regarding the reasonableness of the termination was error.

The Issues Presented and the Standard of Review

We restate the issue presented by the parties on appeal as whether the trial court erred when

it reversed the Civil Service Commission’s ruling and affirmed the City’s decision to terminate the

employment of Officers Hearns, Gray, Branch, and Jones. The officers assert that substantial and

material evidence supports the Commission’s decision and that the chancellor erroneously

substituted his own judgment when he reversed the Commission’s ruling. The City of Memphis, on

the other hand, contends that the trial court’s reversal was proper because, in light of the undisputed

facts, the Commission’s finding that the City had not shown the reasonableness of its action was

unsupported by the evidence and was therefore arbitrary.

Applicable Standard for the Trial and Appellate Courts

This is an appeal from the trial court's judgment rendered pursuant to the statutory writ of

certiorari as provided in title 27, chapter 9 of the Tennessee Code. See Tenn. Code Ann. §§ 27-9-

1

The statements of charges and the hearing summary reflect that the hearing occurred on March 10, 2002, but

a careful review of the documents indicates that it occurred instead on April 10, 2002.

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101 to -114 (2000). This statutory writ is available following a proceeding conducted before a civil

service board that affects a civil servant’s employment status. See § 27-9-114; Tidwell v. City of

Memphis, 193 S.W.3d 555, 559 (Tenn. 2006). The application of these provisions requires

compliance with the standards of the Uniform Administrative Procedures Act (UAPA), including

the judicial standards of review set forth in Tennessee Code Section 4-5-322. Tenn. Code Ann. §

27-9-114(b)(1) (2000). Under the UAPA, administrative agency decisions are subject to chancery

court review that is conducted without a jury and is limited to the administrative record. Tenn.

Code Ann. § 4-5-322(g) (2005) (providing, however, that review of procedural errors is not 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

(5) (A) Unsupported by evidence which is both substantial and material in

light of the entire record.

(B) In determining the substantiality of evidence, the court shall take into

account whatever 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) (2005).

Upon confirming that an agency has employed the proper legal principles in the case under

review, this Court must then consider the disputed factual findings and address whether the agency

had a reasonably sound basis for making those findings. See McEwen v. Tenn. Dept. of Safety, 173

S.W.3d 815, 820 (Tenn. Ct. App. 2005). Like the trial court, this Court applies the substantial and

material evidence standard in reviewing the agency’s findings of fact. Bobbitt v. Shell, 115 S.W.3d

506, 509–10 (Tenn. Ct. App. 2003). Substantial and material evidence is “such relevant evidence

as a reasonable mind might accept to support a rational conclusion” and to furnish a reasonably

sound basis for the decision under consideration. City of Memphis v. Civil Serv. Comm’n, No.

W2004-00091-SC-R3-CV, 2007 WL625374, at *6 (Tenn. Mar. 2, 2007)(quoting Jackson

Mobilphone Co. v. Tenn. Pub. Serv. Comm’n, 876 S.W.2d 106, 110–11 (Tenn. Ct. App. 1993));

Dickson v. City of Memphis Civil Serv. Comm’n, 194 S.W.3d 457, 464 (Tenn. Ct. App. 2005);

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Pruitt v. City of Memphis, 2005 WL 2043542, at *7 (Tenn. Ct. App. Aug. 24, 2005); Bobbitt, 115

S.W.3d at 510.

As directed by the statute, 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 Tenn. Code Ann. § 4-5-322(h)(5)(B). When the agency conducts a

hearing and can evaluate the witnesses as they testify, this Court gives the tribunal’s credibility

determinations great weight. Pruitt, 2005 WL 2043542, at *7. Moreover, the substantial and

material evidence standard does not justify reversal of an administrative decision only because the

evidence could also support another result. Martin v. Sizemore, 78 S.W.3d 249, 276 (Tenn. Ct.

App. 2001). Rather, we may reject an administrative determination only if a reasonable person

would necessarily arrive at a different conclusion based on the evidence. Id.

Likewise, Tennessee Code Annotated Section 4-5-322(h)(4) permits a reviewing court to

modify or reverse an administrative decision if it is “[a]rbitrary or capricious or characterized by

abuse of discretion or clearly unwarranted exercise of discretion.” Tenn. Code Ann. § 4-5-

322(h)(4) (2005). A decision unsupported by substantial and material evidence is arbitrary and

capricious. City of Memphis v. Civil Serv. Comm’n, No. W2004-00091-SC-R3-CV, 2007

WL625374, at *5 (Tenn. Mar. 2, 2007). Yet, a clear error of judgment can also render a decision

arbitrary and capricious notwithstanding adequate evidentiary support. Id. at *6. A decision is

arbitrary or capricious if it “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. (quoting Jackson Mobilphone, 876 S.W.2d at 110–11).

The Standard of Review for the Civil Service Commission

Section 246 of the Charter of the City of Memphis provides that “[t]he City may terminate,

suspend, or demote an employee for just cause, and the employee shall be given a written notice of

the reasons for the action taken.” Charter of City of Memphis § 246 (renumbered as section 7 under

article 34 by ordinance number 3233, adopted Aug. 31, 1982). Moreover, when an employee

appeals to the Civil Service Commission for a review of disciplinary action, section 248 provides

that “the burden of proof required to sustain the action of the city shall be by a preponderance of

the evidence. If, after a presentation of the proof, the commission finds that there exists a

reasonable basis for the disciplinary action taken, the action of the City shall be sustained.” Charter

of City of Memphis § 248 (renumbered as section 9 under article 34 by ordinance number 3233,

adopted Aug. 31, 1982). In this case, the Civil Service Commission was required to determine

whether the City had shown, by a preponderance of the evidence, a reasonable basis for its decision

to terminate the employment of Officers Hearns, Gray, Branch, and Jones.

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Analysis

The Questions Before this Court

In order to prevail in the proceeding before the Civil Service Commission, the City must

have shown by a preponderance of the evidence that the officers violated DR-104 and that the

violation, in addition to surrounding circumstances, furnished a reasonable basis to terminate their

employment. In accordance with Tennessee Code Annotated Section 4-5-322(h), we must

determine whether the Commission’s decision was arbitrary or capricious or whether it lacked

sufficient evidentiary support. We begin by reviewing the City’s reasoning for the action taken.

Following the administrative hearing, Chief Gray issued a statement setting forth his findings of fact

and the basis for termination.

[The] purchase of 54" televisions without proper paperwork showed poor judgement

[sic], if not some degree of knowledge that the televisions were stolen. Each

[officer] purchased and received a Samsung 54" television that was a part of stolen

merchandise taken from Samsung’s Home Entertainment . . . during July 2001. The

items purchased were delivered to each [officer] by the party or parties responsible

for the burglary without a sales receipt, owner’s manual, nor warranty information.

On 3-14-02, the Shelby County Grand Jury returned indictment[s] against [the

officers] for Theft of Property over $1,000.00. Each of you were arrested on 3-18-

02 that reflected adversely via the news media (i.e. Commercial Appeal dated

Tuesday 4-19-2002) on other members, the Department, the city of Memphis and

law enforcement profession.

A review of each of your disciplinary resumes was made for prior sustained charges.

This check showed the following results:

Officer D. Jones, Personal Conduct with a 10 day suspension on 9-3-01

Officer M. Hearns, Compliance with Regulations and Personal Conduct on

5-3-00

PIIP H. Gray, Compliance with Regulations, 3 day suspension; and Personal

Conduct, 2 day suspension.

Officer D. Branch had no prior disciplinary problems.

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In conclusion, being law enforcement officers, each of you should have known not

to purchase any items that did not have attached serial numbers nor receive proper

warranty paperwork, along with a valid sales receipt. The charge on the violation

of DR #104 Personal Conduct is hereby sustained on Officer D. Jones, D. Branch,

M. Hearns, and PIIP H. Gray.2

In sum, the City based its decision to terminate the officers’ employment on their purchase of stolen

merchandise under suspicious circumstances tending to reflect, at the very least, poor judgment.

Specifically, the suspicious circumstances included the manner of delivery, the absence of related

paperwork, and the absence of serial numbers on the televisions. Moreover, the City relied upon

a newspaper article3 documenting the officers’ indictments and arrests. Aside from the purchases

constituting violations of DR-104, the City reviewed and relied upon the officers’ individual

disciplinary histories.

We next consider the Commission’s reasons for reversing the City’s action. In a decision

issued on December 19, 2005, the Civil Service Commission concluded that the City’s disciplinary

action was not reasonable even though the officers had exhibited poor judgment. Its reasoning

appears to boil down to four factors: the officers’ lack of awareness regarding the stolen nature of

the merchandise, their remorse for their actions, their cooperation with the Auto Cargo Theft Task

Force, and their status as “victims” of the “sellers,” Messrs. McEwing and Spivey. The decision

suggests that the officers neither knew nor should have known (or suspected) that the televisions

were stolen. First, the officers apparently knew the “seller” to be a “licensed vendor” of

merchandise or had previously become acquainted with the “seller” through his part-time security

job for a nightclub on Beale Street. Second, the Commission noted that it was not uncommon for

police officers to receive discounts from businesses and that the sales price for these televisions was

not dramatically lower than the retail value at the time. Presumably, some of the officers had

comparison-shopped prior to purchasing the televisions and therefore would not have become

suspicious of the transaction on this basis. In addition to this lack of awareness, the Commission

accorded weight to the officers’ apologies at the hearing and to their cooperation with the Auto

Cargo Theft Task Force. Finally, the decision cast the officers as “victims” of the “seller” because

they never recovered the funds they paid for the stolen merchandise.

The resolution of this case requires that we first consider the disputed facts of this case and

evaluate the Commission’s findings. After resolving those issues, we then turn to the ultimate issue

2

W e note that, although the findings refer to the complete absence of owner’s manuals and warranty

information, Officer Branch did produce an owner’s manual at the hearing before the Commission. Even so, this

discrepancy has no effect on the outcome of this case.

3

On M arch 19, 2002, an article entitled “Officers face stolen property charges: 4 charged with buying hot TVs,

DVD players” appeared in The Commercial Appeal on the second page of section B. Chief Gray’s summary identifies

an article dated April 19, 2002, but it is clear that the article to which it refers is the one published in March of that year.

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of whether the Commission properly found that the City failed to carry its burden in proving the

reasonableness of the terminations. Mindful of the UAPA parameters for appellate review, we turn

first to the two factual disputes in this case.

Disputed Fact: The Extent of Discount

Aside from the ultimate determination of the Commission, the only disputed facts involve

the market retail price of the televisions and the officers’ subjective awareness of the nature of the

merchandise. The officers argued that the price they paid for the equipment was not significantly

lower than the retail price for the same or a similar television at that time. For example, they

introduced a 2002 Best Buy advertisement and identified a television selling for $1,299 as

comparable to the Samsung. They also introduced into evidence a Sam’s Club price ticket for a 54-

inch Akai set purchased by Officer Branch for $999.98, as well as a Best Buy receipt for the

television and DVD player Officer Hearns purchased for $1,472 as replacements for the confiscated

equipment. The City, however, contended that the Samsung units were high definition televisions

retailing at double the price of the analog sets identified by the officers. Sergeant Leo Hampton

(Sergeant Hampton), a veteran officer and member of the Auto Cargo Theft Task Force,

investigated the Samsung warehouse thefts and the later sale of the stolen goods to police officers.

He testified that the stolen televisions were high definition units and identified a high definition

television, retailing at approximately $2,270, on the 2002 Best Buy advertisement as comparable

to the Samsung units. Also before the Commission was the Samsung owner’s manual

accompanying the set purchased by Officer Branch.4 There is no language in the owner’s manual

characterizing the Samsung unit as a high definition television. The Commission found that the

officers had not purchased the equipment at significantly reduced rates and apparently found

Sergeant Hampton’s testimony unpersuasive. We duly note that Officers Branch, Hearns, and Gray

received a DVD player for “free” with their $1,000 televisions. Moreover, Officer Jones paid only

$600 for the Samsung set. Yet, because this finding depends upon a credibility determination and

the record presents no compelling evidence to the contrary, we decline to reverse the Commission’s

finding regarding pricing. Even so, the impropriety of purchasing stolen goods arises whether or

not the buyer strikes a good deal. The only relevance of the pricing, as we view it, is whether it was

so low as to cause the officers to question the legitimacy of the transaction. We extrapolate from

the Commission’s finding that the pricing, taken alone, was not sufficient to arouse the officers’

suspicions. As we conclude below, however, other, undisputed elements of the transactions would

cause the reasonable citizen to inquire further.

4

One reason cited by the City for terminating the officers’ employment was that they took delivery of the

equipment without sales receipts, owners’ manuals, and warranty paperwork. Officer Branch produced an owner’s

manual at trial and contended that it included his warranty paperwork. A review of the manual does indeed reveal a

statement of warranty, but the warranty requires valid proof of purchase. None of the officers received (or demanded)

sales receipts.

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Disputed Fact: Whether the Officers Knew or Should Have Suspected

the Equipment was Stolen

The single factor that bears most directly on the reasonableness of the disciplinary action

taken against Officers Hearns, Gray, Branch, and Jones is whether the surrounding circumstances

should have made them suspicious enough to seek more information before consummating the deal.

The Department found that the officers, at a minimum, should have known better than to buy the

equipment without more information, yet the Commission, by implication, arrived at the opposite

conclusion. The Commission’s decision acknowledged poor judgment but underscored the

following elements: the officers’ knowledge of or relationship with the “seller,” the routine award

of business discounts to police officers, and the minimal discount actually received by the officers.

Although the Commission never explicitly stated that the City failed to prove that the officers knew

or should have known the equipment was stolen, its enumeration of the above points strongly

suggests this finding.

The Commission noted that the officers knew the “seller” as a licensed vendor of

merchandise or had become acquainted with the “seller” through his security job on Beale Street.

First, the record reveals that Officer Branch knew Mr. McEwen, his college friend, to be a licensed

vendor of clothing and shoes. But he testified that Mr. Spivey, not Mr. McEwen, was the “seller,”

and the only statements regarding Mr. Spivey involve his ability to get electronic equipment for

wholesale prices through his employer, ADT. We do acknowledge that Officer Branch contends

he imprudently relied on his college friend and that Officers Hearns and Gray relied on Officer

Branch’s recommendation. Officer Jones also had come to know Mr. Spivey as the head of security

for a Beale Street nightclub. Yet, these points amount to little more than the fact that the Officers

did not buy the equipment from complete strangers. And, especially given the surrounding

circumstances, these personal connections do not justify a suspension of common sense or absolve

even the common citizen from making reasonable inquiries into the legitimacy of the seller’s

enterprise.

Likewise, the Commission’s recognition of the frequent award of business discounts to

police officers seems only tangentially relevant to these facts. As Sergeant Hampton succinctly

stated, “Best Buys [sic] and all these other companies don’t give you a discount out of the back of

a truck at midnight.” We fail to see how regular discounts given by retail establishments would

somehow work to legitimate this arrangement in the mind of a police officer. Finally, because we

affirmed the Commission’s finding regarding the pricing, we presume the officers did not enjoy

significant discounts when they acquired this equipment.

When considered in light of the undisputed facts, these points do not furnish the requisite

evidence to support the Commission’s (implicit) finding that the City did not prove, by a

preponderance of the evidence, that the officers should have known or suspected that the equipment

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was stolen. Given the undisputed facts that the officers purchased electronic equipment that was

delivered in the middle of the night in a U-haul or pickup truck; that the “seller” worked for a

security company and had not specified exactly how he had obtained the equipment; and that a cash

transaction yielded no sales receipt or bill of sale, a reasonable mind would necessarily conclude

that police officers should have strongly suspected they were dealing with stolen merchandise. This

conclusion remains inevitable even though the officers knew the “seller” to some degree, they were

accustomed to receiving discounts from retail establishments, and the price they paid was not

dramatically lower than the retail price.

Disputed Fact: Whether the City Established the Reasonableness of its Action

A police officer’s receipt of stolen merchandise is, without question, unacceptable. Yet, the

termination of employment may not be reasonable, for example, where a diligent officer has fallen

victim to skilled confidence artists. This case does not present such facts. Rather than reasonably

perceiving the need to verify the lawfulness of this endeavor and taking steps to do so, the officers

did nothing. The parties and the Commission debated at length over whether a National Crime

Information Center (NCIC) check on the serial numbers would have yielded any information at the

time the officers purchased the stolen equipment. But this question misses the point: an attempt

to locate the serial number and run an NCIC check on it, even if unsuccessful, would demonstrate

the officer’s diligence. There is a material difference between the police officer who unknowingly

purchases stolen merchandise after taking all reasonable steps to insure it is not the product of a

theft and the police officer who unknowingly receives stolen property but who, in the face of

suspicious circumstances, fails to inquire further.

We thus must consider whether substantial and material evidence supports the

Commission’s conclusion that the City failed to show a reasonable basis for terminating the

officers’ employment. In arriving at its conclusion, the Commission relied on three factors

extraneous to the events surrounding the purchase. First, the officers apologized to the Commission

for their poor judgment. Second, the officers cooperated with the Task Force after learning they

had purchased stolen televisions and DVD players. We note that the officers either cooperated with

authorities after the Task Force had already confiscated their equipment and identified them as

purchasers or voluntarily cooperated after learning that the Task Force had uncovered the theft and

street sales. Finally, the Commission characterized the officers as victims because they never

recovered the money paid to Messrs. McEwen and Spivey. We view these losses as a natural

consequence of imprudent purchases.

Considered in light of the evidence detracting from its weight, this list does not supply the

requisite evidentiary support for the Commission’s finding. Officers Hearns, Branch, Gray, and

Jones should have become suspicious, at the very least, and taken further steps before buying the

Samsung merchandise. Instead, without more, the officers purchased stolen equipment from those

responsible for the thefts and later responsible for identifying their customers. Moreover, the

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newspaper article publicized these events and only exacerbated the damage already done to the

Department’s reputation.

Our standard of review cautions against the reversal of an agency determination solely

because the evidence also supports another conclusion. See Martin v. Sizemore, 78 S.W.3d 249,

276 (Tenn. Ct. App. 2001). In this case, the evidence points to one conclusion only and necessitates

a result opposite from the one reached by the Commission. When a police officer takes delivery

of a television and a DVD player in the middle of the night from a U-Haul or pickup truck, fails to

request a receipt or bill of sale, seeks no acceptable explanation of how the “seller” obtained his

inventory, and neglects to look for a serial number or to consider running an NCIC serial number

check, that officer places his honesty and his common sense into question. Either form of

impairment in a police officer works to undermine the reputation and standing of those entrusted

with exercising the police power of our state. Given the obvious effect of these undisputed facts,

the Commission’s decision cannot stand upon apologies, cooperation, and the financial

consequences of poor judgment. To allow it to so stand would ignore the bulk of relevant evidence

without a reasonable basis for doing so. We hold that the conclusion that the City failed to establish

a reasonable basis for termination was indeed unsupported by the evidence and therefore arbitrary.

Accordingly, we concur in the chancellor’s finding that Commission’s decision was

arbitrary. For the foregoing reasons, we affirm the judgment of the trial court. The costs of this

appeal are taxed to Officers Mauricio Hearns, Henry Gray, Jr., Dorian Branch, Derick Jones, and

their sureties, for which execution shall issue if necessary.

___________________________________

DAVID R. FARMER, JUDGE

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