City of Memphis, a Municipal Corporation v. The Civil Service Commission of the City of Memphis and Tommy Moore

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER 23, 2004 Session

CITY OF MEMPHIS, A Municipal Corporation v. THE CIVIL SERVICE

COMMISSION OF THE CITY OF MEMPHIS and TOMMY MOORE

Direct Appeal from the Chancery Court for Shelby County

No. CH-03-0120-3 D. J. Alissandratos, Chancellor

No. W2003-02799-COA-R3-CV - Filed December 29, 2004

This case involves the demotion of an Air Crash Chief employed by the City of Memphis Fire

Department following the revocation of his security clearance and driving privileges by the

Memphis-Shelby County Airport Authority. Following his demotion, the Chief appealed the city’s

decision to the City of Memphis Civil Service Commission. The civil service commission reversed

the city’s ruling and held that the Chief must be reinstated. The city filed a common law writ of

certiorari in the Chancery Court of Shelby County to appeal the finding of the civil service

commission. The chancery court reversed, finding that the civil service commission exceeded its

authority in reversing the city’s decision and reinstating the Chief. We affirm.

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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,

and HOLLY M. KIRBY , J., joined.

Joseph Michael Cook, Memphis, TN, for Appellant, Tommy Moore

Sara L. Hall, Gerald L. Thornton, and Barbaralette G. Davis, City Attorneys, Memphis, TN, for

Appellee, City of Memphis

OPINION

Factual Background and Procedural History

Chief Tommy Lee Moore (“Chief Moore”) began his career with the Memphis Fire

Department approximately twenty years ago as a private and gradually worked his way to the

position of Battalion Chief. In 1999, Chief Moore passed a test required for promotion to the

position of Air Crash Chief. In 2001, an Air Crash Chief position became available at Memphis Fire

Department Station 33 located at Memphis International Airport (“Memphis Airport”), and Chief

Moore was promoted to fill the vacancy. Prior to assuming the new position, Chief Moore applied

for and received a security identification badge and airport driver’s license from the Memphis-Shelby

County Airport Authority (“Airport Authority”).1 On February 5, 2001, Chief Moore reported for

his first day of duty at the Memphis Airport as the new Air Crash Chief for Station 33.

Marsalis A. Freeman (“Mr. Freeman”) worked for the Memphis Fire Department at Station

33 as a pumper driver tasked with the responsibility of driving Chief Moore in the command vehicle.

On Chief Moore’s first day at the Memphis Airport, Mr. Freeman took Chief Moore for a ride in the

command vehicle to familiarize him with the airport. During their trip, Mr. Freeman drove the

command vehicle onto a runway without authorization from the Air Traffic Control Tower. The

Airport Authority labeled the event a runway incursion. Mr. Freeman was subsequently disciplined

for the incident, but no disciplinary action was taken against Chief Moore at that time.

On July 3, 2002, Mr. Freeman was driving Chief Moore in the command vehicle while

responding to an incident at the Memphis Airport. The Air Traffic Control Tower cleared them to

cross a runway, but Mr. Freeman drove the vehicle down the runway instead.2 Following this latest

incident, Chief John Looney (“Chief Looney”), a Division Chief with the Memphis Fire Department

and the Memphis Fire Department’s liaison to the Airport Authority, met with members of the

Airport Authority. Chief Looney also launched an investigation into the incident on behalf of the

Memphis Fire Department. At the request of the Airport Authority, the Memphis Fire Department

returned Chief Moore to his previous position as Battalion Chief away from the Memphis Airport.3

1

The Airport Authority requires all personnel working at the airport to obtain the proper security clearance.

Any personnel required to traverse the Air Operations Area must also obtain an airfield driver’s license by passing a

written test and a practical road test.

2

The Federal Aviation Administration (“FAA”) investigated this incident and determined that it did not amount

to a runway incursion. (Exhibit 6). The FAA issued a letter to the Airport Authority setting forth this finding, but the

FAA also addressed in the letter its concerns about prior runway incursions by the Memphis Fire Department at the

Memphis Airport, including the February 5, 2001, incident.

3

W alter W hite, Director of Operations and Public Safety with the Airport Authority, sent a letter dated July

19, 2002, to Chester Anderson, Director of the Memphis Fire Department, thanking him for reassigning Chief Moore

from the airport.

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On July 29, 2002, Walter White (“Director White”), Director of Operations and Public Safety

with the Airport Authority, sent a letter to Chief Moore informing him of the Airport Authority’s

decision to revoke his security clearance and driving privileges at the Memphis Airport. As grounds

for this decision, the letter cited Chief Moore’s involvement in the July 3, 2002, runway incursion.4

In the interim, Chief Looney concluded his investigation and determined that, since Chief Moore had

his credentials revoked by the Airport Authority, the Memphis Fire Department could no longer keep

him in the position of Air Crash Chief at the Memphis Airport.

On August 13, 2002, the City of Memphis (“City”) sent Chief Moore a Notification of

Administrative Investigation and Hearing alerting him that disciplinary proceedings had been

instituted against him. The notice cited the two alleged incursions at the Memphis Airport involving

Chief Moore, as well as violations of the Division of Fire Services Operations Manual5 and the City

of Memphis Personnel Manual.6 On August 20, 2002, the Memphis Fire Department conducted an

administrative hearing regarding the allegations lodged against Chief Moore. Chief Looney, in

addition to being the investigating officer, also conducted the disciplinary hearing. On August 22,

2002, Chief Looney, on behalf of the City, entered a decision finding, in relevant part, as follows:

As a result of these incidents, the Memphis Shelby County Airport

Authority has asked that you be removed from any position at the

airport. Furthermore, they have permanently revoked your Security

Identification Display Area badge which is a requirement for you to

work actively on the airfield. Both you and Driver Freeman’s badges

have been permanently revoked.

....

As an active Air Rescue Chief you are responsible for two serious

runway incidents. Your actions have been negligent in your duties as

an Air Rescue Chief and violated the highest safety standards set by

this Department and the Airport Authority.

4

The letter also cited Chief Moore’s involvement in a second runway incursion occurring on July 12, 2001.

Chief Moore denies any knowledge of the second incursion contained in the letter, and the record reflects that the only

other incursion involving Chief Moore occurred on February 5, 2001.

5

These violations, in summary, included the following: neglect of duty or negligence; failure to maintain

required certifications; failure to properly control subordinates and equipment; failure to follow safety procedures and

control the driver; an act or omission contrary to good order, discipline, or accepted social practice; and failure to work

cooperatively toward serving the best interest of the public.

6

These violations, in summary, included the following: incompetency; inefficiency; not being professional in

work performance; violation of safety rules; operation of a city owned vehicle in wanton disregard for the safety of

others; and willfully or repeatedly violating a safety rule.

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Therefore, because of your actions, and because of your violation of

the above stated rules and regulations, you are hereby removed from

the Airport Air Rescue responsibility and demoted to the rank of

Battalion Chief.

Chief Moore appealed the decision to the City of Memphis Civil Service Commission

(“Commission”). The Commission held a hearing on December 6, 2002, and heard testimony from

several witnesses concerning the allegations. The Commission issued a ruling on January 13, 2003,

stating:

The Commission finds against the City in that there was no

reasonable basis for the demotion. The Commission understands that

the City has a limited number of positions at the A/R Chief level, and

all of those positions involve working at the Airport. The

Commission also understands that it was the Airport Authority which

took action to confiscate the badge and prohibit Chief Moore from

working at the Airport, not the City. However, the evidence

presented in this case indicated that the City’s liaison did nothing to

ensure that Chief Moore received due process in accordance with the

guidelines and procedures of the Airport Authority.

....

In summary, the Commission unanimously finds by a preponderance

of the evidence that Chief Moore’s reassignment amounted to a

demotion and the City lacks a reasonable basis for their actions.

Therefore, Chief Moore is to be reinstated to his previous rank of Air

Rescue Chief with all back pay and benefits as of the date of his

demotion.

The City appealed the Commission’s ruling by filing a Petition for Writ of Certiorari and

Supersedeas in the Chancery Court of Shelby County. The chancellor issued the writ and, after

hearing arguments from both parties and reviewing the record from the Commission, issued an order

on October 30, 2003, finding that the Commission exceeded its authority as a matter of law when

it reinstated Chief Moore. In reaching this conclusion, the chancellor made the following findings:

(1) the Airport Authority did not follow its own rules and regulations when it stripped Chief Moore

of his security clearance and driving privileges; (2) the City has no control over the decision by the

Airport Authority to revoke such credentials; (3) as a result of losing these credentials, Chief Moore

could no longer be employed by the Memphis Fire Department at the Memphis Airport; and (4) the

Commission exceeded its authority by requiring the City to maintain an employee in a non-existent

position, thereby forcing the City to create a new position.

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Chief Moore timely filed an appeal to this Court presenting the following issues for our

review:

I. Whether the chancery court erred in reversing the ruling of the City of Memphis Civil

Service Commission; and

II. Whether Appellant is entitled to attorney’s fees and costs on appeal pursuant to section 4-5-

325 of the Tennessee Code.

For the reasons set forth herein, we affirm the decision of the chancery court.

Standard of Review

The City couched its appeal to the chancery court in terms of a common law writ of

certiorari. Review of the decision by a board or commission, “where not otherwise specifically

provided,” may be instituted under the procedures set forth in section 27-9-101 et seq. of the

Tennessee Code. TENN . CODE ANN . § 27-9-101 (2003). Prior to 1989, section 27-9-114 of the

Tennessee Code provided that the common law writ of certiorari was the proper vehicle for

appealing the decisions of a civil service board.7 Huddleston v. City of Murfreesboro, 635 S.W.2d

694, 695 (Tenn. 1982); see also Paris v. City of Lebanon Pers. Review Bd., No. 01A01-9702-CH-

00054, 1997 Tenn. App. LEXIS 677, at *13 (Tenn. Ct. App. Oct. 3, 1997). In 1988, the legislature

amended section 27-9-114 of the Tennessee Code to provide that judicial review of the decisions of

a civil service commission must be conducted as follows:

Proceedings involving certain public employees.

....

(b)(1) Judicial review of decisions by civil service boards of a county

or municipality which affects the employment status of a county or

city civil service employee shall be in conformity with the judicial

review standards under the Uniform Administrative Procedures Act

[(“UAPA”)], § 4-5-322.

(2) Petitions for judicial review of decisions by a city or county civil

service board affecting the employment status of a civil service

7

The pre-1989 version of section 27-9-114 provided:

No court of record of this state shall entertain any proceeding involving the civil

service status of a county or a municipal employee when such proceeding in the

nature of an appeal from from a ruling of city or county official or board which

affects the employment status of a county or city employee, except such proceeding

be one of common law certiorari. Any such proceeding shall be heard by a judge

or chancellor without the intervention of a jury. This section shall supersede any

displaced provisions of city charters to the contrary.

T EN N . C O D E A N N . § 27-914 (1984) (emphasis added).

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employee shall be filed in the chancery court of the county wherein

the local civil service board is located.

TENN . CODE ANN . § 27-9-114(b) (2003); see also 1988 TENN . PUB. ACTS Ch. 1001. While the

City’s petition was incorrectly labeled, the City correctly noted in its petition that the chancery court

must apply the standard of review found in the present version of section 27-9-114 of the Tennessee

Code.8

The appropriate standard of review to be used by the chancery court when reviewing the

decision of a civil service board is that found in section 4-5-322, which provides:

(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) Unsupported by evidence which is both substantial

and material in the light of the entire record. In

determining the substantiality of evidence, the court

shall take into account whatever in the record fairly

detracts from its weight, but the court shall not

substitute its judgment for that of the agency as to the

weight of the evidence on questions of fact.

8

It was incorrect for the City to suggest in its brief to this Court that the proper method of reviewing the

decision of the Civil Service Commission was by common law certiorari pursuant to section 27-9-114 et seq. of the

Tennessee Code. Instead, the petition should be couched in terms of a review of the decision of the Civil Service

Commission pursuant to section 4-5-322 of the Tennessee Code. See Maasikas v. Metro. Gov’t of Nashville & Davidson

County, No. M2002-02652-COA-R3-CV, 2003 Tenn. App. LEXIS 889, at *3 (Tenn. Ct. App. Dec. 22, 2003); Woods

v. Metro. Gov’t of Nashville & Davidson County, No. M2001-03143-COA-R3-CV, 2003 Tenn. App. LEXIS 858, at *4–5

(Tenn. Ct. App. Dec. 10, 2003); Stephenson v. Town of White Pine, No. 03A01-9705-CH-00185, 1997 Tenn. App.

LEXIS 787, at *3–4 (Tenn. Ct. App. Nov. 13, 1997); Knoxville Util. Bd. v. Knoxville Civil Serv. Merit Bd., No. 03A01-

9301-CH-00008, 1993 Tenn. App. LEXIS 438, at *24 (Tenn. Ct. App. June 28, 1993); City of Memphis v. Owens, No.

02A01-9109-CH-00202, 1992 Tenn. App. LEXIS 784, at *1 n.1 (Tenn. Ct. App. Sept. 18, 1992). “The powers of

Judicial Review possessed by the Chancery Court under T.C.A. § 4-5-322 are much more broad in scope than the powers

of review under traditional common law certiorari.” Paris v. City of Lebanon Pers. Review Bd., No. 01A01-9702-CH-

00054, 1997 Tenn. App. LEXIS 677, at *15 (Tenn. Ct. App. Oct. 3, 1997).

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TENN . CODE ANN . § 4-5-322(h) (2003); see also Holder v. City of Chattanooga, 878 S.W.2d 952

(Tenn. Ct. App. 1993). In reviewing the decision of a civil service commission, the chancery court

is generally confined to reviewing the record of the proceedings before the administrative body.

TENN . CODE ANN . § 4-5-322(g) (2003); see also Howell v. City of Columbia, No. M2001-00620-

COA-R3-CV, 2002 Tenn. App. LEXIS 743, at *8 (Tenn. Ct. App. Oct. 16, 2002). Our supreme

court has summarized the standard of review found in section 4-5-322 of the Tennessee Code as

follows:

Thus the UAPA requires that the trial court review factual issues

upon a standard of substantial and material evidence. But this is not

a broad, de novo review. It is restricted to the record and the agency

finding may not be reversed or modified unless arbitrary or capricious

or characterized by an abuse, or clearly unwarranted exercise, of

discretion and must stand if supported by substantial and material

evidence.

CF Indus. v. Tenn. Pub. Serv. Comm’n, 599 S.W.2d 536, 540 (Tenn. 1980); see also Humana of

Tenn. v. Tenn. Health Facilities Comm’n, 551 S.W.2d 664, 667 (Tenn. 1977).

“Any party dissatisfied with the decree of the court may appeal to the court of appeals in the

manner provided by the Tennessee Rules of Appellate Procedure.” TENN . CODE ANN . § 27-9-112(a)

(2003). “The scope of review by the appellate courts is no broader or more comprehensive than that

of the trial court with respect to evidence presented before the [Commission].” Watts v. Civil Serv.

Bd. for Columbia, 606 S.W.2d 274, 277 (Tenn. 1980). In reviewing a matter instituted under section

27-9-114 of the Tennessee Code, we will not re-weigh the evidence or attempt to settle disputed

issues of fact. See Goodwin v. Metro. Bd. of Health, 656 S.W.2d 383, 387 (Tenn. Ct. App. 1983).

Instead, this Court is bound by the same standard of review as the chancery court and must likewise

review the record before the Commission under the statutory criteria found in section 4-5-322(h) of

the Tennessee Code. CF Indus., 599 S.W.2d at 540; see also Humana of Tenn., 551 S.W.2d at

667–68; Bishop v. Tenn. State Bd. of Accountancy, 905 S.W.2d 939, 942 (Tenn. Ct. App. 1995).

Decision of the Civil Service Commission

On appeal, Chief Moore asserts that the Commission had ample authority to reverse the

decision of the Memphis Fire Department and reinstate Chief Moore. The City asserts that the

Commission exceeded its authority and the chancellor was correct to reverse the Commission’s

decision.

“The charter of the city is the organic law of the corporation, being to it what the constitution

is to the state. . . .” State v. Bowman, 814 S.W.2d 369, 373 (Tenn. Ct. App. 1991). A civil service

commission must act within the parameters of the charter which created it. State ex rel. Atkin v. City

of Knoxville, 315 S.W.2d 115, 117 (Tenn. 1958); see also Fox v. Miles, No. W2002-01860-COA-

R3-CV, 2004 WL 239762, at *6 (Tenn. Ct. App. Feb. 9, 2004). If a civil service commission

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exceeds its jurisdiction or authority in reviewing an employee’s case, it has acted illegally and in

excess of its statutory authority. City of Memphis v. Civil Serv. Comm’n, 1985 WL 3717, at *1

(Tenn. Ct. App. 1985).

Section 245 of the City of Memphis Charter (“Charter”) provides that “[t]he Civil Service

Commission shall have the power and it shall be its duty to conduct hearings to review disciplinary

actions, limited to suspensions, dismissals, or demotions of any employees not exempted from the

provisions of this article. . . .” Under Section 246, the City may terminate, suspend, or demote an

employee for “just cause,” which the Charter defines as “a reasonable basis for the action taken” by

the City. Regarding hearings, section 248 mandates that the hearing board of the Commission may,

by majority vote, reverse or sustain the disciplinary action of the City if the commission finds by

preponderance of the evidence that a reasonable basis existed for the City’s disciplinary action. The

City argues that the Commission cannot modify, either directly or indirectly, the City’s disciplinary

decision, but can only affirm it if a reasonable basis existed for the decision, or reverse if the

evidence indicates otherwise.

The Commission conceded in its ruling that the City had a limited number of Air Rescue

Chief positions, all of which were located at the Memphis Airport. The Commission also found that

the Airport Authority, not the City, revoked Chief Moore’s credentials making it impossible for him

to work at the Memphis Airport.9 The only justification set forth by the Commission for reversing

the Memphis Fire Department’s decision to demote Chief Moore, however, appears to be that Chief

Looney did not intervene and insist that the Airport Authority afford Chief Moore due process.

On appeal, Chief Moore attempted to persuade this Court that the Airport Authority is, in

actuality, an agent of the City. The Airport Authority was created by the City of Memphis and

Shelby County pursuant to the Metropolitan Airport Authority Act (the “Act”), section 42-4-101 et

seq. of the Tennessee Code. TENN . CODE ANN . § 42-4-101 (2003). In support of his position, Chief

Moore directs our attention to the following language found in the Act:

It is hereby declared that airport authorities created pursuant to this

chapter shall be public and governmental bodies acting as agencies

and instrumentalities of the creating and participating municipalities,

and that the acquiring, operating and financing of airports and related

facilities by such airport authorities are hereby declared to be for a

public and governmental purpose and matters of public necessity.

9

The record contains a copy of the Airport Authority’s AOA Driver’s License Study Guide which outlines the

procedures used by the Airport Authority in enforcing the provisions contained therein. The document states that

following a violation of the rules set forth by the Airport Authority, the violator will be provided a Notice of Violation

(“NOV”) from the Director of Operations and Public Safety or his designee. The violator is also entitled to a hearing

before the Director of Operations within fifteen days of receiving a NOV. Director White conceded during his testimony

before the Commission that the Airport Authority did not comply with its own policies prior to revoking Chief Moore’s

credentials.

-8-

TENN . CODE ANN . § 42-4-102(a) (2003) (emphasis added). As additional support for his position,

Chief Moore argues that the City appoints the board of commissioners for the Airport Authority,

TENN . CODE ANN . § 42-4-105(a)(1)(A) (2003); the City may provide fire and police protection to

the Memphis Airport, TENN . CODE ANN . § 42-4-111(6) (2003); and the City, as the creating

municipality, is vested with all powers necessary to carry out the Act, including lending money to

the Airport Authority, providing water and electricity, and opening and maintaining streets to the

Memphis Airport, TENN . CODE ANN . § 42-4-111 (2003). Accordingly, Chief Moore asserts that the

Airport Authority is in effect an agency of the City, and, therefore, the Airport Authority’s decision

to revoke Chief Moore’s credentials in violation of its own policies should be imputed to the City.

We cannot agree with Chief Moore’s interpretation of the Act. It is apparent from reading

the Act that the legislature contemplated that an airport authority created under the Act would

constitute a separate entity. While the City is the creating municipality, TENN . CODE ANN . § 42-4-

102, the City, upon creation of the airport authority, must adopt a resolution and thereafter “enter into

an agreement with the authority for the orderly transfer to the authority of the airport properties,

functions, and outstanding obligations of such municipalities.” TENN . CODE ANN . § 42-4-104(d)(1)

(2003). This resolution is then filed with the secretary of state’s office, where “upon such adoption

and filing, the authority shall constitute a body politic and corporate, with all the powers hereinafter

provided.” TENN . CODE ANN . § 42-4-104(c)(2) (2003). Once created, the airport authority can sue

and be sued, TENN . CODE ANN . § 42-4-107(2) (2003); acquire real or personal property by gift, lease,

or purchase, TENN . CODE ANN . § 42-4-107(3) (2003); enter into contractual agreements with the

creating municipality, TENN . CODE ANN . § 42-4-107(4) (2003); apply directly for grants or other

financial assistance, TENN . CODE ANN . § 42-4-107(8) (2003); the City may transfer its interest in

land to the airport authority by sale, lease, or gift, TENN . CODE ANN . § 42-4-108 (2003); and the

airport authority may “borrow money for any of its corporate purposes and issue its revenue bonds,”

TENN . CODE ANN . § 42-4-109(a)(1) (2003). Accordingly, the Act contemplates that the Airport

Authority, once created, constitutes a separate and distinct entity.

Although the actions by the Airport Authority in revoking Chief Moore’s credentials are

admittedly suspect, that decision cannot cloud the fact that, without these credentials, Chief Moore

is unable to carry out his duties as an Air Crash Chief at the Memphis Airport. In analyzing the

Commission’s ruling regarding Chief Moore, we are mindful that:

A reviewing court should not apply Tenn. Code Ann. § 4-5-

322(h)(4)’s “arbitrary and capricious” standard of review

mechanically. In its broadest sense, the standard requires the court to

determine whether the administrative agency has made a clear error

in judgment. An arbitrary decision is one that is not based on any

course of reasoning or exercise of judgment . . . or one that disregards

the facts or circumstances of the case without some basis that would

lead a reasonable person to reach the same conclusion.

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Likewise, a reviewing court should not apply Tenn. Code

Ann. § 4-5-322(h)(5)’s “substantial and material evidence” test

mechanically. Instead, the court should review the record carefully

to determine whether the administrative agency’s decision is

supported by “such relevant evidence as a rational mind might accept

to support a rational conclusion.” The court need not reweigh the

evidence . . . and the agency’s decision need not be supported by a

preponderance of the evidence. The evidence will be sufficient if it

furnishes a reasonably sound factual basis for the decision being

reviewed.

Jackson Mobilphone Co., Inc. v. Tenn. Pub. Serv. Comm’n, 876 S.W.2d 106, 110–11 (Tenn. Ct.

App. 1993) (citations omitted).

This Court faced a similar factual situation to the one in the present case in Wheeler v. City

of Memphis, 685 S.W.2d 4 (Tenn. Ct. App. 1984). In Wheeler, the Airport Authority employed the

appellant as a security officer, but he was required, as a prerequisite to his employment, to maintain

his commission from the Memphis Police Department to carry a weapon. Id. at 5. After the

employee was involved in a shooting incident, the Memphis Police Department held a hearing to

determine whether to revoke the employee’s commission to carry a firearm. Id. After the police

department revoked his commission, the Airport Authority notified the employee they were

terminating his employment because he could no longer fulfill his duties as an airport security

officer. Id. On appeal to the Civil Service Commission, that body held that the Airport Authority

acted with just cause in terminating the employee because he no longer held a commission to carry

a firearm. Id. In affirming the Commission’s decision, we stated:

Although the Airport Authority acted upon the police board’s

suspension of the appellant’s commission, and the Airport

Authority’s action was reviewable by the Civil Service Commission

because it involved dismissal of an employee, it does not follow that

the Civil Service Commission could therefore review the decision of

the board in revoking appellant’s commission to carry a firearm. The

administrative board’s decision did not of itself relate to the

appellant’s employment status; consequently, it did not fall within the

purview of the Civil Service Commission’s jurisdiction.

Id. at 6 (emphasis added).

The City of Memphis Charter permits the Commission to review disciplinary actions taken

by the City, not another agency. The Commission exceeded its statutory authority by basing its

decision to reverse the ruling of the City in demoting Chief Moore on a review of the actions taken

by the Airport Authority. TENN . CODE ANN . § 4-5-322(h)(2) (2003); see also Deaderick Paging Co.,

Inc. v. Tenn. Pub. Serv. Comm’n, 867 S.W.2d 729, 731 (Tenn. Ct. App. 1993) (“The court may . .

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. reverse the decision if it violates statutory provisions or is in excess of the agency’s statutory

authority.”). By removing from consideration the actions of the Airport Authority in revoking Chief

Moore’s credentials, we are left with the fact that, without those credentials, Chief Moore cannot

properly perform his duties as an Air Rescue Chief at the Memphis Airport.10 The loss of the

required credentials alone constituted substantial and material evidence on which the City could base

Chief Moore’s demotion. See Wheeler, 685 S.W.2d at 6; see also TENN . CODE ANN . § 4-5-322(h)(5)

(2003). Accordingly, we find the Commission’s decision to reinstate Chief Moore to the position

of Air Crash Chief, which he could not perform without the proper credentials, amounted to an

arbitrary and capricious finding, and we affirm the chancery court’s decision in reversing that ruling.

See CF Indus. v. Tenn. Pub. Serv. Comm’n, 599 S.W.2d 536, 540 (Tenn. 1980); Jackson Mobilphone

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

Attorney’s Fees

Chief Moore has also requested that this Court award him attorney’s fees pursuant to

section 4-5-325 and section 27-9-114(b)(3) of the Tennessee Code, alleging that the City acted

unfairly and without just cause in respect to his demotion.

Section 4-5-325 provides, in relevant part, as follows:

Payment of costs to cited party.

(a) When a state agency issues a citation to a person, local

government entity, board or commission for the violation of a rule,

regulation or statute and such citation results in a contested case

hearing, at the conclusion of such hearing, the hearing officer or

administrative law judge may order such agency to pay to the party

issued a citation the amount of reasonable expenses incurred because

of such citation, including a reasonable attorney’s fee, if such officer

or judge finds that the citation was issued:

(1) Even though to the best of such agency’s knowledge, information

and belief formed after reasonable inquiry the violation was not well

grounded in fact and was not warranted by existing law, rule or

regulation; or

10

At the hearing before the Commission, Director Anderson testified that the Memphis Fire Department has

only three Air Crash Chief positions, all of which are located at the Memphis Airport. Director Anderson and Chief

Looney both testified that the credentials provided by the Airport Authority are a prerequisite for the job of Air Crash

Chief, without which Chief Moore would be unable to perform the duties associated with that position. Counsel for Chief

Moore, upon cross-examining Chief Looney, brought out the fact that a person without the proper credentials could

conceivably be on airport property if he were escorted at all times and did not have to operate a vehicle. This same

argument was put before the chancery court on appeal of the Commission’s decision. Given the demands of the job

faced by a fireman responding to emergencies, we agree with the chancellor’s conclusion that this is not a feasible

alternative.

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(2) For an improper purpose as to harass, to cause delay or cause

needless expense to the party cited.

TENN . CODE ANN . § 4-5-325(a) (2003) (emphasis added).11 Because we find neither of the

alternative grounds listed in the statute to be present in this case, we deny Chief Moore’s request.

Conclusion

For the reasons stated above, we affirm the decision of the chancery court in reversing the

decision of the City of Memphis Civil Service Commission. Costs of this appeal are taxed against

the Appellant, Tommy Lee Moore, for which execution may issue if necessary.

___________________________________

ALAN E. HIGHERS, JUDGE

11

W e have serious reservations concerning whether this statute would even apply to Chief Moore, given the

fact that the City of Memphis was the party taking action against Chief Moore in this case. Section 27-9-114(b),

governing review of a decision by a civil service commission, only references the judicial review standards found in

section 4-5-322 of the UAPA. T EN N . C O D E A N N . § 27-9-114(b)(1) (2003). In order for the provision of the UAPA

relied on by Chief Moore to apply, the City would need to qualify as a “state agency.” “Agency,” as defined by the

UAPA, “means each state board, commission, committee, department, officer, or any other unit of state government

authorized or required by any statute or constitutional provision to make rules or to determine contested cases[.]” T EN N .

C O D E A N N . § 4-5-102(2) (2003) (emphasis added). However, we do not need to reach this issue in the present case.

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