Aretha Moss v. Shelby County Division of Corrections

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned On Briefs November 15, 2013

ARETHA MOSS v. SHELBY COUNTY DIVISION OF CORRECTIONS,

ET AL.

Direct Appeal from the Chancery Court for Shelby County

No. CH-12-1211-1 Arnold B. Goldin, Chancellor

No. W2013-01276-COA-R3-CV - Filed December 11, 2013

Petitioner/Appellant was terminated from her position with the Shelby County Division of

Corrections for violating the Division’s Standards of Conduct and for untruthfulness. The

Civil Service Merit Board affirmed. On appeal, the Chancery Court for Shelby County

affirmed the Board’s decision. We affirm.

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

and Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and

J. S TEVEN S TAFFORD, J., joined.

Darrell James O’Neal, Memphis, Tennessee, for the appellant, Aretha Moss.

Damon Keith Griffin and Pablo Adrian Varela, Assistant Shelby County Attorneys,

Memphis, Tennessee, for the appellees, Shelby County Division of Corrections and Shelby

County Civil Service Merit Board.

MEMORANDUM OPINION 1

The facts relevant to our disposition of this matter are not disputed.

1

Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the actions of the trial court by memorandum opinion when a formal opinion

would have no precedential value. When a case is decided by memorandum opinion it shall

be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited

or relied on for any reason in any unrelated case.

Petitioner/Appellant Aretha Moss (Ms. Moss) was employed as a corrections officer with the

Shelby County Division of Corrections (“the DOC”). In December 2011, law enforcement

officials advised the DOC’s Office of Professional Standards (“OPS”) that Ms. Moss had

been found visiting the residence of Stanley Cooper (Mr. Cooper) on December 2, 2011, and

that a large quantity of illegal drugs had been found in the residence. Mr. Cooper admitted

that the illegal drugs belonged to him, but stated that Ms. Moss had no knowledge of the

drugs or of his drug-related activities. Ms. Moss was relieved of duty with pay on December

2.

OPS conducted an investigation into the matter and, on December 16, investigator

Alvin Givans (Mr. Givans) interviewed Ms. Moss, who signed a Truthfulness Form and a

Garrity Notice. In her recorded statement, Ms. Moss denied that she had any relationship

with Mr. Cooper other than a childhood friendship. She denied knowing that Mr. Cooper had

been involved in drug trafficking, or that he had been arrested and incarcerated for drug-

related activity. She stated that she had not visited him in jail and that she had no knowledge

that drugs were present at his residence on December 2 prior to the arrest. Mr. Givans’

investigation of the matter revealed that, in June 2001, Ms. Moss was named as a co-

defendant of Mr. Cooper when approximately two pounds of marijuana was found at a

residence in which Ms. Moss and Mr. Cooper were staying, and that Ms. Moss visited Mr.

Cooper in jail on August 1, 2002. The investigation also revealed that, in February 2008, Mr.

Cooper was arrested for possession with the intent to sell marijuana and ecstacy, which were

found in Ms. Moss’s vehicle, and that Ms. Moss’s vehicle was seized as a result.

Additionally, law enforcement officials discovered a large amount of marijuana as well as

crack cocaine, powder cocaine and digital scales in Mr. Cooper’s residence on December 2,

2011. They also discovered $1,000 in the pocket of Mr. Cooper’s trousers, which he was not

then wearing. The investigation also revealed that Mr. Cooper had been arrested 22 times,

primarily for drug-related offenses. Following Mr. Givans’ investigation, on December 19

Mr. Givans filed a report concluding that Ms. Moss had misrepresented the truth in her

December 16 interview. Ms. Moss was suspended without pay.

A Loudermill hearing was held on December 28, 2011. The hearing was conducted

by Deputy Administrator Michael Howse (Mr. Howse) and was attended by Ms. Moss and

her legal counsel. Mr. Howse determined that Ms. Moss had not been truthful based on her

statements that she was unaware of Mr. Cooper’s drug-related activities and that she had not

visited him in jail. The DOC terminated Ms. Moss’s employment effective January 5, 2012.

Ms. Moss appealed termination to the Civil Service Merit Board (“the Board”). The

Board postponed the matter pending further information regarding whether the District

Attorney would indict Ms. Moss based on the events of December 2. After the District

Attorney determined Ms. Moss would not be indicted, the Board heard the matter on May

-2-

29, 2012. Ms. Moss was represented by counsel at the hearing, and testimony from the

Millington Police Department was stricken from the record at counsel’s request. The Board

unanimously affirmed the decision to terminate Ms. Moss for violation of Policy #1.3.11 of

the Standards of Conduct, which provides:

Employees shall maintain a professional deportment at all times; refrain from

engaging in unprofessional or illegal behavior both on and off duty that could

in any manner reflect negatively on the Division of Corrections or Shelby

County.

The Board determined that “too many events confirmed that Ms. Moss knew Mr. Cooper’s

past with drugs and did not in any way separate herself from this detriment to her career.”

Ms. Moss filed a petition for judicial review of the Board’s decision in the Chancery

Court for Shelby County on July 26, 2012. In her petition, Ms. Moss asserted that she had

been terminated on or about January 5, 2012, for truthfulness and violation of personal

conduct. Ms. Moss also asserted that the Board concluded that the decision to terminate her

employment was based on truthfulness and that the “only testimony a the hearings regarding

discipline for truthfulness was that no person ha[d] been terminated from the DOC based

upon truthfulness.” She alleged that the termination was “improper,” and asserted that the

impropriety would be demonstrated by the hearing evidence. The DOC and the Board

answered in August 2012, asserting the Board’s decision was lawful, supported by the

evidence, and not arbitrary or capricious. Following a hearing on March 28, 2013, the trial

court affirmed the Board’s decision by order entered April 23, 2013.

Ms. Moss filed a timely notice of appeal to this Court, and presents one issue for our

review, as stated by her:

Whether the trial court and Shelby County Civil Service Commission erred because

it failed to determine that Ms. Moss was denied due process when she was charged

with a “Standard of Conduct” violation after Director Coleman stated there was an

error in her charges and she was only charged with truthfulness.”

Notwithstanding Ms. Moss’s statement in her petition for judicial review that she was

terminated for truthfulness and violation of the Standards of Conduct, in her brief, Ms. Moss

asserts that she was denied due process during the termination proceedings where she was

notified after the Loudermill hearing that she was being terminated for truthfulness, where

there was no evidence of notice of termination based on violations of the Standards of

Conduct, and where the Board affirmed termination for violations of the Standards of

Conduct based on untruthfulness and dishonest information. Ms. Moss’s argument, as we

-3-

understand it, is that she was denied due process where she was not given notice of

termination based on violations of the Standard of Conduct, but was notified of termination

for untruthfulness following her Loudermill hearing. Ms. Moss contends that, although she

did not raise the issue of due process in the administrative proceedings, she may properly

raise it for judicial review. She further asserts that the basis of her termination was her

failure to state that she had visited Mr. Cooper in jail in 2001, ten years prior to the 2011

incident and approximately six years before beginning employment with the DOC, and that

she was not provided with any evidence to support termination based on truthfulness or a

violation of the Standards of Conduct.

In their brief, the DOC and the Board (hereinafter, collectively, “Defendants”) assert

that Ms. Moss cannot assert a due process argument in this Court where she did not raise the

issue in the trial court. They alternatively assert that the record reflects that Ms. Moss knew

that she had been charged with violating the Standards of Conduct and that the evidence

against her consisted of her statements and the evidence of Mr. Cooper’s criminal activity.

Defendants assert that Ms. Moss was not deprived of her due process rights where she had

sufficient notice of the claims and evidence against her and an opportunity to respond.

Upon review of the record, we observe that in his December 2011 report, Mr. Givans

concluded that Ms. Moss had violated Policy #1.3.11 of the Standards of Conduct and that

she had misrepresented the truth in her Truthfulness Statement. Mr. Givans stated, “Officer

Moss denied knowing that Cooper was involved in trafficking drugs, arrested, incarcerated

for drug related charges and she never visited him in jail. Official records taken from the

Shelby County WASP System refutes (sic) Moss’[s] statement.” The record also reflects

that, on December 16, 2011, Ms. Moss signed a Garrity Notice and a Truthfulness Statement,

which stated that she was being investigated by the Office of Professional Standards for

violations of the DOC’s rules and regulations. Additionally, we observe that at Ms. Moss’s

December 28, 2011, Loudermill hearing, Officer Terry Lowery (“Officer Lowery”), the

union secretary and Ms. Moss’s union representative, stated that Ms. Moss had been charged

with violation of the Standards of Conduct Policy 1.3.11, Section C, paragraphs 11 and 17.

Officer Lowery defended Ms. Moss against those charges, stating, “She was (sic) violated

no policies. She was unaware that this particular friend was engaged in those activities and

she shouldn’t be held accountable for those. . . . She was just in the wrong place at the wrong

time.” Upon questioning by Mr. Howse, Ms. Moss confirmed that, in her December 16

interview, she stated that she was not aware of Mr. Cooper’s “drug activities.” She further

stated that she had never visited Mr. Cooper when he was in jail, and that she “had no

knowledge of any of his drug history.” Mr. Howse asked Ms. Moss a second time whether

she had ever visited Mr. Cooper in jail, stating, “And you never visited him in jail?” Ms.

Moss replied, “No.” Mr. Howse asked Ms. Moss whether she was satisfied with her

representation at the hearing, and Ms. Moss replied that she was.

-4-

As the trial court noted, at the March 2013 hearing of Ms. Moss’s petition for judicial

review, the Board “kind of rolled” the truthfulness issue into the charge of violation of the

Standards of Conduct. We additionally observe that counsel for Defendants noted that the

Board questioned Ms. Moss about the seizure of her vehicle in 2001, and that Ms. Moss

replied that she “had no idea why” her vehicle was seized. Counsel further noted that

although Ms. Moss was not charged with criminal activity, the Board simply did not believe

that she was not aware of Mr. Cooper’s history of criminal activity or of why her vehicle had

been seized.

The Board’s decision is reviewed by the courts under the Uniform Administrative

Procedures Act, codified at Tennessee Code Annotated § 4–5–322 (2011). Tenn. Code Ann.

§ 27–9–114(b)(1). Under the Administrative Procedures Act, a reviewing court can reverse

an administrative decision if the decision is:

(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 that is both substantial and material in the

light of the entire record.

Tenn. Code Ann. § 4-5-322(h)(2011 & Supp. 2013). Based on the entire record, the trial

court determined that the Board’s decision was neither arbitrary nor capricious, and that the

Board had a reasonable and sound basis for its findings and decision. We agree.

We also agree with Defendants that Ms. Moss did not assert due process violations

in the trial court. It is well settled that issues and arguments not raised or asserted in the trial

court may not be raised for the first time on appeal. Barnes v. Barnes, 193 S.W.3d 495, 501

(Tenn. 2006); Wickham v. Sovereign Homes, LLC, No. W2011–02508–COA–R3–CV), 2012

WL 438635, at *10 (Tenn. Ct. App. Sept. 25, 2012) (no perm. app. filed). Although, as Ms.

Moss asserts, administrative agencies have limited authority to resolve constitutional issues,

agencies must nonetheless “consider and apply constitutional principles in determining

procedures and rendering decisions in contested cases.” Richardson v. Tennessee Bd. of

Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995)(citations omitted). Administrative agencies

have the authority in a contested case proceeding to address a claim that its procedure is

constitutionally deficient. Id. at 455. Additionally, as noted above, the Administrative

Procedures Act clearly provides that the trial court may consider whether an agency has acted

in violation of a constitutional provision. Ms. Moss may not assert a constitutional violation

for the first time on appeal to this Court.

-5-

Holding

In light of the foregoing, the judgment of the trial court is affirmed. Costs on appeal

are taxed to the appellant, Aretha Moss, and her surety, for which execution may issue if

necessary. This matter is remanded to the trial court for enforcement of the judgment and

the collection of costs.

_________________________________

DAVID R. FARMER, JUDGE

-6-