Carl C. Smith, II v. Anderson County Sheriff Paul White

05/01/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

December 13, 2016 Session

CARL C. SMITH, II v.

ANDERSON COUNTY SHERIFF PAUL WHITE ET AL.

Appeal from the Chancery Court for Anderson County

No. 13CH5655 M. Nichole Cantrell, Chancellor

No. E2016-00656-COA-R3-CV

This is an employment termination case involving a civil service employee. The

petitioner was employed as a law enforcement officer with the Anderson County

Sheriff’s Department (“the Department”) when the Department received notice from the

Tennessee Department of Children’s Services (“DCS”) that the petitioner had been

“indicated” as a perpetrator of child abuse in a DCS investigation pending in Roane

County. The petitioner was placed on voluntary administrative leave. Upon subsequent

notification that the DCS indication had been upheld through administrative review, the

Department terminated the petitioner’s employment in November 2009. The petitioner

appealed the termination to the Civil Service Board of the Anderson County Sheriff’s

Department (“the Board”). While the appeal to the Board was pending, the petitioner

filed a petition in the Roane County Chancery Court, seeking judicial review of DCS’s

administrative decision. Upon review, the Roane County Chancery Court entered a

judgment on August 3, 2012, reversing the classification and directing DCS to change the

classification from “indicated” to “unfounded.” Through his counsel, the petitioner

contacted Anderson County Sheriff Paul White to request reinstatement of his

employment, but Sheriff White denied the request. Following a hearing conducted on

August 6, 2013, the Board affirmed the Department’s termination decision and denied the

petitioner’s motion for reinstatement filed during the hearing. The petitioner filed a

petition for certiorari and review of the Board’s decision with the Anderson County

Chancery Court (“trial court”) on September 4, 2013, naming the Board and Sheriff

White as respondents (collectively, “Respondents”). The petitioner then filed a motion

for partial summary judgment, averring that he had not been provided constitutionally

sufficient notice of misconduct justifying termination. Following a hearing, the trial

court, with Chancellor William E. Lantrip presiding, granted partial summary judgment

in favor of the petitioner in an order entered February 27, 2014. The Respondents filed a

“motion to revise order,” pursuant to Tennessee Rules of Civil Procedure 54 and 59.

Following a hearing, the trial court, with Chancellor M. Nicole Cantrell now presiding,

vacated the prior order granting partial summary judgment and affirmed the Board’s

decision. The petitioner has appealed to this Court. We affirm the portion of the trial

court’s judgment affirming the Board’s decision to uphold the initial termination.

However, having determined that the Board’s decision to uphold the denial of

reinstatement was not supported by substantial and material evidence and yielded an

arbitrary and capricious result, we reverse the trial court’s affirmance of the Board’s

decision to uphold Sheriff White’s denial of the employee’s September 2012 request and

the Board’s denial of the petitioner’s motion for reinstatement. We remand for entry of

an order to reinstate the petitioner to his employment and a determination of back pay

and other damages to be calculated from the point of his September 2012 request for

reinstatement.

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

Affirmed in Part, Reversed in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and CHARLES D. SUSANO, JR., J., joined.

David S. Wigler, Knoxville, Tennessee, for the appellant, Carl C. Smith, II.

Arthur F. Knight, III, Knoxville, Tennessee, for the appellees, Anderson County Sheriff

Paul White and Civil Service Board of the Anderson County Sheriff’s Department.

OPINION

I. Factual and Procedural Background

Prior to accepting administrative leave in March 2009 and his subsequent

employment termination in November 2009, the petitioner, Carl C. Smith, II (“Officer

Smith”), had been employed with the Department as an officer investigating primarily

property crimes. The factual and procedural history leading to the trial court’s review of

the Board’s administrative decision is essentially undisputed and was summarized as

follows in relevant part by the trial court in its final judgment:

On or about December 3, 2008, Sergeant Jeff Davis, [Officer

Smith’s] direct supervisor, received information that [Officer Smith] was

under investigation by the Roane County [DCS], for allegations of child

abuse.

Upon learning this information, Sergeant Davis informed his

supervisor, Lieutenant Braden. Anderson County Sheriff, Paul White was

also informed at this time.

2

Soon after, [DCS] was contacted by the Anderson County Sheriff’s

Department in an attempt to verify the information that the Sheriff’s

Department had received concerning [Officer Smith].

[DCS] did not release any information regarding the investigation to

the Anderson County Sheriff’s Department due to the confidential nature of

their investigation.

On February 6, 2009, Sergeant Davis received a letter from Lisa

Lund, a [DCS] case reviewer, informing him that [Officer Smith] had been

“identified as the alleged perpetrator of child abuse in an indicated report

that [DCS] has investigated.”

The February 6, 2009 letter further stated “It is our understanding

that Carl C. Smith, [II], is in a caretaker, supervisory, instructional or

treatment role with you[r] agency, which constitutes an emergency situation

as described in DCS rules. You should take immediate action to ensure that

the individual is no threat to any child in their care.”

The February 6, 2009 letter also indicated that [Officer Smith] had

been notified of his right to an administrative hearing.

On or about March 2, 2009, [Officer Smith] had a meeting with his

supervisors regarding the February 6, 2009 letter from [DCS].

Subsequently, [Officer Smith] requested to take administrative leave

in order to appeal [DCS’s] decision.

[Officer Smith’s] request for administrative leave without pay was

granted by Sheriff White.

On or about May 8, 2009, [Officer Smith] participated in an

administrative hearing before an Administrative Judge for [DCS], wherein

the Administrative Judge upheld [the] designation of [Officer Smith] as an

indicated perpetrator of child abuse.

On September 21, 2009, Sergeant Jeff Davis was copied with a letter

from [DCS] to [Officer Smith], which stated “as a result of an

Administrative Hearing, DCS has reviewed the investigation that identified

you as the perpetrator of child abuse . . . in Roane County and has

3

determined that this report was properly classified as Allegation

Indicated/Perpetrator Indicated. As evidenced by this letter, DCS is

officially notifying you and your employer of the results.[”]

The Anderson County Sheriff’s Department had no positions

available in November 2009 that would ensure that [Officer Smith] would

not come into contact with children.

On November 6, 2009, Sheriff Paul White mailed a letter to [Officer

Smith] regarding “Notification of Intent to Terminate[.”]

The November 6, 2009 Termination Letter stated “notification is

hereby given to you that the Anderson County Sheriff’s Department intends

to terminate your employment status as Deputy Sheriff on November 20,

2009. This decision is based on [DCS’s] emergency status determination

imposed on you and the subsequent affirmation of that decision by the state

Administrative Law Judge.”

The November 6, 2009 termination letter continued to state “under

existing Civil Service Board rules and regulations that you have the right to

appeal this decision to the Anderson County Civil Service Board within ten

(10) days of the date of termination. You will be eligible to reapply to the

Anderson County Sheriff’s Department when the DCS emergency status

has been removed.[”]

[Officer Smith] timely requested an appeal to the [Board] on

November 19, 2009.

The [Board] hearing was delayed, at the request of parties and for

reasons that cannot be determined from the record in this matter.

The [Board] hearing did not take place until August 6, 2013.

The Commissioner of [DCS] affirmed the Administrative Law

Judge’s upholding the designation of [Officer Smith] as an “indicated”

perpetrator of child abuse.

[Officer Smith] filed a lawsuit in the Chancery Court of Roane

County seeking Judicial Review of the Commissioner’s decision.

4

On August 1, 2012, the Honorable Frank V. Williams, III, of the

Roane County Chancery Court, entered a Judgment reversing the

determination of [DCS] and the Administrative Judge, finding that the

evidence against [Officer Smith] did no[t] preponderate in favor of an

indication.

Chancellor Williams specifically held in his opinion that “The Court

does not find that the decision of Respondent (the Commissioner) was

made arbitrarily or capriciously, or that any of his State or Federal rights

have been violated.”

On August 6, 2013, the [Board] conducted a hearing and

unanimously upheld Sheriff White’s decision to terminate [Officer Smith]

in November of 2009.

The [Board] found that [Sheriff White’s] actions were justified at the

time he took them, based on the information available to him at the time he

acted.

(Paragraph numbering omitted.)

In addition, it is undisputed that following the Roane County Chancery Court’s

reversal of the administrative law judge’s (“ALJ’s”) decision regarding the DCS

classification,1 Officer Smith’s counsel sent a copy of the respective judgment to Sheriff

White’s counsel and requested Officer Smith’s reinstatement to the Department.2 Sheriff

White acknowledged in testimony presented during the Board hearing that he declined

the reinstatement request. Officer Smith then filed a “Motion for Summary

Reinstatement,” based on the Roane County judgment, with the Board at the opening of

the August 6, 2013 hearing. The Board denied the motion. Apart from requesting

reinstatement, Officer Smith did not undergo a reapplication process with the

Department.

Officer Smith filed his petition for writ of certiorari with the trial court on

September 4, 2013. On October 21, 2013, Officer Smith filed a motion for partial

1

As the trial court noted, the ALJ’s affirmation of DCS’s decision was subsequently affirmed by the DCS

Commissioner. For ease of reference, we will refer to the ALJ’s decision as encompassing the

Commissioner’s affirmation throughout the remainder of this Opinion.

2

Sheriff White was represented before the Board by Anderson County Law Director N. Jay Yeager, who

also represented Respondents in the instant petition prior to Respondents’ current counsel’s filing a notice

of appearance on December 2, 2013.

5

summary judgment on his claim that Sheriff White’s November 2009 notice of

termination violated the Due Process Clause of the Fourteenth Amendment of the United

States Constitution (“Due Process Clause”) by “failing to provide constitutionally

sufficient notice of any misconduct justifying termination of his property right.”3

Following a hearing conducted on February 7, 2014, the trial court, with former

Chancellor Lantrip presiding, granted partial summary judgment in favor of Officer

Smith in an order entered February 27, 2014. In that order, the trial court found that

Sheriff White’s November 2009 notice of termination “did not contain a valid reason for

dismissal, and therefore that the initial termination of [Officer Smith’s] property right in

employment violated the Due Process Clause . . . .” The trial court also found that

Respondents “violated the Fourteenth Amendment by failing to promptly reinstate”

Officer Smith following the Roane County Chancery Court’s reversal of the DCS

indication.

Respondents filed their “Motion to Revise Order” on April 29, 2014, pursuant to

Tennessee Rules of Civil Procedure 54 and 59, asserting, inter alia, that the trial court

had erroneously considered a motion for summary judgment when reviewing the Board’s

administrative decision. They concomitantly filed a motion to stay execution of partial

summary judgment. On December 16, 2014, Officer Smith filed a response to the motion

to revise the order. He also filed a “Motion for Hearing and Notice of Filing of Rule 11

Motions,” regarding the motion to dismiss previously filed on October 7, 2013.

Respondents subsequently filed a response to Officer Smith’s motion for sanctions and a

reply to Officer Smith’s response to their motion to revise the order.

Following a hearing conducted on March 27, 2015, the trial court, with Chancellor

Cantrell now presiding, vacated the prior order granting partial summary judgment. In an

order and memorandum opinion entered April 21, 2015, the trial court found in relevant

part:

Based on the limited information that was included in [Chancellor

Lantrip’s] memorandum opinion, I cannot say that he did not misapply the

law in this case and relied too heavily on this later finding by Chancellor

Williams [in the review of DCS’s administrative determination] that there

was no basis for the allegations of DCS.

3

As this Court has explained, the “Fourteenth Amendment to the United States Constitution and article I,

section 8 of the Tennessee Constitution are the foundations for procedural due process claims” and

“provide the same protection.” Kelley v. State, Dep’t of Children’s Servs., Child Protective Servs., No.

M2006-02631-COA-R3-CV, 2008 WL 933490, at *4 (Tenn. Ct. App. Apr. 3, 2008) (citing Riggs v.

Burson, 941 S.W.2d 44, 51 (Tenn. 1997)).

6

The letter that the sheriff sent stated that he intended to terminate

and then gave a reason for his intention to terminate, citing the [DCS]

emergency status determination and then the subsequent affirmation and

decision by the [ALJ].

Whatever Chancellor Williams ruled has nothing to do with those

reasons, and I’m going to set it aside and we can set it for hearing again.

Meanwhile, on April 1, 2015, Officer Smith filed an “Amended, Restated and

Renewed Motion of Petitioner for Summary Judgment and/or Declaratory Judgment,”

asserting that Sheriff White violated his due process rights by providing insufficient

notice of termination, failing to provide a pretermination hearing, and failing to reinstate

his employment following the Roane County Chancery Court’s reversal of DCS’s

determination. He also asserted that both Respondents violated his due process rights by

denying him a fair trial and denying him an opportunity to be heard at the hearing before

the Board. He further asserted that the Board violated his due process rights by

upholding the employment termination. Officer Smith requested reinstatement, including

back pay and reimbursement for benefits; reimbursement for any expenses necessary to

recertification as a peace officer; and attorney’s fees, expenses, and court costs. On July

2, 2015, Respondents filed a response to Officer Smith’s amended motion and their own

motion for summary judgment.4

Following a hearing conducted on July 10, 2015, the trial court took the matter

under advisement and subsequently entered an “Opinion” on August 14, 2015. The court

affirmed the Board’s decision to uphold the termination of Officer Smith’s employment

and refusal to reinstate Officer Smith following the Roane County Chancery Court’s

reversal of DCS’s indicated classification. The court entered an “Amended Opinion” on

August 20, 2015, making essentially the same findings but reserving judgment on all

issues except the amended summary judgment motion and declaratory judgment motion

that had been before the court on July 10, 2015. The court denied both motions. The

court then directed the parties to file briefs regarding “any outstanding claims for relief”

within sixty days of the Amended Opinion’s entry.

Officer Smith and Respondents respectively filed proposed findings of fact and

conclusions of law. Following a hearing conducted on January 8, 2016, the trial court

entered a final judgment on February 29, 2016, affirming the Board’s decision upon

finding that Respondents did not violate Officer Smith’s due process rights. The court

specifically found as pertinent to this appeal, inter alia, that “the stated grounds for

4

On June 2, 2015, Respondents filed a motion for leave to file a third-party complaint against the State,

DCS, and individual DCS employees as potentially liable for Officer Smith’s purported damages. They

voluntarily withdrew this motion prior to the final hearing.

7

termination, the DCS indication of Smith as a perpetrator of child abuse and the

affirmation of that indication by the [ALJ] meet one or more of the listed reasons the

Sheriff may terminate an employee for cause” under the Policies and Procedures

Governing the Operations of the Civil Service System for the Anderson County Sheriff’s

Department (“Department’s Policies and Procedures”).

The trial court also specifically found that during the Board hearing, Officer Smith

exercised his rights to appear in person, to be represented by counsel, and to cross-

examine witnesses. The court further found that Officer Smith waived his right to testify

before the Board when his counsel moved for involuntary dismissal at the close of Sheriff

White’s proof and then made an offer of proof that Officer Smith was innocent of any

child abuse. In response to issues raised by Officer Smith, the court determined that the

Board had reached its decision without improperly relying on the delay in scheduling the

Board hearing or the fact that Officer Smith had not reapplied for employment with the

Department. Officer Smith timely appealed.

II. Issues Presented

Officer Smith has presented eight issues for our review, which we have restated as

follows:

1. Whether the trial court erred by finding that the notice of termination

issued by Sheriff White provided sufficient notice of grounds for

termination of Officer Smith’s employment to satisfy the Due

Process Clause, the requirements of Tennessee Code Annotated §

38-8-304(1), and applicable Civil Service Rules.

2. Whether the trial court erred by declining to find that Sheriff White

violated the Due Process Clause, Tennessee Code Annotated §§ 38-

8-304(2) and 38-8-305(b), and applicable Civil Service Rules by

failing to provide a meaningful pretermination hearing on the merits

of any charges against Officer Smith.

3. Whether the trial court erred by declining to find that Respondents

violated the Due Process Clause, Tennessee Code Annotated § 38-8-

304, and applicable Civil Service Rules by refusing to reinstate

Officer Smith’s employment after the Roane County Chancery Court

determined that DCS’s classification of Officer Smith as indicated in

a child abuse investigation was unfounded.

8

4. Whether the trial court erred by declining to find that the Board

violated the Due Process Clause, Tennessee Code Annotated § 38-8-

304, and applicable Civil Service Rules by refusing to reinstate

Officer Smith’s employment after Sheriff White failed to present

evidence of misconduct during the Board hearing.

5. Whether the trial court erred by declining to find that the Board

violated the Due Process Clause, Tennessee Code Annotated § 38-8-

305(b), and applicable Civil Service Rules by denying Officer Smith

an opportunity to present evidence at the Board hearing.

6. Whether the trial court erred by declining to find that the Board

violated the Due Process Clause, Tennessee Code Annotated § 38-8-

304, and applicable Civil Service Rules by improperly relying upon

the delay in scheduling the Board hearing as grounds to uphold the

termination.

7. Whether the trial court erred by declining to find that the Board

violated the Due Process Clause, Tennessee Code Annotated § 38-8-

304, and applicable Civil Service Rules by improperly relying upon

Officer Smith’s failure to apply for re-employment as grounds to

uphold his employment termination.

8. Whether the trial court erred by declining to find that Officer Smith

was entitled to reinstatement or front pay; back pay, including the

value or cost of replacement of all lost benefits of employment; and

attorney’s fees at trial and on appeal pursuant to 42 United States

Code § 1988.

III. Standard of Review

Officer Smith appeals from the trial court’s judgment rendered pursuant to the

statutory writ of certiorari provided by Tennessee Code Annotated §§ 27-9-101 to -114

(2000 & Supp. 2016). This writ is available following, inter alia, a civil service board

proceeding affecting a civil servant’s employment. See Tenn. Code Ann. § 27-9-101

(2000); City of Memphis v. Civil Serv. Comm’n, 238 S.W.3d 238, 242 (Tenn. Ct. App.

2007), perm. app. denied (Tenn. Sept. 24, 2007). Tennessee Code Annotated § 27-9-

114(b)(1) (Supp. 2016) provides that “[j]udicial 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.” See, e.g.,

9

Tidwell v. City of Memphis, 193 S.W.3d 555, 564 (Tenn. 2006) (concluding that “under

section 27-9-114,” proceedings before a city’s on-the-job inquiry panel, “as well as the

standard of judicial review of its decisions, are governed by the UAPA.”); Hoback v. City

of Chattanooga, 492 S.W.3d 248, 257 (Tenn. Ct. App. 2015), perm app. denied (Tenn.

Feb. 18, 2016) (determining that Tennessee Code Annotated § 4-5-322(h) provided the

proper standard of review for a city council’s action affecting a police officer’s

employment).

Tennessee Code Annotated § 4-5-322(h) (2015) 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) (A) Unsupported by evidence that is both substantial and

material in the light of the entire record.

(B) 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.

Upon determining that an agency has employed the proper legal principles, this

Court will proceed to consider the agency’s findings. See Hoback, 492 S.W.3d at 258.

As this Court has explained:

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

10

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, 216 S.W.3d 311,

316 (Tenn. 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); 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, 216

S.W.3d 311, 315 (Tenn. 2007). Yet, a clear error of judgment can also

render a decision arbitrary and capricious notwithstanding adequate

evidentiary support. Id. at 316. 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).

11

City of Memphis v. Civil Serv. Comm’n, 238 S.W.3d at 243. Although our review of an

agency’s factual findings is confined to the provisions of Tennessee Code Annotated § 4-

5-322, we review matters of law de novo with no presumption of correctness. See Tenn.

R. App. P. 13(d); Davis v. Shelby Cnty. Sheriff’s Dep’t, 278 S.W.3d 256, 264 (Tenn.

2009).

IV. Notice of Termination

Officer Smith contends that the trial court erred by finding that the November 6,

2009 notice of termination issued by Sheriff White provided sufficient notice of grounds

for Officer Smith’s employment termination such that his due process rights were not

violated. Alternatively, Officer Smith argues that the Board’s decision upholding the

notice of termination did not provide sufficient legal cause of termination and was

thereby made upon unlawful procedure pursuant to Tennessee Code Annotated § 4-5-

322(h)(3). Respondents contend that the termination letter provided sufficient notice

because it informed Officer Smith that the charge against him was his classification by

DCS as an indicated child abuse perpetrator with the basis for that charge consisting of

the DCS emergency status determination and subsequent affirmation by the ALJ.

Respondents argue that at least as early as DCS’s February 6, 2009 letter to the

Department, Officer Smith was aware of the DCS classification and investigation, as well

as the allegations underlying the investigation. Upon our careful review, we agree with

Respondents that the November 6, 2009 letter provided adequate notice of the cause for

Officer Smith’s employment termination at the time of the notice’s issuance.

Regarding the due process to be afforded police officers facing disciplinary

actions, Tennessee Code Annotated § 38-8-304 (2014) provides:

Before any dismissal, demotion, suspension without pay or transfer for

punitive reasons may be imposed, the following must be complied with:

(1) The police officer shall be notified in writing of all charges, the basis

for the charges, and the action that may be taken;

(2) The police officer shall be given an opportunity, within a reasonable

time limit after the date of the written notice provided for in

subdivision (1), to respond orally and in writing to the charges. The

time limit shall be determined by the agency, but in no event shall it

be less than five (5) calendar days unless agreed to by the police

officer; and

12

(3) In making a response, the police officer may be assisted by counsel

at the officer’s own expense.

Tennessee Code Annotated § 38-8-305 (2014) further provides:

(a) A police officer who is dismissed, demoted, suspended or transferred

for punitive reasons, may within a reasonable amount of time

following such action, as set by the officer’s agency, request a

hearing. If such request is made in a timely manner, a hearing shall

be held within a reasonable amount of time set by the agency. The

hearing shall be set no later than fourteen (14) calendar days

following the date of request, unless a later date is acceptable to the

police officer.

(b) At the hearing, the police officer and the officer’s agency shall be

afforded the opportunity to present evidence and to examine and

cross-examine witnesses.

(c) The hearing panel shall have the power to, and on the request of

either the police officer or the officer’s agency shall, issue subpoenas

requiring the testimony of witnesses who have refused or failed to

appear at the hearing.

(d) The police officer shall also be given the opportunity to be

represented by counsel at the hearing, unless such officer and agency

are afforded, by regulation, the right to counsel in a subsequent de

novo hearing.

(e) The panel conducting the hearing shall rule on the admissibility of

the evidence.

(f) A record shall be made of the hearing.

In addition, section 1303 of the Department’s Policies and Procedures states:

The Sheriff may dismiss any employee for the good of the

Department, but dismissal shall be for cause and every employee shall have

the right of appeal.

(1) Reasons for dismissal may include, but shall not be limited to:

13

a. Failure to meet prescribed standards of work; morality and

ethics to an extent that makes an employee unsuitable for any

kind of employment in the Department;

b. Theft or destruction of property;

c. Incompetence, inefficiency or negligence in the performance

of duties;

d. Insubordination that constitutes a serious breach of discipline;

e. Conviction of a criminal offense;

f. Notoriously disgraceful personal conduct;

g. Unauthorized absence or abuse of leave privileges;

h. Acceptance of any valuable consideration which was given

with the expectation or appearance of influencing the

employee in the performance of his/her duties;

i. Falsification of records or use of official position for personal

advantage;

j. Political activity as defined in Article 17;

k. Other violations as set forth within departmental policy.

(2) The employee shall be furnished an advance written notice

containing the nature of the proposed action, the reasons therefore

and his/her right to answer the charges in writing. This notice shall

be furnished at least one (1) calendar week prior to the proposed

effective date of the action.

(3) During the advance notice period the employee may be retained in

duty status, placed on leave, with or without pay, by the Sheriff.

(4) If the employee fails to respond to the advance notice, the proposed

action of the Sheriff shall be effective on the date specified with no

need for further action. Otherwise, the Sheriff shall carefully

consider the reply of the employee before making [a] final decision,

14

and at the earliest possible moment shall transmit to the employee a

letter containing a final decision.

(5) Former employees of the Department who have been dismissed, or

resigned while dismissal charges are pending shall not be re-

employed.

In the context of a DCS investigation, “‘[i]indicated’ means the classification

assigned to an individual found to be a perpetrator of abuse, severe child abuse, child

sexual abuse, or neglect as the result of investigation of a report of abuse.” Tenn. Comp.

R. & Regs. 0250-07-09-.01(9) (citing Tenn. Code Ann. § 37-1-406(i)). An individual so

indicated by a DCS investigation may request a formal file review and, if the indicated

classification is upheld, an administrative hearing. See Tenn. Comp. R. & Regs. 0250-

07-09-.06-.08. The rules and regulations governing DCS procedure further provide the

following standard for administrative review of an indicated classification:

(1) A report made against an alleged perpetrator shall be classified as

“indicated” if the preponderance of the evidence, in light of the

entire record, proves that the individual committed abuse, severe

child abuse, child sexual abuse, or neglect. Proof of one or more of

the following factors, linking the abusive act(s) to the alleged

perpetrator, may constitute a preponderance of the evidence:

(a) Medical and/or psychological information from a licensed

physician, medical center, or other treatment professional,

that substantiates that physical abuse, sexual abuse, or severe

physical abuse occurred;

(b) An admission by the perpetrator;

(c) The statement of a credible witness or witnesses to the

abusive or neglectful act;

(d) The child victim’s statement that the abuse occurred;

(e) Physiological indicators or signs of abuse or neglect,

including, but not limited to, cuts, bruises, burns, broken

bones or medically diagnosed physical conditions;

(f) Physical evidence that could impact the classification

decision:

15

(g) The existence of behavioral patterns that may be indicative of

child abuse/neglect and corroborates other evidence of abuse,

severe child abuse, child sexual abuse, or neglect should be

examined;

(h) The existence of circumstantial evidence linking the alleged

perpetrator to the abusive or neglectful act(s) (e.g., child was

in care of the alleged perpetrator at the time the abuse

occurred and no other reasonable explanation of the cause of

the abuse exists in the record).

Tenn. Comp. R. & Regs. 0250-07-09-.05

Concerning emergency notification to an employer when an indicated perpetrator

has access to children through employment, section 0250-07-09-.07 of the DCS Rules

and Regulations provides in pertinent part:

(1) The provisions of this Rule apply to individuals classified as

perpetrators of abuse, severe child abuse, child sexual abuse, or

neglect in an “indicated” report who pose an immediate threat to the

health, safety, or welfare of a child or children to whom the alleged

perpetrator has access.

***

(4) As soon as reasonably possible after the Commissioner’s designee

has determined that an immediate threat to the health, safety, or

welfare of a child or children to whom the alleged perpetrator has

access exists, the Department shall notify in writing both the alleged

perpetrator and the organization or person with whom the individual

is associated identified of such immediate threat.

(a) The notice shall contain the information set forth in Rule

0250-07-09-.06(10)(b); and

(b) A statement that the organization or person with which the

individual is associated shall receive notice of the

Department’s determination.

1. The notice shall also contain the following:

16

(i) that the organization or person shall ensure that

the individual is not a threat to the safety of any

child in their care; and

(ii) that the individual has been notified of his or

her rights to a hearing on the allegations, and

that the organization or person shall be notified

of the final decision regarding the allegations.

See State, Dep’t of Children’s Servs. v. Davis, No. E2010-02016-COA-R3-CV, 2011 WL

3209187, at *1 n.1 (Tenn. Ct. App. July 28, 2011) (“Upon being ‘indicated,’ DCS

notifies the person and/or any employer that he or she is not allowed to work around

children.”).

In his November 6, 2009 letter to Officer Smith, Sheriff White stated:

Notification is hereby given to you that the Anderson County

Sheriff’s Department intends to terminate your employment status as

Deputy Sheriff on November 20, 2009. This decision is based on the

[DCS] emergency status determination imposed on you and the subsequent

affirmation of that decision by the state administrative judge.

Under existing Civil Service Board rules and regulations you have

the right to appeal this decision to the Anderson County Civil Service

Board within ten (10) days of the date of termination.

You will be eligible to reapply to the Anderson County Sheriff’s

Department when the DCS emergency status has been removed.

If you have any questions regarding this decision, please feel free to

contact me at your earliest convenience.

In finding that the termination letter provided sufficient notice, the trial court

stated in its final order in relevant part:

This Court finds that the notice of termination was sufficient in that

[it] complie[d] with the T.C.A. § 38-8-304 and Section 1303 of the Policies

and Procedures Governing the Operations of the Civil Service System for

[the Department]. The ground for termination stated in the termination

letter was the emergency status indication by DCS. The evidence [the

17

Department] is relying on is the determination of the DCS investigation and

its subsequent review and affirmation by the [ALJ]. Smith was aware of

the DCS indication and the affirmation by the [ALJ] as he was actively

participating in the appeals process. Smith was properly notified that the

grounds for termination were the DCS indication and the basis of those

grounds was the DCS indication and subsequent affirmation by the [ALJ].

Upon our thorough review of the record, particularly the circumstances surrounding the

November 2009 termination letter, we agree with the trial court on this issue.

As Respondents note, Officer Smith does not dispute that he was aware of the

DCS investigation and his indicated status prior to his receipt of the notice of termination.

He had received a copy of DCS’s emergency notification letter informing the Department

of the classification at the time the letter was sent on February 6, 2009, and had taken a

leave of absence pending the result of the DCS investigation. Officer Smith argues,

however, that because Sheriff White did not state in the notice of termination any specific

wrongdoing or misconduct underlying the DCS indication, the letter was insufficient to

afford Officer Smith his due process right to notice. We disagree.

In support of his position, Officer Smith relies in part on this Court’s decision in

Brown v. State, No. E2004-01272-COA-R3-CV, 2004 WL 2715283 (Tenn. Ct. App.

Nov. 30, 2004), wherein this Court upheld the trial court’s affirmance of an ALJ’s review

of DCS’s decision to classify the petitioner as a perpetrator of child sexual abuse against

his stepdaughter. As Officer Smith notes, this Court expressed “serious concerns” in

Brown regarding the constitutionality of the then low standard of proof “permit[ting] an

individual to be indicated as the perpetrator in a validated claim of child sexual abuse,

along with the attendant consequences of that classification, based solely upon a showing

of only substantial and material evidence.” See id. at *8. The Brown Court explained

that in comparison to the civil standard requiring proof by a preponderance of the

evidence, “[s]ubstantial and material evidence is a very low threshold and can be

achieved merely with evidence which is considered to be only just more than a scintilla

or glimmer as defined in applicable case law.” See id.; see also Gluck v. Civil Serv.

Comm’n, 15 S.W.3d 486, 490 (Tenn. Ct. App. 1999) (explaining that the standard of

substantial and material evidence “‘requires something less than a preponderance of the

evidence . . . but more than a scintilla or glimmer.’”) (quoting Wayne Cnty. v. Tenn. Solid

Waste Disposal Control Bd., 756 S.W.2d 274, 280 (1988)) (citations omitted in Gluck).

However, the rules and regulations governing DCS’s administrative review of an

indicated classification were amended, effective November 25, 2006, to raise the standard

from “substantial and material” to “a preponderance of the evidence.” See Tenn. R. &

Regs. 0250-07-09-.05(1). Even with the lower standard of review in effect at the time

18

Brown was decided, this Court nonetheless affirmed the trial court’s decision, stating:

“because we conclude there was substantial and material evidence to support the decision

of the ALJ, and as that is the only issue properly raised on appeal, we reluctantly affirm

the decision of the Trial Court.” See Brown, 2004 WL 2715283, at *9.

Furthermore, in contrast to the instant action, the decision appealed in Brown was

the administrative review of DCS’s decision to classify the petitioner as an indicated

perpetrator, not the employer’s decision to act on DCS’s classification. The petitioner in

Brown was employed at the Taft Youth Development Center and “was notified that his

employer would be informed that he was the perpetrator in a validated claim of child

sexual abuse and that he no longer would be permitted to have any access to children.”

Id. at *3. No action taken by the employer, the Taft Youth Development Center, was at

issue in Brown. See id. at *1. Relying also on this Court’s decision in Mumford v. Bd. of

Educ. of City of Memphis, 173 S.W.3d 452 (Tenn. Ct. App. 2004), perm. app. denied

(Tenn. Mar. 21, 2005), Officer Smith insists that the Department was under no legal

obligation to terminate his employment and could have conducted its own investigation,

allowing Officer Smith an opportunity to be heard before the Department in defense of

the specific allegations against him prior to the Department’s taking action. He therefore

argues that the notice of termination was inadequate because it did not delineate the

specific allegation of child abuse for which Officer Smith was indicated.

In a decision involving the Tennessee Teacher Tenure Act, see Tenn. Code Ann.

§§ 49-5-501 to -515 (2016), the Mumford Court affirmed with modification the trial

court’s award of lost wages to a tenured teacher and assistant principal who had been

reinstated following suspension of his employment due to a DCS investigation indicating

him as a perpetrator of child abuse. See Mumford, 173 S.W.3d at 453. The alleged child

abuse at issue was “paddling” utilized by the plaintiff as a form of discipline within his

role as assistant principal. Id. The plaintiff had pursued appeal of DCS’s classification,

which had been overturned by the ALJ, reinstated by the DCS Deputy Commissioner,

and ultimately overturned again by a chancery court review. Id. at 454. The school

board in Mumford offered to reinstate the plaintiff following the conclusion of the

appeals process regarding the DCS classification. Id. Because the plaintiff had opted to

finish a contract with another school district for employment he had obtained while

awaiting the appeals process, an issue arose regarding whether he was entitled to back

pay upon his reinstatement by the defendant school district for the months he voluntarily

completed a contract elsewhere. Id. Thus, the issue in Mumford was lost wages. The

portion of the decision relied upon by Officer Smith is this Court’s determination that the

school board was liable for the plaintiff’s lost wages despite having suspended the

plaintiff in response to a letter from DCS. See id. at 456-57 (“Because it was under no

legal obligation to suspend Mumford based solely on DCS’ letter, at any time during the

19

pendency of the DCS investigation and appeals process, the Board could have reinstated

Mumford or could have conducted its own investigation of the allegations against him.”).

In this case, the trial court stated in its final order that it had considered Mumford,

173 S.W.3d 452, and “determined that it is not controlling on any of the issues at hand as

the Review Board in Mumford had already determined to reinstate the employee and the

issue in Mumford was . . . whether or not the employee was due back wages.” The trial

court therefore found Mumford to be factually distinguishable from the instant action

because the Board had affirmed Officer Smith’s employment termination. Officer Smith

argues that this is a factual distinction without a legal difference because the principle

remains that the Department did not have a legal obligation to terminate his employment

and could have conducted its own investigation. See id. at 456 (“Short of a court order, it

was not imperative that the Board suspend Mumford in response to DCS’ [emergency

notification] letter.”). We recognize Officer Smith’s point as far as it goes. However, as

Respondents note, this case is unlike the situation in Mumford when the teacher was

suspected of abuse in his professional capacity while ostensibly under the supervision of

his employer. See id. at 453. In the case at bar, an investigation by the employer would

have involved an agency from one county, the Anderson County Sheriff’s Department,

intervening in a confidential investigation conducted by an agency of another county,

Roane County DCS, concerning Officer Smith’s personal conduct with a minor. We

determine Officer Smith’s reliance on Brown and Mumford to be unavailing.

During the August 2013 Board hearing, Sergeant Jeff Davis testified that he was

the supervisor over the unit in which Officer Smith had worked and that his role within

the Department also included conducting internal affairs investigations into complaints

against officers. Sergeant Davis stated that the Department first received information

regarding the DCS investigation on or about December 3, 2008, at which point he began

an administrative inquiry into Officer Smith’s situation. Sergeant Davis described his

immediate action as follows:

After I received the information I notified my immediate supervisor

who was Lieutenant Braden, I believe he notified the chief, Chief Lucas

and the sheriff of information we had received. The following day, or that

afternoon I believe, we went up to the DCS offices located in Anderson

County and spoke with Ms. Becky Fusion at the office. We expressed our

concerns over what we had heard. Ms. Fusion stated that even Mr. Smith –

that he also has a right to privacy. She could not release anything but she

would request an emergency look by the Nashville office into the matter

that we had brought to our attention or was brought to our attention.

20

Sergeant Davis explained that after receipt of DCS’s February 6, 2009 letter informing

the Department of Officer Smith’s status as an indicated perpetrator of child abuse,

Sergeant Davis and other supervisors spoke with Officer Smith on March 2, 2009, at

which point Officer Smith requested unpaid administrative leave “in an attempt to get

this matter worked out and taken care of.”

According to Sergeant Davis, no position existed in the Department in which

Officer Smith “would not have a possibility of coming in contact with children and it was

determined to be in his best interest for him that he go ahead and take administrative

leave.” Sergeant Davis explained that upon receipt of DCS’s September 21, 2009 letter

informing the Department that the ALJ had upheld Officer Smith’s indicated

classification, Sergeant Davis notified Sheriff White. Sergeant Davis acknowledged that

Department personnel did not have any firsthand knowledge regarding the conduct of

which Officer Smith was accused other than that it purportedly involved child abuse.

Sheriff White testified during the Board hearing that when Officer Smith’s

situation was brought to his attention in December 2008, he asked Sergeant Davis to look

into it. He stated that when the Department received DCS’s February 2009 notification

letter, he allowed Officer Smith to voluntarily take administrative leave. According to

Sheriff White, he decided to terminate Officer Smith’s employment at some point in early

December 2009 after receiving notice of the ALJ’s decision from DCS in September

2009 and issuing a notice of termination to Officer Smith on November 6, 2009. When

questioned regarding whether there was any position in the Department in which Officer

Smith could have been placed where he would not have worked around children, Sheriff

White stated:

There is no place whatsoever. We have children in the jail. We

have them come in the office. Dispatch has to talk to children on the

phone. There is no place whatsoever in the sheriff’s office.

As the trial court found in its final order, the DCS indication of Officer Smith as a

perpetrator of child abuse “created a situation where there was no position within the

Department that Smith could be moved to” because of the necessity of ensuring that

Officer Smith did not come into contact with children while working for the Department.

The DCS indication thus constituted a cause for termination for “the good of the

Department” pursuant to section 1303 of the Department’s Policies and Procedures. The

record demonstrates that Officer Smith knew that the DCS indication created an

untenable situation for his ability to work within the Department at least as early as his

March 2009 meeting with supervisors following the February 2009 DCS emergency

notification to the Department. Having taken administrative leave from the Department

in March 2009, Officer Smith participated in an administrative hearing before an ALJ in

21

May 2009 concerning the DCS classification. At the time of receiving Sheriff White’s

November 6, 2009 notice of termination, Officer Smith had known since at least the

issuance of DCS’s September 21, 2009 notice to the Department that the ALJ had

affirmed the classification of “indicated.” We conclude that the trial court did not err in

determining that the Board followed lawful procedure when it upheld the Department’s

notice of termination as sufficient to protect Officer Smith’s due process rights.

V. Pretermination Hearing

Officer Smith also contends that the trial court erred by declining to find that

Sheriff White violated the Due Process Clause, Tennessee Code Annotated §§ 38-8-

304(2) and 38-8-305(b), and applicable Civil Service Rules by failing to provide a

meaningful pretermination “Loudermill” hearing on the merits of any charges against

Officer Smith. See Case v. Shelby Cnty. Civil Serv. Merit Bd., 98 S.W.3d 167, 170 n.1

(Tenn. Ct. App. 2002), perm. app. denied (Tenn. Dec. 9, 2002) (“The Loudermill Court

held that a public employee who can be discharged only for cause must be given notice

and an opportunity to respond to the charges against him prior to termination.”) (citing

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985)). Officer Smith asserts

that Sheriff White, and ultimately the Board and the trial court, erroneously relied on the

DCS proceedings to provide an opportunity for Officer Smith to respond to the specific

charges against him. Respondents assert that Officer Smith was afforded the opportunity

to respond to the allegations when he met with his superior officers in March 2009 and

between the date that he received the November 6, 2009 termination letter and the date

his termination took effect, November 20, 2009. Upon our thorough review, we conclude

that the trial court did not err by declining to find that Officer Smith had been denied his

right to a pretermination hearing.

Regarding what constitutes pretermination due process for an employee with a

property right in continued employment, the United States Supreme Court held in

Loudermill:

The essential requirements of due process, and all that respondents

seek or the Court of Appeals required, are notice and an opportunity to

respond. The opportunity to present reasons, either in person or in writing,

why proposed action should not be taken is a fundamental due process

requirement. The tenured public employee is entitled to oral or written

notice of the charges against him, an explanation of the employer’s

evidence, and an opportunity to present his side of the story. To require

more than this prior to termination would intrude to an unwarranted extent

on the government’s interest in quickly removing an unsatisfactory

employee.

22

Loudermill, 470 U.S. 532, 546 (1985) (internal citations omitted).

As the Case Court explained in relevant part:

The most fundamental element of due process is “the opportunity to

be heard ‘at a meaningful time and in a meaningful manner.’” Mathews v.

Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting

Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62

(1965)). “[N]otice and opportunity for [a] hearing appropriate to the nature

of the case” must precede the “deprivation of life, liberty or property.”

Loudermill, 470 U.S. at 541, 105 S.Ct. 1487 (quoting Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865

(1950)). “[D]ue process is flexible and calls for such procedural

protections as the particular situation demands.” Mathews, 424 U.S. at 334,

96 S.Ct. 893 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct.

2593, 33 L.Ed.2d 484 (1972)).

***

Loudermill and its progeny have recognized that where the

pretermination hearing has been less than a full evidentiary hearing, a more

formal post-termination hearing is required. Id.; Brock v. Roadway

Express, Inc., 481 U.S. 252, 261, 107 S.Ct. 1740, 95 L.Ed.2d 239 (1987).

The pretermination and posttermination procedures are intertwined and

must be reviewed together to determine whether due process has been

satisfied. See, e.g., Carter v. Western Reserve Psychiatric Habilitation

Ctr., 767 F.2d 270, 273 (6th Cir. 1985).

Case, 98 S.W.3d at 172-73.

In its final order, the trial court concluded regarding this issue:

This case is not a typical case under Loudermill in that the employer

is relying on an investigation being conducted by another state entity to

which the employer was not granted access to the investigation due to the

confidential nature of the DCS files. However, based on the record in this

matter this court finds that [Officer Smith] was granted ample opportunity

to “tell his side of the story” prior to the termination.

23

The first opportunity granted [Officer Smith] occurred on or about

March 2, 2009 when Smith met with his supervisors regarding the initial

letter from DCS to Sgt. Davis dated February 6, 2009. At this time, the

initial DCS indication was discussed with Smith. No action to terminate

was taken; instead Smith was granted his request for administrative leave

without pay in order to pursue the appeals process.

The second opportunity granted [Officer Smith] resulted from the

time period given between the Notice of Intent to Terminate and the

effective termination date of November 20, 2009. During this period of

time [Officer Smith] could have responded orally or in writing to the

grounds for termination set forth in the Notice of Intent to Terminate letter

from Sheriff White. There is no evidence on the record that Smith took this

opportunity.

The third opportunity [Officer Smith] had to exercise his due process

rights to “tell his side of the story” prior to termination occurred through

the appeals process with [DCS] that [Officer Smith] was actively involved

in. Sheriff White took no action to terminate [Officer Smith] until such

time as this appeal to the [ALJ] was concluded and the Sheriff’s

Department was notified that Smith had been properly indicated as the

perpetrator of child abuse.

We will address each of the three opportunities for hearing summarized by the

trial court in turn. As to the first opportunity, it is undisputed that Officer Smith met with

his supervisors following the Department’s receipt of the February 2009 letter from DCS

and accepted administrative leave while the DCS investigation was underway. Sergeant

Davis testified that he first received information regarding the DCS investigation on or

about December 3, 2008, at which time he notified his supervisor, Lieutenant Braden,

who in turn notified supervisors going up the chain of command, first Chief Lucas and

then Sheriff White. Sergeant Davis further testified that “we,” apparently including

Sergeant Davis and at least one other supervisor, attempted, without success, to obtain

more information from DCS in December 2008.

According to Sergeant Davis, upon receipt of the February 2009 letter from DCS,

Officer Smith met with Sergeant Davis and at least one other supervisor on March 2,

2009, at which time Officer Smith “requested to take administrative leave which is a

nonpaid leave in an attempt to get this matter worked out and taken care of.” When

questioned regarding whether Officer Smith had another option besides taking

administrative leave in March 2009, Sergeant Davis acknowledged that because no

position existed within the Department wherein Officer Smith would not potentially be in

24

contact with children, “it was determined to be in his best interest for him that he go

ahead and take administrative leave.” Sheriff White testified that he “allowed” Officer

Smith to take administrative leave in March 2009. The record contains no further

indication of what transpired during Officer Smith’s March 2, 2009 meeting with

supervisors. We note that although Officer Smith had not received a pretermination

notice in March 2009, he certainly would have known at the time he met with his

supervisors and accepted administrative leave that his employment with the Department

was in potential jeopardy as long as he was indicated as a child abuse perpetrator.

The second opportunity described by the trial court encompasses the period of

time immediately following Sheriff White’s November 6, 2009 advance notice to Officer

Smith that his employment would be terminated effective November 20, 2009. Section

1303(2) of the Department’s Policies and Procedures provides that an employee “shall be

furnished an advance written notice containing the nature of the proposed action, the

reasons therefore and his/her right to answer the charges in writing” within “at least one

(1) calendar week prior to the proposed effective date of the action.” Section 1303(4)

provides that if the employee replies to the advance notice, “the Sheriff shall carefully

consider the reply of the employee before making [a] final decision, and at the earliest

possible moment shall transmit to the employee a letter containing a final decision.”

Section 1303(4) further provides: “If the employee fails to respond to the advance notice,

the proposed action of the Sheriff shall be effective on the date specified with no need for

further action.” Although this policy could be clearer in terms of providing for a

pretermination hearing, the fact remains that Officer Smith presented no proof that he

requested a pretermination hearing in the interim between November 6 and 20, 2009, or

that he submitted any type of written reply to the advance notice.

The third opportunity summarized by the trial court is the one with which Officer

Smith takes the greatest issue. The trial court noted that the Department relied on the

DCS investigation to determine whether Officer Smith’s status as an indicated perpetrator

of child abuse was warranted.5 We agree that because Officer Smith knew his

employment with the Department was jeopardized by the DCS indication, the DCS

investigation and administrative appeal process did provide him with the fundamental

5

In his brief on appeal, Officer Smith appears to inadvertently quote the trial court’s August 20, 2015

“Amended Opinion” as though it were the February 29, 2016 “Final Order.” In the Final Order, the trial

court included the same summary of Officer Smith’s three opportunities to be heard but omitted a

paragraph from the Amended Opinion in which the court had found that “the due process requirements of

a Loudermill pretermination hearing were satisfied by the appeals process and hearing held through DCS

and the [ALJ] prior to Smith’s termination.” Although the trial court noted in the Final Order its prior

finding that the Department did not deprive Officer Smith of his right to a pretermination hearing, it did

not directly incorporate the findings on this issue from the Amended Opinion. We determine that in the

Final Order, the trial court relied on all three of the opportunities for a pretermination hearing described

therein.

25

element of due process that is “the opportunity to be heard ‘at a meaningful time and in a

meaningful manner.’” See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). We note, however, that at the time of

DCS’s September 2009 notification to the Department that the ALJ had upheld the

indicated classification, the appeal process of the DCS decision was not yet complete.

Officer Smith subsequently filed a petition for certiorari with the Roane County Chancery

Court for judicial review of the administrative decision.

In terms of the opportunity for a pretermination hearing, Officer Smith could have

responded to Sheriff White’s advance notice with the information that the appeals process

of the DCS indication was incomplete and with a request for a pretermination hearing

before his supervisors. He did not. We conclude that the trial court did not err in

determining that the Board followed lawful procedure when it upheld the opportunities

afforded Officer Smith for a pretermination hearing as sufficient to protect Officer

Smith’s due process rights.

VI. Denial of Reinstatement Requests

Officer Smith asserts that the trial court erred by declining to find that

Respondents violated the Due Process Clause, Tennessee Code Annotated § 38-8-304,

and applicable Civil Service Rules by refusing to reinstate Officer Smith’s employment

upon learning that DCS’s classification of Officer Smith as an indicated perpetrator of

child abuse had been reversed by the Roane County Chancery Court. Officer Smith also

asserts, as a separate issue, that the trial court erred by declining to find that the Board

violated the same due process, statutory and civil service requirements by refusing to

reinstate Officer Smith’s employment following the Board’s August 2013 hearing when

Sheriff White offered no proof of misconduct beyond the initial DCS classification. In

the alternative, Officer Smith asserts that the Board’s decisions to affirm Respondents’

denial of reinstatement and to deny summary reinstatement following the Board hearing

were made upon unlawful procedure, were “arbitrary or capricious or characterized by

abuse of discretion or clearly unwarranted exercise of discretion,” or “unsupported by

evidence” pursuant to Tennessee Code Annotated § 4-5-322(h).

Upon careful review, we conclude that the Board erroneously determined that in

considering Sheriff White’s refusal to reinstate Officer Smith, it could not consider the

Roane County Chancery Court’s reversal of the indicated classification. Likewise, we

conclude that the trial court erroneously analyzed the denial of reinstatement according to

the factual situation solely as it existed at the time of Officer Smith’s initial employment

termination prior to the Roane County Chancery Court’s decision. We therefore

determine that the decisions of the Board and the trial court regarding Officer Smith’s

reinstatement requests yielded an arbitrary and capricious result with no substantial or

26

material evidence presented to support that result. See Tenn. Code Ann. § 4-5-322(h)(4)-

(5). In reaching this conclusion, however, we discern no violation of Officer Smith’s due

process rights in Respondents’ denials of his requests for reinstatement.

Upon Officer Smith’s petition for judicial review of the ALJ’s affirmance of the

DCS indicated classification, the Roane County Chancery Court entered its judgment

ordering that the classification be changed to “unfounded” on August 1, 2012. The

judgment, which is included in the record before us as an exhibit attached to pleadings

filed by Respondents, provided the following:

This case came on to be heard before the Honorable Frank V.

Williams, III, Chancellor, upon the Petition for Judicial Review of the Final

Order of the Commissioner of the Tennessee Department of Children’s

Services affirming the findings of Administrative Judge Carol Marcum that

the Petitioner, Carl Smith, [II], is indicated as the perpetrator of child

sexual abuse, the Response of the Department of Children’s Services, the

transcript of the Administrative Hearing and the entire record of the

Department of Children’s Services, Administrative Procedures Division’s

Hearing File, from all of which the Court finds that the evidence does not

preponderate in favor of an indication; accordingly the findings and

conclusions of the Administrative Judge and of the concurring opinion of

the Commissioner of the Tennessee Department of Children’s Services is

hereby overturned, and the judgment against Carl Smith, [II], is dismissed.

The Department is directed to modify the indication of Mr. Smith from

indicated to unfounded. Costs are taxed to the Tennessee Department of

Children’s Services.

DCS did not appeal this judgment. In an opinion filed concomitantly with the

judgment, the Roane County court explained, inter alia, its findings that inconsistencies

existed in the statements of the victim of the alleged child sexual abuse and that DCS had

not presented any other evidence indicating Officer Smith as a perpetrator. As

Respondents note, the court did expressly state in its opinion that it did “not find that the

decision of [DCS] was made arbitrarily or capriciously, or that any of [Officer Smith’s]

state or federal rights [had] been violated.”

On appeal, Officer Smith explains that his counsel waited for the thirty-day appeal

window to close following entry of the Roane County Chancery Court judgment before

sending the judgment to Sheriff White’s counsel and requesting Officer Smith’s

reinstatement. This places the date of the initial reinstatement request, which is not in the

record before us, at approximately September 1, 2012. Respondents do not dispute that

Officer Smith’s counsel sent the reinstatement request following the judgment or that the

27

request was denied. When questioned during the Board hearing, Sheriff White

acknowledged that he rejected the reinstatement request despite its providing notice to

him of the Roane County judgment.

In the meantime, Officer Smith’s timely request for a post-termination hearing

before the Board had been postponed several times for reasons not fully clear to the trial

court and not contained within the appellate record. The parties do not dispute, however,

that the postponements were by agreement and are not an issue on appeal. The Board

hearing was ultimately held on August 6, 2013. On that day, Officer Smith’s counsel

filed with the Board a motion for summary reinstatement based on the Roane County

Chancery Court judgment and argued the motion during the hearing’s opening. Sheriff

White’s counsel objected to the motion and urged the Board to review the termination

decision based on what Sheriff White knew at the time of termination. The Board

members voted unanimously to deny the motion for summary reinstatement and proceed

with the hearing.

At the close of the Board hearing, the Board members voted unanimously to

uphold Sheriff White’s initial termination decision. Prior to entering an official vote, the

Board again heard Officer Smith’s counsel move for reinstatement based on the Roane

County judgment. During discussion of the motion, Board members expressed their view

that they were to review Sheriff White’s actions based solely on the information Sheriff

White had at the time of termination. In moving the Board to vote to uphold the

termination decision, Board member Jack Rains stated in relevant part:

I make a motion that this Board goes along with the letter that

Sheriff Paul White wrote to [Officer Smith] dated November 6, 2009 and it

states what it means, that you are eligible to reapply, the DCS emergency

status has been removed. I can see what I have read in this whole packet

that this will hold water. If he wants to reapply. I don’t know if he has got

a position available, that is up to him. And I don’t know what his

qualifications are. But in my opinion, he is at fault because it has been four

years and he has never reapplied for a position with the sheriff’s department

for Anderson County[.]

Board member Bill Riggs seconded Mr. Rains’s motion. Board member Roberts then

stated:

I go along. We came in here to this hearing to see whether the

sheriff’s department was justified in what they did with the information

they had. And DCS is not a little run-of-the-mill something down here.

DCS works with children. Who’s better to give a statement than DCS. I

28

don’t see how the sheriff could have gone against it. It made him liable, it

made his department liable. [Officer Smith] can, it is plainly stated, he can

reapply for his job and when it says reason for leaving he can say charges

cleared. It is in here that he is not guilty. But at the time it had to be

honored. So now if he wants his job back, let him reapply for it and let him

put in whatever the reason for leaving or whatever and put the letter in there

that he is not guilty. I think that is all we can do that we stand behind his

termination and tell him that he is eligible to reapply. . . . And this is how

we stand unanimous on this Board.

Although Officer Smith’s counsel attempted to explain to the Board that

reinstatement and the ability to reapply were not equal remedies for Officer Smith’s

continued loss of employment following the denial of his request for reinstatement,

Board members persisted in maintaining during closing discussion that they were solely

to consider Sheriff White’s initial decision to terminate employment. The flaw in this

reasoning is that in the interim between the November 2009 termination and the August

2013 Board hearing, Sheriff White had been presented with removal by final judicial

order of the sole just cause he relied upon to terminate Officer Smith’s employment.

Sheriff White acknowledged during the hearing that without the DCS

classification of Officer Smith as an indicated perpetrator of child abuse, his just cause

for terminating Officer Smith’s employment no longer existed. We emphasize that the

Roane County Chancery Court’s judgment did not affect the validity of Sheriff White’s

initial November 2009 decision. However, when Sheriff White rejected Officer Smith’s

request for reinstatement in September 2012, he had the judicial reversal of the indicated

classification before him, as did the Board when it denied Officer Smith’s motion for

reinstatement during the hearing. Moreover, the ability to reapply, together with a pool

of applicants all with no guarantee of being hired, and with no consideration of back pay,

is not a proper remedy for loss of a civil servant’s property right in continued

employment. See Hoback, 492 S.W.3d at 259 (explaining that an employee wrongfully

deprived of a property right in employment “‘can be made whole through an award of

back pay and either reinstatement or, in certain circumstances, front pay’”) (quoting

Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 432 (Tenn. Ct. App. 1992)).

In reviewing the Board’s decision regarding reinstatement, the trial court stated in

its final judgment in pertinent part:

It is undisputed in this case that employee Smith’s termination had to

be for cause under T.C.A. § 38-8-304 and Section 1303 of the Policies and

Procedures Governing the operations of the Civil Service System for the

[Department] which states[:] “The Sheriff may dismiss any employee for

29

the good of the Department, but dismissal shall be for cause and every

employee shall have the right of appeal.” However, to be clear, cause for

termination must have existed at the time of termination in November of

2009. It is clear from the record in this matter that the cause stated for

termination[,] the DCS indication as a perpetrator of child abuse and the

upholding of that indication by the [ALJ], which is in compliance with

Section 1303 of the Policies and Procedures Governing the operations of

the Civil Service System for the [Department], existed at the time of

termination. The [Department] and Sheriff White cannot reasonably be

expected to anticipate a ruling by a Roane County Chancellor nearly three

years after termination. Therefore this Court rejects this argument and

finds that no due process right of [Officer Smith] was violated by opposing

and denying a Motion for Summary Judgment Reinstatement, when at the

time of termination, cause existed for [Officer Smith’s] termination. The

subsequent ruling by Chancellor Williams does not affect the fact that

cause existed at the time of termination.

[Officer Smith’s] counsel continues to argue the issue of timing in

this case, alleging that the [Board] must rely on the evidence available to

the Sheriff some three years after the termination of Smith, after Chancellor

Williams issued his opinion, in determining whether the termination of

Smith complied with Section 1303. This court rejects that argument.

According to Section 1304 of the Policies and Procedures Governing

the Operation of the Civil Service System for the [Department] states “A

request to [the] Board for a hearing may be made in writing within ten (10)

days of the Sheriff’s notification of charges or causes. The Board shall

grant a hearing not more than thirty (30) days from the date of the receipt of

the written request.” Furthermore T.C.A. § 38-8-305(a) states “A police

officer who is dismissed, demoted, suspended or transferred for punitive

reasons, may within a reasonable amount of time following such action, as

set by the officer’s agency, request a hearing. If such request is made in a

timely manner, a hearing shall be held within a reasonable amount of time

set by the agency. The hearing shall be set no later than fourteen (14)

calendar days following the date of request, unless a later date is acceptable

to the police officer.”

The record does not give this court a history of the requests to

postpone the [Board] hearing or whether or not the postponement was ever

opposed. However, this becomes irrelevant upon review of the above

referenced Section 1304 and T.C.A. 38-8-305. It is simply not

30

contemplated by the applicable law that the hearing would not be

conducted in a timely manner and therefore the Sheriff and the [Board]

would be required to rely on evidence that may or may not be available

some three years after the termination of an employee to determine if the

termination was proper. It is an unreasonable burden to place on the

[Department] to be bound to this type of hindsight. The issue instead is

whether or not the termination was proper given the evidence an[d] basis

for the termination at the time of the termination, not some three years later

after Chancellor Williams issued his opinion.

We disagree with the trial court on this issue. Certainly, if the Board hearing had

been held prior to Officer Smith’s September 2012 request for reinstatement following

the Roane County Chancery Court’s August 2012 judgment, the only issue before the

Board would have been the initial termination of Officer Smith’s employment. However,

for whatever reason that the agreed postponements of the Board hearing occurred, by the

time of the August 2013 Board hearing, the Roane County court had entered its judgment

and Officer Smith had requested reinstatement. At that point in time, a second decision

made by Sheriff White was before the Board: his September 2012 refusal to reinstate

Officer Smith despite the removal, by final judicial order, of the sole just cause for the

initial termination. Likewise, the decision of the Board to deny Officer Smith’s motion

for reinstatement during the Board hearing was also before the trial court.

To persist in denying Officer Smith the remedy of reinstatement in the face of no

substantial and material evidence supporting the continued denial of his property right in

civil service employment yields an arbitrary and capricious result. See City of Memphis

v. Civil Serv. Comm’n, 238 S.W.3d at 243 (“A decision unsupported by substantial and

material evidence is arbitrary and capricious.”). We therefore remand this case to the

trial court for entry of an order directing Respondents to reinstate Officer Smith to his

employment with the Department. We will address the issue of back pay and other

remedies in a subsequent section of this opinion.

VII. Remaining Due Process Issues

Officer Smith presents three additional issues regarding the alleged denial of his

due process rights during the Board hearing. He asserts that the trial court erred by

declining to find that the Board violated the Due Process Clause, Tennessee Code

Annotated § 38-8-305(b), and applicable Civil Service Rules by denying him an

opportunity to present evidence during the hearing. He further asserts that the trial court

erred by declining to find that the Board violated the Due Process Clause, Tennessee

Code Annotated § 38-8-304, and applicable Civil Service Rules by improperly relying

31

upon the agreed delays in scheduling the Board hearing and Officer Smith’s failure to

apply for re-employment as grounds to uphold his employment termination.

As to the Board’s purported reliance on the hearing delay and Officer Smith’s

failure to reapply, our review of the transcript, quoted in part in the preceding section of

this Opinion, reveals that the Board members considered these issues only insofar as they

determined not to consider the Roane County Chancery Court’s August 2012 judgment

and to deny Officer Smith’s motion for reinstatement. Inasmuch as we have determined

that the trial court erred in affirming the Board’s reasoning and conclusion regarding

reinstatement, we determine the issues concerning Board members’ reliance on the

hearing delay or Officer Smith’s lack of reapplication to be pretermitted as moot.

Moreover, upon thorough review, we agree with the trial court that under the

circumstances occurring during the Board hearing, the Board did not violate Officer

Smith’s due process rights by denying him an opportunity to present evidence.

Respondents note that the Board, as a nonjudicial body, has never adopted the Tennessee

Rules of Civil Procedure. Regarding application of judicial rules to nonjudicial bodies,

this Court has explained:

[W]e hold that neither the technicalities of the Civil Rules of Procedure nor

the common law rules of evidence necessarily apply before nonjudicial

bodies unless the rules of that body so require. See Big Fork Mining

Company v. Tennessee Water Quality Control Board, (1981 Tenn. App.

M.S.) 620 S.W.2d 515; L & N Railroad Company v. Fowler, (1954) 197

Tenn. 266, 271 S.W.2d 188. We believe the rules to be applied by

reviewing Courts to these less than legally formal hearings must also be

less than those required in legally formal hearings. In reviewing such

evidence we are to be guided by a sense of fair play and the avoidance of

undue prejudice to either side of the controversy and whether in our opinion

the action of the hearing Board in admitting or excluding evidence was

unreasonable or arbitrary. See Consolidated Edison Company v. N.L.R.B.,

(1938) 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126.

Goodwin v. Metro. Bd. of Health, 656 S.W.2d 383, 388 (Tenn. Ct. App. 1983), perm.

app. denied (Tenn. Aug. 22, 1983). We note, however, that we must review the record of

the Board hearing according to the requirement that “the police officer and the officer’s

agency shall be afforded the opportunity to present evidence and to examine and cross-

examine witnesses,” see Tenn. Code Ann. § 38-8-305(b), as well as the evaluation of

“whether the employee has been afforded the procedural safeguards mandated by the

gravity of the deprivation” of a property right in continuing employment, see Case, 98

S.W.3d at 173.

32

Concerning the rights to be afforded parties appearing before the Board, section

1307(2) of the Department’s Policies and Procedures provides:

(2) The parties shall have the right to appear before the Board in person

and be represented by counsel. Counsel must be designated, by

written notice, as the representing attorney of a party, and must be a

licensed lawyer or other person certified by the Board to appear

before it on behalf of others. The parties shall have the right to call

witnesses to testify in their behalf and to present any material

evidence bearing on the issues to be decided by the Board. Rules of

evidence developed by the judicial system for use in the Courts of

Tennessee shall not be involved in any hearing before the Board to

exclude or limit testimony or evidence [that] will, in the opinion of

the Board, aid it in rendering a decision on the issues brought before

it.

The trial court found that Officer Smith had waived his right to testify before the

Board when his counsel moved for involuntary dismissal at the close of Sheriff White’s

proof and then made an offer of proof that Officer Smith was innocent of any child abuse.

At the close of Sheriff White’s proof before the Board, Officer Smith’s counsel stated:

I need to ask for a point of clarification. And I know that the rules of

civil procedure and the things that we lawyers are familiar with doing in

court don’t apply here but there is a motion that is normally filed by the

responding party at the time that the prosecuting party finishes their proof,

which is where we are now. And it is a motion to render a judgment based

on that proof without hearing any other evidence. If this body would

entertain that motion now, based upon the sheriff’s testimony, we agree that

the DCS indication of Mr. Smith as an alleged child abuse perpetrator was

not any longer just cause for termination. And based upon that testimony

from the sheriff, we don’t need to put on any evidence. And Mr. Smith

would get up and deny that anything happened. And then the next legal

question for you all to decide is whether it would be proper for [Sheriff

White’s counsel], if we went forward and denied those accusations,

whether it would be proper for him to bring in witnesses, or the only

witness, the young lady who was a child at the time that made these

allegations who is here in the room, in what we call rebuttal. I think the

Court would not allow that. And would say you could have brought that

evidence in . . . your case and you didn’t and it wouldn’t be proper rebuttal.

The first thing I would like to ask for on clarification is simply now that

you have heard the proof and the sheriff’s admission of the chancellor

33

reversing that DCS finding that there is no longer just cause for termination

based on that. And Mr. Smith should be reinstated on that basis without

having to go forward and put on any proof.

Following a response during which Sheriff White’s counsel clarified Sheriff

White’s testimony that he believed just cause existed at the time of termination, Officer

Smith’s counsel continued in relevant part:

The dispute now is what time do you look at the facts. Do you look at the

facts as they existed in 2009 when the sheriff made this, I would suggest,

very reasonable decision. Very reasonable back at that time, we can’t keep

this man on. Look what [DCS] has told us. He can’t be involved with the

[child protective investigation] team, he can’t be around children. And we

are a sheriff’s department and of course we can’t keep him around. From

the lens and looking at the facts at the time of the decision in 2009 it was a

very reasonable decision. I wouldn’t argue with it. The question is today.

The question is today is there just cause. . . . And it is on that basis that we

move for reinstatement now at the close of the department’s proof.

Subsequent to Officer Smith’s counsel’s motion, the Board conducted a discussion

during which members made it clear that they did not perceive their role as one of

determining Officer Smith’s guilt or innocence of the allegations underlying DCS’s

indicated classification. As noted in the preceding section of this Opinion, Board

members decided to consider only the situation as it was at the time of Sheriff White’s

initial decision to terminate. They excluded consideration of the Roane County Chancery

Court’s August 2012 judgment reversing the DCS indication and of Sheriff White’s

denial of Officer Smith’s September 2012 request for reinstatement. When it became

clear that the Board was not going to consider the court judgment reversing the

classification and was preparing to render a decision affirming the termination, Officer

Smith’s counsel proffered the following objection and offer of proof:

Let me please remind this Board that we are discussing my motion

to reinstate him at the close of the Department’s proof. You haven’t heard

from Mr. Smith. You have prejudged the outcome of the case now by a

unanimous vote without hearing his proof. And this was just on my

motion. If you don’t want to hear his denial that he did any of these things,

that is fine. We make the offer of proof that he would testify that he did not

commit any act of child abuse against this child . . . or any other child. And

he is innocent and he would testify to that today. If that wouldn’t change

the outcome of your ruling, then we make that as an offer of proof at this

time.

34

Ms. Roberts summarized the Board members’ collective response to this offer of

proof as follows in relevant part:

Why do we need him to testify when we have the letter saying that

he was not found guilty? See, we are not charging him. We are not saying

he is guilty. We are saying that we stand by his termination on the basis of

the information that the sheriff’s department had.

The Board then voted to uphold Officer Smith’s employment termination and refuse his

motion for reinstatement without hearing any further evidence.

In its final judgment, the trial court concluded regarding this issue:

This court finds that in fact the Board did not deny [Officer Smith]

the right to be heard before the Board, but rather the attorney for [Officer

Smith] made a conscious and deliberate choice to move the Board for a

judgment at the close of the Sheriff’s proof. When the Board issued a

judgment at the close of the Sheriff[’s] proof, counsel for [Officer Smith]

then made an offer of proof that [Officer Smith] would testify that he was

innocent of any alleged child abuse. Whether or not it was an error on the

part of [Officer Smith’s] counsel to attempt to use a mechanism of civil

procedure that did not apply before the [Board] is not at issue here. What is

it at issue is whether the Board granted [Officer Smith] his right under

Section 1307. This court finds that the [Board] complied with Section

1307.

[Officer Smith] had the right to appear in person, which he

exercised. [Officer Smith] had the right to be represented by counsel,

which he exercised. [Officer Smith] had the right [to] cross-examine

witness[es] brought against him, which he exercised. [Officer Smith] had

the right [to] call witness[es] and/or testify on his own behalf, which did not

occur simply because his own counsel requested a judgment at the close of

the Sheriff’s proof and then made an offer of proof that Smith would testify

that he was innocent of child abuse. [Officer Smith’s] due process rights

for an opportunity to be heard before [the Board] were therefore not

violated.

We agree with the trial court that as events unfolded at the close of the Board

hearing, Officer Smith’s due process rights were not violated by denial of his opportunity

to present evidence. Officer Smith’s counsel acknowledged during his offer of proof that

35

the testimony Officer Smith would have presented was to the effect that he was innocent

of child abuse allegations. The Board, in considering solely Sheriff White’s initial

decision to terminate Officer Smith’s employment and only the information Sheriff

White had at that time, made a decision to consider the DCS indication as just cause for

termination and not to consider whether just cause existed for Sheriff White’s subsequent

refusal to reinstate Officer Smith following judicial reversal of the indication.

In his motion for what in effect would be an involuntary dismissal under

Tennessee Rule of Civil Procedure 41.02(2),6 Officer Smith’s counsel conceded that

“[f]rom the lens and looking at the facts at the time of the decision in 2009 it was a very

reasonable decision.” Counsel did, in effect, waive further proof regarding the 2009

decision. Because we have determined that the Board, and in turn the trial court, reached

an arbitrary and capricious decision in declining to consider the situation as it existed at

the time of Sheriff White’s September 2012 denial of Officer Smith’s request for

reinstatement, we further determine the issue of any additional evidence Officer Smith

could have presented to be pretermitted as moot.

VIII. Claim for Damages

Finally, we consider Officer Smith’s claim for damages in light of our

determination that this case should be remanded for entry of an order reinstating Officer

Smith’s employment with the Department. Officer Smith argues that in addition to

reinstatement, he should be entitled to back pay, including the value or cost of all

benefits. See Hoback, 492 S.W.3d at 259 (“Tennessee courts have recognized that an

employee who is found to be wrongfully discharged ‘can be made whole through an

award of back pay and either reinstatement or, in certain circumstances, front pay’”)

(quoting Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 432 (Tenn. Ct. App. 1992)).

Discerning no error in affirmance of the original termination decision, we

determine that damages for back pay and benefits should be awarded beginning from the

point at which Officer Smith requested reinstatement based on the Roane County

Chancery Court’s judgment reversing the DCS indication that had been the just cause for

his employment termination. Sheriff White acknowledged receiving and rejecting this

request, and Respondents have not disputed Officer Smith’s assertion that the request was

dated September 1, 2012. We therefore direct the trial court on remand to determine an

6

Tennessee Rule of Civil Procedure 41.02(2) provides in relevant part:

After the plaintiff in an action tried by the court without a jury has completed the

presentation of plaintiff’s evidence, the defendant, without waiving the right to offer

evidence in the event the motion is not granted, may move for dismissal on the ground

that upon the facts and the law the plaintiff has shown no right to relief.

36

award of back pay, inclusive of the value of benefits, dating from September 1, 2012,

through the date of reinstatement. Noting that in his pleadings, Officer Smith requested

an award of expenses for recertification as well, we further direct that on remand, the

parties may present evidence regarding whether an award to Officer Smith for costs of

recertification and training is warranted.

Officer Smith has requested the right to petition for front pay in the event that

reemployment with the Department is not feasible. On remand, the trial court should

consider such a petition if Respondents present sufficient evidence that it would not be

feasible to reinstate Officer Smith’s employment. See Sasser v. Averitt Express, Inc., 839

S.W.2d 422, 435 (Tenn. Ct. App. 1992), perm. app. denied (Tenn. Sept. 14, 1992)

(“Reinstatement is an equitable remedy . . . and front pay is an equitable substitute for

reinstatement.”) (internal citations omitted).

Officer Smith also has posited that if this Court were to grant relief predicated on

constitutional grounds, he should be awarded reasonable attorney’s fees for his

representation at trial and on appeal, pursuant to 42 U.S.C. § 1988(b). See generally

Wimley v. Rudolph, 931 S.W.2d 513, 517 (Tenn. 1996) (holding that a plaintiff may

“seek attorney fees under Section 1988 in a petition for judicial review when the petition

seeks relief from the wrongful denial, under color of state law, of rights, privileges, or

immunities secured by the federal constitution and laws.”). However, because we have

determined that Officer Smith’s due process rights were not violated and have granted

relief only according to the non-constitutional grounds provided for certiorari review of

administrative decisions in Tennessee Code Annotated § 4-5-322(h), we deny Officer

Smith’s request for attorney’s fees incurred at trial and on appeal.

IX. Conclusion

For the reasons stated above, we reverse the trial court’s affirmance of the Board’s

affirmation of Sheriff White’s refusal to grant Officer Smith’s request for reinstatement

and the Board’s subsequent denial of Officer Smith’s motion for reinstatement. We

affirm the trial court’s affirmance of the Board’s upholding of Sheriff White’s initial

decision to terminate Officer Smith’s employment. This case is remanded to the trial

court for (1) entry of an order directing Respondents to reinstate Officer Smith’s

employment with the Department; (2) determination of an award of back pay, including

benefits as applicable, spanning the time period beginning with Officer Smith’s

September 1, 2012 request to Sheriff White for reinstatement and ending with the

effective date of reinstatement; and (3) determination of whether an award of expenses

related to recertification and training is warranted. In addition, if Officer Smith files a

petition for front pay on remand, the trial court should consider such an award if

Respondents present sufficient evidence that it would not be feasible to reinstate Officer

37

Smith’s employment. Officer Smith’s request for an award of attorney’s fees incurred at

trial and on appeal is denied. Costs on appeal are taxed one-half to the appellant, Carl C.

Smith, II, and one-half to the appellees, Anderson County Sheriff Paul White and the

Civil Service Board of the Anderson County Sheriff’s Department.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

38