Metropolitan Government of Nashville And Davidson County, Tennessee v. Civil Service Commission Of The Metropolitan Government of Nashville And Davidson County, Tennessee

12/16/2020

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 2, 2020 Session

METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON

COUNTY, TENNESSEE v. CIVIL SERVICE COMMISSION OF THE

METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON

COUNTY, TENNESSEE ET AL.

Appeal from the Chancery Court for Davidson County

No. 18-987-II Anne C. Martin, Chancellor

___________________________________

No. M2019-01587-COA-R3-CV

___________________________________

In this judicial review of an administrative decision, the trial court reversed the civil

service commission’s decision to reinstate a police officer to his position upon finding

that the commission’s reversal of the police department’s termination of the employee

was arbitrary and capricious. The employee has appealed. Having determined that the

findings of the civil service commission were supported by substantial and material

evidence but that its ultimate decision was arbitrary and capricious, we affirm the

judgment of the trial court reversing the commission’s decision.

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which JOHN W.

MCCLARTY and KRISTI M. DAVIS, JJ., joined.

Kim C. Gilleland and Lisa G. Woolley, Murfreesboro, Tennessee, and Jack Byrd,

Nashville, Tennessee, for the appellant, David Terrazas.

Robert E. Cooper, Jr., and Allison L. Bussell, Nashville, Tennessee, for the appellee,

Metropolitan Government of Nashville and Davidson County.

OPINION

I. Factual and Procedural History

The respondent, David Terrazas, had been employed as a police officer with the

Metropolitan Nashville Police Department (“MNPD”) for approximately eight years prior

to his termination from that position. When his ex-girlfriend made various allegations

against him to his supervisor in June 2016, the MNPD Office of Professional

Accountability investigated. As a result of the investigation, Officer Terrazas submitted

to a drug test and tested positive for two illegal steroids, Boldenone and Boldione.1 The

MNPD filed disciplinary charges against Officer Terrazas, alleging that he had violated

MNPD rules and regulations, specifically section 2.10.100 of the MNPD Substance

Abuse Program (“MNPD Policy”), as well as similar provisions of the Civil Service

Rules of the Metropolitan Government of Nashville and Davidson County (“Metro”).

We note that the applicable MNPD Policy regulations are included in the administrative

record presented to the Davidson County Chancery Court (“trial court”) and to this Court

on appeal.

Throughout the proceedings, Officer Terrazas has maintained that he did not

ingest the two steroids for which he tested positive but that Equibolin, an over-the-

counter supplement he had taken in an effort to regain strength after sustaining a

significant injury while on duty, caused the positive test result. Officer Terrazas testified

during the administrative hearing that he had taken the supplement for the purpose of

gaining muscle mass and strength after his injury on the advice of trainers at the gym

where he exercised and from employees at a supplement shop.

The MNPD chief’s designee conducted a disciplinary hearing on January 31,

2017, during which Officer Terrazas appeared and was represented by counsel. The

chief’s designee determined that Officer Terrazas should be terminated from his

employment due to the positive drug test, which constituted a Category AA offense

meriting dismissal.2 Officer Terrazas was notified of that decision via a disciplinary

action letter.

Upon Officer Terrazas’s timely appeal to the Metropolitan Government Civil

Service Commission (“the Commission”), administrative law judge Steve Darnell (“the

ALJ”) conducted an administrative evidentiary hearing on February 1, 2018. In an initial

order entered on May 2, 2018, the ALJ reversed Officer Terrazas’s employment

termination and instead suspended him for twenty days. The ALJ concluded that

“MNPD mistakenly relied on § 2.10.100 of its Substance Abuse Program in terminating

1

Per MNPD Substance Abuse Program § 2.10.080, this positive test result would have been reviewed and

interpreted by a physician (the Medical Review Officer) who then would have contacted the employee to

determine whether an alternative medical explanation for the substances found in the urine specimen

could be provided. According to the policy, if the Medical Review Officer had determined that a

legitimate medical explanation for the substances in question existed, the test result would have been

reported as a negative.

2

Officer Terrazas was also charged with using MNPD electronic records to make queries concerning his

wife and his girlfriend without a business purpose. He received a four-day suspension for that violation,

which he has not challenged on appeal.

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[Officer Terrazas]” because “MNPD perceived [Officer Terrazas’s] drug screen as a

violation of this policy and imposed a 1st offense/category AA disciplinary action

requiring termination.” The ALJ found, however, that Equibolin was “not a controlled

substance or immediate precursor to a controlled substance” (emphasis in original).

The ALJ determined that section 2.10.040 of the MNPD Policy, which addresses

performance-enhancing substances, applied instead and merited the twenty-day

suspension.

Metro appealed the initial order. Upon review and a hearing, the Commission

affirmed the twenty-day suspension while amending some of the key factual findings in

the initial order. The amended findings contained in the final order, entered on July 18,

2018, were as follows:

 Equibolin is an immediate precursor to a controlled substance;

 Mr. Terrazas tested positive for Boldione and Boldenone;

 Mr. Terrazas violated MNPD Manual Section 2.10.100(B), Positive

Test Results, with this positive drug test; and

 Mr. Terrazas should be reinstated to his position as a Police Officer II

without backpay or other benefits for the time period in which he had

been terminated, thereby reflecting a suspension from January 31, 2017

to July 10, 2018.

Metro sought reconsideration by the Commission, which was denied following a hearing.

Metro commenced the instant action on September 13, 2018, by filing a petition

for judicial review in the trial court pursuant to Tennessee Code Annotated §§ 4-5-322

and 27-9-114(b). Metro alleged that the Commission’s decision was arbitrary and that

Metro was adversely affected by the Commission’s ruling because it would be “required

to return to work a police officer who has failed a drug test and can therefore no longer

meet the standards of public trust required for his duties, including for court testimony

and interactions with the public.”

Officer Terrazas filed a “reply brief,” arguing that his reinstatement should be

permitted to stand because it was neither in excess of the Commission’s authority nor

arbitrary and capricious. He argued, however, that the Commission had engaged in a

“faulty application of certain provisions of the Department’s Substance Abuse policy”

and that the “underlying modifications [of the ALJ’s initial order] should be reversed and

the ruling of the ALJ reinstated regarding the fact that Equibolin does not legally qualify

as an immediate precursor and as such is not a violation of MNPD Manual 2.10.100(B),

Positive Test Results.”3

3

Officer Terrazas also argued in his reply that the “uncompromising language of the policy that ‘a

positive test is a positive test, no matter the source of the substance that produces the positive test’

-3-

Following a hearing conducted on June 6, 2019, the trial court entered an order on

August 8, 2019, finding that “the MNPD Policy is clear in this instance,” “the appropriate

sanction under that policy was termination of employment,” and “[t]he Commission

departed from that policy in reversing the MNPD’s disciplinary decision.” Considering

the language of the disciplinary policy, the trial court concluded that “the MNPD

effectively created a ‘zero tolerance policy’ for substance abuse in cases triggered by a

positive test result.” In then examining whether the Commission had the “authority to

override MNPD policy and impose its own alternative sanctions,” the trial court

examined the Metro Charter, specifically sections 8.203, 12.01, 12.03, and 12.05, which

are regulations concerning the operation of the police department and the civil service

system, and concluded that “it is the Commission’s responsibility to determine whether

there is ‘just cause’ for a termination and to exercise its ‘review’ authority consistently

with the applicable departmental rules and regulations.”4 The trial court determined that

the Commission had impermissibly “substitute[d] its judgment for the lawfully

established rules, regulations and policies of the MNPD,” rendering its decision

“arbitrary and capricious.”

The trial court thereby reversed the decision of the Commission and reinstated the

decision of the MNPD chief’s designee to terminate Officer Terrazas’s employment.

Officer Terrazas timely appealed to this Court.

II. Issue Presented

Officer Terrazas presents one issue for our review, which we have restated slightly

as follows:

Whether the trial court failed to conduct the proper three-step analysis of

the Commission’s findings, as required by Tennessee Code Annotated § 4-

5-322, by declining to consider Officer Terrazas’s argument that the

Commission had reached a legally erroneous conclusion that he violated

MNPD Policy § 2.10.100.

prohibits an employee from having any legitimate ability to advocate on his behalf to protect his career”

in violation of his substantive due process rights. We note that Officer Terrazas conceded in his brief in

support of his petition before the trial court that his procedural due process rights had not been violated.

Although Officer Terrazas’s substantive due process rights were discussed during the trial court’s hearing,

the trial court did not address this issue in its order, and Officer Terrazas has not raised this issue on

appeal or devoted any argument to it in his appellate brief. Accordingly, we will not consider whether the

MNPD Policy infringed on Officer Terrazas’s substantive due process rights. See Hodge v. Craig, 382

S.W.3d 325, 334 (Tenn. 2012) (“Appellate review is generally limited to the issues that have been

presented for review.”).

4

Metro had filed certified copies of Metro Charter provisions with the trial court in support of its petition.

-4-

III. Standard of Review

Tennessee Code Annotated § 27-9-114(b)(1) (2017) provides that the courts

review the decisions of local civil service boards affecting the employment status of local

government employees using the standard of review set forth at Tennessee Code

Annotated § 4-5-322(h) (Supp. 2020) of the Uniform Administrative Procedures Act. See

Smith v. White, 538 S.W.3d 1, 10 (Tenn. Ct. App. 2017). Tennessee Code Annotated § 4-

5-322 provides in pertinent part:

(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.

(i) No agency decision pursuant to a hearing in a contested case shall be

reversed, remanded or modified by the reviewing court unless for

errors that affect the merits of such decision.

(j) The reviewing court shall reduce its findings of fact and conclusions

of law to writing and make them parts of the record.

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

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presumption of correctness. See Tenn. R. App. P. 13(d); Davis v. Shelby Cty. Sheriff’s

Dep’t, 278 S.W.3d 256, 264 (Tenn. 2009).

In Miller v. Civil Serv. Comm’n of Metro. Gov’t of Nashville & Davidson Cty., this

Court explained the applicable standard of review as follows:

In cases where a commission’s jurisdiction, authority, and

procedures are not at issue, Tenn. Code Ann. § 4-5-322(h)(4), (5) require

the courts to review the commission’s decision using a three-step analysis.

First, the court must determine whether the commission has identified the

appropriate legal principles applicable to the case. Second, the court must

carefully examine the commission’s factual findings to determine whether

they are supported by substantial and material evidence. Third, the court

must examine how the commission applied the law to the facts. Armstrong

v. Metro. Nashville Hosp. Auth., No. M2004-01361-COA-R3-CV, 2006

WL 1547863, at *2 (Tenn. Ct. App. June 6, 2006) (No Tenn. R. App. P. 11

application filed); McEwen v. Tenn. Dep’t of Safety, 173 S.W.3d 815, 820

(Tenn. Ct. App. 2005).

271 S.W.3d 659, 664 (Tenn. Ct. App. 2008). Trial and appellate courts will modify a

local civil service commission’s decision affecting the status of an employee of local

government “only if the commission’s action (1) violated constitutional or statutory

provisions, (2) was in excess of its authority, (3) utilized unlawful procedure, (4) was

arbitrary, capricious, or characterized by an abuse or clearly unwarranted use of

discretion, or (5) is unsupported by substantial and material evidence.” Id. (footnotes

omitted).

IV. Violation of MNPD Policy

Officer Terrazas contends that in determining that he had violated MNPD Policy,

the trial court failed to conduct the proper three-step analysis of the Commission’s

findings. See Tenn. Code Ann. § 4-5-322(h); Miller, 271 S.W.3d at 664. With respect to

the first step of this analysis, Officer Terrazas argues that the trial court, not the

Commission, failed to “identify the appropriate legal principle to be applied to the

interpretation of MNPD’s Substance Abuse Policy [Program].” We determine this

argument to be unavailing because without question, the Commission (as well as the trial

court) identified the appropriate program provisions that applied to Officer Terrazas’s

disciplinary proceeding. At every stage of appeal, the relevant provisions of the MNPD

Policy, such as section 2.10.100, which undoubtedly applies given the nature of the

charge, as well as section 2.10.040, which Officer Terrazas urged should have been

applied, were analyzed. Upon a thorough review of the record, we determine that every

tribunal that considered the charges and the discipline against Officer Terrazas correctly

identified the appropriate legal principles in play as set forth in the MNPD Policy.

-6-

We next turn to whether the agency’s factual findings are supported by substantial

and material evidence. See Miller, 271 S.W.3d at 664. Only one factual finding is in

dispute: whether Equibolin is an immediate precursor to the illegal steroids for which

Officer Terrazas tested positive. Officer Terrazas urges this Court, as he did the trial

court, to uphold the factual finding in the ALJ’s initial order that Equibolin is not an

immediate precursor to the prohibited substances of Boldione or Boldenone.5 In the final

order, the Commission amended the ALJ’s factual finding to reflect that Equibolin is an

immediate precursor to the prohibited steroid, an illegal controlled substance. It is the

final order, not the initial order, that is the subject of our judicial review. See McEwen v.

Tenn. Dep’t of Safety, 173 S.W.3d 815, 823 (Tenn. Ct. App. 2005) (explaining that

although “[a] reviewing court’s task becomes somewhat more complicated when an

agency disagrees with the findings of fact in an initial order,” “it is still the agency’s final

order, not the initial order, that is reviewed”).

Nonetheless, as this Court has explained:

The initial order is a relevant and important part of the

administrative record. While a reviewing court must focus its attention on

the agency’s final order, it may consider the initial order when determining

whether the agency’s final order has sufficient evidentiary support. If the

record contains evidence sufficient to support the conflicting findings of the

agency and the hearing officer or the administrative judge, the agency’s

findings must be allowed to stand even though the court might have

reached a different conclusion on its own.

Id. at 824 (internal citations omitted). On appeal, Officer Terrazas specifically argues

that the trial court and the Commission erred in concluding that he violated MNPD Policy

section 2.10.100 because his consumption of Equibolin purportedly did not constitute

consumption of an “immediate precursor” to a controlled substance. He argues that

“[t]he metabolization of Equibolin by the human body into other naturally occurring

substances does not qualify it as an immediate precursor to a controlled substance as

defined by Tennessee law or MNPD policy.”

The MNPD Policy, section 2.10.030(G), defines “Controlled Substances” as

follows:

5

Officer Terrazas also argues that determining whether this supplement constitutes an “immediate

precursor” is a question of law. We disagree. Although the definition of “immediate precursor” requires

reference to the MNPD Policy and its incorporation of various terms from Tennessee’s Drug Control Act,

see Tenn. Code Ann. § 39-17-402, a consideration of the relevant testimony put forth by both sides was

required in order to determine whether the evidence demonstrated that Equibolin was an immediate

precursor. It is thus a question of fact.

-7-

A drug which has been declared by federal or state law to be illegal for sale

or use, but may be dispensed under a physician’s prescription. A substance

subject to the Controlled Substances Act (1970), which regulates the

prescribing and dispensing, as well as the manufacturing, storage, sale, or

distribution of substances assigned to schedules I though VII. A drug,

substance, or immediate precursor in Schedules I through VII of the

Tennessee Code Annotated.

(Emphasis added.) The MNPD Policy does not contain a definition for “immediate

precursor.” Upon review, we determine that although imprecise in its reference to

“Schedules I through VII of the Tennessee Code Annotated,” it is clear that the MNPD

Policy refers to the drug schedules listed in Tennessee Code Annotated §§ 39-17-405

through -416 (2018 & Supp. 2020).

In the initial order, the ALJ noted that the term, “immediate precursor,” is “taken

directly from Tennessee’s Drug Control Act, T.C.A. § 39-17-402” although the ALJ also

stated that the definition provided in that section is not applicable to the circumstances of

this case. Tennessee Code Annotated § 39-17-402(14) (Supp. 2020) defines “immediate

precursor” as:

a substance that the commissioner of mental health and substance abuse

services, upon the agreement of the commissioner of health, has found to be

and by rule designates as being the principal compound commonly used or

produced primarily for use, and that is an immediate chemical intermediary

used or likely to be used in the manufacture of a controlled substance, the

control of which is necessary to prevent, curtail, or limit manufacture[.]

The statute defines “manufacture” as follows in pertinent part:

the production, preparation, propagation, compounding, conversion or

processing of a controlled substance, either directly or indirectly by

extraction from substances of natural origin, or independently by means of

chemical synthesis, and includes any packaging or repackaging of the

substance or labeling or relabeling of its container . . . .

Tenn. Code Ann. § 39-17-402(15).

Concerning the definition of an immediate precursor, the Rules of the Tennessee

Department of Mental Health and Substance Abuse Services, Chapter 0940-06-01,

indicate that the commissioner of that department has not designated any substances as

immediate precursors in the context of Schedule III controlled substances where anabolic

steroids are listed. See Tenn. Comp. R. & Regs. 0940-06-01-.03; see also Tenn. Code

Ann. § 39-17-410 (2018) (listing anabolic steroids as a schedule III controlled substance).

-8-

We thus agree with the ALJ’s determination that the definition found in Tennessee Code

Annotated Section 39-17-402(14) is not applicable to the facts in the case at bar, where

the substance at issue is a supplement that converts in the body to a prohibited anabolic

steroid.

Although the reference to the drug statutes does not assist us in determining

whether Equibolin is an immediate precursor in this situation, the plain meaning of the

words, “immediate” and “precursor,” as used in section 2.10.030(G) of the MNPD

Policy, does. “Precursor” is defined by MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY

in relevant part as “a substance, cell, or cellular component from which another

substance, cell, or cellular component is formed.” 917 (10th ed. 1998). “Immediate” is

defined in relevant part as “acting or being without the intervention of another object,

cause, or agency: DIRECT.” Id. at 579.

Bearing those definitions in mind, we consider the testimony regarding the

substances at issue presented during the administrative hearing. Metro called Melinda

Shelby, Ph.D., as a witness, and she provided testimony relevant to the determination of

whether Equibolin constituted a drug, substance, or immediate precursor to the prohibited

steroid for which Officer Terrazas tested positive. Dr. Shelby testified that “Boldenone is

an anabolic androgenic steroid that’s chemically similar to testosterone” and that

“Boldione is also an anabolic androgen steroid, and it has been documented to be both a

precursor and a metabolite of Boldenone.” She explained what she meant by “precursor”

and “metabolite” as follows:

A precursor, sometimes also called a prohormone, would be something -- a

chemical that, when you take it in your body, turns into something else.

So when I say Boldione is a precursor to Boldenone, I mean that if

you take Boldione, it’s going to convert to Boldenone in your body.

Now, as far as a metabolite goes, we all have enzymes in our body,

drug metabolizing enzymes, that when the parent drug comes in, may

modify the parent drug in such a way to produce a different chemical

compound that we call metabolites. And often in urine drug testing, a

metabolite may be present in urine for a period longer than the parent drug,

and so oftentimes we will look for metabolites to indicate use of a parent

drug.

Dr. Shelby testified without objection that both Boldenone and Boldione are

“Schedule III controlled substances.” She explained that Boldenone is a “veterinary

product” and that therefore a person cannot get a prescription for it although it is “popular

amongst body builders and also just different athletes that are interested in gaining

muscle mass.” Dr. Shelby also testified that Equibolin has a similar chemical structure

-9-

and similar biological effects as Boldenone and that “the chemical structure of the

ingredient for the Equibolin, when you take it in your body, your body will convert it to

Boldenone and Boldione itself.” She also presented some marketing materials for

Equibolin, which stated that “Equibolin is the last precursor to the prized anabolic

Boldenone and uses a unique pathway to convert in the body.”

The above testimony constitutes substantial and material evidence that would

support a finding that Equibolin is an immediate precursor to a controlled substance. In

light of Dr. Shelby’s uncontroverted testimony that the chemical structure of the

ingredients in Equibolin would cause the human body to convert it to Boldione, which

then is converted by the body into Boldenone, sufficient evidence is in the record to

support the Commission’s conclusion that Equibolin is an immediate precursor to a

prohibited controlled substance.

We turn to the third step in our analysis, whether the agency properly applied the

law to the facts. Officer Terrazas does not dispute that he tested positive for the illegal

steroids, Boldenone and Boldione. Instead, he contends that the positive test result was

due to taking a legal, over-the-counter supplement and that the positive drug test cannot

therefore be viewed as the result of his consuming a controlled substance or its precursor.

Accordingly, he argues that his dismissal or suspension pursuant to section 2.10.100 of

the policy was unwarranted.

The applicable language in the MNPD Policy provides:

2.10.100 Positive Test Results

A. An employee who tests positive for controlled substances or

alcohol, refuses to submit to such tests, attempts to tamper

with the test or is unable to provide an adequate breath or

urine sample for testing is in violation of this policy, and shall

be removed from performing normal duties pending further

action and/or decommissioned consistent with established

policy. (Category AA)

B. Whether prescription medication, over the counter

medication, performance enhancing substances, or other

substances, each employee is responsible for what he/she

voluntarily ingests. Each employee is responsible for

ensuring that the medication or other substances ingested do

not impair his/her ability to perform their duties and are not

prohibited by law or policy. A positive test is a positive test,

no matter the source of the substance that produces the

positive test.

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(Emphasis in original.)

The ALJ relied upon a wholly different part of the MNPD Policy, section

2.10.040, to justify imposing a twenty-day suspension:

2.10.040 Departmental Procedures and Rules

A. Prohibited Activity

The following rules shall apply to all applicants, probationary

employees, civilian employees, and sworn employees, while

on and off duty:

1. The illegal use of drugs is a crime which shall not

be tolerated among employers of the department.

The recreational or experimental use of any illegal

drug or controlled substance by an employee is

prohibited. No employee shall be on duty while under

the influence of intoxicants or drugs. An employee

shall report for duty and remain free from the influence

and odor of intoxicants and/or drugs while on duty.

(Category AA)

***

5. The non-medical use and associated abuse of

prescription medications and performance enhancing

drugs, as well as the use, possession, and/or

distribution of illegal drugs is unacceptable and

prohibited by this policy as is the use of masking

agents or diuretics taken to conceal or obscure the use

of prohibited drugs. (Category B-AA)

a. Employees may receive a prescription drug,

acquire an over-the-counter drug, dietary aid, or

mood/performance enhancing substance which

carries warnings that must be considered.

Members should discuss these warnings with

their physician along with their job tasks and

duties to ensure that their performance is not

affected nor the safety of the employee or

others. (Category B-AA)

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b. Performance enhancing substances may also

have significant warning label concerns that

employees should understand. Performance

enhancing drugs are any substances taken to

increase a particular skill-set. These substances

may not only be steroids, but include many

items available over the counter and even in

health food type stores. (Category A-AA).

(Emphasis in original.)

Officer Terrazas urges that it would have been appropriate for MNPD to charge

him with violating section 2.10.040(5) of the MNPD Policy. The Commission disagreed,

concluding that Officer Terrazas had violated subsection B of section 2.10.100. The

Commission then imposed, in essence, a nearly eighteen-month suspension by reinstating

Officer Terrazas to his position without backpay or benefits for the time period during

which his employment had been terminated.

It is undisputed that Officer Terrazas tested positive for a controlled substance.

Therefore, MNPD operated within the strictures of the MNPD Policy by terminating

Officer Terrazas’s employment. Similarly, we discern no error in the Commission’s

application of section 2.10.100 to the facts of this case. However, we cannot read

subsection B, which does not set forth a disciplinary category for its violation, in

isolation. Subsection A identifies positive test results as Category AA offenses, and

those offenses carry a single disciplinary option according to MNPD’s

“Disciplinary/Corrective Action Grid Chart”: “Dismissal.”

The ALJ and the Commission voiced concerns about the zero-tolerance nature of

this provision, especially in light of other provisions in section 2.10.100 of the MNPD

Policy that allow for rehabilitation and participation in a department-approved,

supervised drug and/or alcohol rehabilitation and treatment program. However, those

provisions pertaining to rehabilitation are only applicable to employees who misuse

prescription drugs or abuse alcohol, neither of which are in play in Officer Terrazas’s

situation.6

6

Section 2.10.100(B)(2)(c) of the MNPD Policy states in pertinent part, “Rehabilitation program

participation will be allowed only for the misuse of prescription drugs or the abuse of alcohol. THERE

WILL BE NO ALLOWANCE FOR THE USE OF ILLEGAL DRUGS; those persons will not be

afforded an opportunity to participate in a department-approved, supervised drug and/or alcohol

rehabilitation and treatment program.” (Emphasis in original.)

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The stated purpose of section 2.10.100(B), the provision cited by the Commission

as having been violated by Officer Terrazas, is to hold police officers responsible for

what they put in their bodies. Elaborating on the reasoning for the harsh disciplinary

result of dismissal, Deputy Chief Brian Johnson, who presided over Officer Terrazas’s

initial disciplinary hearing and sustained the substance abuse charge, testified as follows

when asked why steroids like Boldenone are prohibited under the MNPD Policy:

Well, steroids, I believe, in general, are known to cause sometimes

mood disorders and things like that, so the police department has banned

them. One, they’re just -- on the face of them, they’re illegal to take. And

so with any illegal substance, you know, being police officers, we’re bound

to uphold the law, so we can’t be in violation of the law by taking an illegal

substance and then performing the job of a police officer.

Furthermore, Lieutenant Jerry Hertenstein testified that Boldenone is “specifically

prohibited” by the MNPD Policy and that testing positive for it is a Category AA offense,

which he explained is a “termination offense.” Upon careful review, we discern no error

in the Commission’s decision that Officer Terrazas’s positive drug test constituted a

violation of section 2.10.100.

Although not raised by Officer Terrazas on appeal, to complete the analysis, we

next consider the trial court’s ruling that the discipline imposed by the Commission

ignored the plain language of the MNPD’s rules and regulations, rendering the decision

to impose a suspension rather than termination arbitrary and capricious. “In its broadest

sense, the [arbitrary and capricious] standard requires the court to determine whether the

administrative agency has made a clear error in judgment.” Wade v. Tenn. Dep’t of Fin.

& Admin., 487 S.W.3d 123, 136 (Tenn. Ct. App. 2015) (quoting Jackson Mobilphone

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

“An arbitrary decision is one that is not based on any course of reasoning or exercise of

judgment or one that disregards the facts or circumstances of the case without some basis

that would lead a reasonable person to reach the same conclusion.” Id. (citations

omitted).

As did the trial court, we find instructive the holding in City of Memphis v. Civil

Serv. Comm’n of City of Memphis that “for a sensitive position such as that of a police

officer, the City must be permitted to impose a zero-tolerance policy to combat substance

abuse within the police force, without such a policy being undermined by the

Commission.” No. 02A01-9512-CH-00289, 1997 WL 685006, at *6 (Tenn. Ct. App.

Nov. 4, 1997). In that case, a Memphis police officer who struggled with alcoholism

voluntarily entered into the city’s Employee Assistance Program (“EAP”); he

subsequently tested positive for cocaine and was terminated for the positive drug test and

for failing to comply with regulations by violating his EAP contract to remain drug free.

Id. at *1-2. The Civil Service Commission of Memphis found that the police officer had

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committed a violation worthy of discipline but rejected termination as being too harsh for

a first offense under the circumstances. Id. at *4. The trial court reversed that decision,

finding that the Commission had rendered a decision that was arbitrary and capricious.

Id. at *6. On appeal, this Court affirmed the trial court’s decision, concluding that “the

City had a reasonable basis for termination” because “the Plan signed by [the officer]

[was] stark in its clarity: ‘Failure to remain substance free will result in termination of

employment.’” Id.

The MNPD Policy, on which Lieutenant Hertenstein testified that Officer Terrazas

would have been trained, is similarly stark in its clarity: a positive drug test merits the

Category AA disciplinary action of dismissal. The Commission’s action in this case

signaled that it agreed that Officer Terrazas had violated section 2.10.100 of the MNPD

Policy by testing positive for an illegal steroid but that it disagreed that the violation

merited the dismissal that is provided in the policy. The Commission’s decision

disregarded the plain language of section 2.10.100 and its consequences for a positive test

result.

We are sympathetic to the significant injuries Officer Terrazas received in the line

of duty and the difficulties he endured in rehabilitating his body, and we are also mindful

of Officer Terrazas’s otherwise stellar disciplinary record. However, the Commission

cannot be permitted to undermine the MNPD policy combating substance abuse within

the police department. We therefore conclude that the trial court was correct in

determining that the Commission rendered an arbitrary and capricious decision by

substituting its judgment for the rules and policies of the MNPD.

V. Conclusion

For the foregoing reasons, we affirm the judgment of the trial court in all respects.

We remand this case to the trial court for enforcement of the judgment and collection of

costs below. Costs on appeal are taxed to the appellant, David Terrazas.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

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