Kenneth Washington v. City of Memphis Civil Service Commission

02/05/2021

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

November 18, 2020 Session

KENNETH WASHINGTON v. CITY OF MEMPHIS CIVIL SERVICE

COMMISSION

Appeal from the Chancery Court for Shelby County

No. CH-19-0592 Jim Kyle, Chancellor

___________________________________

No. W2020-00185-COA-R3-CV

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This appeal arises from a petition for judicial review of a decision of the City of Memphis

Civil Service Commission. The appellant was terminated from his employment with the

City after he was found to have violated two sections of the city’s disciplinary policy. The

Civil Service Commission upheld his termination. The appellant then sought judicial

review in chancery court. After reviewing the record, the chancery court likewise upheld

termination. The appellant appealed to this Court. Discerning no error, we affirm and

remand for further proceedings.

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

and Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which ARNOLD B.

GOLDIN and KENNY W. ARMSTRONG, JJ., joined.

Herman Morris, Jr., Memphis, Tennessee, for the appellant, Kenneth Washington.

Dennis P. Hawkins, Senior Assistant City Attorney, Memphis, Tennessee, for the appellee,

City of Memphis.

OPINION

I. FACTS & PROCEDURAL HISTORY

Kenneth Washington began his employment with the City of Memphis Code

Enforcement Department in 2009. Washington was employed as a “code inspector

officer.” He was terminated in 2017 based on his behavior at an apartment complex within

his district called Washington Manor Apartments. This was a very large apartment

complex that had sustained fire damage and had multiple code violations. Washington

went to the complex and met with regional property manager Teashea Lloyd. He also met

with other individuals at the apartment complex on other occasions. Washington’s direct

supervisor, Eddie Jones (“Supervisor Jones”), visited the complex as well. Ms. Lloyd

complained to the Code Enforcement Department about what she perceived to be

inconsistent instructions from Washington. As a result, Supervisor Jones spoke with Ms.

Lloyd about the situation. According to Supervisor Jones, Ms. Lloyd informed him, during

this conversation, that Washington “was offering himself up” to do the necessary work at

the property. Supervisor Jones asked Ms. Lloyd to put her complaint in writing. Ms. Lloyd

then sent a formal letter of complaint to Supervisor Jones describing her experience with

Washington and his interaction with other members of the staff at Washington Manor

Apartments.

Upon receipt of the letter, Supervisor Jones initiated an investigation into the matter.

He notified Washington and his union representatives about the complaint that had been

lodged and that there was going to be an investigation. Supervisor Jones went back to the

apartment complex and spoke with three members of the management team and obtained

statements from them. He also spoke with a member of the maintenance staff. Supervisor

Jones allowed the union representative to interview those witnesses as well. After

considering all of the facts he obtained during his investigation, Supervisor Jones issued a

notice of charges to Washington alleging that he had violated two sections of the City’s

personnel policy entitled “Grounds for Disciplinary Action.” Those sections provide that

disciplinary action may be taken when:

6. The employee has solicited and/or taken a bribe, a fee, a favor, or a

gift in the course of work, or in the connection [sic] with work.

...

17. The employee has either on or off the employee’s regular duty hours

engaged in employment activities, or enterprises that are inconsistent,

incompatible, or in legal, technical, or moral conflict with the employee’s

assigned duties, functions, and responsibilities.

Pursuant to the policies and procedures employed by the City’s Department of Public

Works, Supervisor Jones and another supervisor then conducted a “fact-finding hearing”

on the matter. Washington was present with his union representative. He was asked and

answered several questions about the incident. He denied that he solicited construction

work from the apartment manager or any other employee. However, he admitted that,

while on duty at the apartment complex, he gave a personal business card to someone at

the property indicating that he was a general contractor. Washington was also given the

opportunity to submit any additional statements or evidence to refute the allegations, but

he had none.

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Supervisor Jones prepared a written summary of the fact-finding hearing and

submitted it along with all of the other relevant paperwork to “upper management” for the

ultimate decision. One week later, Washington received a document entitled “Hearing

Summary and Decision,” which described his statements from the fact-finding hearing, the

policies he was found to have violated, and the ultimate decision of management. This

Summary stated that it was “clear from a preponderance of the evidence” that Washington

violated Paragraphs 6 and 17 of the City’s personnel policy. The document also stated that

his answers during the fact-finding hearing demonstrated “a lack of honesty and integrity”

and that he failed to refute the charges against him. It stated that his “inconsisten[t]

answers” made it “clear that you gave your contractor business card with the intentions of

financial gains to an employee (unnamed male) of the Washington Manor apartments[.]”

As for the discipline to be imposed, the Summary noted that Washington’s disciplinary

history included “multiple major infractions,” including three suspensions for a total of 48

days. It also noted that he had “consistently underperformed” in his job duties and

responsibilities. As such, the Summary notified Washington that the appropriate discipline

was determined to be termination of his employment, effective immediately.

Washington sought an appeal before the City of Memphis Civil Service

Commission (“the Commission”).1 A hearing was held before a civil service commissioner

on February 12, 2018. The commissioner heard testimony from Washington, Supervisor

Jones, Ms. Lloyd (the apartment complex manager who complained), and a former

manager of the same apartment complex. Ms. Lloyd testified that she had been working

in property management for about eighteen years, but she had only been managing the

Washington Manor apartment complex since November 2016. She handled a wide range

of day-to-day needs at the property, including code inspection issues. Ms. Lloyd explained

that Washington Manor had several buildings that needed work due to the fire damage and

various other issues. She said there was so much work that needed to be done at the

property that contractors regularly visited the site, wanting to bid on the work. She had

1

As we noted in a prior appeal,

Section 246 of the City of Memphis Charter . . . provides that the City may terminate an

employee for “just cause,” and provides that “[j]ust cause shall exist when the employer

had a reasonable basis for the action taken.” Section 248 of the Charter provides that on

appeal to the [Civil Service] Commission, “[t]he burden of proof required to sustain the

action of the City shall be by a preponderance of the evidence. If, after a presentation of

the proof, the hearing officer finds that there exists a reasonable basis for the disciplinary

action taken, the action of the City shall be sustained.

Cooper v. City of Memphis Civil Serv. Comm’n, No. W2018-01112-COA-R3-CV, 2019 WL 3774086, at

*4-5 (Tenn. Ct. App. Aug. 12, 2019) (quoting Holmes v. City of Memphis Civil Serv. Comm’n, No. W2016-

00590-COA-R3-CV, 2017 WL 129113, at *9 (Tenn. Ct. App. Jan. 13, 2017)). Thus, in order “[t]o prevail

in the Commission proceedings, the City [is] required to demonstrate, by a preponderance of the evidence,

that [the employee] violated the applicable rules and that the violation, in light of the circumstances,

furnished a reasonable basis for terminating his employment.” Holmes, 2017 WL 129113, at *9.

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advised the on-site manager to have contractors leave business cards for her to review and

contact them for bids. Ms. Lloyd said that one of the business cards she reviewed belonged

to Washington.

When asked if she personally had any interactions or conversations with

Washington, Ms. Lloyd responded:

He came by the property and asked who was doing the work, and he told me

that he was a contractor and that he could do the work cheaper than anybody

around because he knows the property very well. That he has been an

inspector and he knows, that he has contacts, that he could do the work

because he was a contractor himself.

Ms. Lloyd said this interaction made her feel “kind of upset” because Washington was

wearing his Code Enforcement uniform, which “made [her] feel kind of obligated to use

him, because he had been on the property citing us for different issues.” During cross-

examination, Ms. Lloyd conceded that Washington did not “ask me to let him do the work.”

However, she reiterated that Washington told her, “[Y]ou have a lot of issues on this

property, I can help you get those done. I am a contractor, and I will be able to do it a lot

cheaper, because I know the property and I have the manpower.” Ms. Lloyd explained that

this made her uncomfortable because she “didn’t want to be obligated to somebody that

would be able to make or break me as far as doing the work on the property.” She added,

“if Code Enforcement is going to come in and inspect the property, I don’t want them to

be biased to who I use as a contractor.” Ms. Lloyd noted that this was the only occasion in

which she personally spoke to Washington, but she said he had been to the apartment

complex several other times. She also clarified that Washington did not give her his

business card during their encounter and that she had obtained it from the maintenance

worker.

Ms. Lloyd said she verbally informed Supervisor Jones “that I felt very

uncomfortable having [Washington] wanting to do the work, and I said I want to report

him.” Ms. Lloyd said Supervisor Jones asked her to put her complaint in writing, so she

sent a letter. Ms. Lloyd said the substance of her written letter was essentially the same as

the verbal testimony she had just given. She acknowledged that her letter stated that

Washington had conversed with her staff and tried to intimidate them to use his contracting

service by referring to his position as inspector. Ms. Lloyd clarified that she was not

present for the conversations between Washington and her staff but that her staff members

reported the information to her. She said Supervisor Jones took statements from her on-

site manager and her maintenance worker.

During his testimony, Supervisor Jones likewise described his initial conversation

with Ms. Lloyd, when she complained about Washington, and that he received her written

complaint days later. He said he returned to the property to interview additional witnesses,

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including other members of management and “the maintenance man.” Supervisor Jones

testified that Washington had given his business card to the maintenance man. Based on

conversations with Ms. Lloyd, Supervisor Jones said his understanding of what had

occurred was “pretty much what she put in her complaint: That the maintenance man came

to her, that Mr. Washington wanted them to contract the work with him, and that he could

do the work because he knows what Code is looking for.”

He also described how the investigative process works within the department with

fact-finding hearings. Supervisor Jones was the one who prepared the “Hearing Summary

and Decision” document, but he said the ultimate decision was made by upper

management. The Hearing Summary and Decision document was admitted for a limited

purpose as a business record. However, Washington objected to the document on the basis

of hearsay, and the commissioner cautioned counsel for the City that it would “have to

prove the truth of any matters asserted therein.” Counsel confirmed that he was offering

the document to show that due process was afforded and that Washington was given an

opportunity to be heard.

Because Washington was alleged to have “solicited and/or taken a bribe, a fee, a

favor, or a gift” in the course of or in connection with work, under Paragraph 6 of the

personnel policy, Supervisor Jones was asked his opinion as to which of those items

Washington allegedly solicited or took. Supervisor Jones said he interpreted the policy to

mean that discipline is appropriate when the employee has “solicited” anything, not just

one of the listed items. Thus, Supervisor Jones believed that Washington violated the

policy simply by soliciting work. However, Supervisor Jones was not the ultimate

decision-maker as to disciplinary matters.

After the City closed its proof, Washington presented testimony from a former

manager of the Washington Manor apartment complex, who testified that she had met with

Washington in 2016 and that he never proposed to do work as a contractor. Washington

also testified. He insisted that he did not “ask [Ms. Lloyd] to allow him to do contractor

work,” nor did he “otherwise solicit” any work from the staff at Washington Manor.

Reading directly from the Hearing Summary and Decision, Washington said that during

the fact-finding hearing with Supervisor Jones, he was asked if he had ever solicited work

from the staff at Washington Manor and answered, “No, I did not.” Referencing the

pertinent language in the personnel policy, Washington testified that he never solicited a

bribe, fee, gift, gratuity, or anything of that nature, and he did not act in a manner

inconsistent or incompatible with his duties.

Washington conceded, though, that he is a general contractor and that he carried

business cards reflecting this information while working for the City. Washington also

admitted that he had given one of these business cards to an individual at Washington

Manor. When asked if he knew that person to be a staff member of the apartment complex,

Washington responded, “No, he did not identify himself as being an employee of the

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Washington Manor.” Washington’s testimony about why he gave his contractor business

card to this individual was a bit unclear. He stated,

I was there, he was talking about -- he said, Do you know anybody that might

be hiring. I said, No, I don’t know anybody that might be hiring, but I’ll give

you one of my cards and if anybody comes to me, you know, give a call at

some time if anybody contacts me about a job. I’ll give them your

information.

Washington also admitted that he had a conversation with Ms. Lloyd and that he disclosed

to her that he was a general contractor. Again, however, his explanation for doing so was

somewhat inconsistent. The following exchange occurred:

Q. Okay. Did you have a conversation with Ms. Lloyd?

A. I did.

Q. Did you ever mention that you were a contractor and that you could

do that work?

A. It came up to the point to where in doing my job I always let them

know, anywhere I go in the City I let them know that I am qualified to

do this job, because I am a contractor.

Q. Do you believe you did that with Ms. Lloyd?

A. That is the only reason that I would even mention that, because of the

qualification that I would have like to have them to know, because it

is known that the City itself is not qualified, does not have qualified

people that are actually code inspectors. . . .

(emphasis added). Washington changed his testimony when he was asked if his

conversations about being a contractor had ever led to him getting hired by other property

owners to do a job. At that point, Washington denied that it was part of his “regular course”

to inform property owners about his contracting background. As a result, Washington was

asked again to explain his conversation with Ms. Lloyd. This time, he said, “If she would

have asked me was I qualified to do that, then I would have told her that.”

After the hearing, the commissioner issued a written decision upholding

Washington’s termination. The commissioner concluded that Washington “failed to

explain adequately why he was handing out his personal business card, while on City

business.” The commissioner found Ms. Lloyd’s testimony “was credible in explaining

that Washington handed out his personal business card in order to solicit work for his

contracting business.” The commissioner noted that Washington did not suggest any

motive for Ms. Lloyd to fabricate her story or otherwise adduce proof that she was not

credible in her accusation. The commissioner described the situation as “one person’s

word against another, necessitating a credibility assessment.” The commissioner also

noted that Supervisor Jones had taken statements from other witnesses at the apartment

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complex and found that these other witnesses corroborated Ms. Lloyd’s account before he

took further disciplinary measures. Although the commissioner declined to consider the

substance of those statements due to hearsay concerns, the commissioner found that this

investigative process indicated that the City did not act arbitrarily or capriciously in making

its decision to commence disciplinary proceedings.

Again, the commissioner found that Ms. Lloyd’s “live testimony” was credible in

explaining why Washington handed out his personal business card during a workday while

in uniform. Thus, the commissioner found that there was a sufficient basis for the City to

conclude that Washington “solicited work outside the scope of his assigned duties” and

“acted in a manner inconsistent, incompatible, or in legal, technical, or moral conflict with

his assigned duties, functions and responsibilities” within the meaning of the personnel

policy.

Finally, the commissioner noted that the City had based its decision to terminate on

Washington’s disciplinary history and work performance and that Washington did not

challenge the listing of multiple violations of work policies and rules. Discerning no

argument about the severity of the discipline imposed, the commissioner upheld

termination.

Washington appealed to the full Civil Service Commission. Among other things,

he argued that he was not afforded due process because the person who made the ultimate

decision to terminate him, Director Robert Knecht, did not testify at the hearing before the

commissioner. Washington claimed that he was not aware of the fact that Director Knecht

was the ultimate decision-maker until the date of the hearing. As a result, the full

Commission remanded the matter to the commissioner to give Washington the opportunity

to “confront” Director Knecht. The Commission clarified that the parties could rely on the

original transcript, supplemented with the testimony of Director Knecht, rather than

repeating the entire hearing.

At the additional hearing before the commissioner on remand, Director Knecht was

the only witness to testify. He was the Public Works Director for the City of Memphis. In

that position, Director Knecht reviewed investigations on personnel matters for the

department and made “the final decision” with regard to suspensions or terminations.

Director Knecht was consulted in Washington’s case and had reviewed the complaint

against him and the investigation that had been conducted. Director Knecht said that one

of the documents on which he relied was the letter from Ms. Lloyd. He was of the opinion

that her letter “merit[ed] serious consideration” because it was “a statement from a witness

firsthand” of her interaction with Washington. He noted that Ms. Lloyd “took the time to

write a statement” about the incident, he had no reason to doubt her sincerity, and he

considered her statement to be “honest and factual.” Director Knecht acknowledged that

he was not an eyewitness to the conversation but said that is why his department relies on

the fact-finding process to allow employees to present evidence and respond to charges.

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Director Knecht said that he spoke with Supervisor Jones “in-depth” about what

information he was able to gather during the fact-finding process in order to be sure that

“due diligence” had been exercised. Director Knecht also reviewed the summary of the

fact-finding hearing, which reflected Washington’s statements on the matter.

Director Knecht testified that Washington’s case involved “severe violations of City

policies,” which led to the decision to terminate him. He explained that Washington had

engaged on behalf of Code Enforcement “to be a contractor to correct the violations that

he was citing”, which would be “a huge conflict of interest and [] unacceptable.” Director

Knecht said that Washington “solicited business,” while a representative of Code

Enforcement, to address the issues he had cited, thereby abusing his power and authority

and the public trust. Simply put, he stated, “As an inspector you cannot also be the person

to correct work that you’re also citing[.]” When asked if Washington actually completed

any work, Director Knecht responded, “He offered to.” Considering this severe violation

of policy, in addition to Washington’s prior work history with several suspensions in the

previous two years, Director Knecht found “a trend in negative workplace behavior”

indicating that Washington was unwilling to change his behavior.

On cross-examination, Director Knecht was asked about the specific language of

the City policies allegedly violated. He clarified, “I never said that he solicited a bribe[.]”

Instead, Director Knecht took the position that Washington “solicited business.”

Acknowledging that Paragraph 6 provides for discipline if the employee “has solicited

and/or taken a bribe, a fee, a favor, or a gift in the course of work,” Director Knecht was

of the opinion that “[s]olicitation of work would be a solicitation of a fee[.]” He said that

soliciting work would be an attempt to earn money or a fee. Director Knecht conceded

that no fee was discussed but pointed out that Washington said he could offer “a better

price” than other contractors because he knew what the City would be looking for during

inspections. In his opinion, that constituted the solicitation of a fee. With respect to

Paragraph 17, Director Knecht believed that Washington violated that section by abusing

his authority and the public trust and intimidating members of the public, which, he said,

would constitute activities inconsistent or incompatible with his assigned duties and

responsibilities.

After this additional hearing, the commissioner issued another decision, describing

the supplemental testimony of Director Knecht. The commissioner again found that

Washington’s violations of the personnel policy provided a sufficient basis for the actions

taken. The commissioner noted that Paragraph 17 prohibited “engaging in enterprises

inconsistent, incompatible, or in legal, technical, or moral conflict with the employee’s

assigned duties.” With respect to Paragraph 6, the commissioner concluded that

Washington’s statement that he could do the work at a good price could “reasonably be

interpreted as solicitation of a favor[,] i.e.[,] to contract him to perform the work.”

Washington sought judicial review of the commissioner’s decision in chancery

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court pursuant to Tennessee Code Annotated section 4-5-322. Washington argued that he

had not violated Paragraph 6 or Paragraph 17 of the personnel policy. He argued that the

letter from Ms. Lloyd and the written summary of the fact-finding hearing were

“inadmissible hearsay” having “no probative value” and that they should not have been

considered. He argued that the commissioner did not admit these exhibits “for the truth of

the matters asserted.”

After reviewing the record and holding a hearing, the chancery court entered an

order denying Washington’s petition. At the outset, the chancery court noted that the

parties stipulated that this case did not involve an allegation of bribery. The chancery court

further noted that “[t]he Parties agreed the standard of review is a preponderance of the

evidence standard.” After summarizing the basic facts and procedural posture of the case,

the chancery court found that just cause for termination existed based on Washington’s

violation of Paragraph 6 and Paragraph 17 of the personnel policy. With specific reference

to the language in Paragraph 6, the chancery court found that “solicitation in and of itself

is a violation of this policy” and that it was not necessary for solicitation to be “paired with

something else” mentioned in the policy. The chancellor concluded that this case involved

“a classic he said/she said situation.” He found it persuasive that Ms. Lloyd “took it upon

herself” to report the interaction to Washington’s supervisor. The chancellor found no

evidence or argument as to why she would make such a report if it did not occur. The

chancellor noted that there would be no benefit to her for reporting the exchange. Thus,

the chancellor found that Washington failed to rebut the City’s evidence that the exchange

did occur. Also, the chancellor observed that the commissioner had personally observed

the witnesses and come to the same conclusion, and the role of the chancery court was to

defer to the commissioner’s credibility determination. “[E]valuating the administrative

record as a whole,” the chancery court found that the City had sufficient just cause to

terminate Washington. Washington then filed a notice of appeal to this Court.

II. ISSUES PRESENTED

Washington presents the following issues, as we perceive them, for review on

appeal:

1. Whether the chancery court failed to apply the appropriate standard of review

pursuant to Tennessee Code Annotated section 4-5-322;

2. Whether the parties’ stipulation that there was no bribery entirely eliminated

Paragraph 6 from consideration;

3. Whether the chancery court erred in concluding that solicitation can, standing alone,

serve as a basis for termination, rather than requiring solicitation of a bribe, fee,

favor, or gift;

4. Whether Exhibits 1 and 4 contain uncorroborated hearsay such that they cannot

provide substantial and material evidence to sustain the decision of the Commission;

and

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5. Whether the administrative record as a whole contains substantial and material

evidence supporting the Commission’s finding that the City had just cause to

terminate Washington.

For the following reasons, we affirm the decision of the chancery court upholding

termination.

III. STANDARD OF REVIEW

“Judicial review of decisions by civil service boards of a county or municipality

which affects the employment status of a county or city civil service employee shall be in

conformity with the judicial review standards under the Uniform Administrative

Procedures Act, § 4-5-322.” Tenn. Code Ann. § 27-9-114(b)(1); see also Moss v. Shelby

Cty. Civil Serv. Merit Bd., 597 S.W.3d 823, 830 (Tenn. 2020). “Accordingly, Tennessee

Code Annotated section 4-5-322(h) contains the standard of judicial review that is used to

review decisions of the City of Memphis Civil Service Commission.” Davis v. City of

Memphis, No. W2016-00967-COA-R3-CV, 2017 WL 634780, at *3 (Tenn. Ct. App. Feb.

16, 2017) (citing City of Memphis v. Lesley, No. W2012-01962-COA-R3-CV, 2013 WL

5532732, at *6 (Tenn. Ct. App. Oct. 7, 2013)). Pursuant to this section,

(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.

Tenn. Code Ann. § 4-5-322(h). “This scope of review is the same for the trial court,

intermediate appellate court, and [the supreme court].” Davis v. Shelby Cty. Sheriff’s

Dep’t, 278 S.W.3d 256, 264 (Tenn. 2009) (citing Gluck v. Civil Serv. Comm’n, 15 S.W.3d

486, 490 (Tenn. Ct. App. 1999)).

On appeal, “we take into account whatever in the record fairly detracts from the

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weight of the evidence, but we may not substitute our own judgment on questions of fact

by re-weighing the evidence.” Id. at 265. We may reject the decision “only if a reasonable

person would necessarily reach a different conclusion based on the evidence.” Id. (citing

Martin v. Sizemore, 78 S.W.3d 249, 276 (Tenn. Ct. App. 2001)). “It is not enough that the

facts could support a different conclusion.” Id.

IV. DISCUSSION

A. The Chancery Court’s Standard of Review

The first issue we will address on appeal is whether the chancery court applied an

incorrect standard of review when considering the Commission’s decision. The chancery

court’s order states that “the Parties agreed the standard of review is a preponderance of

the evidence standard.” Indeed, the transcript of the hearing before the chancellor reflects

that Washington’s attorney stated, “The standard of review is a preponderance of the

evidence, Your Honor.” The chancery court’s order went on to state that based on “this

Court’s examination of all of the evidence,” the City “had just cause in terminating

[Washington] based on his violation of the two personnel policies.” The chancery court

found that Washington advised Ms. Lloyd, while at the apartment complex to conduct

inspections, “that he was a contractor and could perform the necessary improvements to

get the complex within code.” The chancery court found that Ms. Lloyd complained about

this and advised Supervisor Jones that her staff felt intimidated to utilize Washington’s

services. As previously noted, the chancery court found that this case presented “a classic

he said/she said situation” but placed weight on the fact that Ms. Lloyd took it upon herself

to report Washington’s behavior when she would not benefit from doing so. It also noted

the credibility assessment made by the commissioner who heard the live testimony.

“Looking at the administrative record as a whole,” the chancery court found that

Washington failed to rebut the City’s evidence that the exchange did occur as stated by Ms.

Lloyd. The chancery court noted that it was confined to the administrative record pursuant

to section 4-5-322(g), but it did not mention section 4-5-322(h).

To the extent that the chancery court accepted the parties’ agreement that “the

standard of review is a preponderance of the evidence standard,” the court erred. The

narrow standard of review is that set forth in section 4-5-322(h). However, the chancery

court’s error does not require reversal by this Court. The “substantial and material

evidence” standard of section 4-5-322 has been interpreted as requiring “less than a

preponderance of the evidence.” StarLink Logistics Inc. v. ACC, LLC, 494 S.W.3d 659,

669 (Tenn. 2016). If the chancery court concluded that the City’s action should be

sustained utilizing a preponderance of the evidence standard, then, by necessity, the

evidence would also meet the lesser substantial and material evidence standard. As such,

the application of the preponderance of the evidence standard was harmless error in this

case.

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We also note that the applicable scope of review of the Commission’s decision is

the same for the trial court and the appellate court. See id. (“An appellate court applies the

same limited standard of review as the trial court.”) Therefore, this Court can apply the

appropriate standard of review when considering the decision of the Commission. See

Metro. Gov’t of Nashville v. Civil Serv. Comm’n of the Metro. Gov’t of Nashville, No.

M2015-01488-COA-R3-CV, 2016 WL 3662306, at *13 (Tenn. Ct. App. June 30, 2016)

(“Under the UAPA, this court, like the trial court, must apply the substantial and material

evidence standard to the agency’s factual findings.”); Wilson v. City of Memphis, No.

W2014-01822-COA-R3-CV, 2015 WL 4198769, at *11 (Tenn. Ct. App. July 13, 2015)

(“[B]ecause the standard of review requires this Court to review the decision of the

Commission rather than the trial court, a trial court’s failure to make sufficient findings of

fact and conclusions of law will not always be fatal.”).2

B. Stipulation Regarding Bribery

Next, Washington argues that because the parties stipulated that he did not engage

in “bribery,” Paragraph 6 of the personnel policy was “eliminated . . . from the case in its

entirety.” We disagree. Paragraph 6 stated that disciplinary action could be taken when

“[t]he employee has solicited and/or taken a bribe, a fee, a favor, or a gift in the course of

work, or in the connection [sic] with work.” Clearly, soliciting or taking “a bribe” is one

of multiple ways in which this policy can be violated. Since the original hearing before

the commissioner, the City has made it clear, all along, that it was not alleging that

Washington solicited or took a bribe. However, that does not mean that Paragraph 6

became irrelevant or that it was eliminated from the case. We find no merit in this

argument.

C. Solicitation

The next issue also involves the interpretation of Paragraph 6. Again, the policy

provides for disciplinary action when “[t]he employee has solicited and/or taken a bribe, a

fee, a favor, or a gift in the course of work, or in the connection [sic] with work.” The

chancery court concluded that “solicitation in and of itself is a violation of this policy” and

that “solicitation may be used in conjunction with the words following the phrase or may

stand on its own.” The chancellor reasoned that there is no need for “solicitation” to be

“paired with something else.” Washington argues that this was an erroneous interpretation.

2

We took a similar approach in McEwen v. Tenn. Dep’t of Safety, 173 S.W.3d 815, 820-21 (Tenn.

Ct. App. 2005), when concluding that the trial court erred by employing the “substantial and material

evidence” standard of section 4-5-322(h)(5) to review an administrative forfeiture order. We applied the

correct “preponderance of the evidence” standard of review on appeal, although noting that it would impose

a heavier burden. Id. at 821 n.10. See also Tubbs v. Long, 610 S.W.3d 1, 8 (Tenn. Ct. App. 2020)

(“Although we agree that preponderance of the evidence, not substantial and material evidence, is the proper

standard of review, we conclude that the trial court’s use of the incorrect standard does not mandate

reversal.”).

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He asks this Court to “decide the correct interpretation” and “reach a correct result.”

Neither Director Knecht nor the Commission applied the interpretation utilized by

the chancery court. Director Knecht took the position that “[s]olicitation of work would

be a solicitation of a fee” because it was an attempt to earn money. Because Washington

said he could offer “a better price” than other contractors, Director Knecht considered his

actions as soliciting a fee. The commissioner did not explicitly reject this interpretation

but did find that Washington’s statement that he could do the work at a good price could

“reasonably be interpreted as solicitation of a favor[,] i.e.[,] to contract him to perform the

work.” Thus, for purposes of this appeal, it is not necessary to consider the chancery

court’s alternative interpretation of the policy and whether an employee could also be

terminated for solicitation “in and of itself.” That was not the basis for the termination in

this case. We must apply the appropriate standard of review to the Commission’s decision

and determine whether it was arbitrary and capricious or unsupported by substantial and

material evidence. Any alleged error by the chancery court in its alternative interpretation

of the policy does not impact our analysis.

D. Hearsay

Next, Washington argues that Exhibit 1 and Exhibit 4 consisted of inadmissible

hearsay and cannot provide substantial and material evidence to support his termination.

Exhibit 1 was the document entitled “Hearing Summary and Decision,” which described

the policies Washington was alleged to have violated, the underlying facts, his statements

during the fact-finding hearing, and the ultimate decision of management. This document

notified Washington of the termination of his employment. Exhibit 4 was the letter from

Ms. Lloyd.

“By their own terms, the Tennessee Rules of Evidence do not apply to

administrative hearings, but rather to court appearances.” Davis, 278 S.W.3d at 266; see

Tenn. R. Evid. 101 (“These rules shall govern evidence rulings in all trial courts of

Tennessee except as otherwise provided by statute or rules of the Supreme Court of

Tennessee.”).3 Generally, when appellate courts review decisions from these less formal

hearings, we “are guided, not by the Rules of Evidence, but instead ‘by a sense of fair play

and the avoidance of undue prejudice to either side of the controversy and [must determine]

whether . . . the action of the hearing Board in admitting or excluding evidence was

3

In Davis, the Court noted that “‘[n]either 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.’” 278 S.W.3d at 266 (quoting Goodwin v. Metro Bd. of Health, 656 S.W.2d 383, 388 (Tenn. Ct.

App. 1983)). Davis involved the Shelby County Civil Service Merit Board, and the Court noted that the

Civil Service Merit Act did not provide that hearings before the Board were subject to the Rules of

Evidence. Id. Here, there is nothing in the record to suggest that the Rules of Evidence have been adopted

by the City of Memphis Civil Service Commission. According to the City’s brief, “the Civil Service

Commission has not adopted the Tennessee Rules of Evidence.”

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unreasonable or arbitrary.’” Davis, 278 S.W.3d at 266 (quoting Goodwin, 656 S.W.2d at

388). However, in contested case proceedings pursuant to the Uniform Administrative

Procedures Act,4 a somewhat “relaxed standard” governs the admissibility of evidence.

Robertson v. Tenn. Bd. of Soc. Worker Certification & Licensure, 227 S.W.3d 7, 14 (Tenn.

2007). The UAPA provides, in pertinent part,

The agency shall admit and give probative effect to evidence admissible in a

court, and when necessary to ascertain facts not reasonably susceptible to

proof under the rules of court, evidence not admissible thereunder may be

admitted if it is of a type commonly relied upon by reasonably prudent men

in the conduct of their affairs.

Tenn. Code Ann. § 4-5-313(1). “Although the UAPA does not clearly specify the standard

to be used to review decisions regarding the admission or exclusion of evidence, we have

previously determined that they should be reviewed using the same standard used to review

similar decisions by trial judges—the abuse of discretion standard.” Feldman v. Tenn. Bd.

of Med. Examiners, No. M2010-00831-COA-R3-CV, 2011 WL 2536471, at *13 n.3 (Tenn.

Ct. App. June 27, 2011) (citing Tenn. Dep’t of Health v. Frisbee, No. 01A01-9511-CH-

00540, 1998 WL 4718, at *2 (Tenn. Ct. App. Jan. 9, 1998)).

We begin with Washington’s argument regarding Exhibit 4, the letter written by

Ms. Lloyd to Supervisor Jones after he asked her to put her complaint in written form. On

appeal, the City argues that Washington cannot complain about the admission or

consideration of Exhibit 4 because he admitted it into evidence. We agree. During the

City’s examination of Supervisor Jones, he testified about receiving Ms. Lloyd’s letter, but

it was not admitted into evidence. Likewise, Ms. Lloyd testified that her letter essentially

stated the same facts she had discussed during her testimony, and she used the letter to

refresh her recollection as to the name of the supervisor, but it was not admitted during

direct examination by the City. During cross-examination of Ms. Lloyd, Washington’s

attorney asked her additional questions about the letter and stated, “I’ll make that a defense

exhibit.” The commissioner noted that the letter had not yet been admitted into evidence,

and counsel for the City then argued that it was hearsay. Nevertheless, Washington’s

attorney insisted, “This is my exhibit.” He stated his intention to use the letter to impeach

Ms. Lloyd and Supervisor Jones. The City continued to argue that the letter contained

hearsay but the commissioner responded, “well, I’m going to admit it.” Given the

circumstances, Washington cannot reverse course and argue on appeal that Exhibit 4

should not be considered because it contains hearsay. It was Washington who introduced

the letter as evidence.

4

“[T]he Memphis Civil Service Commission is governed by the state’s UAPA and the contested

case procedures contained therein.” Mosley v. City of Memphis, No. W2019-00199-COA-R3-CV, 2019

WL 6216288, at *6 (Tenn. Ct. App. Nov. 21, 2019) (citing Marino v. Bd. of Admin. City of Memphis Ret.

Sys., No. W2015-00283-COA-R9-CV, 2015 WL 7169796, at *4 (Tenn. Ct. App. Nov. 16, 2015)).

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We now consider Washington’s argument regarding Exhibit 1, the “Hearing

Summary and Decision” provided to him after the fact-finding hearing. Supervisor Jones

identified this document during his testimony and explained its role in the disciplinary

process. He explained that departmental policies required the preparation of this document.

Washington objected to admission of the Hearing Summary and Decision on the basis of

hearsay. Counsel for the City clarified that he was only seeking to introduce the Summary

as a business record and that Supervisor Jones was going to testify as to the fact-finding

hearing, his findings, and the alleged violations. The commissioner decided that the

Summary would be admitted for that limited purpose as a business record and to show that

Washington was afforded due process and an opportunity to be heard. However, the

commissioner cautioned the City that it would still have to prove “the truth of any matters

asserted therein.” During cross-examination, counsel for Washington asked both

Supervisor Jones and Director Knecht about the substance of the Summary. Also, during

Washington’s testimony, his attorney asked him to read into evidence, from the Summary,

a question and answer from the fact-finding hearing. His counsel also read part of the

question and answer section of the Summary to the commissioner during his arguments,

on more than one occasion. Still, the commissioner recognized in her written decision that

Exhibit 1 was admitted for a limited purpose. She noted that Exhibit 1 indicated that there

was a fact-finding hearing and identified the allegations against Washington. At the same

time, she emphasized that the substance of the “actual statements” that were made to

Supervisor Jones were hearsay and not admissible for the truth of the matters asserted. The

commissioner explained that she considered the fact that Supervisor Jones took statements

from additional witnesses as evidence that the City did not act arbitrarily or capriciously in

commencing the disciplinary proceedings.

Washington’s argument on appeal with respect to Exhibit 1 is somewhat difficult to

follow. In his issue presented and related sub-issues, he contends that the chancery court

erroneously considered the substance of Exhibit 1 “as proof of the matters asserted therein”

when the commissioner had admitted Exhibit 1 for a limited purpose. Again, however, this

Court must review the decision of the Commission utilizing the same scope of review as

the chancery court. Under the circumstances, we cannot say that the commissioner abused

her discretion in admitting the Summary for a limited purpose. See Case v. Shelby County

Civil Service Merit Bd., 98 S.W.3d 167, 176 (Tenn. Ct. App. 2002) (finding no error in the

admission of a Loudermill hearing transcript).

E. Just Cause for Termination

Finally, we reach Washington’s issue regarding whether the administrative record

as a whole contains substantial and material evidence to support the Commission’s

conclusion that the City had just cause to terminate him. Washington notes that he was

originally charged with violating a memorandum of understanding with the local union in

addition to the two alleged violations of the City’s personnel policy. All three of these

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alleged violations were based on the same conduct – his solicitation of work at the

Washington Manor apartment complex. After the first hearing, the Commission found that

there was a sufficient basis for the City to conclude that Washington’s conduct violated the

memorandum of understanding with the union and the two paragraphs of the City’s

personnel policy. After the matter was remanded for supplemental testimony, the

Commission noted that it was not clear from the record whether the memorandum of

understanding allegedly violated was actually in effect at the time of the violation.

“Regardless,” the Commission explained, Washington’s “violations of the work rules

found in [the] City of Memphis Personnel Manual” provided a sufficient basis for the

action taken. In a similar manner, the chancery court concluded that the memorandum of

understanding with the union was unenforceable but that the City “still had just cause” to

terminate Washington because his conduct violated two sections of the personnel policy.

We agree. The City does not challenge the chancery court’s ruling that the memorandum

of understanding was unenforceable. However, the personnel policy is entitled “Grounds

for Disciplinary Action” and provides that employees of the City who fail to abide by

established rules are subject to disciplinary action. It specifically provides that disciplinary

action may be taken when:

6. The employee has solicited and/or taken a bribe, a fee, a favor, or a

gift in the course of work, or in the connection [sic] with work.

...

17. The employee has either on or off the employee’s regular duty hours

engaged in employment activities, or enterprises that are inconsistent,

incompatible, or in legal, technical, or moral conflict with the employee’s

assigned duties, functions, and responsibilities.

It further provides, “None of the aforementioned will be deemed to prevent the dismissal,

demotion, suspension, or other disciplinary action of an employee for just cause. Just cause

shall exist when the employer has a reasonable basis for the action taken even though such

cause is not contained among those mentioned above.” Thus, Washington was subject to

disciplinary action, including termination, for his violations of the City’s personnel policy

without regard to whether his conduct also violated the memorandum of understanding

with the union.

Washington argues that there was no substantial and material evidence to support a

finding that he violated Paragraph 6 based on the stipulation that there was no bribe.

However, we have already rejected that argument. Paragraph 6 was not “removed from

the case.” Notably, on appeal, Washington did not argue that his solicitation of work would

not constitute solicitation of a “fee,” as Director Knecht opined, or solicitation of a “favor,”

as the Commission found. Instead, Washington argues that he did not “solicit” anything

because he did not “ask” to do the work. During cross-examination of Ms. Lloyd,

Washington’s counsel asked her if Washington ever “ask[ed] you to let him do the work[.]”

Ms. Lloyd said, “No, he didn’t ask me to let him do the work.” However, she later clarified

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her answer by stating, “For me, when he told me, No. 1, that he was a contractor and he

could do the work because he knew the property, he could do it cheaper because he was

his own contractor or whatever. To me, that says I know you’re getting bids, let me bid,

and I can do the work.” In addition, the Commission found that Washington handed out

his personal business card “in order to solicit work for his contracting business.” We reject

Washington’s argument that his conduct would not constitute solicitation.5

As for Paragraph 17, Washington argues that there was simply no evidence

presented about whether he violated this section aside from his denial that he did so. The

record reflects otherwise. Director Knecht testified as to his conclusion that Washington

solicited business, while acting as a representative of Code Enforcement, seeking to

address the very issues he had cited at the apartments. He considered this to be a conflict

of interest, an abuse of Washington’s authority, and an abuse of the public trust. He also

characterized Washington’s actions as intimidation of the public. Director Knecht testified

that all of these actions represent conduct prohibited by Paragraph 17. In other words,

Director Knecht explained, abusing one’s authority, violating the public trust, and

intimidating the public, would be acts that were inconsistent, incompatible, or in moral

conflict with an employee’s duties, functions, and responsibilities, within the meaning of

Paragraph 17. We reject Washington’s assertion that there was “no mention or proof

presented” of any violation of Paragraph 17.

Finally, Washington continues to argue that Ms. Lloyd’s “uncorroborated hearsay”

impermissibly “infect[ed] the City’s entire case.” He acknowledges that hearsay is

admissible in administrative hearings but contends that “uncorroborated hearsay does not

constitute substantial and material evidence.” Bobo v. State Real Estate Comm’n, No.

M2013-02037-COA-R3-CV, 2014 WL 1852604, at *9 (Tenn. Ct. App. May 5, 2014)

(internal quotation omitted). Here, however, uncorroborated hearsay was not the sole

evidence of Washington’s wrongful acts. Ms. Lloyd testified at the hearing before the

Commission and described firsthand (without objection) her interaction with Washington.

In addition, Washington introduced her letter further describing his conduct. During his

testimony, Washington admitted that he had a conversation with Ms. Lloyd and that he

mentioned being a contractor. He also admitted that he left his personal business card with

someone at the property. The Commission found that Washington failed to adequately

explain why he handed out his business card while on City business. On the other hand,

the commissioner found Ms. Lloyd’s live testimony about their interaction to be credible.

“Resolving conflicting evidence is a job for the Commission, not the courts.”

5

Washington did argue in his reply brief that he did not solicit a fee because Director Knecht

conceded that no “fee” was discussed. We reject this argument for two reasons. It is waived for failure to

raise it in his original appellate brief. See O’Dneal v. Baptist Mem’l Hosp.-Tipton, 556 S.W.3d 759, 763

n.2 (Tenn. Ct. App. 2018) (explaining that issues raised for the first time in a reply brief are waived).

Additionally, Director Knecht went on to explain that he considered Washington’s statement that he could

offer “a better price” to be a solicitation of a fee.

- 17 -

Holmes, 2017 WL 129113, at *9. This Court can reject the Commission’s decision “only

if a reasonable person would necessarily reach a different conclusion based on the

evidence.” Davis, 278 S.W.3d at 265. That is not the case here. Giving due deference to

the commissioner’s credibility determinations, we conclude that substantial and material

evidence supports the Commission’s conclusion that Washington’s conduct violated

Paragraphs 6 and 17. We further conclude that Washington’s disciplinary violations

furnished a reasonable basis for terminating his employment. The Commission’s decision

was not arbitrary or capricious.

V. CONCLUSION

For the aforementioned reasons, the decision of the chancery court is affirmed and

remanded for further proceedings. Costs of this appeal are taxed to the appellant, Kenneth

Washington, for which execution may issue if necessary.

_________________________________

CARMA DENNIS MCGEE, JUDGE

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