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SHELBY COUNTY SHERIFF Plaintiff-Appellee
vs.
SHELBY COUNTY CIVIL SERVICE MERIT BOARD AND JOHN DANIELS JR. Defendants-Appellants
 
Case:
No. 24
 
Location:
Court of Appeals of Tennessee Western Section at Jackson
 
Attorneys:
Peter M. Brown of Memphis For Appellee Shelby County Sheriff. Alan Bryant Chambers of Memphis For Appellant John Daniels Jr.
 
Court:
Crawford J. Tomlin P.J. W.S. Highers J. concur.
 
Author:
The Hon. Justice Crawford
 

This appeal is to review the order of the chancery court which modified the ruling of the Shelby County Civil Service Merit Board. Appellant John Daniels a commissioned deputy sheriff was discharged after a hearing before the Sheriff's Administrative Board. Daniels appealed his discharge to the Shelby County Civil Service Merit Board. After an evidentiary hearing the Board found Daniels guilty of all charges against him but also found that the disciplinary action taken was too severe. We quote the Board's decision:

FINDINGS OF THE BOARD

MS. KYLES: The Board has reached a decision related to the facts of the hearing.

The issues presented in this case on whether John Daniels was guilty of violating the following policies of the Shelby County Sheriff's Department:

Violation of rules unbecoming conduct neglect of duty possession and use of drugs insubordination. Upon consideration of the evidence it is the finding of the Board that John Daniels is guilty of the charges that were stated. Based upon this finding considered was whether or not termination was the appropriate penalty for those charges. It is the finding of the Board that termination was extreme in this case and the Board modifies the disciplinary action to be suspension without pay for 90 days from the date of termination April 19th through July 19th.

The Board further modifies the discipline to be six months probation with suggested follow-up through the Employee Assistance Program related to the Petitioner's alcohol problem from the circumstances of the hearing.

Either party desiring appeal of this decision must file that appeal with the Circuit or Chancery Court of Shelby County within 60 days following the publication of the decision.

The Shelby County Sheriff filed a petition for review of the Board's decision pursuant to T.C.A. SEC. 4-5-322 (1985) as authorized by T.C.A. SEC. 27-9-114 (b)(1)(Supp. 1989). The chancellor found that the record supported the finding by the Board that Daniels was guilty of the charges placed against him but also found that the Board's action in reinstating him was without any reasonable basis found in the record and was an abuse of discretion. The chancellor modified the ruling of the Board and restored the decision to discharge Daniels made by the Shelby County Sheriff. Daniels has appealed and presents the single issue for review which as stated in appellant's brief is:

1. Whether there was a reasonable basis for the Civil Service Merit Board to have reduced Appellant's discharge to suspension.

Daniels was charged with violation of rules unbecoming conduct neglect of duty possession and use of drugs and insubordination.

The Sheriff's primary witness was Lieutenant Mark Hopper of the Sheriff's Internal Security Unit. He testified that on April 14 1989 in connection with an investigation of another officer Daniels was requested to submit to a drug test. First he consented to take the test but a short time later refused. Hopper testified that Daniels' first explanation for his refusal was that he had been around someone who had been smoking cocaine. After talking further with Hopper Daniels then admitted that he had smoked a primo reefer on April 9th. Hopper testified that a primo reefer is a marijuana cigarette laced with cocaine. Hopper testified that Chief Mills the administrative assistant to the sheriff offered Daniels the test again and when he refused the test Mills ordered him to take the test and he again refused. At that point he was charged with insubordination and suspended from duty. On April 17th Hopper made additional charges of violation of the rules unbecoming conduct neglect of duty and possession and use of drugs. The additional charges resulted from the information that Daniels had given to Hopper concerning the events surrounding the smoking of the cigarette. An administrative hearing was held on April 19th which resulted in Daniels' discharge. Hopper also testified that on April 27th he received the results of a drug test to which Daniels voluntarily submitted on the 17th and that these results were positive for cocaine use but negative for marijuana use.

The results of the drug test which were positive for cocaine metabolite were introduced into evidence by the testimony of Robert Forey a representative of the laboratory which conducted the test.

Daniels relied primarily on his testimony and the testimony of his friend Chester Johnson. Johnson testified that he and Daniels had been friends since 1969 when they played basketball together in junior college. He testified that on a Sunday evening in April he was to pick up Daniels at 9 o'clock when he got off work at Sears. He testified that a friend of his named Ted came along for the ride and that while they were traveling Ted showed him cocaine which he was putting into several regular tobacco Kool cigarettes. Johnson testified that he instructed Ted to put the cigarettes and cocaine away because his friend Daniels is a sheriff. Johnson testified that he Ted and Daniels had a drink of whiskey in the parking lot and when Daniels requested a cigarette he handed him the pack of cigarettes into which Ted had put the cocaine-doctored cigarette. He testified that Daniels took two puffs off a cigarette from the pack and asked What is this? Daniels handed the cigarette back to Ted who threw it out the window. Johnson testified that when Daniels later questioned him about the contents of the cigarette he did not admit or deny that the cigarette was drugged.

Daniels' version of the incident in the Sears parking lot is the same as that to which Chester Johnson testified except that Daniels asserts it occurred on Thursday April 13 1989 the evening before he was requested to take a drug test rather than on a Sunday night. He testified that it could not have been Sunday night at 9 o'clock because he gets off work at Sears at 6:30 on Sundays.

Daniels testified that he has been deputy sheriff for eleven years and has no other career goals. He testified that he pays child support for five children at $200 per month per child. Daniels testified that he had admitted to Lieutenant Hopper that he had an alcohol problem for which he has sought help through the Employee Assistance Program.

Ch. 110 Private Acts 1971 established the civil service merit system for employees of Shelby County. The act establishes a Civil Service Merit Board Private Acts Ch. 110 SEC. 3 494 (1971) with the power and duty to hear employee appeals following removal suspension or reduction in rank. Private Acts Ch. 110 SEC. 6 (d) 497 (1971). The Board has the power to affirm modify or revoke an order of discipline appealed to it. Private Acts Ch. 110 SEC. 23 505-06 (1971). The Board's power to modify the sanctions imposed is of necessity a power that must be exercised within the discretion of the Board and is a judgment call based upon the nature and severity of the employee's action. Austin v. Shelby County Gov't 761 S.W.2d 298 300 (Tenn. App. 1988).

T.C.A. SEC. 27-9-114 (a)(1) (Supp. 1989) provides:

(a)(1) Contested case hearings by civil service boards of a county or municipality which affect the employment status of a civil service employee shall be conducted in conformity with contested case procedures under title 4 chapter 5 part 3 of the Uniform Administrative Procedures Act.

The contested case procedures of the Uniform Administrative Procedures Act T.C.A. SEC. 4-5-314 (1985) provide in part:

(c) A final order initial order or decision under SEC. 50-7-304 shall include conclusions of law the policy reasons therefor and findings of fact for all aspects of the order including the remedy prescribed and if applicable the action taken on a petition for stay of effectiveness. Findings of fact if set forth in language that is no more than mere repetition or paraphrase of the relevant provision of law shall be accompanied by a concise and explicit statement of the underlying facts of record to support the findings. . . . [Emphasis supplied]

In Levy v. State Board of Examiners 553 S.W.2d 909 (Tenn. 1977) Justice Fones speaking of the then existing administrative procedures statute which required that findings of fact conclusions and reasons for the ultimate decision be included in the final decision said:

The foregoing is not a mere technicality but is an absolute necessity without which judicial review would be impossible.

553 S.W.2d at 911.

In the recent case of National Council on Comp. Ins. v. Gaddis 786 S.W.2d 240 (Tenn. App. 1989) this Court remanded the case to the Chancery Court for remand to the Tennessee Department of Commerce and Insurance with instructions to the Commissioner to make findings of fact to support the Commissioner's reasons and conclusions of law in accordance with the Administrative Procedures Act T.C.A. SEC. 4-5-101 et seq. The Commissioner had previously made no findings of fact on the question at issue in the case but merely stated the conclusion. On that record it was impossible to determine whether the Commissioner's ruling was an abuse of discretion or based upon fact and reason. 786 S.W.2d at 243.

While the Board in the instant case has the discretion to modify the disciplinary action taken by the Sheriff there must be some basis for the exercise of such discretion. The Board made no specific findings nor gave any reasons concerning its modification of the Sheriff's sanctions. We have no way of knowing what prompted the Board to make such a modification which makes it difficult if not impossible under the testimony in this case to determine if the Board abused its discretion.

The totality of the circumstances in this case depending upon the weight faith and credit given to the testimony by the Board would certainly have some effect on the Board's exercise of its discretion. Thus the sanction aspect of the case demands the explanation from the Board required by T.C.A. SEC. 4-5-314 (c) (1985).

Neither this Court nor the trial court may substitute the judgment of Court for that of the agency as to the weight of the evidence. T.C.A. SEC. 4-5-322 (h) (Supp. 1989); T.C.A. SEC. 4-5-323 (1985); Reese v. Tennessee Civil Service Commission 699 S.W.2d 808 (Tenn. App. 1985) cert. den. 475 U.S. 1019 106 S.Ct. 1207 89 L.Ed.2d 319 (1986).

This case is remanded to the Chancery Court of Shelby County for the entry of an order of remand to the Shelby County Civil Service Merit Board to issue its decision containing the policy reasons and findings of fact for the sanction aspects of the order as required by T.C.A. SEC. 4-5-314 (c) (1985).

The costs of the appeal are adCourtd against the Appellee.