Metropolitan Government of Nashville And Davidson County, Tennessee v. Civil Service Commission Of The Metropolitan Government of Nashville And Davidson County, Tennessee ( 2020 )

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
-5-
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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