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
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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.
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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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