# FILED

Novemb er 4, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT JACK SON

CITY OF MEMPHIS, ) ) Plaintiff/Appellee, ) Shelby Equity No. 105517 ) vs. ) ) THE CIVIL SERVICE COMMISSION ) Appeal No. 02A01-9512-CH-00289 OF THE CITY

OF MEMP

HIS and ) STANLEY SHOTWELL, ) ) Defend ants/Appe

llants. )

APPEAL FROM THE CHANCERY COURT OF SHEL BY COUNTY AT MEMPHIS, TENNESSEE

THE HONORABLE D . J. ALISSANDRATOS, CHANCEL LOR

For the Plaintiff/Appellee : For the D efenda nts/Appellants : Monice Moore Hagler Samuel Mor ris Ronald G. Wy

att Timothy Tay lor Memphis, Tennessee Memphis, Tennessee

AFFI RMED

HOLL Y KIRBY L

IL LARD, JUDGE

CONCUR:

ALAN E. HI

GHERS, J.

BRO OKS McL

EMO RE, SP. J.OPINION

This case involves a

chancery court review of a decision by a civil service commission. The commission had ordered the rei nstatement of a police officer. The cha ncery court reversed the commission’s decision, u pholding the termination of the officer’s employment. We affirm the decision of the ch ancery

court. In January

1993, App ellant Lie

ute nan t Stanley Shotwell (“Shotwell”), a twenty-one-year veteranwith the Me

mphis Police

Departm ent, voluntarily entered the City of Memphis’ Employee Assistance Program (“EAP”), seeking hel p for alcoh olism. On January 21, 1993, he signed two different documen t s. The first was an Alcohol and Drug Treatment Policy (“Tr eatment Policy”). The Treat ment Po licy provided that “[a]ll C ity of Memp

his employ ees have

a respon sibility an d duty to remain free of illegal

substances at all times.” In signing the Treatment Policy, Shotwell agreed to the foll owing pro visions: 1. To remain free of illegal drugs for the re mainder of your employment with the City. 2. To agre e to rand

om and/or

regular ly scheduled drug a

nd alcoho l s creens a s directed by EAP staff, EAP Coordinators, and/or Division Director or designee for a period of two ye ars afte

r succe ssful discharge f

rom the EA

P. 3. Immediate reporting for drug alcohol screens whe n requested. The Tre atment Poli cy descr ibed the p enaltiesfor nonc omplianc e with the se provis ions: Should you fail to remai n free of alcohol/ illegal dr ugs, whet her by te st or self admission, or fail to report for a drug screen, immediate action wi ll be take

n to protect public sa fety and City prope

rty interests. At

the very least, you will not be allowed to work

or be on City property for a period to be specified by the EAP staff and/or your division. Resumption of alcohol/illegal drug usage will be re ported to management

and will result in disci plina ry action. If you continue the use of alcohol/illegal drugs, thi s will result in termination of employment with the City of Memphis. If you are a police officer, fire fighter, or other employee in a safety sensitive position, you may be terminated upon receipt of a first positive drug screen

after e ntrance into the Employ ee Assist

ance Pro gram. The second document Shotwell signedwas the EAP Participation Agreement - Self Referral (“EA P Agreeme nt”). The EAP Agre ement out

lined Shotw ell’s re sponsibilit ies: 1. To kee p all sche duled app ointments. 2. To comply with all facets of your individual treatment program, including random drug screens (where applicable ).2

3. To provide the Employee Assistance Program Administrator with information regard ing quality

of care receiv ed by ref

erral so urces. The EAP Agreement

provided further that “fa ilure to a ssumethe above

stated re sponsibilit

ies could result in discontinuance of the services of the Employee Assistance Program.” Subsequently, on February 12, 1 993, Shotwell signed a third document, an individualized EAP trea tment plan

tailored specific ally for h

im (“Plan” ). It req

uired the following

of Shotwell: 1. Remain

alcohol and drug free for the remainder of your employment with City of Memphis. 2. Scheduled Monday and Thursday drug screening at Med Labs until modified by EAP st aff, Dr. Tom Hickey, and/or Dale Shaefer. Please refer to your agreed Alcohol and Treatment Policy for details and rules. Failure to remain substance free will result in termination of employment . (Emphasis added). Over the next eighteen months, Shotwell underwent over twenty-eight urine screens, none of which tested positive for alcohol or illegal drugs. Then on Septembe r 19, 1994 , Shotwell submitted a urine sample which tested positive for the presence of c ocaine in his system. Shotwell was charged with two offenses: (1) a narc otics violation, for testing posit ive for cocaine use, and (2) f

ailure to complywith regulations, f or violating his cont

ract wit h EAP to re

main drug free. An administrative hearing was held . At the hearing, Shotwell confessed to having imbibed alcohol at a police department staff dinner on September 15, four day s bef

ore the urine screen, and on his birthday, September 20, a day after the screen. He denied having used cocaine and speculated that someo ne had sp iked his dr ink at the staff din ner. Shotw ell said, “ I have my suspicion s. There is nothing I can say other than I don’t know what happe ned. I got nailed, there is noth ing I can say.” The summary of the hearing states: “L t. Shotwell was advised he had been given an oppor

tunity to correct his problem when he entered the Employee Assistance Program and that it was apparent that the contract between he and the City had been violated and that the r esults would be decisive.” Subsequently, Shotwell’s employment was terminated. Shotwell appealed his termination to the Civil Service Commission, and a hearing was held. A number of witnesses testified, including Deputy Chief David Dugger an d Sh otwell. The three document s Shotwell si gned, the Treatm ent Poli cy, the EAP Agreement and the Plan, were introduced into evide

nce. It w as undispu

ted that Sh otwell

refer red himse lf to the EAP, and did not enter it as a result of

a disciplinary incident. Dugger testified that he understood Shotwell’s previous statement “I got nailed” to indicate Shotwell’s belief that he had been set up, not as an admission of3

guilt. He also stated that there existed a last-chance contract for disciplined e mpl oyees, but that Shotwell had not signed one. Dugger testified further that other police officers had been disciplined for positive drug screens but not terminated. However, he testified that all officers who had signed

a “last chance” agreement were terminated if they subsequently had a positive drug test. Shotwell’s superiors testified that Shotwell was a good employee with no discipline problems. Finally, Shotwell testified that he was in EAP for help with an alcohol problem, tha t h is problem had not affected his work, that he sought out help on his own, that he had not ingested cocaine, that he had read the EAP doc

ume nt s before signing them, that he had signed out of necessity to stay in the program , and that he had felt that some of the language in those documents perta ining to discipline was vague. After the hearing, the Civil Service Commission reversed Shotwell’s termination, finding as follows: (a) that Mr. Shotwell did voluntarily enter the EAP Program a s a self refer ral and d id execute the EAP c ontractdocument s presen ted; (b) t hat the Cit

y was ent itled to require Mr. Shotwe

ll to submit to the mandatory urine screen on September 19, 1994, as a condition of his EAP Program; (c) that Mr. Shotwell’s urine screen was properl y adminis tered b y the Methodist Hospital laboratory, that the urine sample was properl y handled and tested, and that the positive result was scientifically supported; and (d) that based upon the test results, the C ity had a r easonab le basis to

impose discipline upon Mr. Sh otwell, in

accord ance with his EAP a greeme nt. The Commission also finds (e) that at the time of Mr. Shotwell’s September 19, 1994 urine screen, he had be en employ ed by the C ity for approximately 21 years, had no disciplinary record and had a good on the job performance record; (f) that during the course of his EAP Program, Mr. Shot we ll had submitted to in excess of 28 urine scre ens, which except for the September 19, 1994 urine screen, had all produce d negative results; (g) that the EAP Program had been mandated by government and implemented by the City

to help employees with problems and to the ext ent possib le to conserv e its labor

resourc es; (h) th at o the r Police Services Division employees under the EAP Pro gram who h ave produced positive test results have not been terminated for their

first off enses; and (i) that the languageof the EAP Participation Agreement

- Self Referral is somewhat ambiguous in that it provides for “disciplinary action” in the event of resumption of alcohol/illegal drug usage, “termination” for continuation of the use of alcohol/illegal drugs”, and/or “termination” for failure to remain substance fr ee. Based upon all of the above findings, the Commis sion concludes (a) that the EAP Program is a mandatory program that must be fairly enforced by the City and not be taken lightly by the employee; (b) that the EAP Program is intended to provide the employee with a secon d chance with covered problems; (c) that the E AP Program should affo rd the self refe

rral emp loyee, w

ho has sou ght out the

program , not t o avoid disc ipline, bu

t to obtain h

elp with th

e proble m, with the same opportunity as a managem

ent ref erral e mployee, who has been refe rred to th e progra m to avoid discipline and to obtain help with the problem; (d) that a self referral employee should n ot be req

uired to s ign his disc iplinary d eath wa rrant in o rder to o btain th e help the EAP Program was created to provide; (e) that Mr. Shotwell did violate the4

terms of his EAP agreement; and (f) that while the City did hav e a rea sonable b asis to impose discipline against Mr. Shotwell for his EAP violations , termina tion for h is apparent first offense was not reasona ble under all the circumstances of this case. The Commission reinstated Shotwell to his previous position and awarded him full back pay a nd benefit s. The City of Mem

phis ( the “City ”) appealed this decision to the Chancery Court. After reviewing the record and hearing the argument of c ounsel, the Chancer y Court reversed the Commission, finding that the Commission had acted in excess of its statuto

ry author ity and, in the alternative, that the Commission’s decision was notsupported by substantial and material evidence. The Chancery Cour

t noted that the Commission found that Shotwell had committed a violation worthy of discipl ine but reject ed termination as being too harsh for a first offense unde r the circumst ances. The Chancery Court stated “that this is not a reasonable basis that the Commission, after it goes through its litany of complimenting, supporting, reinforcing what the City does, t o now reach th is co nclusion.” The Chancery Court found that the agreement signed by Shotwell was unambiguous and that, in essence, the Commission had simply dis agreed with the City’s zerotoleran ce polic y toward s drug use by police office rs. Shotwell now appe als the decision of the Chancery Court. He argues that the Commission acted properl y in reins tating him

and that the trial court erred by applying an improper standar d of review to the Commission’s decision. Tennessee Code Annotated § 4- 5-322 set s forth the standar d of revi e w for the C hancery Court in reviewing agency decisions such as those of the Commission:

(h) The court may affirm the decision of the agenc y or remand the case for further proceedings. The court may reverse or modify the decision if the rights of the petitioner have be en preju dic ed b ecause the admin

istrative findings, infere

nces, conclusions or decisions are: (1) In vi olation of

constituti onal or st

atutory p rovisions ; (2) In excess of the statutory authority of the agenc y; (3) Made upon unlawful procedure; (4) Arbitra

ry or ca pricious or char

acteriz ed by abu se of discr etion or c learly unwarranted exercise of discre tion; or (5) Unsupported by e vidence which is both substantial and material in the light of the entire record. In determining the substantia lity of evi dence, the cour

t shall tak e into account whatever in the record fairl y detracts from its weight, but the court shall not substi tute its ju dgment for that of the agency as to the weight of the evidenc e on questions of fact

.5 (i) No agency decision pursuant to a hearing in a cont ested cas e shall be reversed, remanded or modified by thereviewing court u nless for errors which affect the merits of such decision. Tenn. Code Ann. § 4-5-322(h)-(i) (Supp. 1996). The standar d for app ellate

review of such actions is the same as the standard for the Chancery Court’s r eview. Jackson Mo bilphone Co. v. Tennessee Pub. Serv. Comm’n , 876 S.W.2d 106, 110 ( Tenn. Ap p. 1993); CF Indus. v. Tennessee Pub. Serv. C omm’n , 599 S. W.2d 536, 540 (Tenn. 1980). This standard of review is “nar rower than the standardof review normally applicable in other civil cases.” Jackson Mo bilphone , 876 S.W.2d at 110. The “arbitr

ary and c apricious” stand ard unde r Sectio n 4-5-322 (

h)(4) is d iscussed at some length in Jackson v

. Mobilphone : [A]gency decisions with adequate, e vi dentiary support may still be arbitrary and capricious if caused by a clear e rror in judgment. . . . A r eviewing court should not apply Tenn. Code Ann. § 4-5-322( h)(4)’ s “arbitrary and cap

ricious”standard of review mechanically. In its broadest sense, the standardrequires the court to determine whether the administrative agency has made a clear e rror in ju dgment. . . . An arbitrary de cision is one that is not based on any course of reasoning or exercise of judgment, . . . or one that disre gards the f act s or circumstances of the case without some basis that would lead a reaso nable pe rson to reach the same conclusion. Jackson Mo bilphone , 876 S.W.2d at 110-11 (citations omitted). In this case , it is undisp uted that Shotwell signed the Plan, a treatment program individualized for him, and that the Plan stated that Shotwell was required to: 1. Remain

alcohol and drug free for the remainder of your employment with City of Memphis. After setting forth required drug screens twice weekly, the Plan states unambiguously: Failure to remain substance free will result in termination. It is also und

isputed th at Shotwell consume d alcohol t wice, f irst at a s taff pa

rty and th en on his birthday. Shotwell allege d that he t este d positive for cocaine because his drink was spiked at the party four days before the drug screen, but he provided no evidence to support this speculation. At the Commission’s hearing, Lieutenant Dugger testified gener a lly that there had been i nstances in which other unnamed police officers tested positive for drug use and we re not fired

. However, there wa s no evide nce that office rs who ha

d signed a

greeme nts tha t stated “ failure

to remain substance free will result in termination” were nevertheless not fired. Indeed, Dugger testified that in each instance in which the office had signed a “last chance” agreement, the off icer6

was fired. Shotwell notes that he never signed a “last chance” agreement, but the individualized Plan he signed states unambiguously that a positive result on a drug screen “will result in termination.” In this case, the Commission emphasized that Shotwell referred himself to the EAP, found that other pol ice emplo yees in

the EAP who had positive drug screens had not been fired, and termed the language in the EAP Agreement “somewhat ambiguous.” Significantly, the Commission stated:

. . . that a s elf ref

erral e mployee s hould not be

require d to sign his disciplina ry death warrant in order to obtain the help the EAP Program was cre ated to provide. . . . In its ruling, the Chancery Court observed: In this Court’s opinion, a fair reading of what the Commission has done is that they have ruled, in essence, that they disagree with that ze ro tolerance policy. The record supports this observation. The Commiss ion ackno wledged that the City had “a r

easonab le basis to impose discipline against Mr. Shotwe

ll for his E

AP violatio ns,” but c oncluded that term in ation w as not reasonable. However, the undisputed evidenc e in the r ecord e stablishe s that the C ity had a r easonab le basis for termination. Regardless of any ambiguities in other documents, the Plan signedby Shotwell is stark in its clarity: “Failur

e to rema in substanc e free

will resu lt in terminat

ion of emp loyment.”Shotwell admitted that he did not remain alcohol-free and produced no e vidence that the positive drug screen for cocaine was the

result of a mistake or a “se t-up.” U nder the se circ umstance s, we must conclude that the Co mmission’s decision to reinsta te Shotwell was arbitrary and capricious. We af firmthe decision of the Chancery Court, reversing the Commis sion and upholding the termination of Shotwell’ s employme

nt. We are mindful of

the fact that Shotwell is a twenty-one year veteran of the police force who, until his substance problems arose, had no disciplinary record and a good job performance record. Termination is indeed a harsh result. However, particular ly 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.7

The trial cou

rt is affirmed. Costs are assessed against Appellant, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR: ALAN E. HIGHERS, J.

BROOKS McLEMORE, SP. J.