IN THE COURT OF APPEALS OF TENNESSEE

AT MEMPHIS

February 24, 2015 Session

THOMAS L. WENZLER, SR. v. SHELBY COUNTY, TENNESSEE, ET AL.

Direct Appeal from the Chancery Court for Shelby County

No. CH-09-0240-2 Arnold B. Goldin, Chancellor

No. W2014-01097-COA-R3-CV – Filed April 16, 2015

This case involves judicial review of a decision of the Shelby County Civil Service Merit 

Board. The appellee was terminated from his employment with the Shelby County 

government due to an alleged violation of a conflict of interest policy. After a two-day 

hearing, the Civil Service Merit Board upheld the employee‟s termination. The employee 

sought judicial review in chancery court. After reviewing the record, the chancellor 

found no substantial and material evidence to support the termination of the employee 

and ordered him reinstated with backpay and benefits. The County appeals. Discerning 

no error, we affirm the decision of the chancery court.

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

and Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN 

STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.

David McKinney, Assistant County Attorney, Memphis, Tennessee, for the appellant, 

Shelby County, Tennessee.

Kathleen Laird Caldwell, Memphis, Tennessee, for the appellee, Thomas L. Wenzler, Sr.

MEMORANDUM OPINION1

 

1Rule 10 of the Rules of the Court of Appeals of Tennessee states: 

This Court, with the concurrence of all judges participating in the case, may affirm, 

reverse or modify the actions of the trial court by memorandum opinion when a formal 

opinion would have no precedential value. When a case is decided by memorandum 

opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and 

shall not be cited or relied on for any reason in any unrelated case.
2

I. FACTS & PROCEDURAL HISTORY

After working as a plumber for twenty years, Thomas L. Wenzler, Sr. (“Wenzler”) 

began working as a plumbing inspector for the Memphis and Shelby County Office of 

Construction Code Enforcement in 1992. The chain of events leading to the termination 

of Wenzler‟s employment began in November 2007. The code enforcement office 

received a complaint that plumbing work was being performed at a certain address on 

Tutwiler Avenue without a plumbing permit. A plumbing inspector went to the address 

to investigate and determined that plumbing work was indeed being performed. The 

individual performing the work was Wenzler‟s adult son. He gave the inspector a 

business card that stated, “American Tech Plumbing – Thomas Wenzler, Jr. – Plumber.”

The matter was investigated by Chris Mahoney, a senior plumbing inspector at the 

code enforcement office and Wenzler‟s supervisor. Mahoney learned that not only was 

there no permit for plumbing work at the specified address, but American Tech Plumbing 

was not a licensed plumbing contractor. Mahoney checked his office‟s human resources 

records and determined that the telephone number on the American Tech Plumbing 

business card was Wenzler‟s home address and telephone number. Mahoney found that 

American Tech Plumbing was also listed in the 2008 edition of the Yellow Pages 

telephone book with Wenzler‟s home address and telephone number. The code 

enforcement office issued Wenzler‟s son a courtesy citation for contracting to do 

plumbing work without a license or a permit. The general sessions court of Shelby 

County also entered an order directing Wenzler‟s son to refrain from acting as a 

plumbing contractor unless he acquired a plumbing license. Mahoney compiled all of the 

relevant information and sent it to the legal section of the code enforcement office for 

further investigation.

Several months later, on May 22, 2008, the office of code enforcement issued 

Wenzler a “Notice of Proposed Major Discipline.” The notice charged Wenzler with 

violating an office policy regarding conflicts of interest due to his son‟s citation for 

unlicensed plumbing work and the use of Wenzler‟s address and telephone number on the 

business card for American Tech Plumbing. An addendum to the notice of discipline 

also alleged that Wenzler had improper communications with others regarding his son‟s 

business. On June 24, 2008, after a Loudermill hearing,

2

the administrator of the office 

of code enforcement, Allen Medlock, concluded that Wenzler was in violation of the 

conflict of interest policy and that termination was warranted. His written decision 

 

2

The term “Loudermill hearing” stems from the United States Supreme Court‟s decision in Cleveland 

Board of Education v. Loudermill, 470 U.S. 532 (1985). The Loudermill Court held that a public 

employee who can be discharged only for cause must be given notice and an opportunity to respond to the 

charges against him prior to termination. Loudermill, 470 U.S. at 546; Case v. Shelby County Civil Serv.

Merit Bd., 98 S.W.3d 167, 170, n.1 (Tenn. Ct. App. 2002).
3

stated, in pertinent part:

After reviewing everything said and investigated, we cannot justify in any

way, form or fashion how any reasonable person would allow a plumbing 

business to be run out of the family home while working for the Code 

Enforcement Department. Our credibility as a neutral and credible 

regulatory body must not be compromised in any way. To allow otherwise, 

would erode our credibility among the Contractors that we work with each 

day and jeopardize our main function of ensuring Public safety through a 

well defined standard within the various crafts that we regulate.

Wenzler appealed his termination to the Shelby County Civil Service Merit Board. The 

Board heard the appeal on September 4 and November 20, 2008. Eleven witnesses 

testified. On December 18, 2008, the Board issued a written decision finding that 

Wenzler was terminated for just cause.

Wenzler filed a petition for judicial review in chancery court on February 6, 2009. 

Due to the lack of written findings in the Board‟s order, the chancery court concluded 

that judicial review of the order was not possible. Accordingly, the chancery court 

remanded the case to the Board with instructions for the Board to issue a decision 

containing findings of fact and conclusions of law. The Board issued another order on 

remand, but the chancery court determined that it, too, was defective. The chancery court 

remanded the matter a second time with instructions for the Board to issue written 

findings of fact and conclusions of law based on the hearings previously conducted.

The Board issued its third written order in this case on August 27, 2013. The 

order states that the Board reviewed and considered the transcripts and exhibits of the 

hearings conducted on September 4 and November 20, 2008. After this review, the 

Board again found that Wenzler violated the conflict of interest policy, which warranted 

termination of his employment.

On May 6, 2014, the chancery court entered an order on Wenzler‟s petition for 

judicial review and found that the findings of the Board were not supported by substantial 

and material evidence in the record. Consequently, the chancery court reversed the 

finding of the Board and ordered Wenzler reinstated with full backpay and benefits. 

Shelby County timely filed a notice of appeal to this Court.

II. ISSUES PRESENTED

Shelby County presents the following issues, as slightly re-worded, for review on 

appeal: 
4

1. Whether the trial court exceeded its scope of review of the Board‟s 

decision and improperly substituted its judgment for that of the Board;

2. Whether the trial court erred in holding that the decision of the 

Board was not based on substantial and material evidence in the record;

3. Whether the trial court erred and/or abused its discretion in holding 

that the Board could not make witness credibility determinations based on 

transcripts and in failing to defer to the factual findings of the Board;

4. Whether the trial court‟s reversal of the decision of the Board and 

order of reinstatement, full backpay and benefits results in a gross 

miscarriage of inequity.

5. Whether the trial court erred in failing to dismiss the case for failure 

to prosecute.

For the following reasons, we affirm the decision of the chancery court and remand for 

further proceedings.3

III. STANDARD OF REVIEW

On appeal, we review the decision of the Shelby County Civil Service Merit Board 

using the same standard of review used by the chancery court. Parker v. Shelby County 

Gov’t Civil Serv. Merit Bd., 392 S.W.3d 603, 611 (Tenn. Ct. App. 2012); Macon v. 

Shelby County Gov’t Civil Serv. Merit Bd., 309 S.W.3d 504, 508 (Tenn. Ct. App. 2009). 

Judicial review is governed by the Uniform Administrative Procedures Act, Tenn. Code 

Ann. § 4-5-322. See Tenn. Code Ann. § 27-9-114(b)(1).

(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 

 

3We note that Shelby County suggests in its brief that the Board‟s first order contained sufficient findings 

for the chancery court to review, and therefore, the chancery court erred in initially remanding the case to 

the Board for additional findings. However, this issue was not listed as one of the issues presented for 

review in Shelby County‟s brief. “„Courts have consistently held that issues must be included in the 

Statement of Issues Presented for Review required by Tennessee Rules of Appellate Procedure 27(a)(4). 

An issue not included is not properly before the Court of Appeals.‟” Bunch v. Bunch, 281 S.W.3d 406, 

410 (Tenn. Ct. App. 2008) (quoting Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001)). 

Consequently, we have not addressed the issue in this opinion.
5

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. 

Only the last two statutory grounds for reversal relate to the sufficiency of the 

evidence. Davis v. Shelby County Sheriff’s Dep’t, 278 S.W.3d 256, 264 (Tenn. 2009).

The standards of review under subsections (4) and (5) above “are narrower than the 

standard of review normally applicable to other civil cases.” Parker, 392 S.W.3d at 612 

(quoting Jackson Mobilphone Co., Inc. v. Tennessee Pub. Serv. Comm’n, 876 S.W.2d 

106, 110-11 (Tenn. Ct. App. 1993)). “Substantial and material evidence” has been 

defined as “„such relevant evidence as a reasonable mind might accept to support a 

rational conclusion and such as to furnish a reasonably sound basis‟” for the action under 

consideration. Macon, 309 S.W.3d at 509 (quoting Pruitt v. City of Memphis, No. 

W2004-01771-COA-R3-CV, 2005 WL 2043542, at *7 (Tenn. Ct. App. Aug. 24, 2005)). 

It requires “„something less than a preponderance of the evidence, but more than a 

scintilla or glimmer.‟” Id. (quoting Wayne Co. v. Tenn. Solid Waste Disposal Control 

Bd., 756 S.W.2d 274, 280 (Tenn. Ct. App. 1988)). “We may reject the Board‟s decision

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

evidence.” Davis, 278 S.W.3d at 265 (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. However, a reviewing court should not apply the “„substantial and 

material evidence‟ test mechanically.” Parker, 392 S.W.3d at 612 (quoting Jackson 

Mobilphone Co., Inc., 876 S.W.2d at 110-11). The substantial and material evidence

standard still requires a “searching and careful inquiry” that subjects the Commission‟s 

decision to close scrutiny. Freedom Broadcasting of TN, Inc. v. Tenn. Dep’t of Revenue, 

83 S.W.3d 776, 781 (Tenn. Ct. App. 2002). A court‟s deference to an agency or 
6

commission‟s expertise is “„no excuse for judicial inertia.‟” Willamette Indus., Inc. v. 

Tenn. Assessment Appeals Comm’n, 11 S.W.3d 142, 147 (Tenn. Ct. App. 1999) (quoting 

Wayne County, 756 S.W.2d at 279). A decision that is not supported by substantial and 

material evidence is, by definition, arbitrary and capricious. Outdoor Resorts at 

Gatlinburg, Inc. v. Utility Mgmt. Review Bd., No. E2011-01449-COA-R3-CV, 2012 WL 

1267858, at *5 (Tenn. Ct. App. Apr. 13, 2012) (citing Jackson Mobilphone Co., 876 

S.W.2d at 110).

We review a trial court‟s decision regarding dismissal for failure to prosecute 

using an abuse of discretion standard. Hessmer v. Hessmer, 138 S.W.3d 901, 904 (Tenn.

Ct. App. 2003)).

IV. DISCUSSION

On appeal, Shelby County‟s first contention is that the chancery court 

impermissibly substituted its judgment for that of the Board and reweighed the evidence 

in concluding that the Board‟s decision to terminate Wenzler was not supported by the 

record.

We begin with a review of the conflict of interest policy allegedly violated by 

Wenzler. The conflict of interest policy was specific to the office of code enforcement. 

It provided:

 

Conflict of interest is defined as, but not limited to, the following. Any 

employee of the Memphis and Shelby County Office of Construction Code

Enforcement who willfully conceals or violates any of these provisions may 

forfeit his/her employment.

1. Employees shall not be financially interested in the furnishing of 

labor, material or appliances for the construction, alteration, or maintenance 

of a building, or in the making of plans or specification thereof, unless he is 

the owner of such building.

2. Employees shall not engage in any work which is inconsistent with 

his/her duties or with the interests of the department.

3. Employees shall not recommend contractors and/or skilled

laborers/craftsmen to the public regardless of whether or not a permit is 

required.
7

4. Employees shall not receive fees for work performed during their 

normal assigned working hours in the department of Construction Code

Enforcement.

5. Employees shall not perform any work related to the department at 

any location regardless of whether or not a permit is required, unless the

employee is the owner of the property.

6. Employees shall not accept any compensation, gratuities, gifts, or

services from any person or firm having business with the department.

7. Employees shall not remove or accept any type construction or 

building materials or equipment from a job site.

8. Employees shall not engage in consulting and/or advising anyone in

matters relating to the department except those matters which are

specifically related to his/her job duties.

9. Employees shall get permission from the Administrator through 

his/her supervisor before entering any secondary employment or selfemployment by submitting a written request describing the work and the 

hours of work.

(Emphasis added.) Shelby County does not argue that Wenzler engaged in conduct that 

would constitute any of the specific examples listed in the conflict of interest policy. 

Instead, Shelby County relies on the introductory paragraph of the policy which states 

that a conflict of interest “is defined as, but not limited to, the following.” (Emphasis 

added.) 

During the hearing before the Board, Wenzler testified that American Tech 

Plumbing was wholly owned and operated by his wife. He insisted that he had no 

involvement in the development of the company and owned no interest in it. Wenzler 

testified that his wife had experience in the plumbing field because her father ran a 

plumbing business, and she assisted her father in that business in the past. Wenzler 

testified that his wife decided to start her own plumbing business around September of 

2007. According to Wenzler, he was opposed to his wife‟s plan but did not control her 

decision. Wenzler testified that he understood the conflict of interest policy as 

prohibiting financial involvement with or management of a plumbing business, and he 

refused to have any type of involvement with his wife‟s business. He said that Wife‟s 

original plan was to go into business with their family friend, who held a master 

plumbing license, until Wenzler‟s son could obtain his master license. Accordingly, Mrs. 
8

Wenzler began the preparation for starting the business. She listed American Tech 

Plumbing in the 2008 edition of the Yellow Pages and obtained business cards. Wenzler 

said the listings contained his home telephone number and address because Mrs. Wenzler 

intended to run the business from a home office. After the information was submitted to 

the Yellow Pages, the family friend decided against joining the business. Therefore, 

according to Wenzler, American Tech Plumbing never actually began operating until 

Wenzler‟s son obtained his master plumbing license in May 2008.

Mrs. Wenzler testified as well. She stated that she owns and operates American 

Tech Plumbing and that her two sons do the actual plumbing work. However, Mrs. 

Wenzler also has a journeyman‟s plumbing license. She corroborated Wenzler‟s 

testimony about her intent to open the business around September 2007 and the delay she 

experienced when their friend decided against joining the business. She said she had 

already submitted the information to the Yellow Pages in order to comply with their 

listing deadline for 2008. She said that when her business plan “fell through,” her listing 

was still in the Yellow Pages, but she was not actually doing plumbing work. Mrs. 

Wenzler said she did sewer cleaning work in the meantime because that type of work did 

not require a plumbing license. In any event, Mrs. Wenzler insisted that her husband had 

no role in the business at all. She testified that Wenzler had no financial interest in the 

company and did absolutely no work for it. 

Mrs. Wenzler testified that she went to the code enforcement office before any 

charges were brought against Wenzler and discussed her intention to open a plumbing 

business with Gene Childress, the chief plumbing inspector. She said she made Childress 

aware of her plans, and he never mentioned that she could not use her home address or 

telephone number for the business. Childress testified that he recalled meeting with Mrs. 

Wenzler about her sewer cleaning operation, but he said they did not specifically discuss 

the fact that she would be running a plumbing business out of her home.

Wenzler testified that he discussed his wife‟s plumbing business with the attorney 

on staff at the code enforcement office when she first began discussing the idea of 

opening the business. Wenzler said he informed the attorney that Mrs. Wenzler intended 

to operate the business out of their home and asked if there would be “any implications” 

against him or any cause for concern. According to Wenzler, the attorney informed him 

that there was no cause for concern as long as Wenzler did not perform inspections for 

Mrs. Wenzler‟s business. Later, when the Wenzlers learned that the code enforcement 

office was concerned about the address listed for the business, Mrs. Wenzler obtained 

new business cards listing the business address at a different location. She also changed 

the listing in the telephone book to reflect a different address, and she began using a 

mobile telephone number.
9

Wenzler acknowledged that his son was “absolutely incorrect” when he did 

plumbing work without a permit or a license at the job on Tutwiler Avenue where he was 

cited on November 9, 2007. However, Wenzler claimed that he had nothing to do with 

his son‟s work during that time period. Wenzler‟s son had his own residence in a nearby 

town. Wenzler testified that his son was working for Forbess Plumbing, a properly 

licensed plumbing company, at that time because American Tech Plumbing was not yet 

in business. According to Wenzler, his son said that he gave the plumbing inspector the 

American Tech Plumbing business card because it had his telephone number on it. 

Wenzler testified that Forbess Plumbing was paid for the work that his son did on 

Tutwiler Avenue. He introduced a copy of an application for a plumbing permit for work 

at the Tutwiler Avenue address, dated November 13, 2007, which listed Forbess 

Plumbing as the contractor. Wenzler also introduced a copy of a check written to the

order of Forbess Plumbing with a notation in the memo listing the address on Tutwiler 

Avenue. The check was dated November 20, 2007. Mrs. Wenzler also testified that her 

son was not working for American Tech Plumbing in connection with the job on Tutwiler 

Avenue.

Senior plumbing inspector Chris Mahoney, who originally investigated Wenzler 

and his son, also testified at the hearing. Mahoney was Wenzler‟s direct supervisor. 

Mahoney admitted he had no knowledge that Wenzler did any work for American Tech 

Plumbing. He also conceded that no rule prohibited plumbing inspectors‟ wives from 

working in the plumbing industry. Mahoney was aware that Wenzler‟s son had obtained 

the necessary license after his citation, and he said he had no problem with the current 

work in which Wenzler‟s son was engaged.4 

Chief plumbing inspector Gene Childress attended the Loudermill hearing but had 

nothing to do with the decision to terminate Wenzler. Childress testified that, in his 

opinion, there was “no problem” with Mrs. Wenzler operating a plumbing business as 

long as it was properly licensed. However, he said that he believed it would constitute a 

conflict of interest if Mrs. Wenzler operated the business out of her home because 

Wenzler regulates plumbing contracts in his capacity as a plumbing inspector, and 

Childress believed that other plumbers were “certainly not going to be happy with 

somebody in competition with them.”

 

4Mahoney admitted that he wrote the word “terminated” across Wenzler‟s locker after he was terminated 

but denied that he did it to embarrass Wenzler and denied that he was trying to get rid of him. However, 

during his employment, Wenzler had written a letter to the administrator of code enforcement 

complaining that Mahoney was harassing him and doing “everything he could possibly do to make 

[Wenzler] look bad[.]” As a result, Wenzler was removed from the direct supervision of Mahoney and 

placed under the supervision of another senior inspector. The administrator of code enforcement testified

that “there was animosity both ways” between Wenzler and Mahoney. 
10

Allen Medlock, the administrator of code enforcement, testified that he was solely 

responsible for making the decision to terminate Wenzler. He identified the code 

enforcement office‟s conflict of interest policy and said it “tells [employees] what they 

can and cannot do in terms of conflicts.” As noted above, Medlock‟s written decision 

terminating Wenzler stated that he could not “justify in any way, form or fashion how 

any reasonable person would allow a plumbing business to be run out of the family home 

while working for the Code Enforcement Department.” However, when asked whether it 

was permissible for Wenzler‟s wife to run a plumbing business, Medlock responded as 

follows:

Q. Is it your testimony that Tommy Wenzler's wife was not free to 

engage in any plumbing work?

A. No.

Q. Couldn't do it?

A. No. She can do it.

Q. Out of her home?

A. Sure.

Medlock added that “[i]f it was [him],” he would find another place to do business other 

than his home. However, he did not alter his initial testimony that it was acceptable for 

Mrs. Wenzler to be engaged in plumbing work from her home. Medlock conceded that 

he did not know if Wenzler was engaged in the business of American Tech Plumbing.

As for the allegation of improper communications, Wenzler was asked whether he 

had contacted a former employee of the code enforcement office and asked that person to 

“carry” the license for his son‟s business until his son could obtain his own license. 

Senior plumbing inspector Mahoney testified that it was fairly common for someone 

coming into the plumbing business to work under another master plumber‟s license. 

Mahoney said he “wouldn‟t see anything in the world wrong with it” if Wenzler‟s son 

had contacted the former employee about carrying the license for his business; however, 

he believed that it was wrong for Wenzler, as an employee of Shelby County 

government, to call and request such a favor. Wenzler admitted that he made the call to 

the former employee and explained that he did not believe that it was inappropriate to do 

so because the former employee was retired, had an inactive license, and was no longer 

involved in the plumbing business. Therefore, Wenzler believed that he had no influence 
11

over the former employee or his activities.5

Numerous witnesses testified regarding a recently retired code inspector who had 

family members involved in a plumbing business while he was employed as an inspector, 

but who was not disciplined or charged with a conflict of interest. That inspector was not 

personally involved in the plumbing business while employed as an inspector, but his 

sons operated the business under a name that included the full name of the plumbing 

inspector.

Wenzler‟s sister and several other employees of the code enforcement office 

testified as well, but it is not necessary to describe their testimony for purposes of this 

opinion. The Civil Service Merit Board issued its third written decision in this matter in 

August 2013. It includes a lengthy section entitled, “Findings of Fact and Credibility 

Determinations.” The Board recited the undisputed facts regarding Wenzler‟s son 

receiving a citation and providing a business card that listed Wenzler‟s home address and 

telephone number. The Board also mentioned the listing in the Yellow Pages. The 

Board found that Wenzler‟s son “at all times material to this matter, was engaged in the 

plumbing business and doing business as American Tech Plumbing.” The Board also 

found that “[a]t all times relevant to this matter, Thomas Wenzler, Jr. and American Tech 

Plumbing were doing business out of the home of his father, Thomas Wenzler, Sr., 

Petitioner.” The Board found that “[a]t all times relevant to this matter, [Mrs. Wenzler] 

owned and co-operated American Tech Plumbing with her son, Wenzler, Jr.” The Board 

found that Wenzler was “acting in support of” his son and American Tech Plumbing by

allowing the business to be operated from his home and by soliciting the former inspector 

to carry the license for American Tech Plumbing. The Board specifically relied on the 

introductory language from the conflict of interest policy that a “[c]onflict of interest is 

defined as, but not limited to, the following.” The Board found:

23. Code Enforcement has a policy prohibiting its employees from 

engaging in activity which might compromise or influence their employees‟

impartial judgment or erode its credibility with the construction contractors 

that it works with on a day to day basis and whose work it must inspect and 

approve or disapprove according to its standards.

 

5

Shelby County also presented evidence about another communication between Wenzler and a current 

code inspector with regard to his son‟s plumbing activity. However, the Board did not make any findings 

regarding the second communication or rely on it as the basis for its decision that Wenzler violated the 

conflict of interest policy. Our consideration of this evidence would cause us to impermissibly “substitute 

[our] judgment for that of the agency as to the weight of the evidence on questions of fact.” Tenn. Code 

Ann. § 4-5-322(h)(5)(B). Therefore, we express no opinion regarding whether this evidence would be 

sufficient to uphold the termination of Wenzler‟s employment.
12

24. The Board finds that Petitioner‟s actions in support of his son, 

Thomas Wenzler, Jr. and his and Mary Ellen Wenzler‟s business, American 

Tech Plumbing, as well as the publication of his address as the business 

address of Thomas Wenzler, Jr. and American Tech Plumbing placed his 

credibility and the credibility of his employer, Code Enforcement, in a

compromising situation.

25. The Board finds that Petitioner‟s actions in support of his son, 

Thomas Wenzler, Jr. and his and Mary Ellen Wenzler‟s business, American 

Tech Plumbing, as well as the publication of his address as the business 

address of Thomas Wenzler Jr., and American Tech Plumbing created a 

conflict of interest with his job as a plumbing inspector with Code 

Enforcement.

26. The Board does not find Petitioner‟s testimony concerning his 

knowledge of his son‟s plumbing business credible. Nor, does the Board 

find Petitioner‟s testimony concerning his knowledge of his wife‟s 

involvement in his son‟s plumbing business to be credible.

27. The Board finds that Thomas Wenzler, Sr. was well aware of his 

son‟s and/or his son‟s and wife‟s plumbing business and the need for it to 

comply with the code.

. . . . 

The Board concludes that there is no possible way to carry out the duties of 

a plumbing inspector as a neutral enforcer of the plumbing code and at the 

same time have business cards, yellow pages, forms, etc., reflecting his 

home address and phone number as the business address for a journeyman 

plumber doing business as American Tech Plumbing. The fact that this son 

and his business operated outside the code and received a citation for code 

violations makes it even more egregious. A person in an enforcement 

position such as Petitioner must make every effort to avoid even a 

perception of a conflict of interest. Petitioner did not do so. Petitioner

compromised Code Enforcement‟s credibility as a neutral and credible 

regulatory department of Shelby County.

In sum, the Board found that the office of code enforcement had just cause to terminate 

Wenzler‟s employment.

After reviewing the record before the Board, the chancery court concluded that 
13

“there was no factual basis on which to base the findings of the Board” and that “[t]he 

findings of the Board are not supported by the record and are without any substantial or 

material evidence to support its decision.” The chancery court found no proof in the 

record that Wenzler violated any of the nine points contained in the conflict of interest 

policy or the policy in general. The chancery court further held that the Board‟s 

credibility determinations could not be considered because “the board cannot make 

witness credibility determinations upon review of only the written record because two of 

the members of the panel rendering the August 27, 2013 decision did not participate in 

the administrative hearing and therefore are not in a position to make credibility 

determinations.” Finding no substantial and material evidence to support the Board‟s 

findings, the chancery court reinstated Wenzler with full backpay and benefits from the 

date of termination.

Our task in reviewing whether sufficient evidence supports the Board‟s decision 

that Wenzler violated the conflict of interest policy is complicated by the fact that the 

conflict of interest policy does not contain a general definition of a conflict of interest. 

Shelby County does not contend that Wenzler committed any of the specific violations 

enumerated in the conflict of interest policy. Thus, the issue becomes whether Wenzler‟s 

conduct amounted to some generalized concept of a conflict of interest. Despite the lack 

of a definition in the conflict of interest policy itself, the Civil Service Merit Board 

concluded that the conflict of interest policy generally prevented employees “from 

engaging in activity which might compromise or influence their employees‟ impartial 

judgment or erode its credibility with the construction contractors that it works with on a 

day to day basis and whose work it must inspect and approve or disapprove according to 

its standards.” Although this broad statement appears to focus on the actions of an 

employee, the Board‟s findings were mainly focused on the actions of Wenzler‟s wife and 

his son. The Board found that Wenzler‟s son “at all times material to this matter” was 

engaged in the plumbing business and doing business as American Tech Plumbing from 

Wenzler‟s home. Notably, the Board did not find that Wenzler, himself, was engaged in 

the plumbing business or doing business as American Tech Plumbing. The Board also 

found that “[a]t all times relevant to this matter, [Mrs. Wenzler] owned and co-operated 

American Tech Plumbing with her son, Wenzler, Jr.” Again, this finding does not 

demonstrate impermissible action by Wenzler. The Board did find that Wenzler was 

“acting in support of” his son and American Tech Plumbing by allowing the business to 

be operated from his home and by soliciting the former inspector to carry the license for 

American Tech Plumbing. However, in our view, the solicitation of the former inspector 

does not demonstrate a conflict of interest because, as Wenzler noted, the former 

inspector was retired and no longer working in the plumbing business. Wenzler was not 

requesting a favor from a plumbing contractor that would be subject to his inspections. 

His request to the former inspector did not, in the words of the Board, erode the 

credibility of the code enforcement office “with the construction contractors that it works 
14

with on a day to day basis and whose work it must inspect and approve or disapprove 

according to its standards.” 

The remaining question is whether the Board erred in finding that a conflict of 

interest existed because Wenzler was “acting in support of” American Tech Plumbing by 

allowing the business to be operated from his home. The Board found that Wenzler‟s 

actions in support of his son, and specifically, the use of his address as the business 

address for American Tech Plumbing, “placed his credibility and the credibility of his 

employer, Code Enforcement, in a compromising situation” and “created a conflict of 

interest with his job as a plumbing inspector with Code Enforcement.” The Board found 

that “there is no possible way to carry out the duties of a plumbing inspector as a neutral 

enforcer of the plumbing code and at the same time have business cards, yellow pages, 

forms, etc., reflecting his home address and phone number as the business address for a 

journeyman plumber doing business as American Tech Plumbing.” The Board found that 

Wenzler did not “make every effort to avoid even a perception of a conflict of interest,” 

and as a result, he “compromised Code Enforcement‟s credibility as a neutral and 

credible regulatory department of Shelby County.” 

The Board‟s order is somewhat unclear as to its precise findings about Wenzler‟s

son‟s conduct. The Board found that Wenzler‟s son was “at all times material to this 

matter . . . doing business as American Tech Plumbing” from Wenzler‟s home. The 

Board also found that Wenzler‟s son “operated outside the code” and that Wenzler “was 

well aware of his son‟s and/or his son‟s and wife‟s plumbing business and the need for it 

to comply with the code.” Based on the Board‟s use of the phrase “at all times material 

to this matter,” we infer that the Board did not believe that Wenzler‟s son was employed 

by Forbess Plumbing when he was cited for illegal plumbing work in November 2007. 

However, the only evidence to suggest that Wenzler‟s son was working for American 

Tech Plumbing on that date was the business card that he provided to the inspector who 

came to the scene, and the fact that American Tech Plumbing had a listing in the 2008

edition of the telephone book. Mrs. Wenzler testified that her son provided the business 

card to the inspector solely because of the telephone number listed on it. The inspector 

who went to the scene and acquired the card did not testify, and senior inspector 

Mahoney could not say how the business card was acquired. The record contains 

uncontradicted documentary evidence that Forbess Plumbing pulled the permit for the 

Tutwiler Avenue job and was paid for the job via personal check. Even though American 

Tech Plumbing was listed in the 2008 edition of the telephone book, Mrs. Wenzler 

testified that she was not operating the plumbing business when her son was cited in 

November 2007 because the family friend decided not to join the business. Chief 

plumbing inspector Childress recalled meeting with Mrs. Wenzler about her sewer 

cleaning business during the relevant timeframe before Wenzler was charged with a 

conflict of interest. We find no substantial and material evidence to support a finding that 
15

Wenzler‟s son was doing business as American Tech Plumbing from Wenzler‟s home at 

all times material to this litigation. The Board‟s finding ignores the bulk of relevant 

evidence without a reasonable factual basis for doing so.

Under ordinary circumstances, “this Court affords „considerable deference‟ to the 

Board‟s factual findings based on its determinations of credibility.” Macon, 309 S.W.3d 

at 509 (citing Davis, 278 S.W.3d at 266). Appellate courts ordinarily afford trial courts 

considerable deference when reviewing issues that hinge on witness credibility because 

the trier-of-fact is “„uniquely positioned to observe the demeanor and conduct of 

witnesses‟” during live testimony. Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) 

(quoting State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000)). However, in this case, due 

to numerous remands and the passage of time, only one of the three Board members who 

issued the written decision under review actually observed the witnesses‟ live testimony 

at the hearings. That one Board member did not contribute to an order containing 

credibility findings until 2013, approximately five years after the hearings before the 

Board in 2008. The 2013 order specifically states that “[o]n July 9, 2013, the Board 

reviewed and considered the transcripts and exhibits of the hearing conducted in this 

matter on September 4, 2008, and November 20, 2008, and now issues the following 

finding of fact, conclusions and decision.”

[A]ppellate courts are not required to give similar deference to a trial 

court‟s findings of fact based on documentary evidence such as depositions, 

transcripts, or video recordings. When findings are based on documentary 

evidence, an appellate court‟s ability to assess credibility and to weigh the 

evidence is the same as the trial court‟s. Accordingly, when factual 

findings are based on documentary evidence, an appellate court may draw 

its own conclusions with regard to the weight and credibility to be afforded 

that documentary evidence.

Kelly, 445 S.W.3d at 693 (citations omitted). Because two of the three Board members 

based their decision solely on documentary evidence, the Board‟s credibility findings 

were not entitled to the same considerable deference that we would ordinarily give to the 

Board. Having reviewed the same transcripts reviewed by the Board, we find no basis 

for concluding that Wenzler‟s son was doing business as American Tech Plumbing from 

Wenzler‟s home at all times material to this litigation.

The lingering question is whether sufficient evidence supports the Board‟s finding 

that Wenzler engaged in a conflict of interest simply by allowing a plumbing business to 

be run out of his home while working for code enforcement. Several employees of the 

code enforcement office admitted that there was nothing wrong with Wenzler‟s wife 

operating a properly licensed plumbing business. Senior inspector Mahoney, chief 
16

plumbing inspector Childress, and administrator Medlock all confirmed that Mrs. 

Wenzler could operate a plumbing business without violating the conflict of interest 

policy. American Tech Plumbing was properly licensed at the time of the hearing. 

Childress believed that operating the business from Mrs. Wenzler‟s home would 

constitute a conflict of interest, but administrator Medlock testified that Mrs. Wenzler 

could run the plumbing business from her home. Given that it was undisputed that 

Wenzler‟s wife was permitted to operate a plumbing business, we conclude that simply 

listing her home address as the business address, rather than some other location, did not 

establish a conflict of interest on the part of Wenzler. The record contains no proof that 

any plumbing contractors or members of the public would be aware of Wenzler‟s 

personal address or telephone number and link him to American Tech Plumbing simply 

based on the information on the business cards and in the telephone book. Even if 

someone did make the connection, however, it is not reasonable to conclude that no 

conflict of interest exists if an inspector‟s wife runs a plumbing business, but a conflict 

does exist if the business card lists her home address and telephone number. The 

undisputed proof in the record was that Wenzler had no financial interest and no actual 

involvement with American Tech Plumbing. The record does not contain evidence 

furnishing a reasonably sound factual basis for concluding that Wenzler violated the 

conflict of interest policy. See Macon, 309 S.W.3d at 509. Therefore, we agree with the 

chancery court‟s finding that the Board‟s decision is unsupported by evidence that is 

substantial and material in light of the entire record. The chancery court properly applied 

the applicable standard of review and did not simply substitute its judgment for that of 

the Board.

Shelby County also argues that reinstating Wenzler to his former position with full 

backpay and benefits results in “a gross miscarriage of inequity” in this case because 

Wenzler was terminated in 2008, and the chancery court‟s order reinstating him was not 

entered until 2014. Shelby County claims that the majority of the delay in these 

proceedings was caused by the series of remands by the chancery court and by Wenzler 

failing to prosecute his case in a timely manner. As a result, Shelby County claims that it 

is inequitable to require it to pay nearly six years in backpay and benefits to Wenzler. 

However, from our review of the record, it does not appear that Wenzler was primarily 

responsible for the delay either. After he filed his original petition for judicial review of 

the Board‟s decision, Shelby County filed a motion to stay the proceedings until the 

Supreme Court ruled on a particular issue in a separate case. The motion to stay was 

filed in 2009, and even after the Supreme Court resolved the aforementioned issue a few 

months later, it appears that neither party took any substantive action in the case until 

2012. At that point, the case was placed on the chancery court‟s dismissal docket, but no 

one appeared on behalf of Shelby County at the hearing. Wenzler‟s attorney did appear 

and filed a memorandum in support of his original petition shortly after the hearing. We 

reject Shelby County‟s assertion that the trial court abused its discretion in failing to 
17

dismiss the case for failure to prosecute. Shelby County does not cite any relevant 

authority in support of its argument that it is entitled to reduce the amount of backpay 

owed to Wenzler because of the delay in this case, and we reject that argument as well.

V. CONCLUSION

For the aforementioned reasons, the decision of the chancery court is hereby 

affirmed and remanded for further proceedings. Costs of this appeal are taxed to the 

appellant, Shelby County, and its surety, for which execution may issue if necessary.

 

_________________________________ 

BRANDON O. GIBSON, JUDGE