1 The let ter to hi m from t

he Civ il Servi ce Commis sion acknow ledgi ng t his waiv er i s dat ed Sept ember 24, 1980 and ref ers to a me eti ng of

the Civi l Ser vice Commiss ion held S eptem ber 2 3, 19 89. It is o bvio us that this date is in error, and t he Civ il Servi ce Commis sion meeti ng was act uall y hel d Septe mber 23, 1980.



### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs J une 26, 2003 RICHARD HUGHEY v. THE METROP OLITAN GOVERNM ENT OF

NASHVILLE AND

DAVIDSON CO UNTY Appeal from the Chancery Court for Davidson County No. 02-704-I Irvin H. Kilcrease, Jr., Chancellor

No. M2002-02240-COA-R3-CV - Filed August 8, 2003

RichardHu gh ey, a former Metropolitan Nashville police officer, a ppeals the action of

the Chancery Co urt of Davidson County in affirming the adverse decision of the Metropolitan Civil Service Commission, which had rejected his application for police depa rtment employment. We affirm the action of the Chancellor. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
W IL LI AM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., M.S., and W ILLI AM C. K OCH , J R ., J., joined. Ph il li p L. Da vi ds on , N as hv il le , T en ne ss ee , f or th e a pp el la nt , R ic ha rd Hu gh ey. Karl F. Dean and William Michael Safley , Nashville, Tennessee, for the appellee, Metrop olitan Go ve rn me nt of

Na sh vi ll e a nd Da vi ds on Co un ty. OPINION RichardHughey

was firs t employ

ed by the Metro

poli tan Police Department in January of 1981. He was or

iginally disqualif ied from e mploy ment due t

o a color vision deficiency

. He applied for a waiver of this disqualification, which waiver was g ranted on September 23, 1980. 1 This letter disclosed:
T he following

is an exce

rpt from t he Minute s of the Meeting of the Civ il Servic e Commission held September 23, 1989:-2- “Mr. Bailey

made a mo tion, that t

he Commissio n gran

t H . P hilip Sadler’ s, Attorney for Mr . Richard Allen Hughey , Police Off i cer Trainee ap plicant, request for waiver of Mr. Hughey ’s disqualification (vision) and that he be all owed to continue in the examination process. Se conded by Mr. Pilkerton and a pproved by the Commission unanimously.”
Mr. Hugh ey s uffered an on-the-job injury in 1993 and was placed on a disability pension. On October 3, 2000, Mr. Hughey accepted employ

ment as a patrol/K-9 officer for th e C it y o f Laverg ne Police Department. His desire, however, was to retur n to h is position with the Metropolitan Nashville

Police De

partmen t, and tha

t desir e is best st ated in his letter to the Metropolitan Civil Service Commission dated January 2, 2002: Dear Civil Service Commission,
I’m writing this letter because of a color deficiency , according to Dr. Jack Corban, Metro Civil Service medical examiner in 1980. I had to get a waiver approved pr ior to my appointment as a Metro po lice officer in January

of 1981. T

he Civil Ser

vice Commi ssion un animously approved my waiver. I was injured while on duty a s a Metro p olice of ficer in 1993. I had to take a disability pension

in that same year . I’ve

been trying

to return to the Metro Police Department since 1995, but I have n’t been able to do so. I was cont

acted r ecently by M etr o poli ce personnel concerning a lateral transfer class that’s scheduled to begin on Feb. 19, 2002. I would very much like

to be in that class, I must first g et a waiv er on the color as pect of t

he vision t

est. I’m once ag ain requesting a waiver from the Civil Service Commission. It should als o be noted , that I ’ve bee n working

as a patrol/K-9 officer for the Laverg ne Police Department since October

3, 2000. D uring my

entire c areer , both as a Metro officer and L

avergne, not once has color been an issue. I ’ve testi fied in court and I’ve alwa ys been abl e to id entify either co lors o f vehi cles, cloth ing, pr op er ty, et c. wi th ou t a ny d if fi cu lt y! Si nc er el y,

Richard Alan Hughey At the time of the application by Mr. Hughey

to resume

his employment as a police of ficer with Metropolitan Government, Civil Service Commission policy required normal color vision as determinedby Army

Regulation 40-501. Theapplicable army regulation provided: “Although there is no standard, color vision will be tested, since ad equate c olor vision

is a prer equisite for entr y in to many military specialities. Howeve r, for entrance into the USMA or Army ROTC or OCS progra

ms, the inability to distinguish and identify without confusion the color an objec t, substanc e, mater ial, or light that is unifor mly colored a vivid re d or vivid green is disqualify ing.” The Civil Service-3-

Commission rules provided: “A member of the Police Department (Civilian or Sworn) who is on leave for six months or

longer or has terminated

from employment for a

ny period will be required to successfully complete

a polyg raph examine and physical examine befor e returning to wor k.” It was further prov ided by Section 7.8 of the Civil Service Commission rules that, “any officer who leaves the Metropolitan Police Department must meet the requirements of state law (TCA 38-8-106 or as amended), b efore he can be considere d for re-employ ment.” Tennessee Code Annotated section 38-8-106 states that any individual employed as a full-time police officer shall “ have passed a physical examination by a licensed physic ian.” When Mr. Hughey

took his physical examination, he was unable to pass the por tion of the exam dealing with color vision. The examining doctor reporte d to the Civil Service Commission:
Mr. RichardHughey

was seen in the Civil Service Clinic on December 28, 2001, for a return to work eva luation re lative to t he discon tinuation o f his d is ab il it y pension from the M etropolit

an Police Departm ent. The color vision test was performed and Mr. Hughey missed nine (9) of the fourteen (14) plates, which indicates a failure of that exam. Therefore, he is disqualified from employ ment as a police of ficer, based on

the curr ent color vision re quireme

nt. In a hearing before the Civil Service Commission held Februa ry 12, 2002, the Commission unanimous ly

declinedto grant a waiver to Mr. Hughey of the color vision disqualification, and Mr. Hughey timely appealed the act

ion of the Civil Servi ce Commiss ion to the c hancer y c ourt. The chancellor dismissed the appeal by Order dated September 3, 2002, based upon an August 1 5, 2002 Me

morandum

Opinion, p

roviding in pertine

nt part: The Petitioner contends that the Metropolitan Police Department acted in an arbitrary and capricious manner when it denied his request to w aive the vision requirement

for employment as a

Metropolitan Police officer. The Petitioner made application for the Latera

l Entry Class with the

Metropolitan Police Department after having been on disability pension leav e. Howeve r, he could not pass the vision requirement

of the physical

examination due to a deficiency in his color vision. The Petitioner believes that the Respondent should have wa ived this r equirem ent as it di d when he sought

employment

with the Me

tropolita n Police D epartme

nt in 1981. T

his refusa l, according to the Petitioner, supports that the Respondent acted ar bitrarily and capric iously

in disqualifying him f

rom employ

ment with th

e Metrop olita

n Poli ce Departm ent. When d etermini n g if a decision wa s arbitra ry or capr icious, the court m

ust determine “whether theadministrative agency made a clear error in judg ment.” State ex rel Nixon v. M

cCanless , 141 S.W.2d 8 85, 886 (1 940). “A n arbitra ry decision is one that is not b ased on a

ny c ourse of

reasoning or exercise

of judgment, or one that disregards the fac ts or circ umstance s of the c ase witho ut some ba sis that

would lead-4-

re asonable

persons to reach the same conclusion.” Jackson Mobilphone Co. v . Tennessee Public Service Commission , 876 S.W.2d 1206, 111 (1993). When the Respondent denied the Petition er’s requ est for a waiver of the vision requirements for employ ment with the police department, it followed the statutes and Civil Service Commission rules . Although the Respondent may have waivedthis requirement in 1981, the policies and procedures applied in this instance do notrequire the R esponde nt to make

a decisi on based

on its acti ons in the p ast. This Court must

determine whethe

r the Resp ondent, in

this instance, act

ed illeg ally or failed to follow the statutes and Civil Service Commission Rules. The Petitioner has not prese

nted suff icient pr oof that th e Re spond ent acted arbitrarily and capricious in deny ing his request for a waiver. The Respondent made a reasoned

decision based upon the st

atutes a nd Civil Ser

vice Commi ssion Rules

. Therefore, the Petitioner’s argument that the de cision was arbitrary and capric ious is with out merit. Mr. Hughey

filed a timely

appeal t o this Court

. SCOPE OF REVIEW The review b y the Court in this matter is limited. As set out in Tennessee Code Annotated section 27-9-1 14 (b)(1), judicial review of decisions by Civil Service boards of a county or municipa lity that affect the employ

ment status of

a county or c ity civil service employ ee shall be in conform ity with the judicial review standards under section 4-5-322 of the Uniform Administrative Procedures Act. T he Unif orm Administrative Procedures Act, in Tennessee Code Annotated section 4-5-322( h)(Suppp .2001), p

rovides: The court may af

firm the decision of the agency or remand

the case for further procee dings. The court may reverse or m od ify t he decision if the rights of the petitioner have be en pr ejudice d becau se the ad ministrati ve findin gs, infe rences , conclusions or decisions are: (1) In vio lation of c onstitution al or stat utory provision s; (2) In e xc es s o f t he st at ut or y au th or it y of th e a ge nc y; (3) Made upon unlawful procedure; (4) Arbitrary o r capri cious or c haract erized by abuse of discreti on or cle arly unwarranted exercise of discretion; or (5) Unsupportedby

evidence which

is both substantial and material in the light of the entire record.
It has been held in Metropolitan Government of Nashvill

e and Dav idson Count

y v. Shac klett , 554 S.W.2d 601, 604 (Tenn. 1977), that “[i]t is clear from the language of the statute that the r eview provided in the cha

ncery court is in

no sense a broad, or de novo, review. Review is confined to the record made bef

ore th e ag ency, e

xcept in cases of ‘alleged irreg ularities in procedure before the ag en cy, not s hown in the record. . . .’ ” In discussing the sc ope of review, the Supreme Court of-5-

Tennessee further set out in CF Industries v. Tennessee Public Service Commission , 59 9 S.W.2d 536, 540 (Tenn. 1980), that “[i]t is restricted to the record and the age ncy findi ng may

no t be reversed or modified unless arbitrary or capricious or cha

ract erized by

an abuse , or clea

rly unwarr ante d exerci se, of discretion and must stand if supported by substantial and material evidence.”
No issue is ma

de in th is record of the competency or the record of service of this vetera n police officer. From all that appears in the record, his life has been one of dedicated and competent servic e. H e simply has a color vision problem that, under Civil Service Commission rules and regula tions, disqualifies him from service as a police officer. Any success that he might have in the courts is depend

ent upon th

e effe ct, if any, of the previous waiver granted to him by the Civil Service Commission in 1981 and a finding tha t, somehow , the colo

r vision dis qualific ation itself is arbitrary and cap ricious. Under the limited s tandard of revie w to which he

is entitle d upon this a

ppeal, no author

ity is offered by

Appellant that

the color vision standards envisioned in the regulations, which are the same standards governing military service, are themselves arbitrary or capricious. Appellant asserts th e 1981 wa iver as w orking a

n estoppe l upon the C ivil Servic e Commissi o n as to disqu alify

ing him by

reason o f color vision. The doctrine of estopp el cannot be expand ed in such a manner. The rule in thi s State is that the doctrine of estoppel generally does not apply to the a cts of public officials or public agencies. See e.g. State ex rel. Moulton v. Williams , 207 Tenn. 695, 343 S.W. 2d 857 (19 61); State ex rel. Dosse tt v. Obion County , 188 Tenn. 538, 221 S.W.2d 705 (1949). That is the rule in the majority of jurisdict ions. Public ag encies a

re not sub ject to eq uitable estoppel or estoppel in pais to the same extent as private parties and very

exceptional circumstances are required t o invoke the doctrine against the State and its governme ntal subdivisions. See 31 C.J.S. Estoppel § 140 pp. 691-692. Bledsoe County v. McReynolds , 703 S.W.2d 123, 124 (Tenn.1985). The judgment of the trial court is in all respects affirmed, and costs on appeal are assessed to Appella

nt.

___________________________________ WILL IAM B. CAI

N, JUDGE