1 For convenience, we will refer to the de fendants, the C ity of Chattano oga and its C ity Council, co llectively

as “the City Co uncil.”



### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on Briefs A

pril 11, 2001 TERRY YATES v. THE CITY OF CHATTANOOGA, ET AL 

### . Appeal from the Chancery Court for Hamilton County No. 97-1000 Howell N. Peoples, Chancellor

FILED MAY 21, 2001 No. E2000-02064-COA-R3-CV

Chattanoo ga

Police Officer Terry

Yates filed a pet

ition for certior

ari in the trial co

urt, claiming that he was denied due process in connection with an adverse emp loyment decision. Yates, who was demotedfrom the rank of sergeant in 1994, sought reinstatement to his form errank. An administrator

initially reinstatedhim, but subsequently rescinded the reinstatement. Yates claimed that the res cis sio n wa s a “d emo tio n,” and , co nse que ntl y, demanded a hearing before the defendant City Council for the City of Chattanoo ga (“the City Council”). 1 Following a hea ring, the City Council found that the administrator did not have the authority to reinstate Yates to his former rank. This bei ng th e cas e, t he C ity Council found t hat there had been no “demotion” by virtue of the sub sequentres cinding of the reinstatement. The trial court agreed with the City Council and dismissed Yates’ p

etition. He appea

ls. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed; Case Remanded C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined. W. Jeffrey Ho

llingsworth, Chat

tanooga, Tenne

ssee, for the app

ellant, Terry

Yates. Arnold A. Stulce, Jr., Chatta

nooga, Tenness

ee, for the appe

lle es, the Ci ty of Chattanooga and the City Council for the City of Chattanooga. OPINION-2- I.
Yates is employed b y the City of Chattanooga Police Department. He has been with the Department since 1978. In 1988, he was promoted to the rank of sergeant. I n 1994, Ya tes wa s involved in an altercation at a restaurant in Chattanooga. Following an investigation by the I nternal Affairs Division of the Police Department and a decision by Safety Administrator Ervin Dinsmore, Yates was suspended without pay for 28 days and demoted

from the rank of sergeant to that of patrol officer. This adverse employment decision was predicated upon a finding of conduct unbecoming a member of the Chat

t anoog a Police Department and his failure to cooperate in a police investigation.
Yates appealed this dec

ision to the City

Council, which upheld the demotion but reduced the suspension to seven days. Yates sought further review

in the Hamilton County

Chancery C

ourt, which als o up hel d th e dem oti on. Yat es t hen app eal ed t o th is C our t, a nd w e aff irm ed b y way o f a memorandum opinion. Our decision became final with the passage of time.
In late1996, Yates approached Safety Administrator Dinsmore and requested reinstatement to his former rank, asserting that he had recently uncovered exculpatory evidence regarding the 1994 incident. After attemptin g and failing to contact Dinsmore to determine if he had reviewed the “new” evide nce, Yates contacted Marti Rutherford, a member of the City Council. Rutherford phonedDinsmore and discussed the situation wi th him. Dinsmore and Rutherford later broached the topic with the Mayor of Chattanooga. The Mayor instructed Dinsmore to “handle” the situation. Dinsmore subsequently sent the Mayor a letter dated May 13, 1997, requesting the reinstatement of Yates to the rank of sergeant effective May 9, 1997. Chattanoo ga

Personnel Director Donna Kelley, upon r ec eiving documentation from Dinsmore, made adjustments to Yates’ pay record and changed certain computerized records of the Cit y, reflecting the

change in Yate

s’ status from that

of patrol office

r to that of serg

eant. Yates,

on May 14 and 15, 1997, wore his sergeant stripes and perfor med sergeant

as well as patrol officer duties. On May 16, 1997, Yates went on a vacation that had been scheduled for a number of mo

nths. Yates’ reinstatement was repor t ed to the City Council on May 13, 1997. While the reinstatement

was not questionedat that time, the issue came up shortly thereafter when Councilman Leamon Pierce inquired

as to Dinsmore’s a

uthority to g

rant such a reins

tatement. City

Councilman Rutherfordthen contacted City Attorney Randall L ee Nelson, seeking an opinion on the matte r. In their initial conversation, Nelson informed Rutherford that the matter sho uld be h andled by Dinsmore and the Mayor rather than by the City Council. He did not comment on the more narrow question of whether theMayor or Dinsmore had the authority to re instate Yates. Later, Nelson was calledupon to give his le gal opinion reg

arding whether

Dinsmore had the a

uthority to re

instate Yates. He opined that Dinsmore “didn’t have the power to do what he had done because there had been no promotional examgiven, he had not gone through the promotional process and there was no provision under the city code for reinstatement to a former position bas ed on the facts

in this case....” Nelson informed Dinsmore and Yates of his opinion.-3-

In a letter to the Mayor dated May 23, 1997, Dinsmore rescind

ed his reinstateme

nt of Yates. On May 28, 1997,

Personnel Direc

tor Kelley r

eceived a pers

onnel form chang

ing Yates’ status from sergean tback to patrol off icer. When Yates

went to retrieve

his first pay

check as a rein

state d sergeant, he was told that he would ha ve to sign that check and give it back to payroll, and that they would give him another check reflecting his status as a patrol officer.
Yates requested a hea

ring before the

City Council.

He took the position that the rescission of his reinstatement constituted a demotion. The City Council scheduled a hearing but later cance led it, at whic h point Yat es filed th e instant p etition fo r certiorari , assertin g a right to a h earing. The trial court agreed with Yates and remanded for a hearing before City

Council. At a hearing held on March 20, 2 000, the City Co

uncil found that “[a

]cting Po lic e Administrator Dinsmore did not have authority to reinstate Officer Terry Yates to the rank of Sergeant an d that, therefore,...Terry

Yates was and has been a Patrol Officer in the Chattan ooga Police Department during all relevant

times.” The trial court later upheld this decision. Yates now appeals, claiming that the rescissio

n of his reinstatem

ent to sergean

t deprived him of du

e process. II. Our review of this matter is governed by T.C.A. § 27-9-114(b)(1) (2000), which provides as follows: Judi cial rev iew of decisions by civil service boards of a county or municipality

which affects the

employment s

tatus of a county

or city civilservice employee shall be in conformity

with the judicial review standards under the Uniform AdministrativeProcedures Act, § 4-5- 322. On the subject of ju

dicial review, T .C.A. § 4-5-322 (19 98) provides, in pe

rtinent part, as f

ollows: (g) The review shall be conduc ted by the court without a jury and shallbe confi ned t o the record. I n cases of alleg

ed irregulari

ties in procedurebefore the agency, not shown in the record, pr oof thereon may be take

n in the court. (h) The court may affirm the deci sion of the agency or remand the case for further proceedings. The court may rever se or modify the decision if the rights of the petitioner have been prejudice

d because the administrative findings, inferences, conclusions or decisions are: (1) In violati

on of constitutiona

l or statutory

provisions; (2) In ex cess of t he s tat uto ry aut hor ity o f th e age ncy;2 The hearing that wa s conduc ted before the City Cou ncil concer ned mor e Dinsmo re’s authority to re instate

Yates than th e appro priateness o f Yates’ “dem otion.” -4-

(3) Made upon unlawful procedure; (4) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (5) Unsupported by evidence which is both substantial and material in the light of the entire record.
In determining the substantiality of evidence, the c

ourt shall take into account whatever in the record

fairly detr

acts from its

weight, but the court shall notsubstitute its judgment for that of the agency as to the weight of the ev

idence on questio

ns of fact.
In the instant case, Yates raises the issue of procedural due process. This is a pr operbasis for seeking review under T.C.A. § 4-5-322(h)(1).
III. Reducedto its e ssence, Yates’ argument is that Dinsmore, in rescinding his earlier reinstatement

of Yates to the rank of sergeant, denied Yates his procedural due process r ights. More spe cif ica lly, he argues that his most recent “demotion” from the position of sergeant to the position of patrol offi cer was accom plished wi thout a hear ing, 2 contrary to due process. The C ity C ouncil argues that Dinsmore had n o authority t

o reinstate Yate

s to the position of se

rgeant, and tha

t, because Yates never rightfully held the position of sergeant in 19 97, he was not “demoted” from that position. Thus, the crux of the matter c o ncerns Dinsmore ’s authority , or lack of autho

rity, to reinstate Yates to the positio

n of sergeant.

If he had no su

ch authority

, there was n

o “demotion,” unlaw ful or otherwise. On t he other hand, if

he did possess and p

roperly exe

rcise auth ori ty t o reinstate Yates to sergeant, then we must determine whether his letter rescinding that reinstatement violated Yates’ d

ue process rig

hts. Before Dinsmore took

the action that

was later found to be invalid, Yates was a patrol officer. Thus, his elevation to the position of sergeant would had to have been

by way of a promotion or by way of the challenged re

instatement. While Y

ates does not conte

nd that his reinstat

ement amounts to a promotion, we will addr ess the promotion procedure for the purpose of contrasting it to a reinstatement under the Charter of the City of Chattanooga. The police departme

nt manual applica

ble to this case

sets forth the procedure for promotion of police office

rs:-5- This manual order establishes a systemat ic pr ocedure for selection and promotion of pe

rsonnel to highe

r ranks with the De

partment. It is the policy of the Chattanooga Police Department to promote on a basis of qualifications, ability, and performance. Qualifications for in-service pro mot ions shall be based upon merit and fitness to be determined, so far as is practicable, by suitable, job-related, competitive, objective, written, and/or interview; physical fitness or ability examinations, where appropriate; and experience. The first step in

the promotion process is the written test, which “must be passed in order to proceed to the next step in the pr

ocess.” Yates di

d not take a writte

n test in 1997. Thus, it is clear that Yates was not elevated to the position of sergeant by way of a “promotion.” Therefore, his change in rank to sergeant, if

it is to be effecti

ve, must be as a re

sult of a valid rein

statement. Yates argues that Dinsmore had the authority

to reinstate him

pursuant to Chattan

ooga City Charter § 13.50, w

hich provides as f

ollows: Nothing in this Act will prohibit any discharged employee

from being reinstatedto his former position and rank at the same s ala ry h e was receiving when discharged.
He asserts that his demotion from sergeant to patrol officer in 1994 constitutes a “discharge” from the rank of sergeant and that, conseque ntly, City Charter § 13.50 g

ives Dinsmore the a

uthority to reinstate Yates

to the position of se

rgeant without r

esort to the promoti

on process. Section 13.50 is part of Title 13, Chapter III, of the Chattanooga Charter, which relates to the tenure of city firemen, policemen, and detectives. Section 13.44 provides that such public se

rvants shallnot be discharged, or suspended for political or religious reasons or for any other unjust or arbitrary cause. Section 13.49 provi

des that [a]nyand all employees di sc harged, or suspended in the event that such employee or employees ar e proven innocent of said charges by the committ ee or any o

ther of the court

s will be reinstate

d at his position he held when charges were made, with full retro acti ve pay for the time lost. When read

in the context of Title 13, it is clear that § 13.50 provides simply for the reinstatement of a police officer who has been wrongfully discharged f rom the force . Obviously, that is not the case here. Yates has been a police officer, without interruption, since 1978.-6-

We are of the opinion that City Charter § 13.50 does not give Dinsmore the a uthor ity to reinstate Yates to the position of sergeant under the facts of this case. Even if Yates’ 1994 demotion from serge a nt to patrol officer could be construed as a “discharge” under § 13.50, the Title 13 provisions merely allow one who believes that he or she has suffered an adverse employment decision to appeal his or her case. The initial appeal is to the City Council. The judgment of that body is subject to

judicial review. If, at any step along the way , the reviewing entity agrees that the officer was wrongly “discharged” and, f or the sol e purpose of argument, we are here conceding Yates’ interpretation of that word, the reviewing body may ord er reinstatement of

that individual. These provisions do not, howev er, permit an officer to appeal his or her case through the syste m withoutsuccess, and then appeal to an administrator, wh o mayignore the prior decisions and reinstate the officer.
We find that the record before us clearly supports the trial court’s decision

that Dinsmore did not have the authority to reinstate Yates to the position of

sergeant. Furthermore, since Dinsmore hadno such authority, there was no subsequent “demo

tion,” unlawful or

otherwise. We ac

cordingly affirm the trial c

ourt’s dismissal of

Yates’ petition f

or certiorari.
IV. The judgment of the trial court is affirmed. This case is remanded for collec tion of cost s assessed below, p

ursuant to applica

ble law. Costs on app

eal are taxed to th

e appellant.

___________________________________ CHARLES D. SUSANO, JR., JUDGE