### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 7, 2003 Se ssion CLINTON LIEN v. M ETROPOLITAN GOV ERNMENT OF N ASHVILLE and DAVIDSON COUNTY, ET AL 

### . Appeal from the Chancery Court for Davidson County No. 01-126-II Walter C. Kurtz, Chancellor

No. M2002-00721-COA-R3-CV - Filed Mar ch 4, 2003

Chief Emmett H. Turner, of the Metropolitan Government of Nashville and Da vidson County

Police Departm ent, discharged A

ppe llant from employment as a police officer for certain violations of various rules and regulation s. The officer appealed his discharg e and, after a hearing , the Administrative Law Judge reduced his penalty to a thirty day

suspension. The appeal was further heard before the Civil Service Commission, which reversed the ALJ and upheld thedismissal of the of ficer

. The Chancery

Court of Davidson County upheld the action of the Civil Service Commission. The offi cer app eals, and we aff irm the jud

gment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed 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 D ON R. A SH , S P . J., joined. Gregory D. Smith, Clarksville, Tennessee, for the appellant, Clinton Lien. Karl F. Dean and William Michael Safley , Nashville, Tennessee, for the appe llee, Metro Go ve rn me nt of

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

OPINION Clinton Lien

was a met

ro police office r from Au gust 16, 1993 until A pril 21, 1999, when he was dischar

ged by metro poli ce C hief Emmett H. Turner on charges of running a swinger’s club, downloading pornography on company time, and bringing discredit upon the police forc e. Mr. Lien appealed his dismissal, and an administrative hearing took place on Februa ry 7 and 8, 2000, before an Adminis trative Law Judge who, on September 10, 2000, r endered an I

nitial Order in which he overturned

the decision of Chief Turner to fire Mr. L ien and, instead, imposed upon him a thirty day suspension. Metro appealed the AdministrativeLaw Judge Order to the Civil Service Commission and that Commission, by a vote of three to one, re versed the Administrative Law Judge decision and1 The admin ist rat ive recor d was f

il ed wit h th e Court

on March 2, 2001. -2- upheld Chief Turner’s action in discharging Mr. L ien. The appeal by Mr . Lien was to the Chancery Court of Davidson County where the administr

ative re cord wa s filed on

March 2, 2001. The

case was argued before Honora ble Walter

C. Kurtz, Cir

cuit Judge sitting by intercha

nge, on February

1, 2002, and take

n under a dvise ment. T he trial judge rendered judgment on February 20, 2002, upholding the action of the Civil Service Commission, and Mr. Lien timely appealed. Becau se we are dealing with the future of a ve teran metropolitan government police office r in a case w

here an Administra

tive L aw Judge

has held in his favor

and bec ause the

vote in the

Civil Service Commission w as a divided vote, we have left nothing to chance in reviewing the extensive reco rd in this ca se. The o nly issue ass erted be

fore thisCourt is whether the action of the Civi l Service Board in allowing the submission of extraneous evidence, subsequent to the hearing , of mino r previousinfrac tions by

Mr. L ien was p rejudic ial and r

eversib le erro

r rathe r than ha rmless error. The action of the Civil Service Commission in this respec t was cle arly errone ous, but a harmlesserror analy sis cannot be made without ca

reful c onsidera

tion of the entire r ecord, t aking in to account all of the evidence that was befor e the Commission. The standard of review in this Court is the same standard that was applicable to the r eview by the trial judge

.

The scope of

review in this Court is the same as in the trial court, to review findi ngs of fact

o f the adm

in istrative agency

upon the standard of substantial and material evidence. DePries t v. Puett, 669 S.W.2d 669 (Tenn.Ct.App.1984). Alth ough what amounts to “substantial an d materia l” evidence

provided for in T.C.A. § 4-5-322(

h) is not c learly

defined . It is gener ally understood that “it requir ed something less than a preponderance of the evide nce, (citat ions omitted) but more t han a scintilla or glimmer.” Wayne County v. Tennessee Solid Waste Disposal Control Bd. , 756 S.W.2d 274, 280 (1988). Gluck v. Civil Serv. Comm’n , 15 S.W.3d 486, 490 (Tenn. Ct. App. 1999). The extensive Memorandum of the learned trial judge lef t no stone unturned in the consider ation of th

is case, and since we cannot improve upon it, we adopt it in relevant part as the Opinion of

this Court a s follows: This is an appeal from the Civil Service Commission of the Met ropolitan Government

of Nashville and Da vidson C ounty (“CSC”) rende red November 16, 2000 , pursuant to the Uniform Administrative Procedures Act. The petitione r i s challenging his termination of employmen t as a Metropolitan Police Officer. The petition for judicial review was filed in the chancery court on January 12, 2001. 1 The undersigned

Judge is sitting by

in ter chang e per Or

der of Jan

uary 7, 2002. B oth2 The court cons iders No. 4 as just another way t o raise the co mpla int made in No. 3. The f our (4) i ssues prese nted a re take n from the sectio n head ings in the p etitioner ’s brief. -3- parties have filed extensive and excellent memoranda of law. The case was argue d before the Court o n Febru ary

1, 2002, a

nd taken u

nder adv isement. The plaint iff in this cas e contends that the decision of the CSC is illega

l, arbi trary , and capricious and that the decision of the CSC was unsupported by the evidenc e in the r

ecord. S pecific ally , the Petiti oner cla ims that:

. . . . 2. There is no artic ulated procedure in the Metropolitan Government

of Nashville and Davidson County Civil Service Rules, policy numbe

r 6.8 A-1, or Article 12.05 of the Metropolitan Charter

to guide the Civil Service Commission in reviewin g the initial order which led to the Civil Service Commiss ion ac ting arbitrarily and capriciously

and rendering a decision that was unsupported by the evidence in the record thus violating the petitioner’s right to due process warranting a reversal of the decision; and 3. The expansion of the record by the Civil Service Commission to include pri or disciplinary actions of the petitioner was arbitrary a nd capricious and unsupported by substantial and material evidence in the record violating the petitioner’s due processrights. 4. The act of expanding therecord to include prior disciplinary acts of the pe titione r by the Civil Service Commission a mounted to the Commission using rule making instead o f adjudication thus viol ating the petitioner’s right to due processand war

ranting revers al by

this Court. 2 (Petitioner’s Memorandum, pp. 13, 16, 22, and 25) The Police Chief terminated the petitioner for cause. The petitioner a ppealed to the CSC. The CSC is established by Article 12 of the Metropolitan Charter. Section 12 .05 state s in part: No e mployee in the classified se rvice may be

terminated, o r suspendedfrom the service, or demoted in pay grade, except

for cau se and after a hearing bef

ore the department head o r otherappointed au th or it y, with prior reasonable notice, in writing, of the proposed-4- action and the reasons therefore, .... Any employ ee terminated from th e class ified ser

vice or s uspende d or demot ed in pay grade , by his simple written request to the commission, shall hav e the action reviewed by the commission. If the commission does not approve the action, it may

modify or reve rse it, and provide w

hatever recompe nse is indicated, which shall not exceed net loss of earnings. I n a review by the commission of any disciplinary action, the disciplinar y authority shall bear the

burden of proof of just cause for discipline. Section 12 .07(h) st

ates in pa rt: The disciplinary action within t he c lassifie d servic e. Rules w ith respect to such action shall pro vide that when an e

mploy ee requ ests a review of disciplinary

action taken against hi m, a s provide d in Section 12.05 above, such employee shall be furnished a copy of the basis of his discipline not less t han fi fteen d ays prior to su ch hear ing, and sa id rules may provide f or the amendment of grounds for discipline upon reasonable notice to the employee. It shall be man datory that the rule s provide that the judgment and findi ngs of the commission on all questions of fact, in the hearing of charges proffe

red ag ainst

any classified

employee unde

r provision of th is articl e, shall be final and shall be subject to review only for illega lity or wa nt of

ju ri sd ic ti on , e xc ep ti ng on ly c ases whe re the classifiedemploy

ees have been dism

issed fro m t he service by judgment of the commission, in which case such dismissed employee may prepare and file the record of the proceedings, including the transcript certified by

the chairman of such commission, in the circuit and chancery

courts of Davidson County, .... The CSC itself has adopted rules governing disciplinary proceedings. The rules governing disciplina

ry procee dings, in

cases of an appe al of a dismi ssal, require a hearing before an

administrative law judge (“AL J”) from the office of the Secretary of State. The ALJ then conducts a hearing and enters an “initial order.” Rules of the CSC then require: The commission s hall r eview the initial order of the administrative judge or hearing officer sitting a lone. Writte n notice of the review will be included in the initial order.-5-

The CSC then receives briefs from the parties, hears ar gument, and then r

enders a “final order.” Judicial review of the CSC is then to the chancery cou rt pursua

nt to the provisions of T.C.A. § 4-5-322. See T.C.A. § 27-9-114. See , e.g. , Gluck v. Ci vil Service C omm’n. , 15 S.W.3d 486(Tenn. Ct. App. 1999)(the demotion of police officer by Metropolitan CSC affirmed). It is repea ted time a nd aga in in the appellate decisions that this Court’s scope of review on an administrative appeal pursuant to T.C.A. § 4-5-322 is limited. The scope of review i s explaine d as follo ws: The scope of review in this Court is the same as in the trial court, to review findings of fact of the administrative agency

upon the standard of substantial and material evidence. DePriest v. Puett , 669 S.W.2d 669 (T enn. C t. App . 1984 ). Alt hough what amou nts to “substantial and material” evidence provided for in T.C.A. § 4-5-322( h) is not clearly defined. It is g enerally u

nderstoo d that “it

requires something le s s than a preponderance of the evide nce, (citations omitted) but more than a scintilla or glimmer.” Wayne County v. Tenne ssee Solid Waste Disposal Control Bd. , 756 S.W.2d 274, 280 (1988). While this Court may consider evidenc e in the rec ord that d etracts from its weight, the court

is not allowed to substitute its judgment for that of the agency conce rning t he wei gh t of the ev idence. T.C.A. § 4-5-322(h), Pace v. G arbag e Disposa l Dist. , 54 Tenn.App. 263, 266, 390 S.W.2d 461, 4 63 (1965) . The evi dence b efore t he tribun al must be such relevant evidence as a re a sonable m ind might accept as ade quate to support a rational conclusion and such as to fur nish a reasonable sound basis for the action under consider ation. Pace , 54 Tenn.App. at 267, 390 S.W.2d at 463. Gluck , 15 S.W.3d at 490. T.C.A. § 4- 5-322 g overning this revie w states i n part: (g) The r eview shall be conducted by the court without a jury a nd shallbe confined to the record. I n cases of alleged irre gular ities in-6- procedurebefore the agency , not shown in the record, proof thereon may be take

n in the court. (h) The co urt may aff

irm the decision of the agency or remand the case for fur th er proceedings. The court may reverse or modify

the decision if the rig

hts of the petitioner

have be en preju diced be cause the administr

ative findings, inferences, 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

or cap r icious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion; or (5) Unsupportedby evidence which is both substantial and material in the light of the entire record. In determining the substantiality of evidenc e, the co

urt shall t ake into account whatever in the record

fairly detra

cts from its weight, but the court shall not substitute its judgment for that of the agency

as to the weight of evide nce on qu estions of

fact. (i) No agency

decision pursuant to a hear ing in a c ontested

case sha ll be reversed, remanded or modified by the reviewing court

unless for errors which affect the merits of such decision. Petitioner was employed as a Me

tropolitan Police Office

r begin ning Aug ust 16, 1993, until his termination by Chief of Police, Emmett Turner, on April 21, 1999. Chief Turner ’s April 13, 1999, letter to petitioner set out a number of factual allegations for disc iplinary action a gainst the plaintiff, which included his operation of an adult sexual entertainment facility, dispe nsing alcohol without a license, failing

to h ave an o ff-duty employ ment request on file, bringing discredit upon the Police Department

by operating

a swingers club, and using a Department computer to view

an d d ow nl oa d p or no gr ap hy. Petitioner appealed his termination pur suant to Civil Serv ice Rules and requested a hearing bef

ore an ALJ. The Metropolitan Government ( “Metro”) filed its charges and specifica tions an d proceededon six (6) charges. A two (2) day3 An “init ial order” is addr ess ed at T.C. A. § 4-5- 314 and t he re view of an “i nit ial order” at T. C.A. § 4-5- 315. -7- hearing was held before the AL J beginning on April 7, 2000, where the ALJ heard from fifteen (15) witnesses. Subsequently the A LJ issued a lengthy

“initial order” making finding s of fac t. 3 The ALJ concluded that termination wa s t oo harsh a punishmentand decided that a suspension of thirty (30) days wa s more appropriate. A s ummary of the de

tailed twenty-four

(24) page opinion is outlined a s follows: 1. Charge: Appellant operated an adult swinger’s c lub in violation of a U.S. District Court injunction. - NOT SUBSTANTIATE D. 2. Charge: Appellant gave a way alc oholic beverages at his club. - DOUBTFUL PROOF. 3. Charge : Appella

nt did not receive official

permission to operate the clu b. - PROVED, BUT MAN Y POLI CE OFFI CIAL S K NE W WHAT HE WAS DOING. 4. Charge: Appellant’s operation of the adult swing er’s club brought discred it u pon the Police Department. - PROVED, BUT MITI GA TED BY THE DEPARTMENT’S INACTI ON AND FAIL URE TO FOLL

OW CORRECT PROCEDURE. 5. Charge: Appellant produced and circulated a fly er for a teen

club he operate d wh ic h s ta te d i t w as “o wn ed , o pe ra te d, an d s ec ur ed by a-8- Metro Police Officer.” - PROVED, BUT FL YER NEVER CIRCULATED

. 6. Charge: Appellant downloaded pornography

and viewed it on police computers. - PROVED. As to Charge number 6, the AL J stated and then concluded: Of all the facts proven , thi s was the most serious of the charg es. The only rea son that this, combined with the other proven charg es, should not r

esult in dis missal is because of Appell ant’ s previous spotless record f rom hi s employ

ment dating from A

ugust 1993. Not only did he never ha ve an y previous discipline, but he never received a performance

evaluation in any cate gory of less than sa ti sf ac to ry. It i s appropriate under the facts here to give Appellant the maximum allowable suspension. In ord er to ens ure unif

ormity of discip line, and

ascert a i n appropriate discipline, this Judge had input from many other judges in this office who have handled Metro Civil Service cases. The final decision to suspend

for thirt y da ys i s actually mo

re seve re than i f this had been a consensus opinion. Metro sought review of the “initial order” of the ALJ and requested that the CSC reject the thirty ( 30) day suspension recommended by the ALJ and terminate the petitioner. Metro requested that the CSC reverse the “conclusion” of the A LJ and indicatedthat it

did not appeal the factual determination. Metro asserted “that such conduct is not conduct that

should be tolerated and therefore [the petitione r] should be termin ated fr

om his emplo yme

nt.” The Metro att orney stated to t

he CSC: The Department

acknowledges however, that there were two of the particular charges whic h would be considered the most serious of the violations committed by Mr. L ien. These tw o particular charges include: the using of company time and c ompany equipment to do wn lo ad po rn og ra ph y an d s ec on dl y, bringin g discr edit upon the Police Department. Now, unque sti onably the AL J found Mr. Lien-9- guilty of both these charges. The discre dit to the Police Department charge resulted from Mr. L ien’s operation of a sex club in which an admission was paid

by pa trons to enter and engage in open sexual activity with other

patrons. The CSC f

i rst met on October 10, 2000, to review the “initial order” of the AL J. Mr. Lien was repre sented by counse l and the P olice Department by attorney Michael Sa fl ey. The matter was heard on argument of counse l. The Chairman of the CSC define d the scop e of the h earing as follow s: We are her e to rev iew th e recor d that the Ad mini strat ive Law J udge had. On these

facts, I believe , we are

entitl ed to ac cept the se fact s and look at

those fa cts and make a judgment about the disposition on th ose f acts. I mean... Chief Turne r made one judgment. The Administrative Law Judge made an e ntirely differ

ent judgment and now it is before this Commission to review these judg ments and to make our own dete rmination based on the fac ts. During the discu ssion betw een the C SC membersand coun sel, one o f the CSC members questioned whether the ALJ’s finding that the pe titioner had a “ spotless record” was cor

rect in th at there

was an a rticle in the rec ord from The Tennessean that supposedly indicated that the petitioner hadbeen disciplined a number of times since joining the forcein 1993. The petitioner’s lawy er objected and the Chairman ruled: O.K., we are going to rule e videntiary spea

king, that we will not consider anything The Tennesseanarticle say s about his prior record Mr. Roberts. [Pe

titioner’ s attorne

y]. Y ou are e

xactly right. I haven’t seen the article and certainly [will] not consider that. So anything tha t

... we are again bound by

the findings of

fact that the Administrative Law Judge found even in this ca se if they ar e correct or incorrect. As the pro ceedin g r eached an end, one of the CSC members stated that he had not read the ALJ’s decision

and asked that the matter be postponed. Counselagreed that4 Th e reco rd sho wed discip line for two (2) traffic v iolation s and a failure to app ear in c ourt. 5 Th is final ord er do es no t com ply with the requ ireme nts of T .C.A . § 4-5 -315 (i) and 4-5-3 14( c). T his deficiency i s, however, not all eged as error by the petitioner. -10- a postponement would be appropriate and the proceeding was reset for

November 14, 2000. When the case was called on November 14th, the Chairman a nnounced that the CSC had “expanded the record to include Mr. Lie n’s personnel record.” The petitioner objected. The discussion, however, continued related to the c harges agains tthe petitioner

and the Chairman pointed out that, while the prior disciplinary

matters involving the petitioner were “minor,” he did not have a “spotless record” as the AL J had found. 4 As to the A LJ’s finding tha

t the petit ioner ha d a “spotl ess record,” the Chairman stated “now that’s simply wrong.” The CSC continued to discuss the case until a vote was taken, and by a vote of three (3) to one (1) the CSC voted to overturn the “initial order” of the AL J and reinstate Chief Turner’s decision for termination. The CSC then on November 16, 2000, ent ered a b rief Fi nal Orde

r which st ates in pe rtinent pa rt as foll ows: Based on consideration of the Technical Record and Order as issued by Administra

tive L aw Judge

Robert F

ellm an, it is hereby ORDERED that the decision entered by the Administrative Law Judge to reduce the disciplina ry action to a thirty (30) day suspe

nsion, be REVERSED, and the A ppointing Authority

initial de cision to dismiss M r. Lien, shall be UPHEL D by this Commission and con si der ed F INAL. 5 When reviewing an “initial order” the CSC is “not bound to accept the findings and recommendations of hearing examiners.” See Sanderson v. University of Tennessee ,-11-

1997 WL 718427, *5 (Tenn. App. Nov. 19, 1997). Here , the CSC and t h e parties accepted the fac tua l fi ndi ngsof t

he A LJ, but the CSC, as is appropriate, substituted its judgment as to the appropriate action to be taken.

. . . . II. Lack Of Ar ticulated Standards As near as the Court

can determine, the petitioner’s complain t is that the

CSC makes its decisi on wit

hout any standar

ds and, therefore, the decision is subjective and arbitrary . This contention is confusing because it does not allege tha tthe CSC’s decision was arbitrary

com pa red to the punishment imposed for other like disciplinary

infractions but, rather, g oes off on a tangent about there be ing no “articulated

procedu res ... to guide th e Commission ” in makin g its decis ion. The petitioner asserts t hat there should be criteria by which the CSC can make a determination between those cases that warrant reprimand, a short suspension, a long suspension, or termination. Without such standards the petitioner arg u es that the decision can be nothing but subjective, arbitrary , and inconsistent with the policy of the civil service laws. The Metropolitan Charter has created the civil service system and has charge d the CSC to oversee and review the decisions of department heads related to employ ee discipline as being consistent with the departmental rules and civil service laws. The Court is una

ware of any legal a uthority which requires that

specific written c riteria be adopted gover

ning the choice o f sanctio ns for em ploy ment rule infrac tions.-12- If a government employ

er has a choice

of sanctions available for

the violation of an employ

ment rule , it would

only be a finding

of arbitrariness that would allow

a court to “ second g

uess” the administr

ative de cision mak

er. I t is the CSC itself that is the primary protector of the employee against the arbitrary

action of his department head. The determination of arbitrariness within the structure of an administrative law decision is to com pare the decision at issue w ith the precedent in prior c ases. See Pi erc e, supra

at § 11.5 (Unexplained Departures From Precede nt). Thus, if an agency treats individuals differently , it must acknowledge and explain that difference in treatment or be subject to a determination of arbitrariness. Id . When an agency does not have a

su fficie nt record of precedents or the record of precedents is not made, there is no occasion to find that the decision was arbitrar y. Id

. In his brief the petitioner cites page 330 of the reco rd and contends that he askedthe CSC to co nsider di sciplinar y a ctions tak en aga inst other police of ficers in like cases. T

hat conte ntion is not e

xactly correct. Counsel on page 330 argued that “[the ALJ] look

ed at the previousdisciplina

ry action of other em ploy ees to see what would happen to them when they didnot fill out

a form one fifty . And at th at point, he mi tigate d the ter

mination of

Clinton L ien by determin ing that other em ploy ees that had committed the same act were not terminated.” This comment was in reference

to the minor

offense of failing to file the paperwork related to petitioner’s second job. Both the AL J and the CSC f

ound this of

fense to be minor c ompared

to the viewing-13-

and downloading of pornography by the us e of

a government computer and the operation of a “swinger ’s” c lub. Alth ough not refe

rred to in petitione r’s brief, the mor

e importa nt commen t was made by Mr . Roberts to the CSC when he stated: With no standa

rds by which thisaction c ould be ta ken [,] [t]went

y three ot her disciplinary matters we re gone into at this evidentiary hearin g. In part of Chief

Turner’s own deposition, with people who had committed similar violations, or more severe violations nobody received termination. They all received either reprimands or one or two days off with pay . (TR at 302). This comment a

gain re ferre d to discipline for failure to file the form 150, one of the minor infractions at issue. ( See ALJ Order at p. 8). Mr. Roberts then later sa id: If you read the

r ecord, you will find that there ... that some ra ther exhaustive testimony was introduced durin g Chief Turner’s deposition. And he tes ti fie d by d epo si ti on. In which the disciplinary actions regarding other

Officers were gone

into. Some of them much more serious than any that Of ficer Lien wasaccuse d of. I ncluding in one case brandishing a firear m in a bar after drinking. That Office r was notterminated. That brings d iscredit to the Polic e Depar

tment. Los i ng a weapo n to someone else. T hose wer e testifi ed to extensivel y a nd those punishments were far less than termination. There was no consistency as to the punishment s given a nd that is in part the basis of Officer L ien’s appeal. (TR at 309). There was proof in the r e cord, brought in during Chief Turner’ s testimony, of disciplinary

action taken against other officers for a wide variety of

violations. (TR 575-587, 589-611). None of these, h ow ever, in volved exa

mples whic

h resulte d in termination of officers. (TR 616). Chief Turner was then askedwhy he terminate d the petiti oner and

not the other offic ers whos e situatio ns he had been ask ed about:-14- Q. Wou ld you explain, why is there a difference betwee n on e - o r two-day s’ suspensio n for the typ e of off

enses to s ome people and in Mr. Lien’ s case he

got termination? A. Well, I think wha

t you have to t

ake into c onsidera

tion is that

those were single i ncidentsthat occurred. Although some of the officers or some of the employee s may have ha d prior ch arges , they

were single situationsthat had o ccurre d during the cour se of the

ir employ ment. Q. And how does that compare to Mr. L ien? A. Well, I

think if you compare

those individuals with what Mr. Lien was do in g – an d c er ta in ly I don’t thin k any of those individuals were o perating a sexually oriented business. I n my view, none of t

hos e people were c harge d with viewing sexua lly e xplicit documents on a computer, they

were no t c harge d with ope rating a privat e busines s that was engaged

in sexually

oriente d affai

rs. And in my opinion, Mr. Lien’s business certainly br ought a discre dit to the po lice dep artment, and I felt very strong

ly that the offenses that he had committed or the rules that he had violated certainly were serious enough t o warrant termination. (TR 617-18). The record

does not su gges t that the A LJ or the CSC disregarded petitioner’s evidence as to disciplinary decisions regar ding othe r police office rs. In fa ct, th e ALJ probably went too fa

r in making the comparison of this case with other

cases. The ALJ’s comment on page 23 of his opinion tha t he had “ input” fr

om other ju dges in his office, in an eff

ort to ascertain what had happened in other ca ses, is of dubious legality. See

T.C.A. § 4-5-304(a)(b) and T.C.A. § 4-5-314(d). In determining discipline of an employee, “supervisors have discret i on on how to d iscipline the employee.” Gluck , 15 S.W.3d a t 490-91. A s the issu e wa s articulated

and presented by

the petitioner, the Court finds no due process violation.-15- III. Expansion Of The Record By The CSC To Includ e Prior Disciplinary Actions Against The Petitioner. The CSC initially

met in October 2000 and because a Commissioner had not read the findings of facts and conclusions of law entered as the “initial Order” of the AL J, the matter was continue d untilNovember 14, 2000. As the November hearing opened, i t was announced by the Chairman that the CSC, itself, had obtained the personnel file of th

e petitioner so as t

o inquire into his prior disciplinary procee dings. The petitioner objected to the CSC’s augmentation of the record. Mr. Safley stated that he had not

requested this augmentation and actually did notthink that the prior disciplinary actions ag ainst the petitioner were of much importance. The CSC Chairman explained that the ALJ had found that the petitioner had

no prior disciplinary

actions a gainst him and pa

rt of the b asis of his recommendation for only a suspension was petitioner’ s “spotless” record. An arti cle fro m The T enne ssean was in the record which indicated that the petitioner had some pr ior disciplinary

problems. Therefore, the CSC, on its own mo tion, sought out and procured t he filing of petitioner’s personnel record. Mr. Saf ley stated “I

have not made such a motion. Th e police department has not requested that. That doesn’t

mean that the Commission can do that but it is not pursuant to anymotion that I have

come and laid before y ou.” Chairman Farmer stated: “No. I requested his personnel record be made a part of

the record so that

it has some clarification about that.” The Chairm an then later sta

ted “[i]t wa s my

understa nding a nd continu es to be my under standing that [the] Civil Service Commission h as the pow er and a uthorit y unde r6 Th e rule o f statutory c onstru ction is “e xpre ssio u nius est exclusio alt erius,” The expession of one thi ng

exclud es the o ther. See Vulcan Materi als Co. v. Gamble Cons t. Co. , 56 S .W .3d 5 71, 5 76 ( Te nn.Ap p.20 01)

. -16- the code to expand the record in every disciplinary cas e that is brou ght to us t o include an employe e’s past disciplinary r ecord.” The issue beforethe Court, then, is wh ether or not the CSC can expand the record as was done in this case. The Court concludes that it was imperm issible for the CSC to expand the

re cord. The brief filed by Metro in th

is case c ites to no r

ule, statu te, or ca se in support of the ar gument t hat the CSC c an expand

th e record. The Court is of the opinion that in considering the statute, T.C.A. § 4-5-315 (b)-(h) governing an appeal from an initial order, t

he statute does not contemplate further proof being pre sented before the agency

or commission reviewing an initial order. The Court reac hes that conclusion by refe

rence to the provision found in subpart (e) which states “[t]he agenc y sh all affo

rd each party an opportunity to present brie fs and may a

ffordeach party an opportunity to pr

esent oral argument.” Furthermore, in subpar t (g) the

statute states that the agency

may rende

r a final order or “may

remandthe matter for further proceedings with instructions to the person who rendered the initial order.” 6 The Court is of

the opinion that this statute contemplates that the reviewing agency

or commission

shall rev iew the “ initial or

der” on t he reco rd befor e the AL J. If it i s necessary to take further proo f, the case ha s to be remanded back to the AL J. The Courtwould further

note, in a discussion of agency

review of the initial order, there

was no ment ion of the reviewing body ’s ability to hear additional evide nce or t o-17-

augment the rec ord on its o wn moti on . See Kratzke, A Review of Contest

ed Case Provisions of the Uniform Administrative Procedures Act , 13 U. Mem. L. Rev. 552, 582-84 (1983). Furthermore, the Tennessee Rules of Evidence apply to this case. See T.C.A. § 4-5-313. T.R.E. 614(a ) only all ows a j udge (and a Co mmissioner ) to call a witness in “extraordinary circumstances.” That rule would also apply to the production of documentary

evidenc e. Docum

entary evidenc e is only pro perly admissible afte r a witness lays a founda

tion. As one commentator on Tennessee law has stated: Under the Ang lo American trial process, lawy ers for the parties have the responsibility of deciding which witnesses to call and what que stions to ask. The judge is a neutral participant who g eneral l y refrains from direct involvement in the presentation of proof, other than to rule on objections by counse l. Cohen, Sheppeard and Paine, Tennessee Law of Evidence§ 6.14.1 (4th ed. 2000 ). Here, it is import an t to remember that counsel for Metro did notask for the admission of the personnel file nor did counsel for Metro rely , in any way, on the petitioner’s prior discipl in ar y r ecord. In fact, counsel for Metro specifically stated that he did not

feel that the prior disciplinary record was important because the prior infractions were so minor. This case is akin to State v. Brock , 940 S.W.2d 577 (Tenn. Crim. App. 1996) where the judge called a witness in orde r to fill a gap in the state’s proof. The trial judge had noted that no one had proven the victim’s age, a necessary

element in a statutory rape case. Th e judge, therefore, rec alled a witness to present evidence as

to the victim’s age. The

appella te court found thisto be error. The Court, here, finds-18-

that even if the statutory prohibition is disregar ded, the CSC erred by aug menting the record on its own motion. See also J.F. v. State , 718 So.2d 251, 252 (Fla . App. 1998)(trial court departs from position of neutrality when it sua sponte o rde rs the production of evidence that the [party ] itself never sought to offer into evidence). Metro has arg

ued that e ven if the CSC was in e

rror in augmenting the record, that the err or was h armless. Se e Hoover v. State Bd. of Equalization , 579 S.W.2d 192 (Te nn. App. 1978)(if an administrative agency commits harmless error, the reviewing court cannot use it as a proper basis for reversal of theagencies decision); Berkev. Chattanooga Bar Assoc. , 436 S.W.2 d 296, 304 (Tenn. App. 1968); and T.C.A. § 4-5-322(h). Metro cites spe cific quotations from CSC members stating that they did not consider the petitioner’s prior disciplinary record in reaching their decision. Metro is correct. Even though it was error for the CSC to include past disciplinary document s in the record, such inclusion was harmless. There is “suff icient competent

evidenc e” to support the decision of the CSC. The following comments of the various Commissioners are uncontradicted by the record. During the deliberation of this matter, the following statements were made : COMMI SSION

ER RACHEL : What I

see in looking at the entire case is sepa rate incidents, but all of them reflect on a lack of judg em ent

(sic) on the part of the employee. Even though they are separa te and different in regards to wha t happened. Eve n the las t comment re la ti ve to th e for m o ne fi ft y, in my opinion, r

eflectsa lack of judgement (sic) on his part

. I still think t hat t he iss ue down loading the pornog raph y in and of itse lf should warrant sepa ration. It also shows a lack of judgement (sic). So, I don’t know what the other incidents have been to other employe es who-19- have used technology

for their own personal benefit that’s id entical or not. Bu t that in cident alone, in my opinion, warr ants separation. (TR. p.335)(emphasis added) VICE-CHA IR MAN CORBI TT: Well, I happen to agree with Commissioner

Rachel. Also, I agree w ith t he ALJ that the disciplinary actions, t

he supplemental infor mation t ha t w e re ceived doesn’t we

igh relat ive to me in ultimate disci pli nar y action. I ha

ppen to ag

ree tha t we have

the right to request that information and we alway s have. A nd in spite

of the arguments we heard that there was a precedent wher e we couldn’t expand

upon the record, we’ve a

lway s had the o

ption or the rig ht to request the personnel file and

additiona

l i nform ation regarding an employ ee. I don’t agree with the Judge’s ultimate decision in ov er turning the termination. At the appropriat e time, I will vote a

ccordin gly . (TR. p. 335-336)(emphasis added) CHAI RM AN FARMER: Wha t we have in front o f us here

is a Police Officer operating

a swinge rs club. Not getting permi ssion to do that. Br

inging discred it upon the

Police De

partmen t. I .. .clear

ly that is something that I believe w ould b e, in my opinion, bringing discred it upon the Police Department. Using the computer on duty to down load Adult

pornography is serious enough offens e in and of itself to war

rant dism

issal and I agr

ee with Commissioner Rachel on that issu e as well

. I’m not considering the disciplinary record ...prior disciplinary record as having any particular medigation (sic) or one way or the other in this case. Becau se as I said it is so minor, butwe will ma

ke it a part o f the re cord. (T R. p. 337)( emphasis added) As evidenced by

the above passages, each

Commissioner felt thatthe actions of the petitioner, specifically the downloading of pornography on a Department computer whi le on duty, warra

nted dismissal of employment. Commissioners Corbitt and F armer

even went further and specifically stated that the prior disciplinary

actions that were added to the record play ed no rolein their decision to terminat e the emplo yme

nt of Mr. L

ien. The CSC voted thr

ee (3) t o one (1) to-20-

overturn the j udgment of the ALJ and reinstate termination of employ ment as the appropr iatepunishmen t. The three votes came from the above quoted Commissione

rs. The information concerning the pet itioner’s past

disciplinary rec ord played no role in the decision of the CSC.

IV. Conclusion The Court

conclude s as follow s:

. . . . 2. The Court finds no due process violation related to petitioner’s allega tion that th

e decisi on rende

red by the CSC was somehow s tandard less. 3. The Court finds that while it was er ror to au gment the record, that

error was harmless. Thereis materi al evide nce to sup

port the d ecision o f the CSC. The order of the CSC is affirmed. Costs are taxed to the petitioner. The AL J, in his findings of fact, described the materials downloade d by the Mr. Lien from a computer

also oper

ated by the secr etary in the war

rants divisi on of the p olic e department. He observed, “[m]ost of the pictures were of nudity a lone, similar to t

hosefound in Pla

ybo y. B ut some of the pictures arguably

could be considered pornographic, a lthough none showed

the ultimate sex act.” The ALJ has confused Playboy magazine with Hustler magazine. In observing

that, under the criminal laws of the United States, the First and Fourteenth Amendments to the Constitution of the United States provided protection for every thing except

“hard-core pornogra

phy,” Justice Potter Stewart observed, “I shall not today attempt f urther to define t he kinds of

materia l I und erstand to be embrac ed within t

hat short hand des cription; and perh aps I could nev er succ eed in int elligibl y doin g so. But I know it when I see it.” Jacobe llis v. Stat e of Ohio , 378 U.S. 184, 197 (1 964 ) (Stewart concurring). Downloading pornography - - hard-core, sof

t-core, or medium-core - - - on one’ s own computer, in the privacy of one’s own home is one thing. Downloading such mater ials on a computer assigned to another employ ee of the police department on department time and leaving the-21-

disk for perusal by

other employee s of

the department who might not share Appellan t’s enthu siasm for su ch erot ic dis play of th e femal e body is q uite a noth er thi ng. In the fina

l analy sis, Mr. L

ien asse rts on app eal a sin gle

issue that the admitted error of the Civil Service Board in allo wing the record to be supplemented, post-hear ing, by mate

rials related to his prior

minor disciplinary infractions justifies reversal. Considering the entire record in the case, it clear ly does not, a s the err

or is har mless. Th e judgmentof the trial court is affirmed, and the case is re manded for such further procee dings asmay

be nece ssary . Costs of th e cause are ass essed ag ainst Appe llant.

___________________________________ WILL IAM B. CAI

N, JUDGE