# FILED
December 15, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE, AT JACKSON

____________________________________________________________ ) Shelby County Chancery Court DAVID GROSS , ) No. 109718-2 R.D. ) Petitioner/Appellee, ) ) C.A. No. W1998-00548-COA-R3-CV VS. ) ) SHERIFF A. C. GILLESS, JR., AND ) THE SHELBY COUNTY SHERIFF’S ) DEPARTMENT, AND SHELBY ) COUNTY GOVERNMENT , ) ) Respondents/Appe

llants. )

)

______________________________________________________________________________ From the Chancer

y Court of She

lby County

at Memphis. Honorable Floyd Peete, Chancellor

Alan G. Crone , CRONE & MASON, P.L.C., Memphis, Tennessee Attorney for Respondents/Appellants. Alan Bryant Chambers , CHAMBERS & DURHAM, Memphis, Tennessee Attorney for Petitioner/Appellee.

OPINION FIL

ED: REVERSED AND REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) HIGHERS, J. : (Concurs)Defendants Sheriff A.C. Gilless, Jr., the Shelby County Sheriff’s Depart ment, and Shelby County Gove

rnment appe al the trial court’s judgment granting the petition for writ of certiorari filed by Plaintiff/Appelle

e David Gross and

reversing the d

ecision of the Shel

by County Civil Service Merit

Board to terminate Gross from his employme

nt with the Sheriff

’s Department. We reverse the trial court’s judgment and reinstate the decision of the Civil Service Merit Board.

On December 11, 1996, Deputy David Gross was working as a transport of

ficer with the Fugitive Division of the Shelby County Sher iff’ s Department. That evening, officers of the FugitiveDivision arrived at the Ebony and Lace Club for the purpose of serving an arrest warrant
on the club manager or owner. The officers apparently

did not succeed in

arresting thei

r subject, but they did arrest a female e mp loyee of the club for whom they

discovered an ou

tstanding arre

st warrant.

As the transport officer, Gross’s primary duty was to transport any

arrested persons downtown for processing. If needed, Gross’s duties also included assisting the o therofficers in effecting an arrest or in securing the premises once an arrest was made. When Gross arrived

at the Ebony and Lace Club, he

entered the building to see what the other officers were doing. Inside the club, he found his fathe

r, Deputy Eddie Gross,

along with Eddie Gross’s partner, Deputy Kelly Gore, andthe ranking off

icer on the scene

, Sergeant P.J. Kir

wan. At the tim e, Eddie Gro ss was usin g a telephone to check for outstanding warrants on the club employee s present.
Before leaving the building with the arrested club employee, the officers discussed what actions were necessary to “secure” the premises. T h e officers’ pr imary conc

ern was that, unle

ss
a club employee agreed to assume responsibility for the op era tion of the club, the Sheriff’s Department

might be blamed for any theft or vandalism that occurred aft er their dep arture. Alt hough a club employee apparently had unlocked

the building and permitted the officers to enter, none of the club emplo yees present wou ld admit t o possessi ng a key to the bu ilding or to being

in charge of the premises. Ultimately, the officers were able to reach someone by telephone who agreed t o assume responsibility for the club’s operation that evening.When Sergeant P.J. Kirwan left the scene, the building was secure “[a]s far as [he]

was concerned” be

cause Deputies E

ddieGross and Kelly Go

re remained on th

e scene and bec

ause
a responsible part

y was expect

ed to arrive soon.

As he was leaving

the sc ene, Kirwan observed David Gross checking the building to make “sure that all the doors were secured.” When he lef t, Kirwan did not think that anyone needed to reenter the building to check the doors, and he did not order anyone to do so. Apparently, howeve r, any one of the remaining officers had the discr etion to take this action “according to his own judgment.”

After Sergeant Kirwan

left, only Da

vid Gross, Eddie Gr

oss, and Kelly

Gore remained
on the scene. By

this time, Deputies G

ore and Eddie Gr

oss had escorte

d the arreste

d employee outside to their patrol car. Li ke Sergeant Kirwan, Deputy Gore had no intention of re entering the club after he exited the building. He and Eddie Gross spent about ten minutes asking the arrested employee questions and writing an arrest ticket.

When Gore and Eddie Gr oss had almost c

om pleted this task, De

puty David G

ross decided to reenter the c

lub. David Gross

first offered “

to wait around and se

e if somebody

can come lock [the club] up.” Eddi e Gross responded negatively to this offer, indicating that ther e was “no needin hanging around” and suggesting that David Gross instead transport the arrested employ ee downtown. David Gross then indicated that he would just tell the club employeesthat the officers were leaving, and he proceeded to reenter the club.

At some point after r

eentering the b

uilding, Gross

acquired a be verage that appeared to be coffee or a soft

drink. He then asked a club dancer to show him the back door to the building. Gross remembered the dancer from earlier in the evening beca use she had worn only a shirt in the officers’ presence. After Gross checked the back door, he followed the dancer into the club dressing
area. There, th

e da ncer proceede

d to disrobe while G

ross watched her

with the drink still in

his hand. After the dancer had completely disrobed, a period of one to two minutes, Gross turned and exited the room and the building. Gross then transported the arrested employee downtown.

Gross’s encounter w ith the dan cer in the cl ub dressin g area was r ecorded by the club’s surveillance camera. A videota pe of the event was provided to a local television station, whichbroadcast

the tape on its evening news program. Embarrassed by the inci dent, officials at the Sheriff’s Department decided to discipline Gross for condu ct un becoming an officer and other departmental rules violations. An administrative hearing board found Gross guilty of engaging in unbecoming conduct and failing to report the incident; however, it fou nd Gross not guilty of violating the Department’s rule requiring “truthfulness.” T he board recommended that Gross receive a th irt y-day s usp ens ion wit hou t pa y.

Rejecting the admini strati ve hearing board’s recommendation, Deputy Chief Don Wright decided to

terminate Gross’s employment with the Department “based on his unbecoming conduct.” Gross appealed his termination to theShelby County Civil Service Merit Board. At the evidentiary

hearing conduc

ted before the Civ

il Ser vice Merit Boar

d, both parties ele

cted not to introduce the videotape depicting Gross’s conduct. During the hearing, Chief Wright explained why he decided to termin

ate Gross rath

er than to suspend him as recommended by the administrative hearing board:
[Gross ’s] responsibility that night was to drive the transpo r t car and bring t

he individuals that

had been arres

ted to jail. As he returned back

into the club, he follows this individual into the room and stands there with a drink in his hand observing her taking her clothes off and this behavior is be ing captured on television, and then in turn this behavior is shown on local television andall the citizens of Memphis and Shelby County are sitting and watching one of our deputies watc h a dancer disro

be herself while he’s standing drinking a drink, a Coke, a coffee or whatever is in that drink, is stan di ng there watching her. In my opinion this type of behavior undermines our credibility and undermines our reputation in the community

, and it calls for us as a Department to have to take t his action that we took because, in my opinion, if we don’t police our sel ves we ca n’t pol ice soc iet y, we can’ t po lic e th is c omm uni ty. I took the action I took based

on – I realize this incident was an embarrassment

to the o fficer. It w

as an embarrass

ment to his fam ily. It was an emba

rrassment to law e

nforcement in

general. It was an embarrassment to the sheriff’s office. It was an embarrassment

to his f e llow officers. I felt it was – the behavior neede d to be dealt with and that we had to send a statemen t to th e taxpayers that we were willing to p oli ce ourselves be fore we come out to police [them].
Wright later explained that[w]ell, this situation occur red in that [Gross] was bac

k inthe club by himself after the other units ha d alread y cleared the scene. They were already

out of the b uilding, their work in that building was over. It was done, finished. All of the officers should have been out in the parking lot

. [Gross] took it upon himself to go back in

the club on his own withoutbeing instructe

d to do so, and he took it u pon himself

after he got back in the club at sometime to get a drink from somewhere and start drinking it and he ’s on duty the re to perform a p

oli ce servi ce, andthen he took it upon h imself to follow this woman into this room andstand there and watch her while she disrobed. All o f this t ogether, to me, is just behavior that the Sheriff’s Department can ’ t tolerate.
Wright acknowledged that the negative publicity surrounding the event influenced his decision to terminate Gross. Wright explained that

[t]here’s publicity in everything we do. We’re a public office andwe’re public officials. Everything we do, publicity enters into it. Public image enters into it. That’s the reason we’re here.

At the hearing, David Gross defended his decision to reenter the club, explaining that he “went inside to get the club secured.” Gross testified that

[t]he rea son I went back in, I was talking with the other offi ce rs and I let them know that, you know, because they had been talking earlier, befor

e I got there, about the security of the club or whatever they were

going to do bec

ause it was – I don ’t remember any males being there. Once I left there were ma les there to secure the club or help the

ladies.

. . . .

. . . There were tw

o guys that

said they were

security guards. When they were

there we didn’t worry

about it any m

ore. They s

aid they could take care of it.
Gross later explained that

Well, Sergeant

Kirwan, we had talked about it before he left and when we were all leaving the club. Then he left and while we were there I went back

in to let them, you know, let them know they have to do the best they can. The la dies, the three ladies that were left there, were talkingabo ut theywanted to close, they didn’t want to stay there by theirselves.

. . . .

. . . When I was leaving, completely leaving the club, the two guys had came in and they said they were security f

or the place.

Gross also defended his decision to remain in the dressing area while the d ancer disrobed:

She went in her locke r and I didn’t

know what was in her locker. The premises, we didn’t search the premises for any weapons or anything like

that so I kept a close eye on her af ter she went in her locker.

. . . .

. . . [S]he went in her locker and I didn’t know what she had got out of her locker so I wanted to mak e sure I kept a close eye on her.

Gross’s supervisor, Serg

eant Will McElhane

y, testified

that Gross

was a “good and efficient officer,” and he defended Gross’s decisions to reenter the building to secure the pr emises andto continue observing Collins as a safet y precaution due to her “suspicious” behavior of disrobing in front of Gross. N evertheless,

McElhaney

agreed that,

as a general proposition, it was inappropriate

“for a Sheriff’s deputy in uniform, a badge on his uniform and a g un on his hip, a drink in his hand, to watch a lady disrobe, by himself, alone in a r oom with her.”

At the hearing’s conclusion, the Civil S ervice Merit Board upheld Gross’s term inatio n basedupon its finding that Gross was “guilty of Violation of Rules and Unbec oming Conduct.” Gross then filed a petition for writ of certiorari in the trial court. A fter conducting a hearing at which it considered the

arguments

of counsel for both parties, and after reviewing the administrative record, the trial court entered a judgment granting Gross’s petition and r eversi ng the Board’s decision to termina

te Gross. In it

s judgment, the tr

ial court explained

its reasons for reversing

the Board’s decision:

This Court shall notsubstitute its judgment for the judgment of the Shelby County Civil Service Merit Board. However , this Courtfinds that recommendation of theAdministrative Hearing Board to be more consistent with the fin dings in the record. Chi ef Deputy Donald W. Wright overruled the findings and recommendationof the Administrative H ear ing Board without a review of the videotape depicting Officer Gross’ behavior and this C ourt finds such action arbi tra ry. This Court is further of the opinion thatDeputy Wright’s actions were politically motivated and an attempt to les sen som e of the cri tic ism of t he S hel by C ou nty Sheriff’s Department by the media
. This Court finds t

he r uling of the Civil Service Merit Board consiste nt wit h th e dec isi on o f Dep uty W righ t al so t o be arbi tra ry. This Court is of the opinion that a suspensio n for a period of thirty (30) days to six (6) months, would be more consistent with the original Board’s ruling and recommendation.

On appeal, the Defendants c ontend that the tria

l court erred in

reversing the decision of the Shelby County Civil Service Merit Board. I n reviewing the decision of the Civil Service Me

rit Board under the common-law writ of certiorari , the trial court may rever

se or modify the Board’s action only if

the court concludes that

the Board “has acted in violation of constitutional or statutory provisions or

in excess of its

own statutory

authority; h

as followed unlaw

ful procedure o

r been guilty of arb itra ry or capricious action; or has acted without material evidence to support its decision.” Watts v. Civil Serv. Bd. , 606 S.W.2d 274, 277 (Tenn. 1980), cert. denied , 450 U.S. 983 (1981). On appeal, this court’s scope of review is

the same; it

“is no broader or more comprehensive than that of the trial court with respect to evidence presented before the Board.” Id
.

After reviewing the transcript of the Board h earing, we conclude that the Board’s decision to terminate G ross was supported by material evidence. This evidence indicated that Gross’s primary duty was to transport prisoners . Although witnesses agreed that Gross’s duties als

o includedassisting the arrestingofficers and he lping to secure t

he premises,

the evidence suggested that such assistan ce was not ne eded in this case. Significantly, more experienced officers on the
s cene had determined th at taking any

further action to

secure the prem

ises was unnecessary . Sergeant Kirwan, the ranking officer on the scene, testified that he did not think anyone needed to reenter the building to che

ck the doors and th

at h e did not ord er anyone to do so. One of the arresting officers, Deputy Kel ly Gore, testified that, once he and his partner escorted the arrested
woman outside to their car, Gore had no intention of reentering the building. Gore also testified that, when Gross offered “to wait around and see if somebody can c ome lock [the club] up,” Gross was discouraged

fro m ta kin g thi s act ion by De put y E ddie Gr oss, Gore’s partner and Gross’s father. When E ddie Gross sugg

ested that David G

ross instead tran

sport the prisoner

downtown, DavidGross disregarded this advice and reentered the building. Deputy Gore t estified that, pri

or to reentering the building, Gross explained that he merely pla

nned to tell

the club employees that the officers were leaving. At the hearing, however, Gross explained that he “went inside to get the club secured.”

Based

on the foregoing evidence, we conclude that the Board justifiably could have questioned David Gross’s motive for reentering the building. More impo rta ntl y, however, we conclude that the Board wo uldhave been

justified in rejecting Gross’s explanation for his conduct after he entered the building. Gross admitted that he followedthe club dancer to the rear of the club and into the club dressing area where he watched the dancer complete ly disrobe over a one to two minute period while conversing with the dancer. Gross did not deny that, at some point after entering the club, he obtained a beverage that he occasion ally drank while he watched the dancer undress. Although Gross insisted that he continued to observe the woman only because he was not
sure what items or wea

pons she might hav

e removed from he

r locker, he fai

led to explain

w hy, if he was concerned for

his safety, he was holding a drink during the encounter. I n fact, Gross did not explain how he acquired the drink or how the drink accorded with his plan to secure the premises. Gross’s supervisor attempted to defend Gross’s conduct, but even he acknowledged that it appeared inappropriate.

As previously indicated, in reversing the Board’s decision to uphold Gross’s termination, the trial court ruled that Chief Wright acted arbitrarily in terminatin g Gross becaus e Wright failed to view the videotape de picting Gross’s b

ehavior and bec

ause Wright’s actions were “politically

motivated and an attempt to lessensome of the criticism of the Shelby County Sheriff’s Department

by the media.”In support of these rulings, the trial court noted that, during the hearing beforethe Board, Chief Wright admitted (1) that he did not view the tape of th e incident and (2) “that public

image was the reason f

or these parties

being before t

he board and that

publicity figures into everything that the Sheriff’s department does.” We co nclude that both of the se rulings
were in error, the first because it was not supported by the evidence an

d the second beca

use it was not supported by the law.

We initially observe

that the trial court’s finding that Chief Wright did not view the1 1971 Tenn. Priv. Acts 110.

tape of the incident appears to be based upon a misreading of the record . A t one point in his tes tim ony, Chief Wright indic ated that he “did n

ot view the tape.”

A closer readin

g of thisportion of the transcript, h owever, reveals that Chief Wright was referring to the day the tape first wa s delivered to the Sheriff’s office. When asked if he was present when the tape was delivered, Wright gavethe following response: “I was on the ninth floor. I

was not in [Sheriff G

illess’s] office. I

did not view the tape.”

Chief Wright’s subseque

nt testimony, h

owever, revea

ls that he did

view a tapeof the incident in question. During

his cross-examinat

ion, Wright was as

ked to describe theinformation upon which he base

d the decision to te

rminate Gross:
Q. So how d id you know enough information to decide that [Gross] was gu

ilty of unbec

oming conduct? A. I ha ve acc ess to the I.A.B. [Internal Affairs Burea u] investigation. I

have access to [G

ross’s] own stateme

nt. Q. You had his statement in the I.A.B. investigation? A. And I had a tape to look at
. Q. Did

you in fact l

ook at a tape of the

[administr

a tive] hearing? A. No, a tape of the incident in question
.
Thus, the record does

not support the tr

ial court’s finding that Chief Wright failed to view the videotape.

As for the trial court’s finding that Chief Wright was improperly influenced by the negativepublicity sur

rounding this ca

se, we reject the

suggestion tha

t, in ma king the de cision to terminate Gross, Wright was not per mitted toconsider such publicity. Apparently, neither the record
on appeal nor the Shel by Count y Civil Service Merit Act 1 contains a definition of the term “unbecoming conduct.” The definitions used by other jurisdictions, howe

ver, suggest t

hat publicity andpublic perception may be relevant to the issue of whether challenged conduct is “unbecoming.” In Ohio, f

or exam ple, the regulations of the Franklin County Sheriff’s Department def inedunbecoming conduct as “that which brings the department into disrepute or r

eflectsdiscredit upon the individual as a member of the department, or that which impairs the operation or efficiency of the department or the individual.” Jones v. Franklin County Sheriff , 555 N.E.2d 940, 944 (Oh io 1990). In Pennsylvania, the term unbecoming conduct has been defined by case law as “any conduct adversely affecting the morale or efficiency of the bureau or department to which [the officer] is assigned or conduct which has a tendency to destroy public respect for municipal employes [sic] or confidencein the operation of municipal services.” Leroi v. Civil Serv. Comm’n , 382 A.2d 1260, 1261 n.2 (Pa. Commw. Ct. 1978).

The proposition that publicity may be relevant to the qu estion of what constitutes unbecoming conduct is furthe r supported by

the court’s deci

sion in Hat

field v. Civil Service Commission , 495 P.2d 1146 (Colo. Ct. App. 1972). In that case, the plaintiff, a wildlife conservationofficer, was disciplined for c onduct unbecoming

an officer aft

er he discharg

ed his firearm while retrieving a goose from an area closed to hunting. On appeal f rom the Civil Service Commission’s decision upholding his suspension, the plaintiff argued that the Commission erroneously

concluded that he violated state law by hunting in the closed area. I n support of t his argument, the plaintiff

pointed to uncontroverted evidence in the record which showed that he had woundedthe goose

outside the closed

area and that he

merely had

entered the clos

ed area to retrieve the goose.

The appellate court rejected the plaintiff’s argument and held that, regardle ss of whether the plaintiff had violated the law, he still could be found guilty of conduct unbecoming an officer. The court explained that

the findings of the Commission make it clear that the plaintiff was not disciplined for violating the law, but for conduct un becomi ng a Wildlife Conservation Officer. The Commission concluded that by carrying a firearm into the restricted area, d ischa rging it, and then exiting the area with geese, the plaintiff created the impression with onlookers that he had violated the very restrictions he was responsible for enforcing. This was found by the Commission to be an example of ex tr emely poor judgment which reflected public discredit and censureupon the plaintiff, the Division of Game, F

ish and Parks,

and the State of

Colorado, all of which justified the suspension imposed.Hatfield, 495 P.2d at 1147-48. As for the neg ative publici ty that followed the event, the court

observed that

the Commission’s findings, supported by the evidence, show that the plaintiff’s poor jud gmen t caused the incid ent which was wel

l publicized and subject ed the Division of Gam e, Fish and Parks t

o adverse publicit

y detrimenta

l to the public inter

est.

Id . at 1148.

In the present case , the record con

tains material ev

idence that,

by his poor judgment, Gross caused an incident that was well publicized and that subjected the Sheriff ’s Department to adverse publicity de

trimental to

the public interest. If anything, the fact that Gross’s a ctions resulted in negative public

ity supports,

rather than cont

radicts, the Boa

rd’s finding tha

t Gross engaged in unbecoming conduct. Accordingly, we conclude that the trial court erred in reversing the Board’s decision based upon this reason.

We note tha t, in r eversing the B oard’s decision, the trial court se

emed primarily concerned

with the Board’s decision to terminate Gross rat her th an to impose a less severe punishment, such as the thirty-day suspension recommende d by the a d ministrative hearing board. In its judgment, the trial cou rt apparently agreed that Gr

oss should be discipl

ined because it recommended that Gross receive a suspension ranging from thirty days to six months.

We acknowledge that the

Board’s decisi

on to terminate Gr

oss rather than to impo

se
a lesser degree of discipline may appear ha rsh; however, having concluded that material evidence supports the Board’s fin

ding that Gross

engaged in unbecoming

conduct, we are

not in a position to second-guess

the disciplinary a ction chosen by the Board. We note that the record contains no evidence to suggest that the Board lack ed authority to impose this punishment or that t he Bo ar d treated Gross any di

fferently that it has treated other officers found to have engaged in unbecoming conduct.

The trial court’s judgment is reversed, and this cause is remanded forfurtherproceedings consistent with this o pinion. Costs

of this appeal ar

e taxed to David Gro

ss, for which
exe cut ion may i ssu e ifnece ssa ry.

_____________ __ _______________________ _ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S.

______________________________ HIGH ERS, J.