MacOn v. Shelby County Government Civil Service Merit Board

OPINION

delivered the opinion of the Court,

This is an appeal from an administrative hearing on a termination. The plaintiff was a deputy jailer with the sheriffs depart *505 ment. He was arrested and charged with, inter alia, driving under the influence. The subsequent internal investigation by the sheriffs department revealed that, pri- or to his hire, the deputy jailer had pled guilty to a felony drug charge. The conviction was expunged. On the plaintiffs later application for employment with the sheriffs department and on the background check form, the plaintiff was asked whether he had had any arrests or convictions, including any that had been expunged. The plaintiff answered that he had none. After the internal investigation, the deputy jailer was terminated for violating sheriffs department regulations governing personal conduct, adherence to law, and truthfulness. The deputy jailer appealed his termination to the civil service merit review board which upheld the termination based on violation of the truthfulness regulation. This was appealed to the trial court, which ultimately upheld the termination as well. From this order, the deputy jailer now appeals, challenging the sufficiency of the evidence before the board and arguing that the board’s failure to include conclusions of law precludes adequate judicial review. We affirm, finding that the evidence is substantial and material; that the sheriffs department and the civil service board properly considered the expunged conviction; and that the board’s failure to include conclusions of law in its decision does not preclude adequate judicial review in this case.

Facts and Procedural History

Petitioner/Appellant Jimmy Macon (“Mr. Macon”) was employed as a deputy jailer with the Shelby County Sheriffs Department (“Sheriffs Department”) when he was arrested on August 28, 2003 in West Memphis, Arkansas for DUI, speeding, and improper lane change. The Sheriffs Department was notified of the arrest and Detective Jane Bartlett went to the Crittenden County Detention Center, where Mr. Macon had been transported. Detective Bartlett spoke with a lieutenant with the Crittenden County, Arkansas, Sheriffs Office, who advised Detective Bartlett that the arresting officer had told him that Mr. Macon was a convicted felon. The lieutenant did not know where the arresting officer got this information.

Thereafter, the Shelby County Sheriffs Department conducted an internal affairs investigation on Mr. Macon. As part of the investigation, Detective Bartlett pulled Mr. Macon’s file and learned that the background checks that were run on Mr. Macon in October 2000, before he was hired, utilized the National Crime Information Center (“NCIC”) database and the Shelby County Records and Identification database. This background check found no criminal records. Detective Bartlett then searched the NCIC database again, and it again found no criminal records. She then ran another background check using the National Law Enforcement Telecommunications System (“NLETS”), a system that allows the user to check individual state records. Using NLETS, Detective Bartlett accessed a record for Mr. Macon out of Arkansas with the message “Record No Longer On File-Expunged 19990409.” She then contacted the West Memphis Police Department, which advised her that Mr. Macon had pled guilty to a felony drug charge of manufacturing, delivery and possession of a controlled substance. The final disposition of Mr. Macon’s case was in October 1993. The case was sealed 1 on March 17,1999.

*506 As part of the internal investigation, Detective Bartlett also examined Mr. Macon’s employment application and the security investigation statement that he completed. In his application, Mr. Macon was asked, “Have you ever been convicted of a felony?” He responded, “No.” In his security investigation statement, Mr. Macon was asked whether he had ever been arrested and charged by a law enforcement agency, whether he had ever been indicted, and whether he had ever been issued a misdemeanor citation. He answered “no” to all of these questions. The next section of the security investigation statement asked for additional information if the answer to any of the previous questions was “yes.” This section sought such information as the date of the occurrence, the charge, the disposition, and whether the charge was expunged. Mr. Macon left this blank.

Armed with this information, Detective Bartlett interviewed Mr. Macon and asked him if everything in his employment application was true and accurate. Mr. Macon responded, “Yes everything except where it asked if you had ever been convicted [of] a felony,” and told Detective Bartlett that his record was sealed in 1999. When asked why he falsified his application, Mr. Macon said that an unnamed person told him that if the record did not show up, not to worry about it and that the Sheriffs Department would probably not find out.

Thereafter, Mr. Macon was charged with violating the Sheriffs Department’s Rules and Regulations, namely, SOR 104 Personal Conduct, 2 SOR 105 Adherence to Law, 3 and SOR 108 Truthfulness. 4 The internal affairs report states that Mr. Macon violated the personal conduct rule because he “was arrested for DUI in West Memphis, ... bringing discredit upon the Shelby County Sheriffs Office,” violated the adherence to law rule because of the “DUI arrest ... and being a convicted felon for Narcotics,” and violated the truthfulness rule because he “falsified his *507 application for employment, stating he had never been arrested or convicted of a felony”

Mr. Macon’s Loudermill hearing was held on September 18, 2003. On October 10, 2003, the Sheriffs Department notified Mr. Macon by letter that he had been found guilty of the charges and that his employment would be terminated. Mr. Macon appealed his termination to the Shelby County Civil Service Merit Review Board (“the Board”).

The Board heard Mr. Macon’s case on January 22, 2004. Mr. Macon was the only witness who testified. During his testimony, he admitted that in 1993, he pled guilty to possession of cocaine, a felony, and also admitted that, in response to the question on his employment application on whether he had ever been convicted of a felony, he answered, “no.” Mr. Macon also conceded that, in response to the question on the security investigation statement on whether he had been convicted of a felony, he answered “no,” despite the fact that the security statement directed him to include any expunge-ments. 5 He maintained that he was not required to list his conviction because it had been expunged. Mr. Macon claimed that he informed one of his training academy instructors, Lieutenant M. Hunt, of his expunged felony conviction. After hearing Mr. Macon’s testimony, on February 9, 2004, the Board issued an opinion upholding the termination of Mr. Macon’s employment.

On April 7, 2004, Mr. Macon filed a petition for writ of certiorari in the Shelby County Chancery Court seeking, inter alia, reversal of the Board’s decision and reinstatement, as well as backpay, court costs, and attorney’s fees. The Board and the Sheriffs Department (collectively, “the County”) filed a response requesting dismissal of Mr. Macon’s petition. A hearing on the petition was held on April 13, 2006. On July 17, 2006, the trial court entered an order granting Mr. Macon’s petition to review and remanding the case to the Board to address, inter alia, whether the Sheriffs Department had the right to ask Mr. Macon about a criminal conviction that had been expunged. The County filed a motion to reconsider, which was granted on December 7, 2006.

After reconsidering, on September 25, 2008, the trial court entered an order affirming the Board’s decision to uphold Mr. Macon’s termination. The trial court found that the Board’s decision was supported by substantial and material evidence. The trial court’s order did not assess court costs. Mr. Macon filed a notice of appeal. Finding that Mr. Macon had appealed an order that was not final, this Court entered an order requiring Mr. Macon to obtain a final judgment from the trial court or face dismissal of his appeal. On August 21, 2009, the trial court amended its September 25, 2008 order to assess court costs and to conform to Rule 54.02 of the Tennessee Rules of Civil Procedure. Thus, this Court has subject matter jurisdiction to hear Mr. Macon’s appeal.

Issues on Appeal and StandaRD of Review

On appeal, Mr. Macon raises the following issues for our review:

1. Whether the trial court erred in upholding the Board’s decision by finding that the decision was supported by substantial and material evidence.

2. Whether the Board’s decision was arbitrary and capricious.

*508 3. Whether the Board’s failure to include conclusions of law in its decision precludes adequate judicial review.

Under Tennessee Code Annotated section 27-9-114, a decision by a county civil service board that affects the employment status of a civil servant is subject to judicial review in accordance with the provisions of the Uniform Administrative Procedures Act, as codified at section 4-5-322. 6 See T.C.A. § 27-9-114(b)(l) (2000 & Supp. 2008); Davis v. Shelby County Sheriff’s Dep’t, 278 S.W.3d 256, 262 (Tenn.2009); County of Shelby v. Tompkins, 241 S.W.3d 500, 505 (Tenn.Ct.App.2007). Because the Shelby County Government Civil Service Merit Board is “just that — a ‘civil service board,’ ” its decisions are reviewed in accordance with section 4-5-322. Davis, 278 S.W.3d at 262.

Under section 4-5-322(g), the Board’s decision is subject to nonjury review by the trial court. Its scope of review is limited to the administrative record, unless the error is procedural. See T.C.A. § 4-5-322(g) (2005); Tompkins, 241 S.W.3d at 505; Pruitt v. City of Memphis, No. W2004-01771-COA-R3-CV, 2005 WL 2043542, at *6 (Tenn.Ct.App. Aug.24, 2005). The Court’s scope of review is set out in section 4-5-322(h), which states:

(h) The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if the rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or

(5)(A) Unsupported by evidence that is both substantial and material in the light of the entire record.

(B) In determining the substantiality of evidence, the court shall take into account whatever in the record fairly detracts from its weight, but the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.

T.C.A. § 4-5-322(h) (2005). “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.” Gluck v. Civil Serv. Comm’n, 15 S.W.3d 486, 490 (Tenn.Ct.App.1999) (citing DePriest v. Puett, 669 S.W.2d 669 (Tenn.Ct.App.1984)). The “substantial and material evidence” standard has been described as requiring “something less than a preponderance of the evidence, but more than a scintilla or glimmer.” Wayne County v. Tenn. Solid Waste Disposal Control Bd., 756 S.W.2d 274, 280 (Tenn.Ct.App.1988) (citations omitted). “Substantial and material evidence is ‘such relevant evidence as a reasonable mind might accept to support a rational conclusion and such as to furnish a reasonably sound basis for the action under consideration.’ ” Pruitt, 2005 *509 WL 2043542, at *7 (quoting Lamarr v. City of Memphis, No. W2002-02087-COA-R3-CV, 2004 WL 370298, at *2 (Tenn.Ct.App. Feb.27, 2004)). In the instant case, some of the Board’s factual findings are based on its determination of Mr. Macon’s credibility. On appeal, this Court affords “considerable deference” to the Board’s factual findings based on its determinations of credibility. See Davis, 278 S.W.3d at 266 (citing Seals v. England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn.1999)).

Analysis

Substantial and Material Evidence

Mr. Macon first asserts that the trial court erred in finding that the Board’s decision was based on substantial and material evidence. It is undisputed in this case that, in the employment application and the related forms, Mr. Macon was squarely asked whether he had been convicted of a felony, including expunged convictions, and he answered “no.” It is undisputed that this answer was not true. The Board’s decision to uphold the termination of Mr. Macon’s employment was based on a finding that he had violated the Sheriffs Department’s Rules, namely, SOR 108 Truthfulness. 7 Clearly, Mr. Macon’s answer to the question amounted to a material misrepresentation on both the employment application and the security information statement. This constitutes “such relevant evidence as a reasonable mind might accept to support a rational conclusion and such as to furnish a reasonably sound basis for” the Board’s decision, Pruitt, 2005 WL 2043542, at *7 (quoting Lamarr, 2004 WL 370298, at *2), unless for some reason the Board was prohibited from considering Mr. Macon’s expunged conviction or Mr. Macon had the right to refrain from disclosing his expunged conviction to the Sheriffs Department.

In Tennessee, two statutes address ex-pungement, namely, Tennessee Code Annotated section 40-32-101 8 and section 40-35-313(b). 9 See State v. Dishman, 915 S.W.2d 458, 464 (Tenn.Crim.App.1995) (describing section 40-32-101 as the “general expungement” statute and section 40-35-313(b) as the “expungement language contained in [Tennessee’s] judicial diversion statute”). Neither addresses whether an employer, specifically a law enforcement agency, may require applicants to disclose expunged convictions during the application process. Many states have adopted statutes directly addressing this issue. Most explicitly provide that applicants *510 seeking law enforcement employment must acknowledge expunged records. See, e.g., Fla. Stat. Ann. § 943.0585(4)(a) (West 2009) (“The person who is the subject of a criminal history record that is expunged ... may lawfully deny or fail to acknowledge the arrests covered by the expunged record, except when the subject of the record: 1. Is a candidate for employment with a criminal justice agency”); Kan. Stat. Ann. § 21 — 4619(f)(2) (2008) (“[T]he petitioner shall disclose that the arrest, conviction or diversion occurred if asked about previous arrests, convictions or diversions: ... (J) in any application for employment as a law enforcement officer”) (amended 2009); N.J. Stat. Ann. § 2C:52-27(c) (West 2009) (“Information divulged on expunged records shall be revealed by a petitioner seeking employment ... with a law enforcement or corrections agency”). In contrast, at least one state explicitly prohibits employers, including state and local agencies, from requiring applicants to acknowledge expunged records. See Colo. Rev.Stat. Ann. § 24-72-308(l)(f)(I) (West 2009) (“Employers, ..., state and local governments agencies, officials, and employees shall not, in any application or interview or in any other way, require an applicant to disclose any information contained in any sealed records”).

In the absence of any Tennessee statute addressing this issue, we find no authority for prohibiting law enforcement agencies from inquiring into the expunged records of applicants, or from requiring applicants to answer such inquiries truthfully and completely. Consequently, we find no basis for concluding that the Sheriffs Department could not inquire into Mr. Macon’s expunged records.

We next consider whether Mr. Macon had the right to decline to disclose his expunged conviction to the Sheriffs Department and whether the Board could consider Mr. Macon’s admission of a non-disclosed expunged record in making its termination decision. Tennessee Code Annotated section 40-35-313(b) 10 states that “[n]o person as to whom the order [of expungement] has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement” for failing to acknowledge the expunged record “in response to any inquiry made of the person for any purpose” notwithstanding an exception that is not applicable here. T.C.A. § 40-35-313(b) (2000 & 2008 Supp.). The case at bar does not involve a criminal conviction for perjury or making a false statement; rather, Mr. Macon’s employment was terminated for violating the Sheriffs Department’s Rules and Regulations, in particular, SOR 108 Truthfulness. Moreover, while this Court has held that section 40-35-313(b) prevents an expunged guilty plea itself from being the basis for an administrative decertification of a police officer, see Wright v. Tenn. Peace Officer Standards & Training Comm’n, 277 S.W.3d 1, 14 (Tenn.Ct.App.2008), the Tennessee Supreme Court has held that a party’s admission of an expunged guilty plea may properly be considered as evidence of the underlying conduct in a disciplinary hearing before an administrative board. Canipe v. Memphis City Schs. Bd. of Educ., 27 S.W.3d 919, 922 (Tenn.2000). Considering the limited language in section 40-35-313(b) and the Court’s decision in Canipe, we must conclude that Mr. Macon did not have the right to refrain from disclosing his expunged conviction in his response to Sheriffs Department lawful *511 inquiry, and that the Board’s consideration of Mr. Macon’s admission of an expunged conviction was proper. Accordingly, we find that the trial court did not err in holding that the Board’s decision was based on substantial and material evidence.

Arbitrary and Capricious

Mr. Macon also argues that the Board’s decision was arbitrary and capricious. “A decision unsupported by substantial and material evidence is arbitrary and capricious.” City of Memphis v. Civil Service Comm’n of City of Memphis, 238 S.W.3d 238, 243 (Tenn.Ct.App.2007) (citing City of Memphis v. Civil Service Comm’n, 216 S.W.3d 311, 315 (Tenn.2007)). For the reasons outlined above, we find that the Board’s decision was based on substantial and material evidence and was not arbitrary and capricious.

Failure to Provide Conclusions of Law

Finally, Mr. Macon asserts that the Board’s failure to provide conclusions of law precludes adequate judicial review. Part Three of the Uniform Administrative Procedures Act, codified in Tennessee Code Annotated section 4-5-301, et seq., outlines the procedures governing contested cases before an administrative body. See Public Employees for Envtl. Responsibility v. Tenn. Water Quality Control Bd., No. M2008-01567-COA-R3-CV, 2009 WL 1635087, at *10 n. 9 (Tenn.Ct.App. June 10, 2009). In particular, section 4-5-314(e) requires the final order of an administrative body to include, inter alia, conclusions of law. T.C.A. § 4-5-314(c) (2005). However, Shelby County is a home rule jurisdiction, and thus under section 27-9-114(a)(2), the Board is exempted from these requirements. Davis, 278 S.W.3d at 263; Tompkins, 241 S.W.3d at 503-04. Nevertheless, “a reviewing court must have sufficient information regarding the agency action to determine whether the action comports with the law and to avoid substituting its judgment for that of the administrative tribunal.” Tompkins, 241 S.W.3d at 504.

In the case at bar, the Board conducted a hearing which included Mr. Macon’s testimony. The Board then issued a four-page decision outlining the basis for its determination that he violated SOR 108 Truthfulness. Based on Mr. Macon’s testimony, the Board found Mr. Macon previously pled guilty to possession of cocaine and omitted this fact in response to a direct inquiry on the security investigation form. While the Board’s decision fails to include a “Conclusions of Law” section heading, the basis of the Board’s determination is apparent from the content of the written decision and the record as a whole. Mr. Macon cites Tompkins for the proposition that the Board’s failure to include conclusions of law precludes adequate judicial review. In Tompkins, the Civil Service Merit Board neglected to include its written decision in the record transmitted to the trial court. Id. at 503. The Court of Appeals held that this omission was not fatal because the “decision conveyed no findings of fact or other information unknown to the lower court that could have impacted its ruling” and “the lower court had before it all relevant information pertaining to” the Board’s decision. Id. at 504. The Court then went on to analyze the substantive issues of the appeal. Id. In short, in Tompkins, even the failure to include the written decision did not preclude adequate judicial review. See id. We must respectfully reject Mr. Macon’s argument, and find that the trial court did not err in its decision.

Conclusion

The decision of the trial court is affirmed. Costs on appeal are assessed *512 against Appellant Jimmy Macon and his surety, for which execution may issue, if necessary.