MacOn v. Shelby County Government Civil Service Merit Board

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Submitted on Briefs June 16, 2009

JIMMY MACON
v.
SHELBY COUNTY GOVERNMENT CIVIL SERVICE MERIT BOARD
and SHELBY COUNTY SHERIFF’S DEPARTMENT

Appeal from the Chancery Court for Shelby County
No. CH-04-0676-2 Arnold B. Goldin, Chancellor

No. W2008-02668-COA-R3-CV - Filed September 25, 2009

This is an appeal from an administrative hearing on a termination. The plaintiff was a deputy jailer
with the sheriff’s department. He was arrested and charged with, inter alia, driving under the
influence. The subsequent internal investigation by the sheriff’s department revealed that, prior to
his hire, the deputy jailer had pled guilty to a felony drug charge. The conviction was expunged.
On the plaintiff’s later application for employment with the sheriff’s 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 sheriff’s 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 sheriff’s 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.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court affirmed

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and
J. STEVEN STAFFORD , J., joined.

Ronald C. Wilson, West Memphis, Arkansas, for the Petitioner/Appellant Jimmy Macon

Martin W. Zummach, Germantown, Tennessee, for the Respondents/Appellees Shelby County Civil
Service Merit Board and Shelby County Sheriff’s Department
OPINION
 FACTS AND PROCEDURAL HISTORY

Petitioner/Appellant Jimmy Macon (“Mr. Macon”) was employed as a deputy jailer with the
Shelby County Sheriff’s Department (“Sheriff’s Department”) when he was arrested on August 28,
2003 in West Memphis, Arkansas for DUI, speeding, and improper lane change. The Sheriff’s
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, Sheriff’s 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 Sheriff’s 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 sealed1 on March 17, 1999.

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

1
Having a case “sealed” appears to be synonymous with having the conviction expunged. “ ‘[E]xpungement’
is defined as the ‘[p]rocess by w hich record of criminal conviction is destroyed or sealed after expiration of time.’ ”
David L. Raybin, Expungement of Arrest Records: Erasing the Past, 44 T EN N . B. J. 22, 22-23 (M ar. 2008) (quoting
B LACK ’ S L A W D ICTION ARY 522 (5th ed. 1979) (emphasis added).

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said that an unnamed person told him that if the record did not show up, not to worry about it and
that the Sheriff’s Department would probably not find out.

Thereafter, Mr. Macon was charged with violating the Sheriff’s 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
Sheriff’s 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 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 Sheriff’s 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

2
SOR 104 Personal Conduct provides as follows:

The conduct of each employee, both on and off duty, is expected to be such that it will not reflect
adversely on other employees, the SCSO, Shelby County, or the law enforcement profession. This
regulation applies to both the professional and private conduct of all employees. It prohibits any and
all conduct which is contrary to the letter and the spirit of SCSO policy and procedure that would
reflect adversely upon the SCSO or it’s [sic] employees. It includes not only all unlawful acts by
employees but also acts which, although not unlawful in themselves, would violate the Law
Enforcement Code of Ethics, and would degrade or bring disrespect upon the employee or the SCSO.
3
SOR 105 Adherence to Law provides as follows:

An employee shall act in accord with the constitution, statutes, ordinances, administrative regulations
and the official interpretations thereof, of the United States, the State of Tennessee, and the County
of Shelby. Any employee who (1) is convicted of, (2) pleads guilty to, or (3) pleads nolo contendere
to any federal, state, or local violation involving a felony or other crim e related to force, violence,
theft, dishonesty, gambling, liquor, or controlled substance (including driving Under the Influence
of an Intoxicant or drug), is subject to termination from employment. When in another jurisdiction,
employees will obey applicable local and state laws. Ignorance of such laws cannot be regarded as
a valid defense against failure to meet the requirements of this regulation.
4
SOR 108 Truthfulness provides as follows:

An employee shall not give any information, either oral or written, in connection with any assignment
or investigation that is either knowingly incorrect, false, or deceitful.

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include any expungements.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 Sheriff’s 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 Sheriff’s
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.
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

5
It appears from the record that a page is missing from the employment application and from the security
investigation statement. However, there does not seem to be a dispute concerning the questions that were asked.
6
Mr. Macon sought review in the chancery court by filing a “Petition for Certiorari to Review Decision of Civil
Service Merit Board.” The common law writ of certiorari is no longer the method of judicial review under Tennessee
Code Annotated section 27-9-114. See Davis, 278 S.W.3d at 262 (noting that in 1988 the General Assembly amended
(continued...)

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See T.C.A. § 27-9-114(b)(1) (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 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.

6
(...continued)
section 27-9-114 by deleting the provision requiring review by the common law writ of certiorari and replacing it with
the current provision that provides for judicial review under the UAPA). Mr. Macon did, however, identify the proper
code sections in the body of the petition.

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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 Sheriff’s 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 Sheriff’s Department.
In Tennessee, two statutes address expungement, namely, Tennessee Code Annotated section
40-32-1018 and section 40-35-313(b).9 See State v. Dishman, 915 S.W.2d 458, 464 (Tenn. Crim.

7
Because the hearing before the Board focused almost exclusively on violation of SOR 108 Truthfulness, we
review the Board’s decision on this ground.
8
Section 40-32-101 provides in pertinent part:

(a)(1)(A) All public records of a person who has been charged with a misdemeanor or a felony shall,
upon petition by that person to the court having jurisdiction in the previous action, be removed and
destroyed without cost to the person, if:

(i) The charge has been dismissed;
(ii) A no true bill was returned by a grand jury;
(iii) A verdict of not guilty was returned, whether by the judge following a bench trial or by a jury;
or
(iv) The person was arrested and released without being charged.

T.C.A. § 40-32-101(a)(1)(A) (2008 Supp.).
9
Section 40-35-313(b) provides:

(b) Upon the dismissal of the person and discharge of the proceedings against the person under
subsection (a), the person may apply to the court for an order to expunge from all official records, .
. . all recordation relating to the person’s arrest, indictment or information, trial, finding of guilty, and
dismissal and discharge pursuant to this section;

(continued...)

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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 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(1)(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 Sheriff’s 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 Sheriff’s 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 Sheriff’s 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

9
(...continued)
T.C.A. § 40-35-313(b) (2000 & 2008 Supp.).
10
Notably, section 40-32-101 contains no language addressing the effect of an expungement made pursuant
to it. As such, we analyze this issue under the more detailed language of section 40-35-313(b).

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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 Sheriff’s Department lawful 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(c) 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

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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 against Appellant
Jimmy Macon and his surety, for which execution may issue, if necessary.

___________________________________
HOLLY M. KIRBY, JUDGE

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