Shelby County Sheriff's Department v. Mark Lowe ( 2008 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
October 22, 2008 Session
SHELBY COUNTY SHERIFF’S DEPARTMENT v. MARK LOWE
Direct Appeal from the Chancery Court for Shelby County
No. CH-06-2217-03 Kenny W. Armstrong, Chancellor
No. W2008-00433-COA-R3-CV - Filed December 11, 2008
The Shelby County Sheriff’s Department terminated the employment of Deputy Mark Lowe for
violations of Department policies with respect to personal conduct, adherence to law, truthfulness,
consorting with persons of bad or criminal reputation, and compliance with regulations regarding
its code of ethics. The Civil Service Merit Board found Deputy Lowe guilty of the charges, but
determined the punishment was excessive and modified it to a three-month suspension without pay
followed by a one-year probationary period. Upon review, the chancery court affirmed the decision
of the Civil Service Merit Board. The Sheriff’s Department appeals. We vacate the order of the
chancery court for lack of jurisdiction and dismiss.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated; and
Dismissed
DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S., and
HOLLY M. KIRBY , J., joined.
Martin W. Zummach, Assistant Shelby County Attorney, for the appellant, Shelby County Sheriff’s
Department.
Thomas E. Hansom, Memphis, Tennessee for the Appellee, Mark Lowe.
OPINION
Respondent/Appellee Mark Lowe (Mr. Lowe) is a deputy sheriff with the Shelby County
Sheriff’s Department (“the Department”). On May 17, 2005, the FBI/DEA executed a federal search
warrant and conducted a search of Mr. Lowe’s home in conjunction with its investigation of an
organization known as the “Charles Price Drug Organization,” which stemmed from its multi-
jurisdictional investigation of the theft of narcotics and other evidence from the Memphis Police
Department property room. Pending an ongoing investigation for alleged association with Charles
Price and suspected insurance fraud, Mr. Lowe was relieved of duty with pay following the May 17
search. Following its investigation of activities from 2002 to 2005, the Shelby County Sheriff’s
Office Bureau of Professional Standards & Integrity (“the Bureau”) determined that Mr. Lowe was
in violation of Department policies with respect to personal conduct, adherence to law, truthfulness,
consorting with persons of bad or criminal reputation, and compliance with regulations regarding
its code of ethics.
Following a Loudermill hearing in February 2006, in March 2006 the Department notified
Mr. Lowe that it had found him guilty of all charges and that his employment was terminated. Mr.
Lowe appealed to the Shelby County Civil Service Merit Board (“the Board”), which found him
guilty of the charged policy violations following a hearing on August 8, 2006. Despite its
determination that Mr. Lowe was guilty of the asserted violations, the Board reversed the termination
of his employment on the basis that it was excessive. In its written order of September 8, 2006, the
Board modified the punishment to a three-month suspension without pay, to be followed by a one-
year probationary period. In its September 11, 2006, letter to the Shelby County Sheriff, the Board
advised the Department that it had sixty (60) days within which to appeal the Board’s decision to the
Circuit or Chancery Court of Shelby County.
On November 14, 2006, the Department filed a petition for writ of certiorari in the Shelby
County Chancery Court.1 Following a hearing on August 1, 2007, the chancellor determined that
the Board’s finding of guilt with respect to the charge of associating with persons of criminal
reputation was not supported by substantial and material evidence. The chancellor upheld the
Board’s decision that termination of Mr. Lowe’s employment was excessive.
The Department filed a timely notice of appeal to this Court, and oral argument was heard
on the matter on October 22, 2008. On October 30, 2008, the Department was ordered to
supplement the record in this cause with a copy of the Shelby County Charter, as amended, and with
supplemental authority concerning the Board’s standard of review of the Department’s decision
within fifteen (15) days from the date of entry of the Order. On November 14, 2008, the Department
complied as ordered, supplementing the record with the Shelby County Charter, as amended, and
the Shelby County Civil Service Merit Act of 1971, as amended.
Issue Presented
The Department’s statement of the issues presented for review is:
Whether the Chancery Court erred in failing to reverse the decision of the Shelby
County Civil Service Merit Review Board (hereinafter “Board”) when the Board
found Mr. Lowe guilty of all charges leveled against him, yet modified the Shelby
County’s Sheriff’s Department decision to terminate Mr. Lowe. The Board modified
Mr. Lowe’s termination to a three-month suspension. The Chancery Court upheld
the Board’s decision even though there was not one scintilla of evidence presented
1
Although the chancery court’s date stamp is not apparent on the copy of the petition included in the record
transmitted to this Court, November 14, 2006, is the date recited in the Department’s brief and the court’s docket report.
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by Mr. Lowe that the discipline meted to Mr. Lowe was in any way excessive or
disparate.
Analysis
The pivotal question presented in this appeal, as we perceive it, concerns the application of
the standard of review to be applied by the trial court in its review of the Board’s decision, and by
the Board in its review of the Department’s determination, where the Board made no findings of fact
to support its determination that the Department’s decision to terminate Mr. Lowe was excessive.
In its accompanying memorandum to its response to our order to supplement the record, the
Department asserted that, pursuant to Tennessee Code Annotated § 27-9-114(b)(1)(2000), judicial
review of the determinations of the Shelby County Civil Service Merit Board is governed by the
standard of review set forth in Tennessee Code Annotated § 4-5-322. The Department also asserted
that, because the Civil Service Merit Act authorizes the Board to modify punishment but does not
indicate the standard of review to be exercised by the Board, it was the Department’s contention that
Tennessee Code Annotated § 27-9-114 should govern the Board’s review.
Undoubtedly, section 27-9-114(a)(1)(Supp. 2008) provides that, in general, contested case
hearings by county or municipal civil service boards affecting the employment status of a civil
service employee must be conducted in conformance with the procedures set forth in the Uniform
Administrative Procedures Act (“the UAPA”) as codified in title 4, chapter 5, part 3. However,
section 27-9-114(a)(2) specifically exempts civil service boards of counties organized under a home
rule charter form of government from the UAPA contested case procedures. Thus, the Civil Service
Merit Board of Shelby County, which is a home rule jurisdiction, is exempt from the contested case
procedures set forth in the UAPA.
Additionally, pursuant to section 27-9-114(b)(1) and (2), judicial review of the decisions of
civil service boards are governed by the judicial review standards set forth in the UAPA at Tennessee
Code Annotated § 4-5-322, and petitions for review must be filed in the chancery court of the county
in which the board is located. Therefore, judicial review of the relevant determinations of a civil
service board governed by section 29-9-114(a)(1) clearly is governed by the UAPA. City of
Memphis v. Civil Serv. Comm’n of Memphis, 216 S.W.3d 311, 316 (Tenn. 2007); Tidwell v. City of
Memphis, 193 S.W.3d 555, 559-560 (Tenn. 2006). Whether section 4-5-322 governs judicial review
of civil service boards not governed by section 27-9-114(a)(1), however, is less clear. See, e.g.,
County of Shelby v. Tompkins, 241 S.W.3d 500 (Tenn. Ct. App. 2007); Gleaves v. Shelby County,
No. W2007-02259-COA-R3-CV, 2008 WL 4648354 (Tenn. Ct. App. Oct. 21, 2008); King v. Shelby
County Gov’t Civil Serv. Merit Bd., No. W2006-02537-COA-R3-CV, 2007 WL 1695404 (Tenn. Ct.
App. June 13, 2007); Sandifer v. Civil Serv. Merit Bd., No. W1999-02017-COA-R3-CV, 1999 WL
1336055 (Tenn. Ct. App. Dec. 15, 1999)(conducting judicial review pursuant to section 4-5-322).
But see, e.g., Fox v. Miles, 164 S.W.3d 593 (Tenn. Ct. App. 2004); Case v. Shelby County Civil Serv.
Merit Bd., 98 S.W.3d 167 (Tenn. Ct. App. 2002); Gross v. Gilless, 26 S.W.3d 488 (Tenn. Ct. App.
1999); Davis v. Lutrell, No. W2007-01077-COA-R3-CV, 2007 WL 4374028 (Tenn. Ct. App. Dec.
17, 2007)(perm. app. granted May 5, 2008)(applying standard of review applicable to writs of
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certiorari as enunciated in Watts v. Civil Serv. Bd., 606 S.W.2d 274, 277 (Tenn. 1980)). Also unclear
is whether, if section 27-9-114(b) extends to judicial review of civil service boards not proceeding
under the contested case procedures of the UAPA, section 27-9-114(b) mandates the application of
section 4-5-322 in its entirety, or only the standard of review enunciated in subsection 322(h). See
County of Shelby v. Tompkins, 241 S.W.3d 500, 506, n.3 (Tenn. Ct. App. 2007)(perm. app. denied
Nov. 19, 2007)(stating that if termination of employment was not mandated by county charter, the
“analysis would then shift to . . . whether the Merit Board’s modification comported with the UAPA
provisions.”); King v. Shelby County Gov’t Civil Serv. Merit Bd., No. W2006-01079-COA-R3-CV,
2006 WL 2506718 (Tenn. Ct. App. Aug. 31, 2006)(vacating the order of the trial court and
remanding for further proceedings under Tennessee Code Annotated section 4-5-322).
As this Court has noted, section 4-5-322(h) generally codifies the scope of review applied
under the common law writ of certiorari as described in Watts. Knoxville Utils. Bd. v. Knoxville
Civil Serv. Merit Bd., No. 03A01-9301-CH-00008, 1993 WL 229505, at *9 (Tenn. Ct. App. June
28, 1993). However, as noted, we believe section 27-6-114(b) is somewhat ambiguous with respect
to whether it applies to civil service board proceedings not governed by the UAPA as mandated by
section 27-5-114.2 In this case, in light of the Board’s September letter to the Department advising
the Department that it had sixty days within which to appeal the Board’s decision, it appears that this
ambiguity extends to whether the period for appeal is governed by section 4-5-322, the judicial
review subsection of the UAPA; section 27-9-102, which provides for the filing of review under writ
of certiorari; or section 24 of the private act establishing the Civil Service Merit Act for Shelby
County in 1971.
Tennessee Code Annotated § 4-5-322(b)(1)(A) provides that a petition for review “shall be
filed with sixty (60) days after the entry of the agency’s final order thereon.” Similarly, Tennessee
Code Annotated §27-9-102 provides that a petition for certiorari seeking review of a board or
commission order or judgment shall be filed in the chancery court within sixty (60) days from the
entry of the order or judgment. Section 24 of the Shelby County Civil Service Merit Act, however,
provides:
APPEAL FROM DECISION OF BOARD. Within 30 days following the publication
of the decision of the Board, on any matter heard by it, either the involved employee
or the appointing authority from whose order the appeal was taken may appeal the
decision of the Board to the Circuit Court or Chancery Court of the County.
Private Acts, ch. 110, § 24 (1971).
The General Assembly has broad, “almost unlimited” authority to structure county and
municipal government by private legislation when that legislation “does not contravene some
2
Under the Shelby County Civil Service Merit Act, “[t]he Board shall, within 30 days from the filing of said
appeal, commence a hearing thereon, and shall thereupon fully hear and determine the matter and shall either affirm,
modify or revoke such order of discipline.” Private Acts, ch. 110, § 23 (1971).
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mandatorily applicable general state law” and when there is a “reasonable basis for classification or
departure from general statutes.” Shelby County Civil Serv. Merit Bd. v. Lively, 692 S.W.2d 15, 18
(Tenn. 1985). Thus, absent any amendment to the act or adjudication to the contrary, the Civil
Service Merit Act as enacted by the General Assembly in 1971 mandates that any petition for review
of the Shelby County Civil Service Board’s determinations be filed within thirty (30) days of the
Board’s order.3 Case v. Shelby County Civil Serv. Merit Bd., 98 S.W.3d 167, 171 n.3 (Tenn. Ct.
App. 2002)(perm. app. denied Dec. 9, 2002)(quoting 1971 Tenn. Priv. Acts ch. 110 § 24); Kent v.
Civil Serv. Merit Bd. of Shelby County, 652 S.W.2d 350, 351 (Tenn. App. 1983)(noting that, under
section 24 of the private act, “appeal” authorized to be filed within thirty days of Board order was
review of order under petition for writ of certiorari and not de novo appeal); Shelby County v.
Taylor, 1986 WL 13430, at *4 (Tenn. Ct. App. Dec. 1, 1986).
The deadline for filing a petition for review of an agency decision is mandatory and
jurisdictional. United Steel Workers of America v. Tenn. Air Pollution Control Bd., 3 S.W.3d 468,
472 (Tenn. Ct. App. 1998)(perm. app. denied Oct. 11, 1999). Accordingly, a trial court lacks subject
matter jurisdiction to adjudicate a petition filed beyond the statutory deadline. Id. Subject matter
jurisdiction concerns the authority of the court to hear a matter and cannot be waived. Meighan v.
U.S. Sprint Commc'ns Co., 924 S.W.2d 632, 639 (Tenn. 1996). This Court may consider subject
matter jurisdiction sua sponte. Tenn. R. App. P. 13(b); Ruff v. State, 978 S.W.2d 95, 98 (Tenn.
1998). It is well-settled that an order of a court acting without jurisdiction is void. E.g., Shelby
County v. City of Memphis, 413, 365 S.W.2d 291, 292 (Tenn. 1963).
It appears from the record in this cause that the Board issued its final order on September 8,
4
2006. The Department, however, did not file its petition for review in the chancery court until
November 14, 2006. Thus, the Department’s petition for review clearly was filed beyond the thirty
days provided in section 24 of the Civil Service Merit Act and beyond the sixty days provided by
Tennessee Code Annotated § 4-5-322 and by § 27-9-102. Accordingly, the trial court lacked
jurisdiction over this matter, and its order is void.
Holding
3
Although we note that a number of cases suggest that a petition for review may be filed within sixty days in
accordance with section 27-9-102 where the trial court’s jurisdiction w as not addressed, it does not appear that the
question of whether the time for appeal is governed by the private act or the general statute has been adjudicated with
respect to the Shelby County Civil Service Merit Act. Further, the copy of the Shelby County Civil Service Merit Act
provided to this Court by the Department in response to our Order of October 30, 2008, indicates no am endment to
section 24 of the Act. Thus, barring adjudication to the contrary, it appears a petition for review of the determination
of the Shelby County Civil Service Merit Board must be filed within thirty days of the publication of the Board’s order.
4
We observe that the Board’s order was signed by the assistant secretary of the Board on August 28, 2006, and
by the chairman of the Board on September 8, 2006. In its brief to this Court, the Department recites September 8, 2006,
as the date on which the Board issued its opinion.
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In light of the foregoing, the order of the trial court is vacated for lack of subject matter
jurisdiction, and this appeal is dismissed. The resolution of the questions raised herein must
therefore be resolved another day. Costs of this appeal are taxed to the Appellant, Shelby County
Sheriff’s Department.
___________________________________
DAVID R. FARMER, JUDGE
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