Leon Marshall v. Civil Service Commission of the State of Tennessee and the Tennessee Department of Safety
Court description: Authoring Judge: Judge Andy D. BennettDownload as PDF
IN THE COURT OF APPEALS OF TENNESSEE
May 24, 2012 Session
LEON MARSHALL v. CIVIL SERVICE COMMISSION OF THE STATE
OF TENNESSEE AND THE TENNESSEE DEPARTMENT OF SAFETY
Appeal from the Chancery Court for Davidson County
Carol L. McCoy, Chancellor
No. M2011-02157-COA-R3-CV - Filed November 9, 2012
Pursuant to Tennessee Code Annotated section 4-5-322, a former Tennessee State Trooper
appeals the chancery court’s judgment affirming the Tennessee Civil Service Commission’s
decision to terminate his employment. The Commission affirmed the initial order of the
Administrative Law Judge, who upheld the Tennessee Department of Safety’s decision to
terminate the trooper’s employment for violations of its policies and procedures and for the
good of the service pursuant to Tennessee Code Annotated section 8-30-326.1 Discerning
no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
A NDY D. B ENNETT, J., delivered the opinion of the Court, in which F RANK G. C LEMENT, J R.
and R ICHARD H. D INKINS, JJ., joined.
Patrick Brocklin Parks, Nashville, Tennessee, for the appellant, Leon Terry Marshall.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
and Eugenie B. Whitesell; for the appellees, Civil Service Commission of the State of
Tennessee and the Tennessee Department of Safety.
F ACTUAL AND P ROCEDURAL B ACKGROUND
Leon Marshall (“Mr. Marshall”), a former Kingsport Police Department officer, began
Tenn. Code Ann. § 8-30-326 was repealed as of October 1, 2012 by 2012 Tenn. Pub. Acts ch. 800
§ 41. The repeal has no effect on this case.
working for the Tennessee Highway Patrol (“THP”) on January 28, 2007. He graduated from
the THP Academy on June 1, 2007, was assigned to THP District 5 in Fall Branch,
completed an eight-week field training under Sergeant Kristy Osborne, and was finally
assigned to serve as a road trooper on the Hawkins County highways. Mr. Marshall’s
immediate supervisor was Sergeant Mark Higgs, followed by Lieutenant Charles Hughes and
Captain Richard Hurley.
Several instances of erroneous decision-making during Mr. Marshall’s brief stint with
the THP led to his ultimate termination. In September 2007, in acting on a citizen’s
complaint, Mr. Marshall abandoned his patrol route and traversed two counties to personally
serve a warrant for alleged theft. The complaint proved to be false, and the warrant was
dismissed. Mr. Marshall’s proferred reason for serving a warrant two counties away was that
he was a “state law enforcement officer.” Mr. Marshall received a written reprimand and
warning instructing him that “turning the complaint over to the Sullivan County Sheriff’s
Department or the police department who received the call” should have been the proper
action, and reminding him that:
[t]he Department of Safety [(“DOS”)] General Order #215-2, Section V,
Subsection D(1) states: “All members are required to be at their assigned duty
station when the scheduled shift begins and are not permitted to leave the
assigned duty station until the shift ends.”
In November 2007, Captain Hurley issued Mr. Marshall an oral reprimand for chasing
an all-terrain vehicle into a lake bottom upon observing that the vehicle did not have its lights
on. In his pursuit, Mr. Marshall caused over $350 of damage to the police cruiser. He then
insisted upon meeting with Captain Hurley to challenge the oral warning, though doing so
was outside of protocol. Captain Hurley testified that, during the meeting, he explained to
Mr. Marshall how his actions could have compromised his own safety, yet Mr. Marshall was
loath to admit fault, and insisted that he was simply enforcing the law and, in parting, told
Captain Hurley, “well, you just gotta do what you have to do, don’t you Captain?”.
In December 2007, while Mr. Marshall was hunting in Virginia, a property owner
confronted him and accused him of trespassing. The two men argued, each protesting the
other’s right to be on the property. At one point, Mr. Marshall proclaimed, “Listen, just
because I’m wearing hunting gear, hunting clothing, don’t talk to me like I’m a dumbass.
I’m a Tennessee State Trooper, so don’t you talk to me that way . . . Well, I can guarandamn-tee you that I will not be back up here again.” Later, after the property owner filed a
complaint with the DOS, Mr. Marshall could not articulate a valid reason for identifying
himself as a Tennessee State Trooper during the dispute. When discussing the incident with
Captain Hurley, he offered neither remorse nor apology. Because of his statements to the
property owner, Mr. Marshall received a written warning reminding him that the DOS Law
Enforcement Code of Ethics compelled him to “keep [his] private life unsullied as an
example to all.”
In March 2008, Mr. Marshall crashed his assigned cruiser again, this time because he
rear-ended a car while trying to catch a speeding driver. The resulting injuries to everyone
involved and an estimated $8,803.72 of damage to the patrol car earned Mr. Marshall a twoday unpaid suspension for reckless operation of the patrol car, among other violations.
The Fugate Episodes
The THP’s authority is broad in scope, but its primary focus is matters relating to
highways and interstates. Generally, THP troopers do not infringe upon a city’s or county’s
jurisdiction, though the THP’s jurisdiction overlaps that of local law enforcement agencies.2
Mr. Marshall’s most egregious violations of his employer’s rules and regulations–which
prompted the DOS Office of Professional Responsibility’s investigation into his
conduct–took place in Rogersville, Tennessee, away from the highways and interstates he
was entrusted to patrol.
By December 2007, Mr. Marshall had become acquainted with Rhonda Elkins (“Ms.
Elkins”), the manager of the Rogersville BP gas station where he habitually refueled his
cruiser. Ms. Elkins told Mr. Marshall that a customer, Anthony Fugate (“Mr. Fugate”), was
a general nuisance and that she was greatly concerned for her own safety and the safety of
her employees, so Mr. Marshall correctly referred her to the Rogersville Police Department,
noting that a police report could support a criminal summons on Mr. Fugate for trespassing.
On December 31, 2007, Ms. Elkins informed Mr. Marshall that she could not obtain
a summons from the Hawkins County general sessions court because the Rogersville police
officers whom she contacted completed only complaint cards, not a police report, about her
allegations against Mr. Fugate. Mr. Marshall took the complaint cards from Ms. Elkins and
proceeded to find Mr. Fugate by going to the address linked to his driver’s license
information (his mother’s address), speaking with Mr. Fugate’s mother, and driving to Mr.
Fugate’s actual address. Mr. Marshall explained that “there wasn’t much going on as far as
Highway Patrol duties on that day” and that he “thought it wouldn’t take but a few minutes
out of [his] day to stop and speak with Mr. Fugate.” Using the police cruiser video camera,
Mr. Marshall documented the encounters with Mr. Fugate and his mother. Mr. Marshall told
Captain Hurley and Lieutenant Hughes testified as to this policy. Lieutenant Hughes, for example,
noted, “[THP troopers] enforce the laws of the road. We investigate crashes . . . . [W]e have never been
trained as State Police as far as getting involved in enforcing laws, investigating crime.”
Mr. Fugate that he was banished from the BP Station, but did not charge him with a crime
or arrest him because it “wasn’t [his] job to do that.” Then, based on Ms. Elkins’s allegations
and the conversation with Mr. Fugate, Mr. Marshall completed a THP Offense Report against
Mr. Fugate, and, in violation of THP procedure, gave a copy to Ms. Elkins before submitting
it to his supervisor for review and signature.3 Mr. Marshall “advised [Ms. Elkins] that she
could handle the matter as she saw fit” and that “if she wanted to go get a summons on Mr.
Fugate for trespassing she could do that.” 4
On January 14, 2008, Ms. Elkins informed Mr. Marshall that, though Mr. Fugate had
avoided coming onto the actual BP property, he had twice frightened her by revving his car
engine from nearby areas–once from the center turn lane in front of the BP and the second
time from an adjacent parking lot. Ms. Elkins “didn’t ask [Mr. Marshall], necessarily, to do
anything,” but he decided to return to Mr. Fugate’s home, though he “didn’t go to Mr.
Fugate’s residence with any inclination that [he] was gonna arrest him and take him to jail,
or what [he] would charge him with.”
Upon arrival at Mr. Fugate’s home, Mr. Marshall was uniformed and armed, but he
neither manually activated the police cruiser’s video camera or audio tape, nor used his belt
transmitter to activate those devices. Mr. Fugate answered Mr. Marshall’s knock and stepped
out of the house. Mr. Marshall explained that, because Mr. Fugate “had a swagger about
him, and an appearance in his face” and because Mr. Fugate was wearing a jacket, he felt that
Mr. Fugate was possibly intoxicated and armed. Based on his observations and Ms. Elkins’s
allegations, he thought that probable cause existed to arrest Mr. Fugate for aggravated
stalking.5 Therefore, Mr. Marshall frisked and handcuffed Mr. Fugate, took him into custody
for aggravated stalking, placed him in the backseat of the police cruiser, Mirandized him, and
interviewed him. At some point during the interview, Mr. Marshall determined that Mr.
Fugate was mentally ill6 and began to question his culpability, so he released him. Mr.
Marshall advised Ms. Elkins that Mr. Fugate would likely stop bothering her and
“recommended to her that she still get a trespassing warrant on him if she so chose to do so.”
Mr. Marshall testified, “at that point in time I completed a [THP] Offense Report, and probably not
the best judgment at the time, but I did it in the sense and the spirit of public safety.” He later submitted the
report to his supervisor who signed it on January 6, 2008.
Ms. Elkins chose not to do so.
Tenn. Code Ann. § 39-17-315(c)(1).
This determination was based on Mr. Fugate’s demeanor and on information Mr. Marshall “had
heard from other officers who work in the county and the city that Mr. Fugate was possibly mentally ill.”
Mr. Fugate has suffered three heart attacks and is diagnosed with diabetes and bi-polar disorder.
Ms. Elkins ultimately did not prosecute Mr. Fugate.
Despite his presentiment that Mr. Fugate would file a complaint against him, Mr.
Marshall neither completed a report nor bothered to tell anyone, save Ms. Elkins, about the
January 14, 2008 incident. He “figured if Mr. Fugate had called [the THP] and complained
that it would be clarified at that point in time, and we could handle it at that point.” Mr.
Fugate complained to the THP and filed a lawsuit against the DOS because of Mr. Marshall’s
After receiving Mr. Fugate’s complaint, Sergeant Higgs and Lieutenant Hughes
interviewed Mr. Marshall on January 31, 2008; Lieutenant Hughes and Captain Hurley
interviewed him on March 3, 2008; and Captain Hurley again met with him on March 7,
2008. In defending his involvement in the matter between Mr. Fugate and Ms. Elkins–one
that was outside the THP’s purview–Mr. Marshall expressed that he “tr[ies] to do the best
job that [he] can to help people” and would not accept that he had broken any of his
employer’s rules and procedures, had not followed his training, and had possibly violated Mr.
Fugate’s constitutional rights. During the March 7, 2008 meeting, Mr. Marshall presented
Captain Hurley with a North Carolina case regarding the concept of “field unarrest,”
claiming that it provided legal support for his actions against Mr. Fugate. Mr. Marshall
claimed that Assistant District Attorney Doug Godbee gave him the case and advised him
that the manner in which he arrested and thereafter released Mr. Fugate was legal and proper.
General Godbee, however, testified to the contrary.7
On March 21, 2008, the DOS Criminal Investigation Division 8 Special Agent in
Charge, Billy Grooms, Assistant Special Agent in Charge David Brown, and DOS Internal
Affairs Sergeant Lowell Russell interviewed Mr. Marshall about the Fugate episodes. Mr.
Marshall was placed on administrative leave on that same day. Agents Grooms and Brown
conducted a criminal investigation, and Sergeant Russell investigated Mr. Marshall for
Q. Okay, and did Trooper Marshall at some point–and I want you to tell us when, at some point were
you contacted by Trooper Marshall concerning some contact he had with a Mr. Anthony Fugate?
A. Was I con–yeah, I don’t know when it was. It was at Sessions Court, outside of Sessions
Court one day.
Q. Okay, and pursuant to that conversation, did you make some reference to Mr. Marshall
that a–that there was something called a field unarrest?
A. No. I don’t know what a field unarrest is.
Q. Okay, and at that–during that particular conversation did you give him a case State v. Green out
of North Carolina as support for this doctrine of field unarrest?
A. No. I’ve never heard of that case until sometime, somebody later faxed us a copy of a case to our
office. But no, I wouldn’t give him that case, because I’d never heard of it.
The Criminal Investigation Division is within the DOS’s Office of Professional Responsibility.
violations of departmental policies. The Office of Professional Responsibility, in addition,
investigated the other incidents in which Mr. Marshall had been involved since September
2007,9 and the final investigatory report was completed on April 17, 2008. Based upon the
report’s findings and their own interviews with Mr. Marshall, all of his superiors
recommended his termination.10 Mr. Marshall received a due process notice of termination
on April 25, 2008 and a May 29, 2008 letter in which DOS Commissioner Dave Mitchell
notified him that the DOS was terminating his position as THP Trooper “for the good of the
service” and for reasons “more specifically described in the attached summary of the
investigation which was conducted and prepared by the Office of Professional Responsibility
Mr. Marshall exhausted all administrative levels of appeal and sought a hearing before
the Tennessee Civil Service Commission (“the Commission”). Administrative Law Judge
(“ALJ”) Mattielyn Williams, sitting for the Commission, conducted the hearing on May 5,
2009. The Commission affirmed the DOS’s decision to terminate Mr. Marshall by amended
initial order entered December 7, 2009. The order was made final by the Commission on
December 22, 2009. Mr. Marshall then filed a petition for judicial review with the chancery
court, pursuant to Tenn. Code Ann. § 4-5-322. After review of the entire administrative
record, the chancery court found “substantial and material evidence in the record to support
the decision to terminate Mr. Marshall for the good of the service,” dismissed the petition for
review, and affirmed the Commission’s decision by memorandum and order entered August
ISSUES P RESENTED
Mr. Marshall raises for review two issues which we restate as follows:
[To Captain Hurley]
Q. And are you the one who made the recommendation?
Q. And what was your recommendation?
A. After the Fugate situation, was to be terminated from the Department of Safety.
Q. And why?
A. Oh, the magnitude of it first of all. Just the magnitude of what happened, and the violation of, in
my opinion, this man’s rights, his Constitutional Rights . . . And that with–coupled with all these
other things that has happened in a short period of time, I just thought he was a liability for the State.
Q. Okay. When you say a liability, tell us how a Trooper who does things like Mr. Marshall is a
liability to the State?
A. Well, I mean, if you mistreat people out here they have a right of recourse. And whatever recourse
they take, it’s a direct reflection on our Department, the State . . . .
(1) Whether the chancery court properly applied the requirements for judicial review of
administrative decisions; and (2) Whether Mr. Marshall’s termination from the DOS violates
the standards set forth in Tenn. Code Ann. § 4-5-322(h). We have determined the dispositive
issue to be whether substantial and material evidence in the record supports the
Commission’s finding that the DOS properly terminated Mr. Marshall.
S TANDARD OF R EVIEW
Pursuant to Tenn. Code Ann. § 4-5-322, the trial court may review “contested case”
proceedings that come before state administrative agencies. A party may appeal from the
chancery court’s final judgment to this Court. Tenn. Code Ann. § 4-5-323(a). The Uniform
Administrative Procedures Act (“UAPA”), Tenn. Code Ann. § 4-5-101 et seq., limits our
scope of review of the agency decision to a “narrow and statutorily prescribed review of the
record made before the administrative agency.” Crawford v. Dep’t of Fin. & Admin., No.
M2011-01467-COA-R3-CV, 2012 WL 219327, at *5 (Tenn. Ct. App. Jan. 24, 2012) (no
Tenn. R. App. P. 11 application filed) (quoting Metro. Gov’t v. Shacklett, 554 S.W.2d 601,
604 (Tenn. 1977)). The UAPA’s narrow standard of review for an administrative body’s
factual determinations “suggests that, unlike other civil appeals, the courts should be less
confident that their judgment is preferable to that of the agency.” Wayne Cnty. v. Tenn. Solid
Waste Disposal Control Bd., 756 S.W.2d 274, 279 (Tenn. Ct. App. 1988).
The review pursuant to the UAPA is not de novo, but is confined to the record made
before the agency. Tenn. Code Ann. § 4-5-322(g); Shacklett, 554 S.W.2d at 604. This Court
may reverse or modify the agency’s decision only if it is:
(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.
Tenn. Code Ann. § 4-5-322(h). Furthermore, “[n]o agency decision pursuant to a hearing
in a contested case shall be reversed . . . unless for errors that affect the merits of such
decision.” Tenn. Code Ann. § 4-5-322(i). Additionally, “a concurrent finding between the
agency and the trial court on any issue of fact is conclusive upon this Court” and “[u]nless
there is a plain abuse of discretion by the Commission, its orders will not be disturbed on
appeal.” CF Indus. v. Tenn. Pub. Serv. Comm’n, 599 S.W.2d 536, 540 (Tenn. 1980) (quoting
Blue Ridge Transp. Co. v. Hammer, 313 S.W.2d 433, 436 (Tenn. 1958)).
In the present case, Mr. Marshall must prove that, in light of the whole record, the
Commission’s decision is not supported by substantial and material evidence, that 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.” Wayne Cnty.
756 S.W.2d at 279-80 (quoting S. Ry. v. State Bd. of Equalization, 682 S.W.2d 196, 199
(Tenn. 1984)). Substantial evidence “requires something less than a preponderance of the
evidence . . . but more than a scintilla or glimmer.” Id. at 280 (citations omitted).
I. Chancery Court’s Review
Mr. Marshall asserts that the chancery court failed to properly apply the standard of
review set forth in Tenn. Code Ann. § 4-5-322 because “there is no analysis . . . of the
substantial legal implications of the January 14th encounter.” Misstating the issue, he argues
that, in their respective orders, the Commission and the chancery court should have analyzed
“issues involving criminal law, probable cause analysis, prosecutorial discretion, allegations
of official misconduct and oppression, civil rights issues, etc.” He further argues that,
because his pursuit, arrest, and release of Mr. Fugate were proper under criminal law, the
Commission and the chancery court erred in upholding the DOS’s decision to terminate his
employment. We disagree.
The DOS terminated Mr. Marshall for the good of the service and because of several
incidents, including the Fugate incident, during which he violated his employer’s policies and
regulations. Assuming arguendo that Mr. Marshall’s actions against Mr. Fugate were
defensible under our criminal law, the ALJ’s findings constitute ample grounds for
discipline. These findings, which the record substantially and materially supports, include
determinations that Mr. Marshall infringed on the Rogersville Police Department’s
jurisdiction, that during his brief stint with the THP he repeatedly demonstrated
incompetence and a lack of knowledge of DOS practices, that he ignored DOS practices
based on his own sense of right and wrong, and that he violated several DOS policies and
Furthermore, Mr. Marshall’s contention that the chancery court’s “obligation was to
review the facts de novo as they relate to the ALJ’s application of law” is simply incorrect.
The chancery court’s review of an agency’s decision is the same as our review: narrow,
statutorily prescribed, and confined to the administrative record. Tenn. Code Ann. § 4-5322(g); see Shacklett, 554 S.W.2d at 604; Grubb v. Tenn. Civil Serv. Comm’n, 731 S.W.2d
919, 922 (Tenn. Ct. App. 1987) (“The Court may not review issues of fact de novo or
substitute the judgment of the Court for that of the agency as to the weight of the evidence.”).
We find that the chancery court thoroughly and properly reviewed the Commission’s decision
and, for reasons set forth below, affirm the same.
II. Substantial and Material Evidence
Although Mr. Marshall does not state the statutory ground(s) upon which he seeks
reversal pursuant to Tenn. Code Ann. § 4-5-322(h), we infer that he challenges the evidence
supporting the Commission’s decision. Tenn. Code Ann. § 4-5-322(h)(5). Based upon our
thorough review of the evidence presented at the May 5, 2009 hearing, we find that the DOS
had sufficient grounds upon which to terminate Mr. Marshall. The ALJ’s conclusions
include the following:
[In reference to Mr. Marshall’s September 2007 abandonment of his patrol
route to personally serve a warrant for alleged theft]: A. When [Mr. Marshall]
failed to investigate the complainant, that he learned about while
accompanying a KPD officer, prior to obtaining and serving the warrant, [Mr.
Marshall] demonstrated incompetence and negligence, in violation of DHR
Rules 1120-10-.06(1) and (2).[11 ] [Mr. Marshall] also demonstrated
inefficiency through that scenario, since [Mr. Marshall’s] failure to conduct a
proper investigation led to [Mr. Marshall] having to later have the warrant and
case dismissed, constituting violation of DHR Rule 1120-10-.06(1).
D. When [Mr. Marshall] failed to complete an Incident Report and failed to
utilize the video tape and audio taping capability’s [sic] of his cruiser, on
January 14th , [Mr. Marshall] demonstrated negligence, in violation of DHR
E. When [Mr. Marshall] inserted himself into matters for which R[ogersville]
P[olice] D[epartment] had primary jurisdiction, [Mr. Marshall] demonstrated
a lack of knowledge of the proper role of THP Troopers, in violation of DHR
Tennessee Department of Human Resources (“DHR”) Rule 1120-10-.06(1) provides that
inefficiency or incompetency in the performance of duties is cause for disciplinary action. DHR Rule 112010-.06(2) provides that negligence in the performance of duties is cause for disciplinary action.
Rule 1120-10-.06(2), negligence.
F. When [Mr. Marshall] engaged in the behavior of arresting and “unarresting” Mr. Fugate, [Mr. Marshall] demonstrated incompetence and a lack
of knowledge OR lack of willingness to adhere to THP practices and to lawful
conduct, in violation of DHR Rules 1120-10-.06(1) and (2), and in violation
of Department of Safety General Order 300, II.[ 12 ]
H. When [Mr. Marshall] refused to follow directions from veteran Troopers
and Supervisors Hurley and Hughes, [Mr. Marshall] demonstrated a lack of
regard for the chain of command and authority of those Supervisors . . . .
I. Since [Mr. Marshall’s] incidences have occurred so closely together and
were accompanied by an unwillingness to follow established THP protocol,
and since [Mr. Marshall’s] conduct in arresting Mr. Fugate at his home,
without a warrant, and in “un-arresting” him risked legal liability for the
D[OS] and may have violated Mr. Fugate’s constitutional rights, [Mr.
Marshall’s] conduct falls within DHR Rule 1120-10-.06(8), gross misconduct
or conduct unbecoming an employee in State service. When such conduct
occurs, it is permissible to terminate that employee for the good of the service,
as outlined in T.C.A. 8-30-326 and DHR Rule 1120-10-.06(24).
J. Gross misconduct includes job-related conduct that may subject an employee
to criminal prosecution. [Mr. Marshall’s] conduct, i.e., in arresting Mr. Fugate,
could well have resulted in criminal prosecution under T.C.A. 39-16-402
Official Misconduct or T.C.A. 39-16-403: Official Oppression. Thus, [Mr.
Marshall’s] January 14th behavior constitutes gross misconduct.
K. When [Mr. Marshall] took it upon himself to travel two (2) counties over
to serve a warrant, [Mr. Marshall] did not judiciously use his authority. When
[Mr. Marshall] met with Mr. Fugate on December 31st , then arrested and “unarrested” him on January 14th , [Mr. Marshall] did not judiciously use his
authority. These two (2) incidents constitute violation of Department of Safety
This general order provides , in part, that the DOS requires “members assigned to patrol duties and
functions to effectively patrol the highways of the State of Tennessee, to execute all traffic related
responsibilities and services . . . . All decisions or actions by members must be supported by case law,
statutory law and knowledge of the particular law being applied.” (Emphasis added).
General Order 102, III, B.[ 13 ]
L. When [Mr. Marshall] met with Mr. Fugate on December 31 st, then arrested
and “unarrested” him on January 14th , [Mr. Marshall] abused his authority, a
violation of Department of Safety General Order 216-2, IV, 4, i.e.,
mistreatment of the general public, oppression, injustice, willful maltreatment
of a person.
M. Similarly, when [Mr. Marshall] identified himself as a Tennessee State
Trooper, during the out-of-state hunting incident, [Mr. Marshall] abused his
authority . . . [and] fail[ed] to use his authority judiciously.
N. When [Mr. Marshall] drove into an area two (2) counties away from his
assigned patrol route, without authorization from his Supervisor, and when
[Mr. Marshall] failed to submit a written Incident Report regarding his January
14th interaction with Mr. Fugate, [Mr. Marshall] engaged in neglect of duty, in
violation of Department of Safety General Order 216-2, IV, 14[ 14 ] and in
negligence, in violation of Department of Safety Order 102, III, B.
R. When [Mr. Marshall] failed to write a written report/Incident Report, and
failed to inform his Supervisors of the January 14th incident with Mr. Fugate,
even though [Mr. Marshall] himself admits that he knew a complaint was
likely, [Mr. Marshall] violated Department of Safety General Order 525, II[ 15 ]
. . . and engaged in neglect of duty, in violation of Department of Safety
General Order 216-2, IV, 14.
S. . . . When [Mr. Marshall] failed to self-report his January 14 th conduct, even
when he knew a complaint was likely, [Mr. Marshall] demonstrated a callous
disregard for the chain of command, his responsibility to his Supervisors, and
the need for the THP to prepare to protect its public image. THP is an
organization in which the chain of command and willingness to follow Orders
This general order provides that employees shall be held accountable for the judicious use of
delegated authority and that such use should follow the law and DOS rules and regulations.
Neglect of duty includes “failure to submit written or verbal reports when required or duty
demands at the designated time.” DOS General Order 216-2, IV, 14, d.
The general order provides that all employees shall record and report all occurrences that directly
involve themselves or departmental property that may lead to complaints, civil litigation, criminal
prosecution, or embarrassment to themselves or the department.
T. When [Mr. Marshall] failed to have a Supervisor review and sign off on the
Incident Report that he provided Ms. Elkins, [Mr. Marshall] violated
Department of Safety General Order 525, II, VI, and VII.[ 16 ]
U. When [Mr. Marshall] failed to activate the video and audio equipment that
he had been provided for encounters with citizens, when he contacted and had
the incident with Mr. Fugate on January 14th , [Mr. Marshall] violated
Department of Safety General Order 712, Sections I, II, V, and D.[ 17 ]
AA. [Mr. Marshall’s] conduct in failing to file Incident Reports, in providing
Incident Reports to citizens that have not been reviewed and signed off on by
Supervisors, when [Mr. Marshall] admits that he knew and understood what
was required by the THP but thought that he was serving a higher good,
constitutes negligence and incompetence, in violation of DHR Rule 1120-10.06(1) and (2), as well as Department of Safety General Order 525, VII.
BB. Such conduct clearly assumes that [Mr. Marshall], with less than one (1)
year of service with the THP, knows the law, protocol, and proper conduct
better than Supervisors with over thirty (30) years of experience, and better
than the written policies and General Orders of the THP, based on law and
experience . . . .
CC. Overall, [Mr. Marshall] has shown contempt and lack of respect for the
Highway Patrol’s practices and procedures, as set forth in its General Orders.
DOS General Order 525 VI, B instructs that an offense report is required for an “event [that]
relates to occurrences involving offenses committed against or occurring to citizens and/or their property
caused by persons other than departmental members” and “any offenses or occurrences other than traffic
crashes.” Section VII provides in part that “[t]he Incident/Offense Report shall be completed and forwarded
to the supervisor for review.”
We believe the ALJ intended to reference DOS General Orders 712-1, II and 712-1, V, D which
provide that DOS policy requires “members assigned audio/video recording equipment to utilize the
equipment for the purpose of collecting accurate accounts of events as they occur. Such events include . . .
arrests . . . and other contacts with citizens” and “[m]embers should operate the MVS with the remote
function on [so as to] immediately activate audio/video while outside the vehicle in the event a situation
arises while the member is outside the vehicle.”
We agree with the chancery court that the ALJ’s decision regarding grounds for
discipline was more than amply supported by substantial and material evidence.
Having found that substantial and material evidence supports the ALJ’s findings that
Mr. Marshall violated several of his employer’s rules and policies, we now consider whether
these violations justify his dismissal from the THP. The ALJ and the chancery court found
that Mr. Marshall’s personal sense of right and wrong, rather than his training, general
protocol, and the DOS General Orders, policies, and practices, guided his actions. The
record, particularly Mr. Marshall’s own testimony, amply supports this finding. He
repeatedly excuses the actions for which he was disciplined by referring to “good faith,”
“put[ting] on a uniform and go[ing] out every day to try to help people,” “the spirit of public
safety,” and “the feelings of morality that [he] has in terms of law enforcement.” In
discussing the incidents that led to his ultimate dismissal, Mr. Marshall failed to show an
understanding that his conduct was unacceptable, telling his supervisors that “there’s no
point in my doing the job anymore if I’m not here trying to help people.”
Mr. Marshall takes issue with the degree of discipline imposed upon him. His attitude
demonstrates an unwillingness to conform to his employer’s rules and, as the ALJ and
chancery court found, factored into the DOS’s choice of discipline in his case. The ALJ
concluded that Mr. Marshall’s “is one of those rare cases in which it is simply not reasonable
to expect the THP to accept [Mr. Marshall] back as a THP Officer, even after a lengthy
suspension, because [he] has so quickly demonstrated through behavior as well as words so
thoroughly that he neither trusts, respects, or nor [sic] seeks to protect his Employer, its
reputation, and its management/Supervisory staff.” We note that “[i]f a government
employer has a choice of sanctions available for the violation of an employment rule, it
would only be a finding of arbitrariness that would allow a court to ‘second guess’ the
administrative decision maker.” Lien v. Metro. Gov’t of Nashville, 117 S.W.3d 753, 761
(Tenn. Ct. App. 2003). Regarding the choice of sanctions applied in this case, we are not
inclined to substitute our judgment for that of the Commission.
Finally, considering Mr. Marshall’s actions as a whole, and the fact that his infractions
were broad in range and occurred closely in time, the ALJ concluded, and the chancery court
affirmed, that terminating Mr. Marshall was for the good of the service. Pursuant to Tenn.
Code Ann. § 8-30-326, an appointing authority may “dismiss any employee in the authority’s
division when the authority considers that the good of the service will be served thereby.”
We agree with the chancery court and with the ALJ that Mr. Marshall seriously impaired his
own usefulness as a THP Trooper and that his failure and unwillingness to conform to the
essential THP Trooper job requirements warrant his termination for the good of the service.
For the foregoing reasons, we affirm the chancery court’s order. Costs of appeal are
assessed against the appellant, Leon Marshall, and execution may issue if necessary.
ANDY D. BENNETT, JUDGE