Archie Story v. Civil Service Commission of the State of Tennessee, et al.
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IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
MAY 4, 2011 Session
ARCHIE STORY v. CIVIL SERVICE COMMISSION OF THE STATE OF
TENNESSEE, ET AL.
Direct Appeal from the Chancery Court for Davidson County
No. 08-386-II
Carol L. McCoy, Chancellor
No. M2010-01214-COA-R3-CV - Filed July 5, 2011
A highway patrolman was terminated for allegedly deploying a tire deflation device without
prior authorization in violation of General Order 412 and for untruthfulness regarding such.
On appeal, the trooper argues that his partial extension of the device did not constitute a
“deployment.” Thus, he contends he did not violate General Order 412, nor was he
untruthful when he denied deployment. We affirm the ALJ’s finding that the trooper
“deployed” the device in violation of General Order 412 and that he was untruthful about
doing so. Accordingly, we find there existed substantial and material evidence to support his
termination. Additionally, we find that the trial court did not err in denying the trooper’s
request to admit additional evidence and to supplement his brief.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which H OLLY M. K IRBY,
J., and J. S TEVEN S TAFFORD, J., joined.
Jonathan R. Perry, Franklin, Tennessee, for the appellant, Archie Story
Robert E. Cooper, Jr., Attorney General and Reporter, Joseph F. Whalen, Associate Solicitor
General, Eugenie B. Whitesell, Senior Counsel, Nashville, Tennessee, for the appellee,
Tennessee Civil Service Commission
OPINION
I.
F ACTS & P ROCEDURAL H ISTORY
On August 24, 2006, Tennessee highway patrolman Archie Story (“Appellant”) heard
over his radio that the Gibson County Sheriff’s Department was involved in the pursuit of
a vehicle, and Trooper Story went “to the general area to be able to assist[.]” Mr. Story
stopped at a location ahead of the pursuit and retrieved his “stop sticks” (tire deflation
device) from his trunk. He threw out the sticks, but they became tangled and did not extend
into the lane in which the pursuit was occurring. The pursuit ultimately ended in a crash;
however, neither the fleeing vehicle nor a Gibson County Sheriff’s Department vehicle
traveled over the stop sticks.
That night, Trooper Story sought the assistance of Lieutenant Steve Russell in filling
out the crash report. Lt. Russell asked Trooper Story if he was involved in the pursuit, and
he answered that he was not, but that he had attempted to “get ahead of the pursuit to deploy
the tire deflation device.” Lt. Russell then asked Trooper Story if he had, in fact, deployed
the device, and Trooper Story answered that he had not.
However, the following day, Trooper Chris Rollins, who had been present with Mr.
Story during the pursuit, telephoned Sergeant Donald DeSpain and informed him that
Trooper Story had deployed his stop sticks. Sgt. DeSpain then met with Trooper Story to
discuss the incident, and according to Sgt. DeSpain, Trooper Story admitted to deploying the
stop sticks and to intentionally violating the General Order 412 which prohibits the
“deployment” of stop sticks without prior approval.
Following an investigation into the incident, Trooper Story received a memorandum
on October 30, 2006 from Colonel Mike Walker, notifying him that he was recommending
Trooper Story be terminated for unprofessional conduct and for violating several Department
of Personnel Rules and Tennessee Department of Safety General Orders, including deploying
his stop sticks without prior approval and assisting another agency in a pursuit without a
request to do so and without prior approval. Following a minimum due process hearing,
Trooper Story was terminated on November 15, 2006.
Trooper Story then filed a grievance regarding his dismissal and ultimately appealed
to the Tennessee Civil Service Commission on January 19, 2007. An administrative law
judge upheld his termination, and Trooper Story petitioned the chancery court for judicial
review on February 14, 2008. Trooper Story’s counsel was substituted on January 7, 2009,
and a motion was filed on January 4, 2010, seeking to supplement his brief and to admit new
material evidence. The chancery court denied Trooper Story’s motion, and it affirmed the
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Civil Service Commission’s decision to uphold his termination in an April 23, 2010 order.
Trooper Story timely appealed to this Court.
II.
I SSUES P RESENTED
Appellant presents the following issues for review, summarized as follows:
1.
Whether the ALJ erred in finding that the department proved that Trooper Story
violated General Order 412;
2.
Whether the ALJ erred in finding that Trooper Story was untruthful about deploying
the stop sticks in violation of General Order 412;
3.
Whether the trial court erred in finding there existed substantial and material evidence
to terminate Trooper Story;
4.
Whether the trial court erred in denying Trooper Story’s request to admit additional
evidence; and
5.
Whether the trial court erred in denying Trooper Story’s request to supplement his
brief.
For the following reasons, we affirm the ALJ’s finding that Trooper Story “deployed” the
device in violation of General Order 412 and that he was untruthful about doing so.
Accordingly, we find there existed substantial and material evidence to support his
termination. Additionally, we find that the trial court did not err in denying Trooper Story’s
request to admit additional evidence and to supplement his brief.
III.
S TANDARD OF R EVIEW
“The scope of review in the trial court of an order of an administrative agency is
defined in [section 4-5-322(h) of the Tennessee code,]” Metro Gov’t of Nashville &
Davidson County v. Shacklett, 554 S.W.2d 601, 604 (Tenn. 1977), which provides:
(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 finding,
inferences, conclusions or decisions are:
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(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 light
of the entire record.
(B) In determining the substantiality of the 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.
The scope of the review in this Court is the same as in the chancery court, and we must
review the case under the same statutory criteria. Humana of Tenn. v. Tenn. Health
Facilities Comm’n, 551 S.W.2d 664, 668 (Tenn. 1977); see also Mosley v. Tenn. Dep’t of
Commerce and Ins., 167 S.W.3d 308, 316 (Tenn. Ct. App. 2004); Estate of Street v. State Bd.
of Equalization, 812 S.W.2d 583, 585 (Tenn. Ct. App. 1990). “Our review of a trial court’s
decision with respect to agency findings is essentially a determination of whether the trial
court correctly applied the standard of review set forth [in section 4-5-322(h) of the
Tennessee Code].” Wilson v. Univ. of Tenn. at Chattanooga, No. M2000-02573-COA-R3CV, 2001 WL 1660832, at *4 (Tenn. Ct. App. Dec. 28, 2001). Additionally, we will not
reverse, remand, or modify an agency decision “unless for errors that affect the merits of
such decision.” Tenn. Code Ann. § 4-5-322(I).
IV.
A.
D ISCUSSION
ALJ’s Findings of Fact
After hearing all the evidence, the administrative law judge (“ALJ”), sitting for the
Tennessee Civil Service Commission, set forth the following findings of fact, in part, in her
order:
2. On August 24, 2006, the Gibson County Sheriff’s Department was involved
in a pursuit of a vehicle. Grievant, who was at the Gibson County Highway
Patrol Post, heard of the pursuit over the radio, and immediately decided to
either observe o[r] be of assistance. He left the post, using his blue lights and
siren on the way. He tried to determine where the chase was by radio contact
with the Gibson County authorities. He did not advise the Highway Patrol post
or his superiors of his intention to participate. The Sheriff’s Department had
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not requested assistance from the Highway Patrol. In fact, at one point the
Grievant, while attempting to contact the Gibson County authorities, contacted
the Highway Patrol Dispatch by error. He merely told the Highway Patrol
Dispatch to disregard the contact. He did not advise them of his attempt to
participate in the Gibson County pursuit.
3. Trooper Story arrived at a location in front of the pursuit, as did Trooper
Chris Rollins. . . . Inasmuch as the[] use of [stop sticks] entails considerable
risk to both the intended target, the person fleeing, and the officers chasing this
person, there are specific general orders which govern their use.
4. Although there had been no request for use of the tire deflation device by
the Gibson County authorities, and although there had been no authorization
for use of the device by Grievant’s Lieutenant, and although the Gibson
County Sheriff’s Department personnel in pursuit of the vehicle were not
advised of it, Grievant “deployed” the tire deflation device on the road in front
of the chase.
5. There is considerable disagreement among the parties as to whether the stop
sticks were “deployed.” The pursued vehicle and the pursuers both drove past
the spot where Trooper Story threw out the stop sticks without damage to their
tires, from which it is clear that the spikes did not go all the way across the
road. It is also clear, however, that the Grievant did, in fact, cause the stop
sticks to be deployed over a portion of the roadway, and thus they could have
resulted in damage, and perhaps grievous injury, to those involved in the chase
had they driven over that portion of the roadway in which the stop sticks were
deployed. The disagreement among the parties concerns whether placing them
over just a part of the roadway constitutes “deploying” the sticks. It seems
clear that placing the stop sticks where they could rip out someone’s tires
means the sticks were deployed, the only possible disagreement being whether
they were “fully” deployed.
6. On the night of the 24th , Grievant’s supervisor, Lieutenant Steve Russell,
assisted Grievant in filling out an incident report of the eventual crash that
occurred during the pursuit. Lieutenant Russell asked Grievant if he was
involved in the pursuit. The Grievant said that he was not, but that he had tried
to get in front of the pursuit to deploy the tire deflation device. Lieutenant
Russell asked the Grievant whether he had deployed the stop sticks, and the
Grievant replied that he had not.
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7. The following day, August 25, 2006, Grievant’s first line supervisor,
Sergeant Donald DeSpain, told Lieutenant Russell that the Grievant had
admitted to deploying the tire deflation device. Sergeant DeSpain learned
from Trooper Rollins that the device was deployed, and when he asked the
Grievant about it, the Grievant told him that he had, in fact, deployed the
device. In fact, the Grievant told the Sergeant that he had deliberately violated
the relevant General Order relating to use of the stop sticks. Sergeant DeSpain
told the Grievant that he should fill out another incident report since he was
“involved” in the pursuit. The Grievant was requested to include in this report
his conversation with Lieutenant Russell. In his report, the Grievant stated that
he could not recall the details of his conversation.
....
9. The proof clearly establishes that the Grievant, a long time veteran who had
participated in other pursuits, was well aware of the General Orders relating
to what his conduct should have been in this incident. It further clearly
establishes that he deliberately did not follow these General Orders; further,
he then lied about it to his superior. What Trooper Story reports, whether to
dispatchers, in reports, or to his superiors, depends upon its effect on him; truth
gives way to convenience, consistently.
10. All of Grievant’s supervisors testified that truthfulness was important to
a trooper, and that a trooper who is known to be untruthful reflects badly on
the integrity of the department, causes strained working relationships, and
could cause a loss of credibility with the public and perhaps in court cases. It
is clear that by his repeated failure to follow General Orders, and then his
untruthfulness regarding these lapses, Trooper Story had caused his ability to
discharge the functions of his job to sink to a level where he is unable to
adequately discharge his duties. (footnote omitted).
11. The Grievant testified in this matter regarding the use of the stop sticks,
and other matters. The undersigned carefully scrutinized his demeanor. His
testimony is not credited.
The ALJ then concluded that the Department had proven by a preponderance of the evidence
that Trooper Story violated General Orders 102 (obedience to orders and chain of command);
216-2(IV)(B)(1)(b) (willful disobedience of rules and regulations or negligent disregard
thereof); 216-2(IV)(B)(14)(c) (falsifying or withholding material from a statement or report);
411(X)(A) (pursuit driving); 412(III)(A) (use of tire deflation devices); and 800(VI)(H)
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(keeping the communications center advised of your status). It further found that Trooper
Story’s actions constituted grounds for termination under Civil Service Rule 1120-10.06(8),
“for the good of the service[,]” based on “his disregard for rules relating to pursuits, and the
danger to people[,]” as well as his inability to “be trusted to truthfully report what he saw or
did[, which is] an essential part of his duties[.]” Accordingly, the ALJ upheld Trooper
Story’s termination.
On appeal, Trooper Story challenges two of the ALJ’s findings: that he violated
General Order 412 and that he was untruthful about “deploying” the stop sticks in violation
of General Order 412. We address each contention below.
1.
Violation of General Order 412
General Order 412 provides in part:
It is the policy of the Tennessee Department of Safety to allow uniformed,
commissioned members to utilize tire deflation devices in the performance of
their duties when the use of such devices is necessary for the preservation of
peace, life, and well being of the citizenry of the state. . . . The use of tire
deflation devices will be strictly governed by the provisions of this Order.
Tire deflation devices will be used in pursuit situations only. Furthermore, the
device will only be used after all other means of apprehension have failed. . .
.
The use of tire deflation devices will be governed by sound professional
judgment and the procedures outlined in this policy. Should allied agencies
request the THP to utilize tire deflation devices, members of the department
are permitted to do so only after obtaining approval from an on-duty
supervisor.
....
The following criteria shall be met prior to the use of tire deflation devices:
1.
2.
There is reasonable cause to believe the suspect has committed
an offense justifying arrest of the suspect.
The officer attempting to apprehend the suspect has given notice
of command to stop to the suspect by means of both visual and
audible emergency equipment.
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3.
4.
The suspect ignores the efforts and warnings that would be
obvious and visible to a reasonable person in the suspect’s
position.
The officer has obtained authorization to utilize the tire deflation
devices from an on-duty supervisor.
....
Tire deflation deployment plans should include provisions for close
coordination between pursuing units and the officer deploying the
devices.
....
After deploying the tire deflation devices, everyone at the scene
should immediately retreat to a safe location.
On appeal, Trooper Story argues that the Department failed to prove that he
“deployed”1 the stop sticks in violation of General Order 412. He does not allege that he
requested or received authorization to use his stop sticks. Instead, he argues that
authorization was unnecessary because he did not “deploy” his stop sticks. He concedes that
he “partially extended” the stop sticks; however, he maintains that stop sticks are “deployed”
only when they are “actually . . . used and fully deployed so as to be capable of the function
for which they are intended; to-wit, to flatten automobile tires.” Thus, because the stop sticks
did not extend “all the way across the road[,]” Trooper Story argues, they were not
“deployed” and General Order 412 was not violated.
At the Commission hearing, Trooper Story testified regarding the events of August
24, 2006. He stated that upon parking his vehicle ahead of the pursuit, he “went to the trunk
to retrieve the stop sticks; I started to throw - - as I realized when I started to throw I did not
call the proper chain-of-command, I retrieved the stop sticks immediately back to myself.”
He admitted that the sticks did “hit the pavement” but he insisted that they did not fully
extend because they became “tangled up” when he tried to “quick[ly]” retrieve them. He
contradicted Sgt. DeSpain’s testimony that he had admitted to deploying the stop sticks. He
claimed that he answered “no” when asked by Sgt. DeSpain if he had deployed his stop
sticks, because “[i]n [his] mind,” “[t]he term deployment means that you use a piece of tool,
1
General Order 412 interchangeably uses the terms “deploy,” “use,” and “utilize.” The parties
specifically dispute whether Trooper Story “deployed” the stop sticks; however, our analysis of this term
applies equally to the terms “use” and “utilize.”
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as a stop sticks in its complete function to perform their duties completely.” [sic].
The videotape from Trooper Story’s patrol car was introduced into evidence. In the
video Trooper Story tells Trooper Rollins to “block the road so I can get spikes out.” After
the chase passes, Trooper Story states “Well my damn spikes got tangled up and I couldn’t she didn’t swerve off or nothing.” When asked whether the fleeing vehicle ran over the
spikes, he answers, “No, they missed her tire by that much.” At the hearing, Trooper Story
testified that his spikes only “went two feet out” and that his statement that the fleeing
vehicle missing “by that much” referenced a distance of roughly “twelve or thirteen feet.”
Lieutenant Steve Russell testified regarding the rationale behind General Order 412.
He explained that deploying stop sticks without notification is “a completely unsafe thing to
do, [and can] put[] people’s lives in jeopardy[.]” “[I]f you were to travel across [stop sticks
unknowingly you could] puncture your tires . . . lose control of your vehicle and cause a
crash.”
Sgt. DeSpain testified that Trooper Story admitted to him that he had deployed his
stop sticks. Sgt. DeSpain stated that he told Trooper Story that he hoped he wouldn’t “get
in big trouble over [the incident],” and that Trooper Story responded by stating “yeah, but
this time I intentionally violated the General Order.” He further opined that Trooper Story
had “deployed” the stop sticks, stating that “[d]eployment would be to take the object, cast
it into the roadway with the intention of stopping or interfering with the traffic going down
the road, and that’s obviously what occurred.”
Captain Robert Melton also testified that he believed Trooper Story had “deployed”
his stop sticks, stating “It’s just like if you shoot a gun, it don’t go off, you know. Either it
works or it doesn’t work. He attempted it, and just because . . . they didn’t fulfill their
obligation and go across the road, the intention of him trying to throw those spikes is there,
it doesn’t matter whether they worked or didn’t work.”
Major Johnny Savage also stated his belief that Trooper Story had “deployed” his stop
sticks. He described “deployment” as a process of “taking the . . . spikes out . . . and getting
them prepared to deploy and throw out in the roadway to stop the vehicle as it comes through
the location that you were at.” Failure to “fully extend” across the roadway, he maintained,
does not prevent “deployment.”
We find that the testimony from Sgt. DeSpain, Captain Melton, and Major Savage
supports the ALJ’s finding that Trooper Story’s partial extension of the stop sticks
constituted “deployment” as contemplated by General Order 412, and thus, that Trooper
Story’s failure to obtain prior authorization was a violation of such order. Furthermore, the
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language of General Order 412, itself, supports this finding. The order authorizes the use of
stop sticks only as a last resort, it highlights the importance of communication between the
pursuing unit and the deploying officer, and it details several prerequisites to the use of stop
sticks in an attempt to minimize the risk of personal injury and property damage. Like the
chancery court, we find “ridiculous” Trooper Story’s contention that an ineffective placement
does not require prior approval, as a partial extension equally evokes the safety concerns that
General Order 412 is designed to address.2
2. Untruthfulness with Regard to Deployment
Trooper Story also argues that the ALJ erred in finding that he was untruthful about
deploying the “stop sticks” in violation of General Order 412. He argues that because
“deployment” and “use” are undefined in General Order 412, the terms are “subject to the
interpretation of actors involved in the use of the ‘stop sticks.’” Thus, he maintains, because
he subjectively believed that he had not deployed the stop sticks, he was not untruthful when
he denied doing so.
Trooper Story’s supervisors testified before the ALJ regarding the importance of
truthfulness in the law enforcement profession. Lt. Russell stated that Trooper Story violated
policy by deploying his spike stripes without prior approval; however, he continued, “what
concerned me even more was the fact that when I point blank asked Trooper Story if he had,
in fact, deployed the strips, he denied doing so.” He explained that truthfulness is “of the
utmost importance of our position and our job, to be completely candid and truthful in
everything you do.” Furthermore, he stated that he would have difficulty trusting Trooper
Story in the future, and that he would not want him as a colleague. Lt. Russell also described
a telephone conversation he had with Trooper Story following the incident. He claimed that
Trooper Story apologized for “letting [him] down” and stated that “he was truthful the first
time [regarding his prior termination] and it didn’t help[,]” which Lt. Russell interpreted as
an admission of untruthfulness as to the current incident.
Major Savage stated that Trooper Story intentionally withheld material from a
statement or a written report when he failed to explain his deployment–partial or
2
Trooper Story devotes a considerable portion of his argument regarding “deployment” to
challenging the ALJ’s reliance upon Sgt. DeSpain’s testimony that Trooper Story admitted to intentionally
violating General Order 412. He asserts that Sgt. DeSpain’s testimony cannot be credited, and that his
“gratuitous assertion . . . cannot tip the balance in favor” of the Department because Trooper Story has
“equally refute[d]” Sgt. DeSpain’s testimony. We note that the ALJ specifically discredited Trooper Story’s
testimony and the chancery court agreed with this assessment. Furthermore, we find there is substantial and
material evidence apart from Sgt. DeSpain’s testimony to support the conclusion that Trooper Story deployed
his stop sticks in violation of General Order 412.
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otherwise–to Lt. Russell, instead of merely denying deployment in toto when specifically
questioned about the incident. Sgt. DeSpain likewise testified that based upon Trooper
Story’s being “less than truthful” he would not be able to “work with him in harmony and
trust him as [he] should be able to[.]” He also testified that when he asked Trooper Story,
on August 31, to recount the details of his conversation with Lt. Russell on the night of the
incident in which he denied deploying the stop sticks, he claimed that he could not remember
the conversation details.
We note that Trooper Story’s argument that he did not technically “deploy” the stop
sticks did not surface until his supervisors learned through Trooper Rollins that some
deployment had occurred, and we find his argument, at best, disingenuous. However,
assuming Trooper Story honestly believed he had not deployed his stop sticks, he was,
nonetheless, less than forthcoming with the full details of the incident. From the evidence
before the ALJ, we find that she could reasonably conclude that “What Trooper Story reports,
whether to dispatchers, in reports, or to his superiors, depends upon its effect on him; truth
gives way to convenience, consistently.” We find no error in the ALJ’s findings regarding
Trooper Story’s untruthfulness.
B. Request to Admit Additional Evidence and Supplement Brief
As we stated above, after petitioning the chancery court for judicial review, Trooper
Story’s counsel was substituted in January 2009, and a motion was filed to supplement his
brief and to admit new material evidence in January 2010. On appeal, Trooper Story argues
that the chancery court’s denial of his motion was error.
1. Additional Evidence
Trooper Story explains that the motion “was more in the nature of an offer of proof”
and that if allowed, he would have presented evidence in “the following general
categories[:]”
I.
II.
III.
IV.
V.
Evidence of the bias of Trooper Story’s superiors;
Evidence of the hearing by the Internal Affairs Division held on
January 25, 2006;
Evidence of the Tennessee Highway Patrol’s policy change and reopening of other cases where the Internal Affairs Division kept no
records;
Evidence relating to Trooper Story’s prior suspension;
Evidence regarding the investigation by Trooper Story regarding the
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VI.
VII.
crash in Gibson County on or about August 24, 2006;
Evidence of Trooper Story’s service record, commendations; and
Evidence of the proper regulation and process for internal evaluations.
Specifically, Trooper Story claims that “inappropriate actions” were taken against him
in 2004 and 2006 for refusing to dismiss a speeding ticket issued to a Benton County
Sheriff’s Deputy, for refusing to alter an accident report, and for filing a workplace
harassment charge against his captain. He also claims that no notes or records were made
during a 2006 Internal Affairs hearing regarding his “prior conduct[,]” and that he “was
treated differently” in this hearing because of his prior reports against his superiors. He
further claims that the THP reopened other cases in which no record was kept, but that the
THP refused to reopen his case.
Trooper Story also argues that he should have been allowed to introduce evidence
regarding his prior suspension stemming from two November 2005 incidents. In the first
incident, Trooper Story was dispatched to investigate a vehicle on Interstate 40. The
Department maintains that Trooper Story improperly classified the vehicle as “abandoned”
to avoid the necessity of an investigation although the vehicle had “clearly struck the
guardrail.” However, Trooper Story claims that he had been instructed to classify such
vehicles as “abandoned,” and that “[e]vidence supporting this protocol was not admitted at
the Administrative Law Hearing.” That same month, Trooper Story was dispatched to work
a wreck, but because he claims he was taking medication which made him drowsy, he
became unable to drive and pulled off the road. He claims that the ALJ did not allow him
to “introduce medical proof informing the Tennessee Highway Patrol of the effects of the
medication on Trooper Story.”
Regarding the August 2006 incident at hand, Trooper Story contends that the chase
ended when a Gibson County Sheriff’s vehicle “ramm[ed] his squad car into the suspect’s
vehicle.” However, he claims that Sgt. DeSpain “disagreed with Trooper Story’s findings
and requested that the report be changed to reflect that the suspect rammed the Sheriff’s
Deputy’s squad car.” Trooper Story initially refused to do so.
Finally, Trooper Story argues that evidence relating to his “service record and
commendations” and “[d]etailed explanations of [his] evaluations were not admitted at the
Administrative Law Hearing despite all of the alleged misconduct by Trooper Story.”
Although his “Superior” evaluations were apparently introduced, he maintains that “[t]he
elements and factors involved in the ‘Superior’ rating were not addressed at the hearing.”
The trial court’s review of an administrative decision is generally limited to the
administrative record. Tenn. Code Ann. § 4-5-322. However,
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If, before the date set for hearing, application is made to the court for leave to
present additional evidence, and it is shown to the satisfaction of the court that
the additional evidence is material and that there were good reasons for failure
to present it in the proceeding before the agency, the court may order that the
additional evidence be taken before the agency upon conditions determined by
the court. The agency may modify its findings and decision by reason of the
additional evidence and shall file that evidence and any modifications, new
findings or decisions with the reviewing court.
Tenn. Code Ann. § 4-5-322(e). Additionally “in cases of alleged irregularities in procedure
before the agency, not shown in the record, proof thereon may be taken in the court.” Tenn.
Code Ann. § 4-5-322(g).
We find subsection (g) inapplicable in this case, as Trooper Story’s argument
regarding failure to maintain a record of his hearing apparently relates to a prior incident
rather than to the disciplinary proceeding at issue in this case. Thus, to admit the evidence
requested, Trooper Story must rely upon subsection (e), which requires the requesting party
show “to the satisfaction of the court that the additional evidence is material and that there
were good reasons for failure to present it in the proceeding before the agency[.]” Tenn.
Code Ann. § 4-5-322(e).
Before the ALJ, Trooper Story testified regarding the alleged retaliation against him
for refusing to dismiss a citation and for refusing to alter a vehicle crash report. He also
testified that after he filed his workplace harassment claim, the disciplinary recommendation
against him was increased from suspension to termination. Although we find that the
substance of the November 2005 incidents was irrelevant to the disciplinary proceeding at
hand, we note that Trooper Story was allowed to testify that he was taking medication and
that he became drowsy. Furthermore, the record already contains numerous performance
evaluations of Trooper Story, including a positive evaluation by Sgt. DeSpain in February
2007, and we find allowing further evidence of the same character would not produce a
different outcome.
On appeal, Trooper Story also seeks to introduce evidence that Sgt. DeSpain asked
him to falsify the vehicle crash report to reflect that the fleeing suspect rammed the Gibson
County Sheriff’s Department vehicle. However, at the hearing, Trooper Story testified that
although he had initially believed that the police vehicle initiated the contact, after a full
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investigation he had determined otherwise.3
In sum, we find that the trial court did not err in refusing to admit the evidence
proffered by Trooper Story as it was either irrelevant, already in evidence, or would not
affect the merits of the agency decision. Furthermore, we note that Trooper Story has offered
no “good reason,” or any reason whatsoever, for his failure to present the requested evidence
at the agency hearing. See Tenn. Code Ann. § 4-5-322(e).
2.
Brief Supplement
Trooper Story claims that his initial brief “was limited in scope as to whether [he] had
‘deployed’ the tire deflation devices and depending upon the answer to that question, whether
[he] was truthful when asked about the tire deflation devices.” However, if the trial court
had allowed him to supplement his brief, he would have “advance[d] additional legal
arguments and further discuss[ed] the evidence that was already in the record.”
Our review of Trooper Story’s motion reveals that he sought to supplement his brief
based upon the additional evidence he requested the court to admit, not upon evidence
already in the record. Accordingly, because we have found that the trial court properly
denied his motion regarding the admission of evidence, we find that it did not err in denying
his motion to supplement.
C. Existence of Substantial and Material Evidence
Finally, we address Trooper Story’s argument that the trial court erred in finding that
substantial and material evidence existed to support his termination. Specifically, he
incorporates his arguments regarding “deployment” of his stop sticks in violation of General
3
Numerous documents were attached to Trooper Story’s motion to admit additional evidence. He
fails to cite this Court to the document allegedly supporting his claim that he was told to alter his vehicle
crash report regarding the cause of the crash on August 24, 2006. However, he apparently relies upon a
memorandum from Captain Melton which states that Trooper Story initially concluded that a Gibson County
vehicle had caused the contact and that if he had “been allowed to produce a crash report faulting the
Sheriff’s Department, when in fact they were not at fault, our relationship with that Department could have
been compromised.” We note that this memorandum does not contradict Trooper Story’s testimony before
the ALJ, nor does it lend support to his current argument that he was pressured to untruthfully report the
cause of the accident.
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Order 412 and untruthfulness concerning such deployment. He also again challenges the trial
court’s denial of his request to admit additional evidence. Based on our above conclusions
with respect to these matters, we find that substantial and material evidence existed to
support Trooper Story’s termination. The decision of the chancery court is affirmed.
V.
C ONCLUSION
For the aforementioned reasons, we affirm the ALJ’s finding that Trooper Story
“deployed” the device in violation of General Order 412 and that he was untruthful about
doing so. Accordingly, we find there existed substantial and material evidence to support his
termination. Additionally, we find that the trial court did not err in denying Trooper Story’s
request to admit additional evidence and to supplement his brief. Costs of this appeal are
taxed to Appellant, Archie Story, and his surety, for which execution may issue if necessary.
_________________________________
ALAN E. HIGHERS, P.J., W.S.
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