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IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
January 7, 2003 Session CLINTON LIEN v. METROPOLITAN GOVERNMENT OF NASHVILLE and DAVIDSON COUNTY, ET AL.
Appeal from the Chancery Court for Davidson County No. 01-126-II Walter C. Kurtz, Chancellor

No. M2002-00721-COA-R3-CV - Filed March 4, 2003

Chief Emmett H. Turner, of the Metropolitan Government of Nashville and Davidson County Police Department, discharged Appellant from employment as a police officer for certain violations of various rules and regulations. The officer appealed his discharge and, after a hearing, the Administrative Law Judge reduced his penalty to a thirty day suspension. The appeal was further heard before the Civil Service Commission, which reversed the ALJ and upheld the dismissal of the officer. The Chancery Court of Davidson County upheld the action of the Civil Service Commission. The officer appeals, and we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S., and DON R. ASH , SP . J., joined. Gregory D. Smith, Clarksville, Tennessee, for the appellant, Clinton Lien. Karl F. Dean and William Michael Safley, Nashville, Tennessee, for the appellee, Metro Government of Nashville and Davidson County.

OPINION Clinton Lien was a metro police officer from August 16, 1993 until April 21, 1999, when he was discharged by metro police Chief Emmett H. Turner on charges of running a swinger's club, downloading pornography on company time, and bringing discredit upon the police force. Mr. Lien appealed his dismissal, and an administrative hearing took place on February 7 and 8, 2000, before an Administrative Law Judge who, on September 10, 2000, rendered an Initial Order in which he overturned the decision of Chief Turner to fire Mr. Lien and, instead, imposed upon him a thirty day suspension. Metro appealed the Administrative Law Judge Order to the Civil Service Commission and that Commission, by a vote of three to one, reversed the Administrative Law Judge decision and

upheld Chief Turner's action in discharging Mr. Lien. The appeal by Mr. Lien was to the Chancery Court of Davidson County where the administrative record was filed on March 2, 2001. The case was argued before Honorable Walter C. Kurtz, Circuit Judge sitting by interchange, on February 1, 2002, and taken under advisement. The trial judge rendered judgment on February 20, 2002, upholding the action of the Civil Service Commission, and Mr. Lien timely appealed. Because we are dealing with the future of a veteran metropolitan government police officer in a case where an Administrative Law Judge has held in his favor and because the vote in the Civil Service Commission was a divided vote, we have left nothing to chance in reviewing the extensive record in this case. The only issue asserted before this Court is whether the action of the Civil Service Board in allowing the submission of extraneous evidence, subsequent to the hearing, of minor previous infractions by Mr. Lien was prejudicial and reversible error rather than harmless error. The action of the Civil Service Commission in this respect was clearly erroneous, but a harmless error analysis cannot be made without careful consideration of the entire record, taking into account all of the evidence that was before the Commission. The standard of review in this Court is the same standard that was applicable to the review by the trial judge. 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. DePriest v. Puett, 669 S.W.2d 669 (Tenn.Ct.App.1984). Although what amounts to "substantial and material" evidence provided for in T.C.A.

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