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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
SEPTEMBER 23, 2004 Session CITY OF MEMPHIS, A Municipal Corporation v. THE CIVIL SERVICE COMMISSION OF THE CITY OF MEMPHIS and TOMMY MOORE
Direct Appeal from the Chancery Court for Shelby County No. CH-03-0120-3 D. J. Alissandratos, Chancellor

No. W2003-02799-COA-R3-CV - Filed December 29, 2004

This case involves the demotion of an Air Crash Chief employed by the City of Memphis Fire Department following the revocation of his security clearance and driving privileges by the Memphis-Shelby County Airport Authority. Following his demotion, the Chief appealed the city's decision to the City of Memphis Civil Service Commission. The civil service commission reversed the city's ruling and held that the Chief must be reinstated. The city filed a common law writ of certiorari in the Chancery Court of Shelby County to appeal the finding of the civil service commission. The chancery court reversed, finding that the civil service commission exceeded its authority in reversing the city's decision and reinstating the Chief. We affirm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S., and HOLLY M. KIRBY , J., joined. Joseph Michael Cook, Memphis, TN, for Appellant, Tommy Moore Sara L. Hall, Gerald L. Thornton, and Barbaralette G. Davis, City Attorneys, Memphis, TN, for Appellee, City of Memphis

OPINION Factual Background and Procedural History Chief Tommy Lee Moore ("Chief Moore") began his career with the Memphis Fire Department approximately twenty years ago as a private and gradually worked his way to the position of Battalion Chief. In 1999, Chief Moore passed a test required for promotion to the position of Air Crash Chief. In 2001, an Air Crash Chief position became available at Memphis Fire Department Station 33 located at Memphis International Airport ("Memphis Airport"), and Chief Moore was promoted to fill the vacancy. Prior to assuming the new position, Chief Moore applied for and received a security identification badge and airport driver's license from the Memphis-Shelby County Airport Authority ("Airport Authority").1 On February 5, 2001, Chief Moore reported for his first day of duty at the Memphis Airport as the new Air Crash Chief for Station 33. Marsalis A. Freeman ("Mr. Freeman") worked for the Memphis Fire Department at Station 33 as a pumper driver tasked with the responsibility of driving Chief Moore in the command vehicle. On Chief Moore's first day at the Memphis Airport, Mr. Freeman took Chief Moore for a ride in the command vehicle to familiarize him with the airport. During their trip, Mr. Freeman drove the command vehicle onto a runway without authorization from the Air Traffic Control Tower. The Airport Authority labeled the event a runway incursion. Mr. Freeman was subsequently disciplined for the incident, but no disciplinary action was taken against Chief Moore at that time. On July 3, 2002, Mr. Freeman was driving Chief Moore in the command vehicle while responding to an incident at the Memphis Airport. The Air Traffic Control Tower cleared them to cross a runway, but Mr. Freeman drove the vehicle down the runway instead.2 Following this latest incident, Chief John Looney ("Chief Looney"), a Division Chief with the Memphis Fire Department and the Memphis Fire Department's liaison to the Airport Authority, met with members of the Airport Authority. Chief Looney also launched an investigation into the incident on behalf of the Memphis Fire Department. At the request of the Airport Authority, the Memphis Fire Department returned Chief Moore to his previous position as Battalion Chief away from the Memphis Airport.3

The Airport Authority requires all personnel working at the airport to obtain the proper security clearance. Any personnel required to traverse the Air Operations Area must also obtain an airfield driver's license by passing a written test and a practical road test. The Federal Aviation Administration ("FAA") investigated this incident and determined that it did not amount to a runway incursion. (Exhibit 6). The FAA issued a letter to the Airport Authority setting forth this finding, but the FAA also addressed in the letter its concerns about prior runway incursions by the Memphis Fire Department at the Memphis Airport, including the February 5, 2001, incident. W alter W hite, Director of Operations and Public Safety with the Airport Authority, sent a letter dated July 19, 2002, to Chester Anderson, Director of the Memphis Fire Department, thanking him for reassigning Chief Moore from the airport.
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On July 29, 2002, Walter White ("Director White"), Director of Operations and Public Safety with the Airport Authority, sent a letter to Chief Moore informing him of the Airport Authority's decision to revoke his security clearance and driving privileges at the Memphis Airport. As grounds for this decision, the letter cited Chief Moore's involvement in the July 3, 2002, runway incursion.4 In the interim, Chief Looney concluded his investigation and determined that, since Chief Moore had his credentials revoked by the Airport Authority, the Memphis Fire Department could no longer keep him in the position of Air Crash Chief at the Memphis Airport. On August 13, 2002, the City of Memphis ("City") sent Chief Moore a Notification of Administrative Investigation and Hearing alerting him that disciplinary proceedings had been instituted against him. The notice cited the two alleged incursions at the Memphis Airport involving Chief Moore, as well as violations of the Division of Fire Services Operations Manual5 and the City of Memphis Personnel Manual.6 On August 20, 2002, the Memphis Fire Department conducted an administrative hearing regarding the allegations lodged against Chief Moore. Chief Looney, in addition to being the investigating officer, also conducted the disciplinary hearing. On August 22, 2002, Chief Looney, on behalf of the City, entered a decision finding, in relevant part, as follows: As a result of these incidents, the Memphis Shelby County Airport Authority has asked that you be removed from any position at the airport. Furthermore, they have permanently revoked your Security Identification Display Area badge which is a requirement for you to work actively on the airfield. Both you and Driver Freeman's badges have been permanently revoked. .... As an active Air Rescue Chief you are responsible for two serious runway incidents. Your actions have been negligent in your duties as an Air Rescue Chief and violated the highest safety standards set by this Department and the Airport Authority.

The letter also cited Chief Moore's involvement in a second runway incursion occurring on July 12, 2001. Chief Moore denies any knowledge of the second incursion contained in the letter, and the record reflects that the only other incursion involving Chief Moore occurred on February 5, 2001. These violations, in summary, included the following: neglect of duty or negligence; failure to maintain required certifications; failure to properly control subordinates and equipment; failure to follow safety procedures and control the driver; an act or omission contrary to good order, discipline, or accepted social practice; and failure to work cooperatively toward serving the best interest of the public. These violations, in summary, included the following: incompetency; inefficiency; not being professional in work performance; violation of safety rules; operation of a city owned vehicle in wanton disregard for the safety of others; and willfully or repeatedly violating a safety rule.
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Therefore, because of your actions, and because of your violation of the above stated rules and regulations, you are hereby removed from the Airport Air Rescue responsibility and demoted to the rank of Battalion Chief. Chief Moore appealed the decision to the City of Memphis Civil Service Commission ("Commission"). The Commission held a hearing on December 6, 2002, and heard testimony from several witnesses concerning the allegations. The Commission issued a ruling on January 13, 2003, stating: The Commission finds against the City in that there was no reasonable basis for the demotion. The Commission understands that the City has a limited number of positions at the A/R Chief level, and all of those positions involve working at the Airport. The Commission also understands that it was the Airport Authority which took action to confiscate the badge and prohibit Chief Moore from working at the Airport, not the City. However, the evidence presented in this case indicated that the City's liaison did nothing to ensure that Chief Moore received due process in accordance with the guidelines and procedures of the Airport Authority. .... In summary, the Commission unanimously finds by a preponderance of the evidence that Chief Moore's reassignment amounted to a demotion and the City lacks a reasonable basis for their actions. Therefore, Chief Moore is to be reinstated to his previous rank of Air Rescue Chief with all back pay and benefits as of the date of his demotion. The City appealed the Commission's ruling by filing a Petition for Writ of Certiorari and Supersedeas in the Chancery Court of Shelby County. The chancellor issued the writ and, after hearing arguments from both parties and reviewing the record from the Commission, issued an order on October 30, 2003, finding that the Commission exceeded its authority as a matter of law when it reinstated Chief Moore. In reaching this conclusion, the chancellor made the following findings: (1) the Airport Authority did not follow its own rules and regulations when it stripped Chief Moore of his security clearance and driving privileges; (2) the City has no control over the decision by the Airport Authority to revoke such credentials; (3) as a result of losing these credentials, Chief Moore could no longer be employed by the Memphis Fire Department at the Memphis Airport; and (4) the Commission exceeded its authority by requiring the City to maintain an employee in a non-existent position, thereby forcing the City to create a new position.

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Chief Moore timely filed an appeal to this Court presenting the following issues for our review: I. II. Whether the chancery court erred in reversing the ruling of the City of Memphis Civil Service Commission; and Whether Appellant is entitled to attorney's fees and costs on appeal pursuant to section 4-5325 of the Tennessee Code.

For the reasons set forth herein, we affirm the decision of the chancery court. Standard of Review The City couched its appeal to the chancery court in terms of a common law writ of certiorari. Review of the decision by a board or commission, "where not otherwise specifically provided," may be instituted under the procedures set forth in section 27-9-101 et seq. of the Tennessee Code. TENN . CODE ANN .

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