University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 1-23-2008 Department of Safety vs. Lt. Clement Jarrett Follow this and additional works at: http://trace.tennessee.edu/utk_lawopinions Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov
STATE OF TENNESSEE CIVIL SERVICE COMMISSION IN THE MATTER OF: Department of Safety DOCKET NO: 26.19-096901J v. Lt. Clement Jarrett INITIAL ORDER The Step V Civil Service hearing of this matter was held on January 23, 2008, in Nashville, Tennessee, before Rob Wilson, Administrative Law Judge, assigned by the Secretary of State, Administrative Procedures Division, and sitting for the Commissioner of the Tennessee Civil Service Commission. Clement Jarrett, Grievant, was represented by David Raybin, Esq. The State was represented by Deborah Martin, Staff Attorney for the Tennessee Department of Safety. The subject of this hearing was Clement Jarrett s demotion from the rank of Lieutenant to Sergeant by the Department of Safety. This matter became ready for consideration on February 19, 2008, when the hearing transcript was received by the Office of Administrative Procedures.
STEP IV DETERMINATIONS/ALLEGATIONS On July 19, 2007, Grievant was demoted from the rank of Lieutenant to Sergeant for allegedly backing the State vehicle he was driving into a parked car in the Hickory Hollow Mall parking lot. Additionally, the Department of Safety claims that Lieutenant Jarrett violated multiple rules and policies by not reporting the incident. FINDINGS OF FACT 1. Grievant has been employed with the Department of Safety for 28 years. 2. On April 15, 2007, Grievant was driving a State pickup truck. Grievant frequently drove the pickup truck as part of his job duties with the State. 3. Grievant drove the truck into the parking lot of Hickory Hollow Mall because his wife was working there and he wanted to see her. While in the parking lot Grievant accidentally backed the State pickup truck into a parked car. Grievant was not aware that he had struck the parked car due to the fact that an air compressor and other objects in the truck frequently shifted, making noises sounding similar to a collision. 4. Grievant exited the truck and looked at the parked vehicle but did not notice any damage. 5. A witness, Angelica Golden, testified that she saw Grievant s truck strike the car in the parking lot. 6. Grievant s wife worked at the mall with the owner of the car that was struck in the parking lot. The owner of the car told Grievant s wife that she had 2
been told by a witness that her husband had struck her car in the parking lot. Grievant s wife told Grievant this news and Grievant spoke with the owner of the car and told her he would pay for any damages. The car that Lieutenant Jarrett allegedly hit was owned by Ms. Ladd. 7. For reasons unknown, (Ms. Ladd did not testify) Ms. Ladd contacted the Metro Police Department concerning the incident. 8. Officer Phillip Shuler of the Metropolitan Police Department testified that he talked to Grievant regarding the incident. Officer Shuler stated that Grievant was honest and upfront regarding the incident, and explained that he had offered to pay for any damage to Ms. Ladd s car. Officer Shuler further testified that it would not be fair to say whether or not Grievant knew he had damaged that car at the time of the collision. Officer Shuler did not charge Grievant with any wrongdoing. 9. Officer Frankie Floied testified that Lieutenant Jarrett had permission to drive his State vehicle between Nashville and Memphis. He explained that the actual working time is not necessarily tied to the vehicle, and that Lieutenant Jarrett kept up with his own time. Officer Floied stated that a trip to a mall to see your wife wouldn t have been considered an approved function, but further stated that he didn t know if he would have said anything about it. (To Lieutenant Jarrett.) CONCLUSIONS OF LAW AND ANALYSIS 1. Tennessee Department of Personnel Rule 1120-10-.07, PROGRESSIVE DISCIPLINARY ACTION, states, in relevant part: 3
(1) The supervisor is responsible for maintaining the proper performance level, conduct and discipline of the employees under his supervision. When corrective action is necessary, the supervisor must administer disciplinary action beginning at the appropriate step as described. (2) Oral Warning (3) Written Warning (4) Suspension Without Pay (5) Dismissal (a) After minimum due process is provided, an employee may be dismissed for unacceptable conduct. (6) Transfer or Demotion If it is determined by the appointing authority that an employee s ability to satisfactorily perform his duties is beyond the capabilities of the employee or the employee has been compromised by notorious conduct to the extent that he is ineffective in his position, the employee may be demoted or transferred to a position that is more appropriate after minimum due process has been provided. 2. TCA 8-30-330, Progressive Discipline, states in relevant part: (a) The supervisor is responsible for maintaining the proper performance level, conduct, and discipline of the employees under the supervisor s supervision. When corrective action is necessary, the supervisor must administer disciplinary action beginning at the lowest appropriate step for each area of misconduct. (c) When corrective action is necessary, the supervisor must administer disciplinary action beginning at the step appropriate to the infraction or performance. Subsequent infractions or poor performance may result in more severe discipline. 3. TDOP Rule 1120-10-.06(3) lists as an example of disciplinary offenses: Careless, negligent, or improper use of State property or equipment. 4. TDOP Rule 1120-10-.06 (10) Willful abuse or misappropriation of 4
State funds, property or equipment. 5. Department of Safety General Order 721 (II) Employees shall not operate or use in any way a Departmental vehicle so as to reflect discredit on the Department. 6. Department of Safety General Order 721 (III) In order to protect employees of the Department and the State from claims for civil damages and other embarrassing situations, no unauthorized person shall operate or be placed or transported in a Departmental vehicle. 7. T.C.A. 55-10-104. Duty upon striking unattended vehicles The driver of any vehicle which collides with any unattended vehicle shall immediately stop and shall then and there either locate and notify the operator or owner of such vehicle of the name and address of the driver and owner of the vehicle striking the unattended vehicle, or shall leave in a conspicuous place in the vehicle struck a written notice giving the name and address of the driver and the owner of the vehicle doing the striking and a statement of the circumstances thereof. ***** ANALYSIS First, it must be pointed out what is not relevant to the decision. Officer Floied, who was Lieutenant Jarrett s supervisor at the time in question, made it clear during his testimony that he would not have reprimanded Lieutenant Jarrett for driving the State vehicle to the mall to see his wife. Officer Floied s testimony as well as the testimony of other witnesses established that certain rules and regulations concerning the use of State 5
vehicles have not been strictly enforced. Specifically, relevant testimony established that other high-ranking State officials have had family members and other acquaintances in their State cars in the past, and it is unclear whether or not special permission was obtained. Although Department of Safety General Order 721 (III) plainly exists, it is obvious that it is only selectively enforced. The main issue in this matter is whether or not Lieutenant Jarrett hit the car in the parking lot and why he didn t report it. Everything else is simply an attempt by the State to make a relatively honest mistake look like something heinous. 1 So considering the relevant violations, each one will be addressed separately. First, TDOP Rule 1120-10-.06(3). This rule lists an example of a disciplinary offense as careless, negligent, or improper use of State property or equipment. Obviously, it was careless for Lieutenant Jarrett to strike the car in the parking lot with his State vehicle. Such is the nature of a car accident; the careless act of one or more parties causes it. It s certainly not as if Lieutenant Jarrett was joy riding recklessly at 90 miles per hour when the accident happened; he simply misjudged the distance required to clear the car next to him. It was entirely accidental and certainly shouldn t be punishable by a $10,000 2 reduction in salary per year. Next, is TDOP Rule 1120-10-.06 (10), which lists as an offense willful abuse or misappropriation of State funds, property, or equipment. This violation has not been proven. Lieutenant Jarrett s supervisor testified that Lt. Jarrett works 160 hours per 1 During opening statements counsel for the Department of Safety referred to Lieutenant Jarrett s actions as heinous conduct for a law enforcement officer. 2 During opening statements counsel for Lieutenant Jarrett stated that the difference in pay between a lieutenant and a sergeant is $10,000 per year. 6
month and that he (Lt. Jarrett) keeps up with it. A far as logging him in a car and logging him out of the car, we don t do that. This testimony clearly establishes that the Department of Safety doesn t routinely verify that each and every mile driven is exclusively for State business. Therefore, we have no proof which could conclusively establish that Lt. Jarrett misappropriated State funds, property, or equipment. There is also Department of Safety General Order 721 (II), which states employees shall not operate or use in any way a departmental vehicle so as to reflect discredit on the Department. Again, it s not as if he used the car to intentionally discredit the State, he simply misjudged the clearance distance and accidentally bumped a parked car. The only way this could reflect discredit on the department would be if the public had the unrealistic belief that officers of the Department of Safety are not capable of being involved in an accident. Lieutenant Jarrett did not operate a departmental vehicle in such a way as to reflect discredit on the Department. Finally, there is T.C.A. 55-10-104, Duty upon striking unattended vehicles. This is a Tennessee statute that applies to everyone, not just police officers. In summary, it states that if you hit a parked car you have to put a note with your contact information in (sic) the vehicle you struck. Clearly, Lt. Jarrett did not leave a note on Ms. Ladd s car after he struck it. However, Lt. Jarrett testified that he was not sure whether or not he actually struck the car. He stated that there was an air compressor in the bed of his truck that frequently shifted and made a noise similar to that of a collision. He further testified that although he secured the compressor when he started on a trip, it often worked its way loose and rolled around in the bed of the truck. Additionally, the photographs of the 7
damage which were submitted as exhibits show the resulting dent to be so small that it could have been overlooked. When he learned that he did indeed dent Ms. Ladd s car, he immediately paid to have the damage repaired. So as to the State s contention that he should have immediately reported the accident to his superiors, the obvious answer is yes, but he wasn t even sure that there had been an accident to report. Should he have reported it regardless just to be safe? Probably, but he did pay for the damage with his own funds, and the metro police investigator testified that Lt. Jarrett was honest and open, and that the matter had been settled. So what we have here is a one-time, careless miscalculation of the distance needed to clear a parked car. We don t have a violation of the Tennessee Statute because the State did not prove by a preponderance of the evidence that Lieutenant Jarrett was aware that he had damaged Ms. Ladd s car. Furthermore, the record reflects no prior discipline 3 of Lieutenant Jarrett during his twenty eight years of employment with the Department of Safety. It is patently obvious that this matter has been blown out of proportion. One witness in this matter testified In light of our recent problems in the media I don t think it would have ever been ignored. (Referring to possible ways this issue could have been handled.) The witness statement is absolutely true, and it s no secret that some recent extreme behavior on the part of a very few Department of Safety employees has resulted in increased media scrutiny. However, additional media scrutiny is not an excuse to 3 During closing statements counsel for the Department of Safety stated that Lieutenant Jarrett does not have an unblemished record. However, no prior disciplinary actions were introduced, and therefore cannot be considered. 8
allow common sense to fall by the wayside, or more importantly, to impose discipline that is five times more severe than progressive discipline guidelines suggest. Accordingly, it is CONCLUDED that Lieutenant Jarrett s demotion from the rank of Lieutenant to that of Sergeant was unwarranted and is OVERTURNED. For his actions in this incident, Lieutenant Jarrett shall receive an oral warning to drive more carefully, and a written warning instructing Lieutenant Jarrett to report any possible collision, regardless of whether or not he is certain that a collision or damage occurred, to his superiors and the Department of Safety. This Initial Order entered and effective this 11th day of April, 2008. Rob Wilson Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 11th day of April, 2008. Thomas G. Stovall, Director Administrative Procedures Division 9