BEFORE THE HEARING OFFICER OF THE

CIVIL SERVICE MERIT BOARD

FOR THE CITY OF KNOXVILLE

MICHAEL LANCE EARLYWINE, )

)
Appellant, )
)
v. ) Celeste Herbert
) Hearing Officer
CITY OF KNOXVILLE POLICE )
DEPARTMENT, )
)
Appellee. )

FINDINGS OF FACT & CONCLUSIONS OF LAW

BY ADMINISTRATIVE HEARING OFFICER

A hearing was conducted on multiple days (January 17, 18 and February 1, 2023)

by the undersigned Hearing Officer, arising from the Request for Review of Disciplinary

Action filed by Michael Lance Earlywine (“Earlywine”) on July 18, 2022. Based upon the

testimony received, exhibits admitted and for the reasons set forth below, the Hearing

Officer finds that just cause does not exist for the disciplinary action taken against

Earlywine. Earlywine’s Request for Reinstatement to his rank as Lieutenant in the

Knoxville Police Department (“KPD”) is granted; however, given Earlywine’s admission

that he violated the Code of Conduct in not properly reporting the conduct of Officer

Broome, appropriate discipline may be imposed by the Chief of Police after reinstatement.

The imposition of such discipline is beyond the power of this Hearing Officer.

FINDINGS OF FACT

1. Earlywine is a 20 year veteran of the KPD. He was a lieutenant at the time

of the disciplinary action taken against him.

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 2. On July 18, 2022, Chief Paul Noel of the KPD terminated Earlywine based

upon Earlywine’s actions as detailed in Internal Affairs investigative file Nos. 21-2851

[Hearing Exhibit 7] and 20-2829 [Hearing Exhibit 6] for violation of the KPD Code of

Conduct Section 2.7, Truthfulness. See Hearing Exhibit 1.

3. Also, on July 18, 2022, Earlywine filed his Request for Review of

Disciplinary Action.

4. At all times material to the conduct which led to the disciplinary action,

Earlywine was a part of the Violence Reduction Team (“VRT”) unit of the KPD.

5. Other members of the VRT in 2018 and parts of 2019 included Sgt. James

“Nick” Lockmiller and Officers Adam Broome, Diondre Jackson, David Gerlach, Jordan

Henderson, Christopher Morgan, Thomas Epps, Robert Rose, and Todd MacFaun.

6. On February 16, 2020, Officer Morgan (“Morgan”) left his position with KPD

and moved out of state.

7. On May 20, 2020, Vicki Hatfield, Civil Service Director for the City of

Knoxville, sent Morgan an Exit Questionnaire. See Hearing Exhibit 6, IAU #20-2829 pg.

0027.

8. On June 14, 2020, Morgan submitted his exit interview via e-mail to Ms.

Hatfield. See Hearing Exhibit 6, IAU #20-2829 pg. 0026. In addition to responding to

specific questions posed in the Questionnaire, Morgan submitted a four page narrative in

the “additional comments” section. This narrative describes events in chronological order

which generally started in February, 2018 when he joined the VRT and ended with an

entry for July, 2020 (this date has to be incorrect since July, 2020 was after June 14,

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2020, when the document was submitted by Morgan. Based on the hearing testimony,

the correct date is July, 2019). See Hearing Exhibit 6, IAU #20-2829 pgs. 0028-0031.

9. The “additional comments” narrative included in Morgan’s exit interview was

compiled with input from Officers Jackson, Gerlach and Henderson. One or more of these

officers testified that they kept notes similar to what Morgan submitted. Officer Jackson’s

notes which are referred to in the June 23, 2020, interview are similar in particular. See

Hearing Exhibit 6, IAU #20-2829 pgs. 0028-0031.

10. On June 15, 2020, Ms. Hatfield forwarded the Morgan exit interview to then

KPD Chief Eve Thomas and copied Charles Swanson, the City Law Director; Mayor Indya

Kincannon; and Ron Mills of the City Law Department and counsel for the City in the

matter before this Hearing Officer. Ms. Hatfield observed in her e-mail:

While discrimination is a part of the Complaint, I find only one

isolated comment that would create a basis for hostile work
environment based on race. There is, however, a great deal
of information alleging a hostile work environment that does
not appear to have any basis in discrimination. The
allegations seem to be more in keeping with general
harassment/bullying of all co-workers, regardless of race.

After conferring with Ron Mills, we are referring this to you to

request that it be investigated by IA. Should IA find there is a
basis in discrimination, they can pull Civil Service back in, but
at this stage, this appears to be more appropriate for an IA
investigation than a Civil Service.

See Hearing Exhibit 6, IAU #20-2829 pgs. 0025-0026.

11. On June 18, 2020, Lt. Steve Still of the Internal Affairs unit, received the

Morgan complaint from Chief Thomas. At the time Lt. Still received the Morgan complaint,

he was the head of the IA unit. He decided to do this investigation himself rather than

assigning it to another member of his staff due to the “chain of command involved.” At

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the time of this hearing, Lt. Still remains the head of the IA unit; however, he now has the

rank of Captain. See Hearing Exhibit 6, IAU #20-2829 pg. 0012 and Transcript of Hearing

Testimony of Captain Still, pg. 11 (the only Hearing testimony transcribed was the

testimony of Captain Still due to difficulties the Hearing Officer had in hearing Captain Still

as a result of vocal cord issues).

12. On June 22, 2020, more than one year after the key events set forth in the

Morgan exit interview, Lt. Still began conducting interviews of KPD officers under oath.

The following individuals were interviewed by Lt. Still: Morgan on June 22, 2020; Officer

Jackson on June 23, 2020; Officer Gerlach on June 24, 2020; Officer Henderson on

June 24, 2020; Officer Rose on June 25, 2020; Officer Epps on June 25, 2020; Officer

MacFaun on June 26, 2020; Sgt. Lockmiller on June 30, 2020, and August 31, 2020;

Earlywine on June 30, 2020; Captain Donald Jones on July 10, 2020; and Deputy Chief

Kenny Miller on October 1, 2020. See Hearing Exhibit 6.

13. Before Lt. Still could interview Officer Broome, Broome submitted his

resignation on July 28, 2020, effective July 31, 2020. See Hearing Exhibit 6, IAU #20-

2829 pg. 0039.

14. Lt. Still continued his investigation after Broome resigned, commenting in

the summary of his investigation:

… Mr. Morgan and the other three officers all complained that
their supervisors failed to deal with the issues when they
brought the allegations to them. Most notably, they
complained about their immediate supervisor Sgt. Lockmiller,
but also mentioned Captain Jones and Deputy Chief Miller. I
spoke with both Vickie Hatfield in Civil Service and Ron Mills
of the Law Department in regards to that. They both
requested I investigate further.

See Hearing Exhibit 6, IAU #20-2829 pg. 0015.

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 15. Earlywine’s interview was conducted prior to the resignation of Broome. In

that interview, Earlywine discussed that he was on administrative leave starting

December 20, 2018, “the day of our shooting.” He could not remember the date of his

return in 2019. He thought it could have been the end of April or the middle of May, 2019.

See Hearing Exhibit 6, IAU #20-2829 pg. 0251.

16. The interview of Earlywine in the 2020 investigation lasted 17 minutes.

During that interview, he expressed uncertainty and/or difficulty recalling information at

least eight times during the 17-minute period. See Hearing Exhibit 6 IAU #20-2829 pgs.

0249-0257.

17. Officer Jackson had to refer to his written notes/chronology of events

numerous times during his June 23, 2020, interview with Lt. Still. See Hearing Exhibit 6,

IAU #20-2829 pgs. 0067-0111.

18. Lt. Still concluded his investigation on October 14, 2020. He made no

findings concerning Broome due to his resignation. He sustained the complaint against

Sgt. Lockmiller and found him in violation of Code of Conduct 1.21 which addresses

unsatisfactory performance. Earlywine, Captain Jones and Deputy Chief Miller were all

exonerated in the 2020 investigation. See Hearing Exhibit 6, IAU #20-2829 pgs. 0002-

0021.

19. The focus of Lt. Still’s 2020 IA investigation was the hostile work

environment. “… the totality of what was going on was not racial harassment ….” See

Transcript of Hearing Testimony of Captain Still, pgs. 48-49.

20. Sometime after the 2020 IA investigation concluded, Officer Jackson got a

copy of the investigative file. It was not until June 23, 2021, that Officer Jackson made a

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complaint against Earlywine, Captain Jones and Deputy Chief Miller regarding their

truthfulness in the statements they gave during the 2020 IA investigation. By the time the

2021 investigation commenced, it was now two years since the events in question and

one year since interviews were conducted in the 2020 IA investigation. See Hearing

Exhibit 7, IAU #21-2851.

21. The 2021 investigation which dealt with an allegation of untruthfulness of

three KPD high ranking officers was assigned by Lt. Still to Investigator Michael Washam.

This is in sharp contrast to the 2020 investigation which Lt. Still considered so important

that he handled himself. See Transcript of Hearing Testimony of Captain Still, pg. 75.

22. The heart of the 2021 IA investigation concerning Earlywine centers around

Officer Jackson’s frustration that Earlywine did not recall the racial comments that had

been allegedly reported to him by Officers Jackson, Gerlach, Henderson and Morgan.

Jackson told Investigator Washam:

Lt. Earlywine met with all four of us individually one on one,

and they revealed the racist statements and also the hostile
work environment to him so he was fully aware. So for him to
go back and say hey “I didn’t … Still to this day I don’t know
what was said and if it was vague and nobody could ever tell
me specifically what Broome said or did.” That’s completely
false. And unless the only two things I could think of either he
forgot a conversation he had with four separate people or he’s
completely dishonest.

See Hearing Exhibit 7, IAU #20-2851 pg. 0007.

23. Just like the 2020 IA investigation, Officer Jackson made notes regarding

the untruthfulness allegations and used them during his interview with Investigator

Washam in the 2021 investigation. See Hearing Exhibit 7, IAU #20-2851 pg. 0007.

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 24. Earlywine was interviewed by Investigator Washam in the 2021

investigation. This interview lasted 41 minutes. In that 41-minute period, Earlywine

expressed uncertainty and/or had difficulty recalling information on at least 16 occasions.

See Hearing Exhibit 7, IAU #21-2851, pgs. 0311-0336.

25. At no time in 2019 and 2020 was Earlywine provided a copy of Officer

Jackson’s notes. This is in sharp contrast to the notes maintained by Morgan and Officer

Jackson which were discussed and edited by former Officers Morgan, Gerlach,

Henderson and Officer Jackson.

26. Investigator Washam like Captain Still interviewed the following individuals:

Officer Jackson on June 28, 2021; Officer Henderson on June 29, 2021; former Officer

Gerlach on July 2, 2021 (Gerlach left KPD in September, 2020); Morgan on July 2, 2021;

Sgt. Lockmiller on July 21, 2021; Captain Jones on October 20, 2021; and Deputy Chief

Miller on November 23, 2021. See Hearing Exhibit 7, IAU #21-2851.

27. On November 3, 2021, Lt. Earlywine submitted to a polygraph examination

at the request of Investigator Washam. The results of this examination were inconclusive.

See Hearing Exhibit 7, IAU #21-2851, pg. 0012.

28. Investigator Washam concluded his investigation on December 1, 2021.

The charges of violation of Truthfulness Code of Conduct 2.07, General Order 1.36-COK

Administrative Rule 1.06 Harassment Policy were sustained against Earlywine, but were

not sustained against Captain Jones and Deputy Chief Miller. In the case of Captain

Jones, and Deputy Chief Miller, the “investigation discloses insufficient evidence either to

prove or disprove the allegation.” See Hearing Exhibit 7, IAU #21-2851, pgs. 0001-0006.

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 29. Chief Paul Noel was sworn in as a Chief on June 13, 2022. Sometime after

he became Chief, he signed the IAU investigation forms that Investigator Washam

digitally signed on December 17, 2021. The gap in these signatures was never explained

during the hearing or in any of the Hearing exhibits.

30. There were variations in the way the witnesses at the hearing recalled

events as well as variations in the statements made during the 2020 and 2021 IAU

investigations. These variations are too numerous to list. For example, Investigator

Washam was asking former Officer Gerlach about explaining the “racial comment or

joke.” Gerlach responds: “So, I don’t know, I don’t think it was a one on one conversation.

I think it was like a group setting.” That was different than the testimony of Officer

Jackson, but it does not mean that former Officer Gerlach was lying. That was the way

he recalled events which occurred over two years prior to the interview. Another example

as the differences in recollection regarding the June 20, 2019, “parking lot” incident

between Broome and Officer Jackson. Several witnesses testified that a search warrant

was involved; Sgt. Lockmiller thought it could have been a protest. Again, there is a

difference in recollections, but that does not mean the person is a liar.

31. There is also a material difference in the way the 2020 and 2021 interviews

were conducted. The questioning styles of Lt. Still and Investigator Washam are very

different with Investigator Washam’s questions generally being more leading.

32. Both Earlywine and Sgt. Lockmiller indicated in their IAU interviews and in

their hearing testimony that they did not know the exact racist remark made by Broome

until they read Tyler Whetstone’s article in the Knoxville News Sentinel in 2021. During

the hearing, there was different testimony about the content and context of these remarks.

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 33. The entire VRT Unit, with the exception of Officer Henderson, was involved

in a shooting on December 20, 2018. At the hearing before this Hearing Officer, both Sgt.

Lockmiller and Earlywine became visibly emotional when testifying about the events of

that day. The event clearly still deeply affects these men more than four years after the

event. That event has impacted the officers involved and shapes the way they processed

information from that point forward. Earlywine testified during the hearing that he still has

a physical pain in his hand when recounting the events of that day.

34. Former Lt. Earlywine testified during the hearing that when issues with

former Officer Broome were reported to him that his focus was on Broome and his mental

state. Given the shooting, he was “laser focused” on Broome’s wellbeing.

35. Investigator Washam retired after this investigation concluded. Despite

being subpoenaed to the hearing, he failed to appear on three occasions. Ron Mills

advised that he was sick on the January hearing dates. Washam failed to respond to Mr.

Mills to appear on February 1, 2023. The City opted to proceed with concluding the

hearing without the testimony of former Investigator Washam.

36. Captain Steve Still gave contradictory testimony during the hearing. He

testified that he signed off and approved the findings in 2021 investigation (See Hearing

Transcripts Testimony, pgs. 18-19). He later testified that if he had thought Lt. Earlywine

was dishonest in the 2020 interview that he would have added Truthfulness to the

violation. Captain Still testified: “I would have to be able to articulate and prove that.”

Based upon the information he had during his 2020 investigation, he did not feel he could

prove dishonesty. That is a material fact to this Hearing Officer. See Hearing Transcript

Testimony, pgs. 69-70.

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 37. Hearing Exhibit 2, is the KPD Code of Conduct. Included within the Code

of Conduct is Section 2.07 Truthfulness. This section will not be reproduced herein, but

Chief Noel’s Statement of Disciplinary Action (Hearing Exhibit 1) reflects that Lt. Earlywine

violated 2.07 A. and B.

CONCLUSIONS OF LAW

A. The question of law before this Hearing Officer is whether there was just cause

for the discipline administered to Earlywine. The Tennessee Court of Appeals discusses

just cause for the discharge of an employee in Knoxville Utilities Board vs. Knoxville Civil

Service Board, 1993 WL 229505 (1993). The Court of Appeals observes that there is

“nothing magical” about the words “just cause.” The Court cites CJS which provides “the

term ‘cause’ implies good cause which may be substantial.” Id. at 10.

B. The facts in this case do not demonstrate just cause for the discipline given to

Earlywine.

C. Code of Conduct 2.07A requires an employee “to respond truthfully to all

questions. …” The opinion of this Hearing Officer based on the Exhibits admitted and the

testimony presented at the Hearing is that Earlywine responded truthfully to the questions

of both investigators. Earlywine in his 2020 and 2021 interviews consistently expressed

difficulty in remembering particulars of the discussions and events that occurred in June,

2019. It is important to note that these events occurred shortly after Earlywine returned

from administrative leave after the December 2018 shooting. The trauma of this event

cannot be minimized or ignored. This Hearing Officer’s appreciation of our KPD officers

is even more enhanced after hearing the testimony at this hearing.

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 D. The Hearing Officer’s analysis of Code of Conduct 2.07B is similar to the

analysis of 2.07A above; however, 2.07 references “willfully depart(ing) from the truth. …”

This Hearing Officer finds that Earlywine did not “willfully” depart from the truth in his 2020

or 2021 interviews or in his testimony before this Hearing Officer. Even Officer Jackson

considered the possibility that Earlywine could have forgotten the particulars of

conversations. See Finding of Fact 22 above. It is important to note that Earlywine was

never given the notes made by Morgan or Jackson in 2019 when these events occurred.

This Hearing Officer finds that between the notes and the discussions that occurred

regularly among Officer Jackson and former officers Gerlach, Henderson and Morgan

that these officers have perhaps better recall than Earlywine who was not privy to the

notes or a party to the regular discussions. It is also possible that these officers thought

they said something to Earlywine when, in fact, they are really recalling discussions they

had with each other. Even with the benefit of notes and discussions, Officer Jackson had

to refer to his notes at the hearing and during his interviews.

E. The evidence presented by the City fails to demonstrate that the discipline

imposed by Chief Noel was for “good cause which must be substantial” as set forth in the

KUB case cited above. Firing an officer for having a poor memory of racial remarks that

he never heard verbatim and were reported to him months after they were made is neither

just or good. This in no means minimizes the reprehensible conduct of Broome and the

affect those words had on Officer Jackson. It just means that Earlywine, like Captain Still,

Civil Service Director Vicki Hatfield and Ron Mills, focused on the conduct of Broome in

creating a hostile work environment within the VRT. Earlywine is in no way condoned the

conduct of Broome. He immediately reported it to his supervisor. Broome’s racist

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