Opinion
No. W2001-01769-COA-R3-CV.
Filed May 3, 2002.
Direct Appeal from the Chancery Court for Shelby County; No. CH-00-1654-1; Walter L. Evans, Chancellor.
Reversed; and Remanded.
Alan G. Crone, Memphis, Tennessee, for the appellant, Jim Rout, Mayor of Shelby County, Tennessee.
Joedae L. Jenkins and Tyrone J. Paylor, Memphis, Tennessee, for the appellee, Bob Patterson, Trustee of Shelby County, Tennessee.
David R. Farmer, J., delivered the opinion of the court, in which Alan E. Highers, J. and Don R. Ash, Sp. J., joined.
This appeal concerns the application of the Shelby County Civil Service Merit Act to five appointed employment positions in Shelby County. The trial court found that since the five positions were appointed by the County Trustee, they were exempt from the Act. The chancellor accordingly held that the Human Resources Department does not have the authority to override salary decisions of the Trustee with respect to appointed positions, and that petitions for salary increases could be made to the court pursuant to Tenn. Code Ann. § 8-20-101, et. seq . The chancellor approved three of the five requested increases, finding them reasonable and necessary. We hold that the five positions are classified and governed by the Civil Service Merit Act. We accordingly reverse.
OPINION
This case concerns salary determinations for five Shelby County (the County) appointed positions: Deputy Administrator A, Manager A, Manager B, PAS-B, and PAS-D. The facts underlying this appeal are undisputed. Bob Patterson, the county trustee, is an elected county official. On Dec. 22, 2000, he filed an amended salary petition requesting, inter alia , salary increases for these positions. Relief regarding other issues was stipulated. Jim Rout, the mayor of Shelby County, opposed the petition, arguing that salaries for these positions are governed by the County's Civil Service Merit Act (the Act). The chancellor held that since the positions were appointed by an elected official, they were not governed by the County's Civil Service Merit Act, but by the provisions of Tenn. Code Ann. § 8-20-101, et seq . The chancellor concluded that "the Human Resources Department has no authority to deny the Trustee's recommendations to fill unclassified positions in his office or salary increases approved by the county commission." The chancellor approved the salaries requested for Deputy Administrator A, Manager A, and Manager B, finding them reasonable and necessary. The salary requests for the PAS-B and PAS-D positions were denied upon a finding that neither had been proven by a preponderance of the evidence to be reasonable and necessary. Both parties appeal.
When used in the context of such an act, "merit" is used as a term of art. Merit systems are designed to protect employees from arbitrary termination. Knox County v. Knox County Personnel Bd ., 753 S.W.2d 357, 359 n. 1 (Tenn.Ct.App. 1988). They may also serve to "structure the method and manner of employment of . . . personnel." Shelby County Civil Serv. Merit Bd. v. Lively , 692 S.W.2d 15, 19 (Tenn. 1985).
Issues Presented on Appeal
The parties raise the following issues for our review:
I. Whether the Shelby County Salary Policy and Civil Service Merit Act have suspended T.C.A. §§ 8-20-101, et seq ., through the operation of statute and/or through the institution of a comprehensive plan for determining salaries and pay equity among employees of Shelby County.
II. Whether the Chancellor erred in holding that appointed, "unclassified" County employees are governed by the "reasonable and necessary" recommendations of the elected officials and specific approval by the Shelby County Commissioners and are effectively exempt from the Shelby County Salary Policy and Civil Service Merit Act.
III. Whether the Chancellor erred in finding that the requested salary increases for the [Deputy Administrator A, Manager A, and Manager B] were both reasonable and necessary.
IV. Whether, in approving [these] increases, the Chancellor erred by placing too much emphasis on comparisons to salaries in the public sector as opposed to salaries in comparable positions in the County government.
Mr. Patterson raises the additional issue of whether the appellant, Mr. Rout, is barred by the doctrine of res judicata and/or collateral estoppel from asserting its defenses flowing from the Civil Service Merit Act raised before the chancery court and now before this Court.
Standard of Review
Our standard of review of a nonjury trial is de novo upon the record. See Wright v. City of Knoxville , 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of correctness as to the trial court's findings of fact, unless the preponderance of the evidence is otherwise. Tenn.R.App.P. 13(d). With respect to the trial court's conclusions on matters of law or on mixed questions of fact and law, however, our review is de novo with no presumption of correctness. See Bowden v. Ward , 275 S.W.3d 913, 916 (Tenn. 2000); Nash-Putnam v. McCloud , 921 S.W.2d 170, 174 (Tenn. 1996); Tenn.R.App.P. 13(d).
Res Judicata
We first dispense with the issue of whether Mr. Rout's defense is barred by the doctrine of res judicata . Mr. Patterson cites Key v. Bolton, No. 02A01-9703-CR-00072, 1997 Lexis 556 (Tenn.Ct.App. Aug. 13, 1997) perm. app. denied , for the proposition that the issue of whether the Civil Service Merit Act, Tenn. Priv. Acts ch. 110 (1971), exempts the County from Tenn. Code Ann. § 8-20-101, et seq ., is a res judicata . This argument is without merit. This Court's opinion in Key was filed as a "Memorandum Opinion." Key v. Bolton , 1997 Lexis 556 at *1. As such it "shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case." Id . at n. 1; Court of Appeals Rule 10(b). Accordingly, the parties cannot rely on Key in the case at bar.
Effect of the Civil Service Merit Act on Tenn. Code Ann. § 8-20-101, et seq .
Mr. Rout submits that Shelby County is exempt from the provisions of Tenn. Code Ann. § 8-20-101, et seq ., which generally govern the appointment of deputies and assistants. He contends that the salaries of Shelby County employees are governed instead by the Civil Service Merit Act, enacted by the General Assembly in Tenn. Priv. Acts ch. 110 (1971), and that the Act suspends the statutory provisions. Mr. Patterson, however, contends that the Act exempts Shelby County only from section 109 of the statute, and that the remaining provisions continue to be applicable notwithstanding the Act. The seminal question for this Court, as we perceive the issue, is whether the Act suspends the general statutory provisions. We hold that Tenn. Code Ann. § 8-20-101, et seq ., is suspended by the Act with respect to those employees governed by the Act. The general statutory provisions continue to govern employees not covered by the Act.
In addressing this issue, we are called upon to interpret the provisions of the Civil Service Merit Act and Tenn. Code Ann. § 8-20-112. When interpreting a legislative provision, this Court's primary objective is to effectuate the purpose of the legislature. Lipscomb v. Doe , 32 S.W.3d 840, 844 (Tenn. 2000). Insofar as possible, the intent of the legislature should be determined by the natural and ordinary meaning of the words used, and not by a construction that is forced or which limits or extends the meaning. Id . Likewise, the Court must seek to ascertain the intended scope, neither extending nor restricting that intended by the legislature. State v. Morrow , ___ S.W.3d ___, 2002 WL 27513, at *2 (Tenn. Jan. 11, 2002) (citing State v. Sliger , 846 S.W.2d 262, 263 (Tenn. 1993)). Our interpretation must not render any part of a legislative act "inoperative, superfluous, void or insignificant." Id . (citing Tidwell v. Collins , 522 S.W.2d 674, 676-77 (Tenn. 1975)). Rather, we seek to give effect to the legislature's over-arching purpose. Merrimack Mut. Fire Ins. Co. v. Batts , 59 S.W.3d 142, 151 (Tenn.Ct.App. 2001).
Section 8-20-112 of the Tennessee Code provides:
In any county having a civil service system for the sheriff's department pursuant to chapter 8, part 4 of this title or other provision of general law or the provisions of a private act, or a civil service system for all county employees pursuant to the provisions of a private act, the employment or termination of employment of any deputy or assistant in any offices covered by this chapter shall be pursuant to the provisions of such civil service system, and the provisions of § 8-20-109 shall not apply to such county. [Acts 1984, ch. 912, § 1; 1933, ch. 53, § 6.]
Tenn. Code Ann. § 8-20-112 (1993) (emphasis added). In his brief, Mr. Patterson contends, "[t]he clear language of the statute provides that any county with a civil service system enacted by private act[s] is exempt only from Tenn. Code Ann. §§ 8-20-109, not Tenn. Code Ann. §§ 8-20-101, et. seq ." We disagree.
Section 8-20-109 of the Tennessee Code provides: "Any and all deputies and assistants in any of the offices covered by this chapter shall be removable by the officer for whom they are acting, at will." Tenn. Code Ann. § 8-20-109 (1993).
The private act creating a civil service merit system for Shelby County is broad in scope. Shelby County Civil Serv. Merit Bd. v. Lively , 692 S.W.2d 15 (Tenn. 1985). The Act established "a Civil Service Merit System for the employees of Shelby County; creat[ed] a Civil Service Board; [p]rovid[ed] for the classified service; provid[ed] a schedule of compensation . . . exempt[ed] Shelby County from provisions of Section 8-2009 T.C.A. contrary to this Act . . . ." Tenn. Priv. Acts ch. 110 (1971). Where a county employee is governed by the Act, the civil service system governs terms of employment, promotion, discipline and termination. Lively , 692 S.W.2d at 16. Our Supreme Court has opined that in enacting the Act the General Assembly classified Shelby County separately in order to place the majority of the County's employees under a tenured civil service system. Id . at 19. The Lively court further noted that at the time it was enacted, the Act was contrary in some respects to the general statute, but that a reasonable basis existed to justify this departure. Id .
Currently codified as Tenn. Code Ann. § 8-20-109.
The Lively court noted that in the 1971 Act, the General Assembly created a broad and comprehensive civil service system. Id . In 1984, over ten years later, the General Assembly amended the older, general statute, adding section 112. Tenn. Priv. Acts, ch. 192, § 1 (1984). This section mandates that where a civil service system is enacted for a county, the terms of employment for county employees governed by the act "shall" be in accordance with the act. Id . The amendment additionally mandates that where a civil service system is enacted, section 109 of the general statute, which makes county employees terminable at will, "shall" not apply. Id . We believe this amendment serves dual purposes. First, it requires that where a civil service system is enacted, terms of employment for employees governed by the act "shall" be in accordance with that system. Second, it specifically mandates that contrary to the general provisions, employees governed by a civil service act are not deemed terminable at will.
This interpretation of the statute is supported by the observations of the Tennessee Supreme Court in Lively . In Lively , the court noted that through the civil service system, the General Assembly "may classify counties in a reasonable manner and structure the method and manner of employment of county personnel accordingly. It has done so in this case [in Shelby County] as it has done with respect to several other counties. It long ago did so with respect to the salaries of county officers . . . . We believe that the General Assembly had a reasonable basis to confer that status upon the employees of this large urban county and to suspend the general employment law with respect to that county ." Id . at 19-20 (emphasis added). The court accordingly held that the employees at issue in Lively were governed by the Act and therefore not terminable at will. Id . at 20.
In Knox County v. Knox County Personnel Board , 753 S.W.2d 357, 358 (Tenn.Ct.App. 1988), this Court addressed the issue of whether the County Personnel Board was to be considered the final appeals body for personnel grievances. We stated that although the county's plan did not expressly state that the Board was to be so considered, such a holding best effectuated the legislative purposes of the act enabling the county's merit system. Id . at 359. In Knox County , we noted that in construing an act creating a civil service merit system for county employees, the court should construe the act so as to effectuate its purpose. Id . at 359. The primary purposes of an employment system based on merit is to protect employees from arbitrary removal and to establish consistent terms of employment, including a consistent pay scale. Id .; Shelby County Civil Serv. Merit Bd. v. Lively , 692 S.W.2d 692 S.W.2d 15, 19 (Tenn. 1985). We do not believe such consistency would be achieved if the civil service system could be circumvented by application of a prior statute generally governing county employees. The fact that the Act does not expressly suspend Tenn. Code Ann. § 8-20-101, et seq ., is not determinative where such suspension is implied by the purposes of the Act itself. See Knox County , 753 S.W.2d at 359. In light of the foregoing, we hold that the Act suspends Tenn. Code Ann. § 8-20-101, et seq ., with respect to those employees covered by the Act.
Applicability of the Act to Unclassified Employees
Mr. Rout contends that the Act governs both classified and unclassified employees. He argues that the Act suspends Tenn. Code Ann. § 8-20-101, et seq ., with respect not only to classified employees, but that it does so with respect to all Shelby County employees. Mr. Patterson submits that the Act pertains only to classified employees, and that it gives no authority to the County Human Resources Department to determine the salaries of unclassified employees. We agree with Mr. Patterson on this point of law.
Section 1 of the Act reads: "[t]here is hereby established a Civil Service Merit System for employees of Shelby County." Tenn. Priv. Acts, ch 110, § 1 (1971). Section 2 of the Act is its definitional section. This section as it existed in 1971 stated:
SECTION 2. DEFINITIONS. As used in this Act, the following words and terms shall have the following meanings:
(a) "Appointing Authority" — Any elected official of the county or head of an office of the county government charged with the duty of appointing and/or dismissing the personnel employed under his direction.
(b) "Board" — The Civil Service Merit Board.
(c) "Classified Service" — Those positions of employment contained in the Civil Service Merit System.
(d) "County" — Shelby County.
(e) "Employee" — Any person appointed to a position or office in the classified service .
(f) "Secretary" — Secretary of the Civil Service Merit Board.
(g) "System" — The Civil Service Merit System of Shelby County.
Tenn. Priv. Acts, ch 110, § 2 (1971) (emphasis added). Thus where the word "employee" is used for purposes of the Act, the employee to which it pertains is a classified employee. The civil service of the county accordingly is divided into classified and unclassified employees. Terms of employment for unclassified employees, although they are part of the civil service, are not covered by the Act. Section 9(a) of the Act lists those employees not classified. Section 9(b) stipulates: "[t]he classified service shall comprise all offices and positions of employment for the county not specifically included in the unclassified service ." Tenn. Priv. Acts, ch 110, § 9(b) (1971) (emphasis added). Only those employees specifically described in section 9(a) are unclassified and therefore not within the scope of the Act. Section 9(a) of the Act as established in 1971 provides:
The unclassified service shall include:
1. Officials elected by popular vote and personal appointed to fill vacancies in such elective offices;
2. Members of duly established boards and commissions of the county;
3. Any person retained by the county on a consultant basis;
4. Any employee of the county whose employment is on less than a full time basis;
5. Any employee of the county whose employment is on a temporary basis;
6. Any person who provides services to the county on a volunteer basis or who receives no compensation for such services;
7. Any person employed by the Shelby County Board of Education;
8. Such department head, deputy department head, chief clerk, personal assistant to a department head or personal secretary to a department head as is designated by an appointing authority and approved by the board at its first meeting. A list of these additional positions shall be prepared and maintained by the Secretary.
Tenn. Priv. Acts, ch 110, § 9(a) (1971).
Accordingly, employees described in one through eight above are unclassified. Since the Act pertains to employees, and since for purposes of the Act the term "employees" refers to classified employees, those employees retained in the eight excepted positions are not governed by the Act. The general statutory provisions of Tenn. Code Ann. § 8-20-101, et seq ., are applicable to unclassified employees.
Determination of Status as Classified or Unclassified
We must next determine whether the employees in question in this case are classified or unclassified. The trial court found that pursuant to the Act as described above, the positions of Deputy Administrator A, Manager A, and Manager B were appointed by the Trustee and were therefore unclassified. The chancellor approved salary increases for these positions upon finding such increases "reasonable and necessary." The holding of the trial court and the argument as presented by Mr. Patterson, however, fail to take into account amendments to the Act made by the legislature subsequent to 1971.
In 1977, amendments to the Act included, inter alia , the following change to the definitional section of the Act:
SECTION 1. Chapter 110 of the Private Acts of 1971 shall be amended by deleting in its entirety paragraph (a) of Section 2 and in lieu thereof placing the following:
"Appointing Authority" — Any elected official of the county or head of an office of the county government specifically charged by the appropriate elected official with the responsibility of appointing and/or dismissing personnel employed under his direction.
Tenn. Priv. Acts, ch. 128, § 1 (1977).
This definition was again amended in 1986. The 1986 amendment alters the Act by "deleting paragraph (a) of Section 2 in its entirety and by substituting instead the following:
'Appointing authority' — The County Mayor of Shelby County." Tenn. Priv. Acts, ch. 159, § 2 (1986). Accordingly, the term "appointing authority" for the purposes of the Act as in effect at the time of this lawsuit refers to the mayor of Shelby County.
The 1977 amendments to the Act also amended section 9 of the Act, which defines unclassified positions. The amendment deleted item 4 of paragraph (a), making paragraph 8, which is the applicable paragraph here, paragraph 7. Tenn. Priv. Act, ch. 128, § 5 (1977). Section 7 of the amendment deleted this paragraph in its entirety and replaced it with the following:
Any person occupying the position of department head, deputy department head, chief clerk, personal assistant to a department or personal secretary to a department head as is designated by an appointing authority and approved by the board. The intent of this provision is to restrict positions in the unclassified service to those which involve sensitive, policy-making duties . In granting its approval the board shall consider this intent as well as the size of the department in question. A list of these additional positions shall be prepared and maintained by the Secretary.
The phrase "[a]ny person" subsequently was replaced with "[s]uch person." Tenn. Priv. Acts, ch. 192, § 2 (1984).
Tenn. Priv. Acts, ch. 128, § 7 (1977) (emphasis added). The cumulative effect of this 1977 amendment and the 1986 amendment to section 2, redefining "appointing authority," is that unclassified positions pursuant to section 9(a), paragraph 7 (formerly paragraph 8), are those which are appointed by the Mayor of Shelby County and which involve "sensitive, policy-making duties."
We believe the legislative intent of the 1971 Act, together with the subsequent amendments, is clear. As discussed by the Tennessee Supreme Court in Lively , the Act is comprehensive and broad in scope. Lively , 692 S.W.2d at 15. It is designed to afford the protections of a civil service system to the employees of a large, complex county. Id . at 19. One of these protections is a consistent pay-scale for employees in similar positions throughout the county. Id . Accordingly, in the Act, the legislature specifically has defined a limited number of positions which are unclassified. Tenn. Priv. Act, ch. 110, § 9(a) (1971) as amended. Positions not falling into one of these seven categories are deemed classified and are governed by the Act. Tenn. Priv. Act, ch.110, §§ 1, 2, 9 (1971). In order to be unclassified pursuant to section 9(a), paragraph 7, the employee must be appointed by the Mayor of Shelby County to a sensitive, policy making position. Tenn. Priv. Act, ch. 110, § 9(a) (as amended (1971)). We believe that through the Act and its subsequent amendments, the legislature has sought consistency in the employment terms and salaries of the vast majority of Shelby County civil servants. It has also limited the positions to which employees may be appointed and deemed unclassified, and has limited who may make such appointments.
We accordingly hold that the positions of Deputy Administrator A, Manager A, and Manager B are not exempt from the Act. Salaries for these positions are to be determined pursuant to the Act and the Shelby County Salary Policy. The salary increases awarded by the trial court are therefore reversed. We agree with the trial court that the PAS-D and PAS-B positions are classified. Salaries for these employees likewise are governed by the Act. As our holdings on these issues are dispositive to this dispute, the other issues are pretermitted.
Conclusion
The Shelby County Civil Service Merit Act, as amended, suspends operation of the general provisions of Tenn. Code Ann. § 8-20-101, et. seq ., with respect to employees holding classified positions as defined by the Act. Unclassified positions are limited to the provisions of section 9, as amended, and as read in conjunction with amendments to the defined terms of section 2. These positions are not covered by the Act, but are governed by the general statutory provisions. We accordingly hold that the positions at issue in this dispute are governed by the Act and reverse the trial court. Costs of this appeal are taxed to the appellee, Bob Patterson, Trustee of Shelby County, Tennessee.