Opinion
No. 11
April 9, 1990, Filed
David Sullivan, Memphis, Attorney for the Petitioner/Appellant.
FARMER, J.
Petitioner, a terminated University of Tennessee, Memphis employee, appeals from the Chancellor's order denying his petition for issuance of a writ of mandamus or injunctive relief.
Jimmy W. Cavallo ("Cavallo") was employed by the University of Tennessee ("UT") at Memphis as a police officer. On June 20, 1989 Cavallo was notified of his termination of employment at UT based on charges of gross misconduct. Cavallo was advised of his right to a due process hearing to protest his termination and was offered a choice between a hearing conducted in accordance with the University's informal hearing procedures and a formal hearing under the Administrative Procedures Act ("APA"), T.C.A. § 4-5-101 et seq. Cavallo elected to have the hearing conducted in accordance with the provisions of the APA.
Following Cavallo's hearing request, UT Chancellor James C. Hunt initially appointed Dr. Timothy Rogers, an Associate Dean at UT, Knoxville, as an administrative judge, to conduct the hearing. Chancellor Hunt later appointed another university employee, Dr. Francis M. Gross of UT, Knoxville, to serve as a hearing examiner.
Cavallo filed a Petition for Issuance of a Writ of Mandamus and Petition for Issuance of a Temporary Restraining Order and/or Injunction in the Chancery Court for Shelby County, Tennessee seeking to enjoin the conduct of the hearing by the hearing examiner appointed by Chancellor Hunt and mandate the appointment of a hearing officer through the office of the Secretary of State. Following argument of counsel, the trial court ruled that Chancellor Hunt had lawful authority to appoint an administrative judge or hearing officer to conduct hearings in accordance with the APA.
The sole issue on appeal is whether the trial court erred in dismissing the petition for the issuance of a writ of mandamus on the basis that the chancellor of UT was authorized pursuant to T.C.A. § 4-5-301 (1985) to appoint an administrative judge or hearing officer in a contested case conducted in accordance with the APA.
This issue presents a question of law and this Court reviews questions of law de novo with no presumption for the correctness of the trial court's conclusion of law. Custer v. Custer, 776 S.W.2d 92 (Tenn. App. 1988).
The parties do not dispute the fact that UT must provide, upon request, contested case hearings conducted in accordance with the APA. Under T.C.A. § 4-5-102(3) (1985) a contested case is "a proceeding, including a declaratory proceeding, in which the legal rights, duties or privileges of a party are required by any statute or constitutional provision to be determined by an agency after an opportunity for a hearing." T.C.A. § 4-5-301(e) provides that:
Any agency not authorized by law to have a contested case conducted by an administrative judge, hearing officer or similar officer from the agency shall direct that the proceedings or any part thereof be conducted by an administrative judge or hearing officer employed in the office of the secretary of state. (Emphasis added)
Cavallo contends that UT is not authorized by law to appoint an administrative judge, hearing officer or similar officer, but instead must contact the office of the Secretary of State, which appoints an administrative judge or hearing officer to conduct the proceedings. UT asserts that it is authorized by law to appoint one of its employees to act as an administrative judge or a hearing officer to preside over APA contested cases and advances three arguments to support this assertion.
UT first argues that it was created by legislative charter as a "body politic and corporate," Public Acts of 1807, Ch. 64, § 1, with broad corporate powers, including not only specifically enumerated powers but also "all other rights, privileges and powers usually conferred upon Universities." Public Acts of 1839-40, Ch. 98, § 5. UT asserts that this extremely broad grant of general powers, which distinguish UT from unincorporated state administrative agencies, enables the University to function as other universities without having all its powers specifically enumerated. UT asserts that these specifically enumerated powers include the power to hire, discipline and dismiss faculty and other necessary employees and to make rules and regulations for the government of the University as required by law, and as a necessary incident of these specific powers is the power to discipline those employees in accordance with whatever process may be required by law. UT also asserts that the broad grant of general powers to the University plainly includes the power to conduct due process hearings and that it has long been authorized by law to conduct contested case hearings utilizing its own hearing officers and, in fact, was required by law to conduct such hearings long before the APA was enacted. We do not interpret the language of the charter as so all inclusive as to exempt UT from the requirements of T.C.A. § 4-5-301(e).
UT next argues that federal and state courts have implicitly recognized UT's authority to appoint one of its employees as an administrative judge or hearing officer to conduct APA contested cases. These cases did not decide this issue. Each of the opinions merely summarizes that the aggrieved employee received an APA hearing conducted by a hearing officer or hearing examiner appointed by the chancellor of the university or that the administrative judge was a UT employee as part of the procedural history.
University of Tennessee v. Elliott, 478 U.S. 788, 92 L.Ed.2d 635, 106 S. Ct. 3220 (1986); Gilbert v. University of Tennessee, slip op. (Tenn. App. W.S. Sept. 26, 1984); Logan v. University of Tennessee, slip op. (Tenn. App. B.S. Jan. 14, 1988).
Finally UT asserts that it has adopted rules and regulations that provide it with authority to appoint its own employees to serve as hearing officers in APA contested cases which have been approved by the Attorney General and acknowledged by the Legislature of the State of Tennessee. Rule 1720-1-5-.01(3), Tennessee Administrative Register provides in part that:
The conduct of all aspects of a hearing provided in a contested case shall be by a hearing examiner designated by the appropriate Chancellor (or by the President when a contested case involves the University-wide administration).
The above-mentioned rule was approved as to its legality by the Attorney General pursuant to T.C.A. § 4-5-211 (1985) and reviewed by the Legislature of the State of Tennessee and its expiration date deleted in accordance with T.C.A. § 4-5-225 (Supp. 1989). Generally, administrative and procedural rules and regulations promulgated under a grant of legislative authority may not be inconsistent with the purpose and the intent of a legislative act nor may they remove or limit substantive rights granted by the enabling act. Knox County ex rel. Kessel v. Knox County Personnel Board, 753 S.W.2d 357, 360 (Tenn. App. 1988). Since the enactment of the APA the Legislature has affirmatively conferred by statute authorization for various state agencies to appoint administrative judges and hearing officers to conduct APA contested cases. An approval by the Attorney General and a review by the Legislature does not rise to the level of an "authorization by law" allowing UT to appoint its own employees as administrative judges or hearing officers in APA contested cases, contrary to the provisions of T.C.A. § 4-5-101(e).
We believe that the APA, which took effect in 1974, was adopted to clarify and bring uniformity to contested case hearing procedures of state agencies. The General Assembly has enacted legislation which affirmatively confers, in unequivocal terms, the right to various agencies to appoint their employees to conduct contested case hearings. Since the adoption of the APA, UT has not been authorized by law to appoint one of its employees as an administrative judge or hearing officer to conduct contested cases in accordance with the APA.
See T.C.A. § 53-11-201(h) (1983 and Supp. 1989) (Commissioner of the Department of Safety authorized to appoint hearing officer); T.C.A. § 67-1-105(b) (1989) (Commission of Revenue authorized to designate hearing officer or personally hold hearings); T.C.A. § 4-21-202(3) (1985 and Supp. 1989) (Tennessee Human Rights Commission authorized to appoint hearing examiners to conduct discrimination hearings); T.C.A. § 56-1-411 (1989) (Commissioner of Commerce and Insurance authorized to appoint person to conduct hearing); T.C.A § 50-7-304 (Supp. 1989) (Commissioner of Department of Employment Security authorized to appoint its employees to conduct hearings).
The order of the Chancellor is reversed and this cause is remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal are taxed to the appellee for which execution may issue if necessary.