Jim Hammond, Sheriff of Hamilton County v. Chris Harvey

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

January 3, 2013 Session

JIM HAMMOND, SHERIFF OF HAMILTON COUNTY ET AL. v. CHRIS

HARVEY ET AL.

Appeal by Permission from the Court of Appeals, Eastern Section

Chancery Court for Hamilton County

No. 110215 W. Frank Brown, III, Chancellor

No. E2011-01700-SC-R11-CV - Filed August 13, 2013

The issue presented in this case is whether a county civil service board was authorized to

order the county sheriff to equalize the pay of all sergeants employed within the sheriff’s

office. A group of sergeants, who were paid varying amounts within an established pay

range, filed a grievance regarding pay disparities among sergeants in the sheriff’s

office. When the sheriff rejected the grievance, the sergeants filed a grievance with the

sheriff’s department civil service board. The board upheld the grievance and ordered the

sheriff to equalize the pay of all sergeants in the sheriff’s office. The sheriff and the county

appealed to the Hamilton County Chancery Court, which held that the board did not have the

authority to order pay equalization and declared the board’s ruling null and void. The Court

of Appeals ruled that the board exceeded its statutory authority, but remanded the case to the

board so it could direct the sheriff to take the necessary steps to eliminate the pay

disparity. Pursuant to Tenn. Code Ann. § 8-8-409(3) (2011), we hold that the board had the

authority to hear the grievance, but in the absence of proof that the sheriff violated state law

or the sheriff’s department civil service manual, the board lacked the power to order the

remedy of salary equalization. There was no proof that the sheriff violated state law, and the

civil service manual specifically gave the sheriff the authority to make individual pay

determinations. The judgment of the Court of Appeals is reversed, and the case is remanded

to the Chancery Court for further proceedings as are necessary.

Tenn. R. App. P. 11; Judgment of the Court of Appeals Reversed; Case Remanded

to the Chancery Court

S HARON G. L EE, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J., and

J ANICE M. H OLDER, C ORNELIA A. C LARK, and W ILLIAM C. K OCH, J R., JJ., joined.

R. Dee Hobbs, Chattanooga, Tennessee, for the appellants, Jim Hammond, Sheriff of

Hamilton County, and Hamilton County, Tennessee.

Thomas Clifton Greenholtz and Harold Lebron North, Jr., Chattanooga, Tennessee, for the

appellees, Chris Harvey, Ricky Jones, Mark King, Mark Kimsey, Mark Williams, and Jody

Mays.

OPINION

I.

On November 6, 2009, Sergeant Eric Merkle of the Hamilton County Sheriff’s Office

(“Sheriff’s Office”) requested a current listing of the Sheriff’s Office sergeants and their

rates of pay from Don Gorman, the Director of Administration for the Sheriff’s Office. Mr.

Gorman provided the information, which indicated that the pay rates for the nineteen

sergeants employed in the Sheriff’s Office ranged from a low of $21.09 per hour to a high

of $23.96 per hour.1

A group of sergeants requested Sheriff Jim Hammond (“the Sheriff”) to raise the

hourly pay of all the Sheriff’s Office sergeants to $23.96, which was the hourly rate of the

highest paid sergeant, so that all sergeants received equal pay. In response, the Sheriff

increased the pay of twelve sergeants to $21.68 per hour, the median hourly pay rate for all

sergeants. This action did not resolve the controversy.

On September 20, 2010, six sergeants2 (“the Employees”) filed a written grievance,

pursuant to the Hamilton County Sheriff’s Office Manual of Civil Service (“the Civil Service

Manual”), over the disparity in the Employees’ pay, arguing that it was “contrary to equity

of justice” and that such disparity did not exist for other employee classifications within the

department. The Sheriff denied the grievance. The Employees then sought relief from the

Hamilton County Sheriff’s Department Civil Service Board (“the Board”).3 During

1

This calculates to an annual salary range of $43,869.10 to $49,840.20.

2

The sergeants who filed the grievance were Chris Harvey, Ricky Jones, Mark King, Mark Kimsey,

Mark Williams, and Jody Mays. All of these sergeants earned a lower hourly rate than the highest paid

sergeant; all but Sergeant King received a raise and earned $21.68 per hour after the Sheriff granted pay

raises before the grievance was filed.

3

Section 1124(1)(E) of the Civil Service Manual provides: “If the employee is not satisfied with the

decision of the Sheriff, the employee may, after all internal avenues have been exhausted, file a grievance

(continued...)

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testimony before the Board on January 27, 2011, Mr. Gorman and the Sheriff acknowledged

that there were disparities in sergeants’ pay for various reasons, including that some

sergeants were hired in at different times when different pay systems were in effect; that

some sergeants had different ranks and earned different rates of pay when they were

promoted to sergeant and an employee’s pay is not reduced when he or she moves to another

position; and that the Sheriff, in his discretion, determines sergeant pay rates and raises based

on a number of factors, including job performance, length of service, education, and the

particular job performed.

The Sheriff objected to equalizing the sergeants’ pay. His reasons included that the

salaries were all within the pay range established by the Hamilton County Commission and

that the Sheriff’s budget did not include adequate funds to equalize pay by giving the

requested pay raises.4 The Sheriff feared that equalization would open “Pandora’s Box”

because employees throughout the Sheriff’s Office were paid different salaries within a

range, and the total cost of equalization would be approximately $926,600. The Sheriff also

wanted to retain the discretion to set the sergeants’ pay within a range based on job

performance, length of service, and other relevant and appropriate factors. The Board voted,

however, to uphold the grievance to equalize the sergeants’ pay, stating “if all [s]ergeants do

the same job [then] they should be paid the same if there is no written criteria to establish

standards.”

The Sheriff and Hamilton County petitioned the Chancery Court for Hamilton County

for a writ of certiorari seeking judicial review of the Board’s decision under Tenn. Code Ann.

§§ 27-9-101 to -114 (2000 & Supp. 2012), arguing that the Board had exceeded its statutory

authority by directing the Sheriff to equalize the pay for all sergeants. The Chancery Court

for Hamilton County reviewed the record and ruled that the Board had exceeded its statutory

authority by upholding the grievance and directing the Sheriff to equalize pay. The Court of

Appeals reversed the Chancellor’s decision. Hammond v. Harvey, No. E2011-01700-COA-

R3-CV, 2012 WL 651631, at *9 (Tenn. Ct. App. Feb. 29, 2012). The Court of Appeals ruled

that the Board had exceeded its authority by directing the equalization of pay. The Court of

Appeals, however, remanded the case back to the Board so that it could direct the Sheriff to

take the necessary steps to eliminate the disparity in sergeants’ pay, reasoning that it was the

Sheriff, not the Board, that should determine how to eliminate the pay disparities.

3

(...continued)

with the Civil Service Board.”

4

The Sheriff explained that equalizing pay for all sergeants would cost approximately $74,500.

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We granted the Tenn. R. App. P. 11 application for permission to appeal filed by the

Sheriff and Hamilton County.5

II.

The issue in this case is not whether sergeants in the Sheriff’s Office are paid different

hourly rates, ranging from $21.68 per hour to $23.96 per hour, for performing the same

work. It is undisputed that there are pay disparities among sergeants within the pay range

established by the Hamilton County Commission. There are no allegations that the pay

disparities are based on gender, race, political considerations, or violations of state law. The

issue is whether the Board exceeded its statutory authority by ordering the Sheriff to

eliminate all pay disparity among sergeants.

We review the Board’s decision in conformity with the Uniform Administrative

Procedures Act, Tenn. Code Ann. § 4-5-322 (2011) (“the Act”). Tenn. Code Ann. § 27-9-

114(b)(1). Under the Act, a reviewing court can reverse an administrative decision if the

decision is:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by abuse of discretion or

clearly unwarranted exercise of discretion; or

(5) Unsupported by evidence that is both substantial and material in the

light of the entire record.

Tenn. Code Ann. § 4-5-322(h) (emphasis added).

5

In our order granting review, we directed the Sheriff and Hamilton County to supplement the record

with a copy of the Civil Service Manual and to give consideration to Personnel Policy 1124(1)(A), which

provides: “Any employee who feels he/she has received unfair treatment in reference to pay . . . or any other

matter may file a grievance with management using the procedures outlined below.” The Court of Appeals

did not consider the Civil Service Manual and denied the parties’ request to supplement the record with the

Civil Service Manual.

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Any action by the Board must be based on an express statutory grant of authority or

must arise by necessary implication from an express statutory grant of authority. Sanifill of

Tenn., Inc. v. Tenn. Solid Waste Disposal Control Bd., 907 S.W.2d 807, 810 (Tenn.

1995). An action by an administrative agency that exceeds the scope of authority delegated

to the agency by the legislature has no force or effect. Faust v. Metro. Gov’t of Nashville,

206 S.W.3d 475, 498 (Tenn. Ct. App. 2006).

The Board receives its powers from a statutory grant of authority under the County

Sheriff’s Civil Service Law of 1974, Tenn. Code Ann. §§ 8-8-401 to -419 (2011), which was

adopted by Hamilton County in 1980. The duties of the Board enumerated in the County

Sheriff’s Civil Service Law of 1974, which are also listed in section 203 of the Civil Service

Manual, include the following:

(1) Adopt and amend rules and regulations for the administration of this

part;

(2) Make investigations concerning the enforcement and effect of this part

and require observance of the rules and regulations made thereunder;

(3) Hear and determine appeals and complaints respecting the

administration of this part;

(4) Establish and maintain a roster of all employees of the classified service

and the office of the sheriff showing their position, rank, compensation

and place of residence;

(5) Ascertain and record the duties and responsibilities pertaining to all

positions in the classified service and classify such positions in the

manner hereinafter provided;

(6) Except as otherwise provided in this part, formulate and hold

competitive tests to determine the qualifications of persons who seek

employment in any position, and as a result of such tests, establish

employment lists of eligibles for the various positions;

(7) Establish records of performance and a system of service ratings to be

used to determine promotions, the order of layoffs and reemployment

and for other purposes;

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(8) Keep any other such records as may be necessary for the proper

administration of this part; and

(9) Determine all fringe benefits to employees coming under the provisions

of this part.

Tenn. Code Ann. § 8-8-409 (emphasis added).

Our focus is on the meaning of subsection (3). The Employees contend that the Board

acted within its express statutory grant of authority or its implied authority to “hear and

determine appeals and complaints respecting the administration of this part” under Tenn.

Code Ann. § 8-8-409(3) when it ordered salary equalization. Moreover, the Employees argue

that the Civil Service Manual expressly allows grievances to be filed with the Board alleging

unfair treatment regarding pay. The Sheriff counters that the general statutory language “to

hear and determine appeals” does not give the Board the power to order the remedy of salary

equalization. Further, the Sheriff contends that the Civil Service Manual cannot be used to

extend the statutory power of the Board, and in any event, the Civil Service Manual

specifically gives the Sheriff the authority to make individual pay determinations.

Our review of the Board’s authority under the County Sheriff’s Civil Service Law of

1974 involves a question of law; therefore, our review is de novo, and we do not presume the

correctness of the trial court’s decision. Brundage v. Cumberland Cnty., 357 S.W.3d 357,

364 (Tenn. 2012); Seals v. H & F, Inc., 301 S.W.3d 237, 241-42 (Tenn. 2011). When we

interpret a statute, we ascertain and give full effect to the legislative intent behind the statute

without restricting or expanding the statute’s intended meaning. Garrison v. Bickford, 377

S.W.3d 659, 663 (Tenn. 2012). When the statutory language is clear and unambiguous, we

apply its plain meaning and ordinary usage. Eastman Chem. Co. v. Johnson, 151 S.W.3d

503, 507 (Tenn. 2004). When we construe statutory provisions, we do so in a manner that

will not render them meaningless or useless. Mercy v. Olsen, 672 S.W.2d 196, 200 (Tenn.

1984); Hoyer-Schlesinger-Turner, Inc. v. Benson, 479 S.W.2d 223, 224-25 (Tenn.

1972). These general principles of statutory construction also apply to administrative

regulations and rules. Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 679 (Tenn.

2002); see also Clear Channel Outdoors v. Tenn. Dep’t of Transp., 337 S.W.3d 801, 806-07

(Tenn. Ct. App. 2010).

After hearing the Employees’ complaints about the disparity in pay, the Board

remedied the alleged wrong by ordering the equalization of pay for all sergeants. Although

the County Sheriff’s Civil Service Law of 1974 authorizes the Board to “hear and determine”

grievances, that grant of authority does not provide the Board with unlimited power to order

any remedy it chooses. In the absence of proof that the Sheriff violated state law or the Civil

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Service Manual, the specific remedy of salary equalization is beyond the statutory authority

of the Board.

Tenn. Code Ann. § 8-8-409(4) provides that the Board shall “[e]stablish and maintain

a roster of all employees of the classified service and the office of the sheriff showing their

position, rank, compensation and place of residence,” but this provision does not provide the

Board with the authority to set sergeants’ salaries. Tenn. Code Ann. § 8-8-409(9) gives the

Board the power to determine “fringe benefits,” but this provision does not authorize the

Board to determine the level of employee compensation. See Crawley v. Hamilton Cnty.

Board, 193 S.W.3d 453, 455 (Tenn. 2006) (fringe benefits does not include compensation

for on-the-job injuries). Tenn. Code Ann. § 8-8-411(2011) provides that the Board shall

adopt a “classification plan” that determines the “requirements of each position and class,”

but this provision does not give the Board any power to determine salaries. Under Tenn.

Code Ann. § 8-20-120 (2011), the Hamilton County Commission, not the Board, determines

the budget for the Sheriff’s Office.6

The Employees contend that under Section 1124(1)(A) of the Civil Service Manual,

the Board has the power to order broad remedies. Section 1124(1)(A) provides that “[a]ny

employee who feels he/she has received unfair treatment in reference to pay, benefits,

performance evaluations, promotions, transfers, scheduling, unjust disciplinary action, or any

other matter may file a grievance with management . . . .” The plain language of the Civil

Service Manual permits the Board to hear a grievance regarding unfair treatment in reference

to pay. But this provision cannot extend the authority of the Board to provide the remedy of

salary equalization in this case where there has been no proof of “unfair treatment” or

discrimination – such as favoring particular employees based on race or gender.

Numerous provisions of the Civil Service Manual support the conclusion that the

Sheriff may exercise discretion in setting the rate of pay for his employees. Section 501 of

the Manual provides that the Sheriff’s salary plan “shall also provide for annual salary

increases based on individual employee performance.” Section 503 provides that the Sheriff

“may make special allowances” for certain officers who “have experience and the

qualifications of the Job Standard of a higher step than that of base salary within a group or

classification.” The Sheriff has the right under this provision to decide that certain sergeants

are entitled to receive more money than other sergeants, given such factors as length of

service to the department, the prior position held by the sergeant, and other factors. Section

504 provides that annual salary increases “shall be awarded within budgetary restraints and

based on individual performance evaluations.” Section 505 provides that the Sheriff may

6

If a county commission fails to provide an adequate budget, “the sheriff may seek a writ of

mandamus to compel such appropriation.” Tenn. Code Ann. § 8-20-120.

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give a special raise of three percent to “exceptionally performing employees.” Section 507

provides: “Once all new employees have been adjusted to fall within their new salary ranges,

increases will be allotted on the basis of individual performance.” Section 513 provides that

the Sheriff may “authorize special compensation for those employees working unusual and

difficult hours, such as third shift.” All of these provisions in the Manual indicate and

anticipate salary disparities based on the Sheriff’s determination as to individual

performance. The Board’s order to the Sheriff to equalize the sergeants’ pay is in direct

conflict with these provisions of the Civil Service Manual.

To require the Sheriff to equalize all pay in the context of this case would conflict

with well-settled principles of statutory construction. “One of the primary duties of the

judiciary is to check other branches of the government when they exceed their constitutional

or statutory authority.” Carter v. Olsen, 660 S.W.2d 483, 485 (Tenn. 1983). We exercise that

duty in this case. There was no evidence that the Sheriff violated state law or any provisions

of the Civil Service Manual. Therefore, the Board exceeded its statutory authority by

constructing this particular remedy, and its ruling is of no force and effect.

Conclusion

We hold that the Board exceeded its authority by ordering the Sheriff to pay all

sergeants the same hourly rate. The judgment of the Court of Appeals is reversed, the

judgment of the trial court is reinstated, and this cause is remanded to the trial court for such

further proceedings as are necessary. Costs are taxed to Chris Harvey, Ricky Jones, Mark

King, Mark Kimsey, Mark Williams, and Jody Mays, and their surety, for which execution

may issue if necessary.

_________________________________

SHARON G. LEE, JUSTICE

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