Opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 23, 2007 Session

CHATTANOOGA FIRE FIGHTERS ASSOCIATION LOCAL 820 and

TARA WEAVER, vs. CITY OF CHATTANOOGA, TENNESSEE,

CHATTANOOGA CITY COUNCIL, and CHATTANOOGA FIRE

DEPARTMENT

Direct Appeal from the Chancery Court for Hamilton County

No. 06-0490, Part 2 Hon. Howell N. Peoples, Chancellor

No. E2007-00125-COA-R3-CV - FILED DECEMBER 27, 2007

Petitioner was disciplined by the Chattanooga Fire Department, which discipline was approved by

the City Council. She then petitioned the Chancery Court for a Writ of Certiorari, and the

Chancellor, upon conducting a hearing, held that the discipline exceeded that allowed by the City

Code, in that the Department had forced her to take leave time against her accrued leave for the days

in excess of the 30 days allowed. On appeal, we affirm.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed.

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,

JR., J., and D. MICHAEL SWINEY , J., joined.

Kenneth O. Fritz, Chattanooga, Tennessee, for appellants.

Jimmy F. Rodgers, Chattanooga, Tennessee, for appellees.

OPINION

Petitioners, Chattanooga Fire Fighters Association Local 820 and Tara Weaver, filed

a Petition for Writ of Certiorari asking the Chancery Court to issue a writ to review the City

Council’s suspension of Capt. Tara Weaver.

Weaver alleged that she was employed by the Chattanooga Fire Department, and that

on March 29, 2006, she was ordered by Battalion Chief Morton to go home, and she was not allowed

to return to work until May 25, 2006. Further that on April 11, 2006, Fire Chief Wendell Rowe

conducted a hearing regarding Weaver’s alleged insubordination on March 29, 2006, and imposed

a 28 day suspension starting April 16, 2006, and ending May 26, 2006. Weaver alleged that Chief

Rowe decided that the time she had already been out of work (March 29 - April 15) would be

deducted from her personal leave time that she had earned and saved. She averred that she never

requested that this time be considered personal leave time, nor did she accept it as such.

Weaver appealed Rowe’s decision to the City Council, and the Council upheld

Rowe’s decision in its entirety.

Petitioners asserted in the Trial Court that §13.45 of the Charter of the City of

Chattanooga and §2-174(a) of the Chattanooga City Code provide that no employee would be

suspended for longer than thirty days. Further, that by placing Weaver on leave as of March 29,

Rowe effectively began her suspension as of that date, which made her suspension longer than thirty

days. Petitioners, by amendment, sought a declaratory judgment “that the methodology and length

of the suspension imposed on Capt. Tara Weaver violated the Charter of the City of Chattanooga and

Chattanooga City Code.”

In its Answer, the City basically admitted the facts contained in the Petition, but

denied that any relief was warranted. In a transcript of the City Court hearing filed by the defendant,

Rowe admitted that the time Weaver was off from March 29 to April 15 was treated as personal

leave time, although not requested, and Rowe stated that “we can assign personal leave.”

At the hearing before the Trial Court, the parties’ attorneys agreed that the facts were

basically undisputed as regarding the important dates. Further, that following the hearing before the

City Council, the parties agreed that Weaver could return to work on May 15, 2006, as the ordinance

only allowed a 30 day suspension.

Weaver’s attorney insisted that the issue was whether her suspension actually started

on March 29, when she was sent home, and whether the Department should have been allowed to

treat the period from March 29 to April 15 as personal leave. The City attorney countered that if

Weaver wanted to appeal the use of her personal leave, she should have filed a grievance, but

Weaver’s attorney responded that grievances could only be filed regarding suspensions, demotions,

or dismissals.1

The Trial Court held that the Association had no standing, and that there would be

no declaratory judgment. The Court then found that Weaver was sent home and not allowed to work

from March 29 to April 11, and that she was adversely impacted when the Department decided to

designate this as personal leave.

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The City ultimately agreed with this position in its Brief.

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The Court, in its Final Order, found that the City’s decision to place Weaver on

personal leave from March 29 to April 11 “constituted and[sic] adverse impact and was unlawful

under Chattanooga City Charter §13.45 and Chattanooga City Code §2-174(a).” The Court directed

the City to restore Weaver’s personal leave for that period.

On appeal, these issues are raised:

1. Whether the Trial Court had jurisdiction to find that the appellant did not

have authority to require Weaver to use her personal leave involuntarily?

2. Whether the Trial Court had jurisdiction to order the City to reinstate said

personal leave?

3. Whether the Trial Court erred in finding that the Association lacked standing

in the case and in refusing to issue a declaratory judgment?

Appellant argues that on a petition for writ of certiorari, the trial court’s review power

is limited. We have previously stated that, in such a situation, “the trial court may reverse or modify

the Board's action only if the court concludes that the Board ‘has acted in violation of constitutional

or statutory provisions or in excess of its own statutory authority; has followed unlawful procedure

or been guilty of arbitrary or capricious action; or has acted without material evidence to support

its decision.’” Gross v. Gilless, 26 S.W.3d 488, 492 (Tenn. Ct. App. 1999), quoting Watts v. Civil

Serv. Bd., 606 S.W.2d 274, 277 (Tenn. 1980), cert. denied, 450 U.S. 983 (1981).

Appellant argues that the Council did not make a decision on whether Weaver was

inappropriately forced to use her personal leave time from March 29 to April 11. Weaver argues that

the Council upheld Rowe’s decision in its entirety, which encompassed the involuntary use of

Weaver’s personal leave and the impermissible length of the actual suspension.

Our review of the transcript of the City Council hearing demonstrates that the Council

did, in fact, affirm Rowe’s disciplinary action against Weaver in its entirety, including the length of

the suspension. The attorneys argued to the City Council over the language of Chattanooga City

Charter §13.45 and Chattanooga City Code §2-174(a), relating to the permissible length of a

suspension, and whether the 30-day limit related to calendar days or work days. Also discussed, was

whether the Fire Department could force an employee to take personal leave. The Chairperson then

questioned whether the Council was being asked to decide both the propriety of the judgment as well

as the type of discipline, including the length of the suspension, and the attorneys replied in the

affirmative.

We conclude that the ruling of the Council upheld not only that the termination and

insubordination occurred, but also upheld the discipline given in all respects, which included Weaver

being sent home on March 29 and not allowed to work thereafter (even though her suspension

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purportedly did not begin until April 16) and thus forced her to use her personal leave time during

that period until the “official” start of her suspension.

Appellant argues that city employees can be placed on a leave of absence without pay,

and shall be required to then use all earned compensatory leave and personal leave time prior to

being placed on leave without pay. Chattanooga City Code §2-163. Also, that the heads of

departments have discretion regarding the use of an employee’s personal leave. Chattanooga City

Code §2-161(e). Our review of these Code sections demonstrate that they speak in terms of an

employee’s request for a leave of absence without pay, and an employee’s request for the use of

personal leave time. In this case, it is undisputed that the employee made no request for leave for

the time in dispute. We affirm the ruling of the Trial Court that the Council affirmed an unlawful

discipline.

The Trial Court also directed the City to restore Weaver’s personal leave for that time

period, but the City argues this was improper. However it does not cite this Court to any authority

for that position. This Court has often held that the inferior tribunal’s decision may be reversed or

modified upon a showing that the tribunal acted illegally or arbitrarily, or exceeded its authority,

which was shown in this case. See Gross.

Finally, petitioner asserts that the Trial Court erred in finding that the Fire Fighters

Association lacked standing, and in failing to issue a declaratory judgment. Petitioner asserts that

the Trial Court overlooked the request for a declaratory judgment at the beginning of its

Memorandum Opinion, and then when it was pointed out, the Court simply stated it would not grant

the same without elaboration. Petitioner’s Brief suggests the Association’s fear that without

guidance from the Court on the length of suspension issue, this situation will be repeated in the

future, despite the City’s concession in this case that Weaver’s suspension should not have exceeded

30 calendar days.

As this Court has previously explained:

“It is well settled in this State that the courts decline a declaratory judgment where

the question to be determined is based upon a contingency which may never occur."

Otherwise the courts might wander into the "limitless field of advisory judgments."

A declaratory judgment action will not lie based on future, remote, or uncertain

probabilities.

Fuller v. Campbell, 109 S.W.3d 737,740 (Tenn. Ct. App. 2003)(citations omitted).

Essentially, the Association asked for an advisory opinion on a situation that they

think might occur in the future. We hold that the Trial Court did not err in refusing to grant a

declaratory judgment on this issue.

We affirm the Judgment of the Trial Court and remand, with the cost of the appeal

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assessed to the City of Chattanooga.

______________________________

HERSCHEL PICKENS FRANKS, P.J.

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