Knox County Education Association v. Knox County Board of Education

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

December 6, 2000 Session

KNOX COUNTY EDUCATION ASSOCIATION v. KNOX COUNTY

BOARD OF EDUCATION, ET AL.

Appeal from the Chancery Court for Knox County

No. 135371-1 John F. Weaver, Chancellor

FILED FEBRUARY 2, 2001

No. E2000-01019-COA-R3-CV

This is an action brought by the Knox County Education Association seeking a declaratory judgment

and injunctive relief against the Knox County Board of Education and its then-superintendent, Allen

Morgan. The trial court found that provisions of a private act granting tenure to principals employed

in the Knox County School System were repealed and superseded by the enactment in 1992 of a

public act, the Education Improvement Act, and that the private act, to the extent that it conflicts

with the general law, violates Article XI, Section 8 of the Tennessee Constitution. The trial court

further found that Knox County principals are not members of the bargaining unit represented by

the Knox County Education Association as to the subjects of performance, accountability, and

contract renewal. The Knox County Education Association appeals, arguing (1) the trial court erred

in finding that provisions of the private act were repealed by the Education Improvement Act and

(2) the trial court erred in concluding that school principals are not members of the bargaining unit

as to the subjects of performance, accountability, and contract renewal. We affirm.

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

Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD,

P.J., and HERSCHEL P. FRANKS, J., joined.

Richard L. Colbert and Kurtis J. Winstead, Nashville, Tennessee, for the appellant, Knox County

Education Association.

Martha Haren McCampbell, Knoxville, Tennessee, for the appellees, Knox County Board of

Education and Allen Morgan, Superintendent of Knox County Schools.

OPINION

I. General Overview

The Knox County Education Association (“the KCEA”) is the recognized professional

employees’ organization representing all certified employees of the Knox County School System.

The Knox County Board of Education (“the Board”) manages and controls the public schools in the

Knox County School System. The defendant Allen Morgan, as the Superintendent, was the chief

administrative official of the Knox County School System at the time this action was commenced.1

The Legislature enacted Chapter 18 of the Tennessee Private Acts of 1937 (“the Private

Tenure Act”), a private act that the parties agree is applicable to Knox County. The Private Tenure

Act, as amended2, provides that “civil service or permanent tenure” applies to all principals,

teachers, supervisors of instruction, clerks, and secretaries employed by the local board of education

upon four years of service and that such tenured employees may not be suspended, demoted or

discharged from service except for inefficient service, neglect of duty, or improper conduct. The

Private Tenure Act further provides that a tenured employee may not be dismissed, discharged,

demoted or changed from one position or class to another position or class at a reduced salary, unless

and until charges as specified by the private act, as amended, have been filed and sustained against

the employee. When Knox County adopted its charter in 1988, the Private Tenure Act was adopted

as a part of that foundation document.

The Legislature enacted a public act, the Teacher Tenure Act, T.C.A. § 49-5-501, et seq. in

1951. The Teacher Tenure Act provides that a teacher may be dismissed for incompetence,

inefficiency, neglect of duty, unprofessional conduct or insubordination, T.C.A. § 49-5-511(a)(2)

(Supp. 2000), and that a teacher may be transferred from one location or type of work to another for

which the teacher is qualified, provided the transfer is made in accordance with board policy and any

locally negotiated agreement. T.C.A. § 49-5-510 (Supp. 2000). The term “teacher” includes

principals, supervisors, superintendents, and other certificated personnel. T.C.A. § 49-5-501(10)

(1996). However, the Teacher Tenure Act specifically provides that it has no effect upon the

operation of local or private tenure acts already in existence, T.C.A. § 49-5-502(b)(1) (1996), such

as the Private Tenure Act applicable to Knox County.

The controversy in this case stems from the fact that, in 1992, the Legislature enacted the

Education Improvement Act (“the EIA”), 1992 Tenn. Pub. Acts ch. 535, which amended various

provisions of Titles 8 and 49 of the Code. The EIA, among other things, abolished the elected office

of county school superintendent and replaced it with an appointed superintendent or “director of

schools”, who would be directly employed by the local board of education. T.C.A. § 49-2-301(d)

(Supp. 2000). The EIA took effect on July 1, 1992; however, superintendents who had been elected

and were in office on that date were allowed to complete their terms. T.C.A. § 49-2-301(c) (Supp.

1

The present appointed Superintendent of Knox County Schools is Dr. Charles Lindsey.

2

The Private Tenure Act was amended by 1945 Tenn. Priv. Acts ch. 345.

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2000). Superintendent Morgan completed his elected term of office and began serving as an

appointed superintendent on September 1, 1996.

The EIA vests in the appointed superintendent powers that previously had been reserved for

the local boards of education. Significantly, the superintendent is empowered to fill the position of

principal for schools under the superintendent’s jurisdiction. T.C.A. § 49-2-303(a)(1) (1996). The

EIA provides that each principal’s employment contract must be in writing, that it may not exceed

the contract term of the superintendent, and that it may be renewed. Id. The contracts are required

to include performance standards and to provide for written evaluations by the superintendent. Id.

Reasons for non-renewal of a contract include inadequate performance, as determined by the written

evaluations. Id. The EIA further provides that a principal who has tenure as a teacher retains the

rights of that tenure. Id.

In 1997, Superintendent Morgan presented employment contracts to all principals in the

Knox County School System, which contracts provided, in pertinent part, as follows:

This contract may be renewed, but such renewal shall not extend the

ending date past the ending date in the superintendent’s employment

contract. The superintendent may nonrenew the contract for any

reason deemed appropriate, except that such nonrenewal shall not be

based on discriminatory reasons. The superintendent shall inform the

principal of such nonrenewal on or before May 15 of the year in

which the contract expires.

* * *

This contract may be unilaterally terminated by the superintendent for

inadequate performance or for any of the causes listed in Tennessee

Code Annotated, Title 49, Part 5. A principal with tenure whose

contract is terminated under this section shall be transferred to

another professional position for which he is licensed and qualified.

Nothing in this contract shall be construed to prevent the board from

terminating a tenured principal from employment for cause.

The KCEA brought this action, seeking (1) a declaration that the Private Tenure Act, as

amended, and the Knox County Charter govern the rights, privileges and tenure status of employees

of the Knox County School System; (2) a declaration that the employment contract proposed by

Superintendent Morgan to the principals of Knox County violates the principals’ rights under the

Private Tenure Act as well as under the Education Professional Negotiations Act, T.C.A. § 49-5-601,

et seq.; (3) an injunction enjoining the Board of Education and Superintendent Morgan from

insisting upon the execution of the employment contract as a condition of continued employment

with the Knox County School System; (4) a declaration that the principals of the Knox County

School System are members of the bargaining unit represented by the KCEA and are entitled to all

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the benefits of the Memorandum of Agreement negotiated between the Board and the KCEA; and

(5) an injunction prohibiting the Board or Superintendent Morgan from attempting to require

principals to give up any benefits of the Memorandum of Agreement as a condition of continued

employment as principals.3

Following a bench trial, the court below filed its memorandum opinion, in which it found

that the employment contract presented to Knox County principals is valid. The court declared that

the provisions of the Private Tenure Act relating to the tenure rights of employees as principals

conflict with the EIA and therefore were repealed and superseded by the latter general law. The

court found no reasonable basis for treating principals in Knox County differently from principals

in other parts of the state; therefore, it concluded that the Private Tenure Act, to the extent that its

provisions are inconsistent with the EIA, is invalid under Article XI, Section 8 of the Tennessee

Constitution. It further found that because a principal’s rights are statutory and therefore may be

rescinded without compensation, the power of superintendents to nonrenew a principal’s contract

under the EIA does not violate the Due Process Clause of the Fourteenth Amendment to the United

States Constitution. Finally, the trial court found that principals are members of the bargaining unit

represented by the KCEA for all purposes except for performance, accountability, and contract

renewal. This appeal followed.

II. Standard of Review

In this non-jury case, our review is de novo upon the record of the proceedings below;

however, that record comes to us with a presumption that the trial court’s factual findings are correct.

Tenn. R. App. P. 13(d). We must honor that presumption unless we find that the evidence

preponderates against the trial court’s factual findings. Union Carbide Corp. v. Huddleston, 854

S.W.2d 87, 91 (Tenn. 1993). The trial court’s conclusions of law, however, are not accorded the

same deference. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996).

III. Applicable Law

For the convenience of the reader, the text of the pertinent provisions of the Private Tenure

Act, the Teacher Tenure Act, and the Education Improvement Act are set out below. The Private

Tenure Act provides, in pertinent part, as follows:

Section 1

3

The KCEA also alleged in its complaint that certain personnel policies adopted by the Board on March 5,

1997, pertaining to the tenure rights of teachers violate the P rivate Tenure Act and the Knox County Charter. The trial

court found that these policies did in fact violate the tenure rights of teachers as provided by the Private Tenure Act and

the Charter. It therefore enjoined the Board and the Superintendent from applying and enforcing these personnel

policies. Th at holding is not a subje ct of this app eal.

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That all counties of this State having a population of not less than

155,000 and not more than 157,000 according to the Federal Census

of 1930 or any subsequent Federal Census, civil service or permanent

tenure shall apply to all employees of the Boards of Education of the

counties coming within the provisions of this Act occupying the

positions of principals, teachers, supervisors of instruction, clerks and

secretaries, provided, that no persons occupying the positions of

principals, teachers, supervisors of instruction, clerks and secretaries,

shall be under civil service or permanent tenure unless and until they

have been employed by the Boards of Education of said counties for

the fourth year from the time of their employment....

Section 2

That neither the Board of Education, nor any member thereof, nor the

Superintendent of Schools, nor any other official of the Boards of

Education of Department of Education of any of the counties coming

within the provisions of this Act, shall have any right to discharge,

suspend, demote, or change any employee made subject to civil

service or permanent tenure by the provisions of this Act, from one

position or class to another position or class with the Department of

Education of said counties at a reduced salary, unless and until

charges as specified herein shall have first been filed and sustained

against such employee in the manner herein provided.

Section 3

That employees under civil service or permanent tenure by the

provisions of this Act may be suspended, demoted, or discharged

from service for inefficient service, neglect of duty, or improper

conduct, in the following manner:

(a) The Superintendent of Schools or any Supervisor of schools, or

any principal, or any ten patrons of the school in question may prefer

charges against any such employee....

(b) After preferment and filing of charges as above set out, the

employee charged shall be entitled to a hearing before the Board of

Education....

(c) Either party dissatisfied with the decision of the Board of

Education shall have the right of appeal therefrom to the Chancery

Court of the County in which such hearing is held within ten days

after receipt of notice of the decision of the Board of Education by the

employee charged, except in cases of demotion only, in which cases

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the decisions of the Board of Education shall be final and no appeal

shall be allowed....

The Teacher Tenure Act provides, in pertinent part, as follows:

T.C.A. § 49-5-501(10) (1996)

“Teacher” includes teachers, supervisors, principals, superintendents

and all other certificated personnel employed by any local board of

education, for service in public, elementary and secondary schools in

Tennessee, supported in whole or in part by state or federal funds.

T.C.A. § 49-5-502(b) (1996)

This part shall not affect the operation of local or private tenure acts

in operation on March 1, 1951, applying to counties, municipalities

or special school districts.

T.C.A. § 49-5-510 (Supp. 2000)

The superintendent, when necessary to the efficient operation of the

school system, may transfer a teacher from one location to another

within the school system, or from one type of work to another for

which the teacher is qualified and licensed; provided, that transfers

shall be acted upon in accordance with board policy and any locally

negotiated agreement.

T.C.A. § 49-5-511(a)(2) (Supp. 2000)

The causes for which a teacher may be dismissed are as follows:

incompetence, inefficiency, neglect of duty, unprofessional conduct

and insubordination....

The Education Improvement Act provides, in pertinent part, as follows:

T.C.A. § 49-2-203(a)(1) (Supp. 2000)

It is the duty of the local board of education to:

(1) Elect, upon the recommendation of the superintendent, teachers

who have attained or are eligible for tenure and fix the salaries of and

make written contracts with such teachers....

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T.C.A. § 49-2-301(d) (Supp. 2000)

In place of the abolished office of county superintendent of public

instruction, each local board of education is authorized to employ a

director of schools, as provided for in § 49-2-203, subject to

requirements of law. This director of schools may be referred to as

“superintendent” but all references to or duties or powers of the

former county superintendents of public instruction shall be deemed

to be references to or powers or duties of the director of schools.

Failure to change a reference to “county superintendent” to

“superintendent” or “director of schools” shall not be deemed to

continue to revive the former office of position of county

superintendent, it being the intention herein to convert the former

elected office of superintendent of public instruction to an

administrative position filled by the applicable local board of

education.

T.C.A. § 49-2-301(f)(1)(EE) (Supp. 2000)

It is the duty of the board of education to assign to its superintendent

the duty to:

* * *

(EE) Within the approved budget and consistent with existing state

laws, board policies and locally negotiated agreements covering

licensed personnel, to employ, transfer, suspend, non-renew and

dismiss all personnel, licensed or otherwise, except as provided in §

49-2-203(a)(1) and in chapter 5, part 5 of this title [which includes the

Teacher Tenure Act]. Nothing in this subdivision shall be construed

to alter, diminish, or supersede the Education Professional

Negotiations Act, compiled in chapter 5, part 6 of this title.

T.C.A. § 49-2-303(a)(1) (1996)

Each local superintendent shall employ principals for the public

schools. The employment contract with each principal shall be in

writing, shall not exceed the contract term of the current

superintendent, and may be renewed. The contract shall specify

duties other than those prescribed by statute and shall include

performance standards and require periodic written evaluations by the

superintendent to be conducted in the manner and with the frequency

that the superintendent determines proper. Reasons for the

nonrenewal of a contract may include, but are not limited to,

inadequate performance as determined by the evaluations. A

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principal who has tenure as a teacher shall retain all rights of such

status, expressly including those specified in § 49-5-510.

IV. Effect of the EIA on the Private Tenure Act

The KCEA argues that the trial court erred in concluding that the EIA repealed the provisions

of the Private Tenure Act conferring tenure upon principals in the Knox County School System.

First, it argues that the Private Tenure Act is not in conflict with the EIA and therefore was not

repealed by implication. Second, the KCEA contends that a repeal of the tenure status conferred by

the Private Tenure Act upon Knox County principals violates due process. Third, the KCEA argues

that the Private Tenure Act is not impermissible special legislation because there is a reasonable

basis for the classification. We will address each of these arguments in turn.

A. Repeal by Implication

We begin our discussion with a review of the applicable rules of statutory construction. The

primary goal of statutory construction is “to ascertain and give effect to the intention and purpose

of the legislature.” Carson Creek Vacation Resorts, Inc. v. Department of Revenue, 865 S.W.2d

1, 2 (Tenn. 1993). Courts are to construe legislative intent “primarily from the natural and ordinary

meaning of the language used, id., “read in the context of the entire statute, without any forced or

subtle construction which would extend or limit its meaning.” National Gas Distribs., Inc. v. State,

804 S.W.2d 66, 67 (Tenn. 1991). If a statute is unambiguous, legislative intent is determined from

the face of the statute. Carson Creek Vacation Resorts, Inc., 865 S.W.2d at 2. It is not for the

courts to question the wisdom of a legislative act. We “must take statutes as [we] find them.”

Tennessee Mfr’d Housing Ass’n v. Metropolitan Gov’t, 798 S.W.2d 254, 257 (Tenn. Ct. App.

1990).

The trial court found that the Private Tenure Act, as it pertains to principals, conflicts with

the EIA; the court therefore concluded that the EIA repealed and superseded those provisions of the

Private Tenure Act. Although a private act is superseded as far as is necessary to give effect to a

general statutory scheme of statewide application, Kentucky-Tennessee Clay Co. v. Huddleston, 922

S.W.2d 539, 542 (Tenn. Ct. App. 1995), repeals by implication are disfavored and are recognized

only when no reasonable construction allows the subject acts to stand together. Cronin v. Howe,

906 S.W.2d 910, 912 (Tenn. 1995). A construction that places one act in conflict with another must

be avoided; thus, courts must resolve any possible conflict between acts in favor of each other, “so

as to provide a harmonious operation of the laws.” Id. A repeal by implication is found only when

a conflict between the acts is inescapable. Pacific Eastern Corp. v. Gulf Life Holding Co., 902

S.W.2d 946, 954 (Tenn. Ct. App. 1995).

Our review of the pertinent provisions of the Private Tenure Act and the EIA persuades us

that there is an inescapable conflict between the two acts. Under the Private Tenure Act, principals

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are employed by the local board of education, whereas the EIA provides that principals are employed

by the superintendent. The Private Tenure Act provides that a principal, in his or her capacity as a

principal, is eligible for “permanent tenure” upon completion of four years of service; under the EIA,

principals are employed under contracts for a definite term, which contracts are subject to renewal

or nonrenewal based on a number of factors including the adequacy of the principal’s performance,

as determined by the superintendent. Inasmuch as the acts provide different standards for the

employment and tenure of principals, they cannot be reconciled; therefore, we find that the trial court

correctly found that these provisions of the Private Tenure Act pertaining to principals are in conflict

with the EIA and, therefore, are repealed by implication.

The KCEA argues that the EIA and the Private Tenure Act are not inconsistent because, so

the argument goes, a superintendent’s power under the EIA is subject to the Teacher Tenure Act

under the provisions of T.C.A. § 49-2-301(f)(1)(EE).4 Having made this last observation, the KCEA

takes its argument one step further and focuses on that provision of the Teacher Tenure Act reciting

that the latter act “shall not affect the operation of local or private tenure acts.” See T.C.A. § 49-5-

502(b) (1996). The KCEA concludes from this that the superintendent is precluded from employing,

transferring, suspending, non-renewing or dismissing Knox County personnel in a manner contrary

to Knox County’s Private Tenure Act. We disagree with the KCEA’s interpretation of T.C.A. § 49-

2-301(f)(1)(EE). As pertinent here, that statute simply provides that a superintendent’s personnel

decisions must conform to the Teacher Tenure Act. In our judgment, the requirement of compliance

with the Teacher Tenure Act found in the EIA, see T.C.A. § 49-2-301(f)(1)(EE), contemplates

compliance with the substantive provisions of the Teacher Tenure Act. In construing the statutes

under discussion, we cannot strain the EIA’s “except as provided in” language to bootstrap and

include a subtle trumping of the EIA by Knox County’s Private Act. Simply stated, we do not

believe that a fair construction of the EIA and the Teacher Tenure Act can lead to the construction

urged by the KCEA. We believe that had the Legislature intended for private tenure acts touching

upon the employment and tenure of principals to be unaffected by the enactment of the EIA, it would

have explicitly stated just that, i.e., that the EIA would not apply to counties under private acts with

contrary provisions. In fact, the Legislature made no explicit exception to the scope of the EIA and

we decline to read one into the statutory scheme via the strained construction urged by the KCEA.

The KCEA also argues that a repeal by implication of principals’ tenure rights under the

Private Tenure Act results in lesser rights being afforded to Knox County principals than are

afforded principals who have tenure as teachers under the Teacher Tenure Act. It contends that, if

the Private Tenure Act is repealed, Knox County principals would not be protected from transfers

that are arbitrary and capricious, politically motivated, or otherwise improper. We disagree.

4

In its brief, the KCEA refers to this provision as T.C.A. § 49-2-301(f)(31). The statute was amended in 1998,

however, and wa s renum bered as § 49-2-3 01(f)(1) (EE). The 1998 am endment also added the following sentence:

“Nothing in this subd ivision sha ll be construed to alter, diminish, or supersede the Education Professional Negotiations

Act, compiled in chapter 5, part 6 of this title.” Otherwise, the statute is substantively the same.

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A superintendent’s power to transfer personnel under the EIA is subject to T.C.A. § 49-5-

510, which protects teachers from arbitrary and capricious transfers and from transfers that are

politically or otherwise improperly motivated. See Springer v. Williamson County Bd. of Educ.,

906 S.W.2d 924, 926 (Tenn. Ct. App. 1995). Under the EIA, a principal who is dismissed as a

principal retains the rights of tenure as a teacher, which rights expressly include those specified in

§ 49-5-510. See T.C.A. § 49-2-303(a)(1). Therefore, we conclude that Knox County principals –

like all other principals in the state – are protected under the EIA from transfers that are arbitrary and

capricious, politically motivated or otherwise improper. The Association’s argument is without

merit.

B. Due Process

The KCEA argues that a “tenured principal’s property interest in continued employment as

a principal cannot be taken away without the protections of procedural due process, namely notice

and an opportunity for a hearing.” In support of its argument, the Association cites four United

States Supreme Court cases, all of which deal with due process in the context of determinations of

individual eligibility for a statutory entitlement, not in the context of a repeal of or an amendment

of a statute conferring such an entitlement. See, e.g., Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586,

29 L. Ed. 2d 90 (1971) (suspension of driver’s license); Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct.

1011, 25 L. Ed. 2d 287 (1970) (termination of public assistance payments); Sherbert v. Verner, 374

U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963) (denial of unemployment compensation benefits);

Speiser v. Randall, 357 U.S. 513, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958) (denial of tax exemption).

It has been held, in cases analogous to the instant case, that when a legislature enacts a general law

repealing or modifying a statutory entitlement, in the absence of any substantive constitutional

infirmity, the legislature’s determination “provides all the process that is due.” Atkins v. Parker,

472 U.S. 115, 129-30, 105 S. Ct. 2520, 2528-29, 86 L. Ed. 2d 81 (1985) (amendment of welfare

benefit statute); Hoffman v. City of Warwick, 909 F.2d 608, 619-20 (1st Cir. 1990) (repeal of statute

conferring enhanced seniority status to veterans). We find the KCEA’s procedural due process claim

to be without merit.

C. Suspension of General Law

The trial court found that the Private Tenure Act, insofar as it provides for the employment

and tenure of principals in a manner different from that set forth in the EIA, constitutes

impermissible special legislation, in violation of Article XI, Section 8 of the Tennessee Constitution,

which provisions state, in pertinent part, as follows:

The Legislature shall have no power to suspend any general law for

the benefit of any particular individual, nor to pass any law for the

benefit of individuals inconsistent with the general laws of the land;

nor to pass any law granting to any individual or individuals, rights,

privileges, immunitie, [immunities] or exemptions other than such as

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may be, by the same law extended to any member of the community,

who may be able to bring himself within the provisions of such law.

Article XI, Section 8 is implicated if a local act contravenes some general law of mandatory,

statewide application. Knox County ex rel. Kessel v. Lenoir City, 837 S.W.2d 382, 383 (Tenn.

1992).

Upon reviewing the EIA, we conclude that the act is one of “mandatory, statewide

application” and that the Private Tenure Act, as we have already discussed, contravenes the EIA on

the subject of the employment and tenure of principals. Having determined that the Private Tenure

Act creates a classification in contravention of general law, we must now determine whether there

is a reasonable basis for the classification. If a private act contravenes a general law, it violates

Article XI, Section 8 only if no reasonable basis for the discrimination can be found. Stalcup v. City

of Gatlinburg, 577 S.W.2d 439, 441 (Tenn. 1978); Brentwood Liquors Corp. of Williamson County

v. Fox, 496 S.W.2d 454, 457 (Tenn. 1973). To withstand scrutiny under this standard, a

classification must “have some basis which bears a natural and reasonable relation to the object

sought to be accomplished, and there must be some good and valid reason why the particular

individual or class upon whom the benefit is conferred, or who are subject to the burden imposed,

not given to or imposed upon others, should be so preferred or discriminated against.” State v.

Nashville, Chattanooga & St. Louis Ry. Co., 124 Tenn. 1, 10, 135 S.W. 773, 775 (1911). The

reasons for the classification need not appear on the face of the legislation. Stalcup, 577 S.W.2d at

442. The classification will be upheld if any possible reason can be conceived to justify it. Id.

Whether a classification is reasonable depends upon the particular facts of the case. Town of

Huntsville v. Duncan, 15 S.W.3d 468, 472 (Tenn. Ct. App. 1999).

In finding no reasonable basis for the subject classification, the trial court found illustrative

the testimony of Herman Baker, a high school principal called as a witness for the KCEA, who

testified on cross-examination as follows:

Q Okay. Thank you.

Mr. Baker, under the state law that – the Education

Improvement Act of 1992 that led Knox County to create this,

principals in other counties and other municipalities that run school

systems enter into one of these contracts and can be terminated for

inadequate performance –

A By the superintendent.

Q – by the superintendent?

A Yes, ma’am.

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Q Is there any reason why principals in Knox County should be

treated differently than principals in every other county and

municipality in Tennessee?

A Yes, ma’am, Local Private Tenure Act, Knoxville City and

Knox County, of which I am tenured. It is my opinion that I am

protected by those rights and the supervisor cannot terminate me.

Q Is there any other reason? Is there anything particular about

Knox County or Knox County principals, aside from that Private

Tenure Act, that should give them treatment different from every

other principal at every other school in Tennessee?

A Not outside the Private Tenure Act, but we do have that.

Like the trial court, we can conceive of no reasonable basis for treating Knox County

principals differently from other principals in the state of Tennessee. Accordingly, we find that the

Private Tenure Act violates Article XI, Section 8, to the extent that it conflicts with the general law.

The KCEA argues that a reasonable basis exists for the Private Tenure Act in that at the time

the private act was passed, there was no general law providing for the protection of tenure for

teachers in the public schools of Tennessee. In support of its argument, it cites State ex rel. Taylor

v. Rasnake, 209 Tenn. 229, 352 S.W.2d 427 (1961) and Price v. Webber, C/A No. 121, 1985 WL

4117 (Tenn. Ct. App. E.S. filed December 6, 1985).5 The Rasnake decision does not support the

KCEA’s argument because in that case, the Supreme Court found that the private act and the general

law were not necessarily inconsistent with each other. Rasnake, 209 Tenn. at 234, 352 S.W.2d at

429. In Price, an unreported decision of this Court, we found that a reasonable basis existed for an

earlier private tenure act affecting Anderson County, which act was found to be in contravention

with the Teacher Tenure Act. Id. at *5. While acknowledging that “just because [a private act] was

passed prior to the general law does not necessarily shield it from constitutional challenge” and that

“[i]f and when a general law is finally passed, an inconsistency may arise,” id. at *4, the Court found

that “[s]ince the passage of the Private Act was before the enactment of the general law, we need

only look at the overall rational basis of the Private Act’s passage, and not look for a rational basis

for the inconsistency only.” Id. at *5. The Court thus concluded that at the time the private act was

passed, there was a reasonable basis for the establishment of a tenure system in Anderson County

schools, and therefore found no constitutional infirmity. Id.

Price, a 1985 case, is not the controlling authority in the instant case. This is because, in

1997, the Supreme Court decided the case of City of Tullahoma v. Bedford County, 938 S.W.2d

5

The KCEA also cites in its brie f a mem orandu m opin ion of this C ourt; however, Rule 10 of the Rules of the

Court of Appeals states that memorandum opinions are not to be cited or relied upon in an unrelated case. Therefore,

we will n ot consid er it.

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408 (Tenn. 1997). In City of Tullahoma, the defendants argued that a private act was not

impermissible class legislation because it was enacted prior to the enactment of the general law, the

Solid Waste Management Act. The Supreme Court rejected that argument, stating as follows:

Priority of enactment is not determinative. Bedford County and the

clerk do not deny the validity of the Solid Waste Management Act

and the several other statutes which set forth a uniform statewide

policy regarding the disposition of solid waste. Therefore, the only

issue is whether the private act is inconsistent with the general law

within the meaning of Article XI, Section 8 of the Tennessee

Constitution.

Id. at 410 (on petition to rehear). In the instant case, the EIA established a uniform statewide policy

regarding the employment and contract renewal of school principals. The Private Tenure Act is

inconsistent with the general law. Thus, the issue is not whether a rational basis for the special

legislation existed at the time of passage, but whether “there is a reasonable basis for the

discrimination” created by the special act. See Brentwood Liquors Corp. of Williamson County,

496 S.W.2d at 457 (emphasis added). As we have already discussed, no reasonable basis for the

discrimination can be found. The KCEA’s argument is found to be without merit.

V. Principals as Members of the Bargaining Unit

Next, the KCEA argues that the trial court erred in concluding that principals in the Knox

County School System are not members of the bargaining unit represented by the Association for

the purposes of performance, accountability, and contract renewal.

The Education Professional Negotiations Act, T.C.A. § 49-5-601, et seq., was enacted in

1978 “to prescribe the legitimate rights and obligations of boards of education and their professional

employees....” T.C.A. § 49-5-601(b)(1) (1996). Under the Act, the board of education and the

recognized professional employees’ organization are required to negotiate in good faith the issues

of salaries and wages, grievance procedures, insurance, fringe benefits, working conditions, leave,

student discipline procedures, and payroll deductions. T.C.A. § 49-5-611 (1996). An agreement

reached under the Act may not include proposals that are contrary to state law. T.C.A. § 49-5-

612(a)(1) (1996).

As “professional employees” of the board of education under the Act, principals – at least

those who are not designated as management personnel – were considered included in the bargaining

unit for the purpose of negotiating with local boards of education. See Tenn. Op. Att’y Gen. No.

97-106 (July 28, 1997). With the passage of the EIA, however, superintendents were given the

authority to hire, transfer, and not to renew principals’ contracts, powers that previously had been

held by boards of education. See T.C.A. § 49-2-303(a). All other matters related to the employment

of principals, remained in the authority of boards of education:

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Under the EIA, principals negotiate with the superintendents – now

known as “directors of schools” – regarding matters related to

performance, accountability, and contract renewal. Therefore, the

bargaining units may not negotiate these matters with the school

boards on behalf of the principals.

Other conditions of a principal’s employment, however, are still

within the prerogative of the local school boards, even under the EIA.

Salary ranges, grievance procedures, insurance, fringe benefits, leave,

and other working conditions are examples of matters that continue

to be set or approved by the school boards. The bargaining units may

include principals to negotiate such issues with the school boards.

Tenn. Op. Att’y Gen. 97-106 (July 28, 1997). While the Attorney General’s opinion is not binding

authority, see Washington County Bd. of Educ. v. MarketAmerica, Inc., 693 S.W.2d 344, 348

(Tenn. 1985), we find its reasoning persuasive in the instant case. Reading the two acts together,

we conclude that principals are members of the bargaining unit for the purpose of negotiating those

aspects of employment still under the control of the Board, while they are not members of the

bargaining unit for the purpose of negotiating employment issues that are under the control of the

superintendent. Thus, the trial court was correct in finding that principals are not members of the

bargaining unit for the purposes of performance, accountability, and contract renewal, which are

aspects of principals’ employment now covered by the EIA.

VI. In Summary

In summary, the Court holds that the Chancellor was correct in finding that the provisions

of the Education Improvement Act of 1992 repeal and supercede the private act applicable to Knox

County as to the subjects of a school principal’s performance, accountability, and contract renewal.

VII. Conclusion

The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant. This

case is remanded for collection of costs assessed below, pursuant to applicable law.

___________________________________

CHARLES D. SUSANO, JR., JUDGE

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