State of Tennessee Ex Rel Landle Byrge v. Nicholas Jay Yeager

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

April 14, 2015 Session

STATE OF TENNESSEE EX REL LANDLE BYRGE, ET AL. v. NICHOLAS

JAY YEAGER

Direct Appeal from the Chancery Court for Anderson County

No. 14CH6354 Don R. Ash, Judge

No. E2014-01996-COA-R3-CV-FILED-JUNE 25, 2015

The petitioners filed this action seeking to remove the respondent from the position of

county law director of Anderson County pursuant to Tennessee‟s ouster law, found at

Tennessee Code Annotated section 8-47-101. The respondent filed a motion to dismiss,

which the trial court granted after concluding that the position of county law director is

not a public office subject to the ouster law. On appeal, the petitioners argue that the trial

court erred in concluding that the position of county law director is not a public office.

Because the county law director is subject to oversight by an advisory committee that

may remove him or her at any time with the subsequent approval of the county

legislature, we affirm the ruling of the trial court.

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

and Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which JOHN W.

MCCLARTY, J., and THOMAS R. FRIERSON, II, J., joined.

Gregory Brown, Knoxville, Tennessee, for the appellants, Landle Byrge, Mark DeVol,

Ray Hagan, Toby Geren, Barbara Gaspel Gregory, Clyde Cook, Doug Walden, Carnelson

V. Terry, John E. Seiber, Larry Ownby, Hal M. Hagan, Phyllis H. Terry, Thomas T.

Adams, Jason Stiltner, Virgil L. Rainey, Dennis Pemberton, Charles W. Jackson, Gary L.

McLemore, Earl T. McLemore, Jr., John Walker, Darlene Adams, and Tipton J. Garland.

Wade Vance Davies, Knoxville, Tennessee, for the appellee, Nicholas Jay Yeager.

OPINION

I. BACKGROUND AND PROCEDURAL HISTORY

In 2006, the General Assembly established the Office of County Law Director for

Anderson County, Tennessee by Chapter 77 of the Private Acts of 2006 (the “Private

Act” or the “Act”). 2006 Tenn. Priv. Acts Ch. 77, § 1. The Act provides that “[t]he

office will be managed and supervised exclusively by the county law director.”

The Act also established a Legal Services Advisory Committee made up of eleven

elected officials of Anderson County.1 The Act directs the advisory committee to assist

in development of the office‟s policies and procedures and to monitor and provide

oversight for the office and its director. The Act provides that the advisory committee

will “develop the job description and required qualifications for the law director and staff,

and will also develop the selection process for the director‟s position.” The Act provides

that the advisory committee will, upon a two-thirds majority vote, select and recommend

a candidate for final confirmation by a majority vote of the Anderson County legislative

body. The Act provides that the advisory commission may terminate the county law

director at any time with a two-thirds majority vote followed by two-thirds subsequent

approval of the county legislative body.

The Act also sets forth the following parameters for the role of county law

director:

SECTION 3. The county law director shall devote his or her full-

time legal employment to the duties of the Office of the County Law

Director and shall not represent any other clients in the practice of law

while holding office as the county law director.

SECTION 4. The law director shall be a licensed Tennessee

attorney; graduate of an ABA accredited law school; duly licensed and

admitted to practice law in the courts . . . . The Legal Services Advisory

Committee is authorized to promulgate and establish additional mandatory

job requirements and preferred job requirements for the position . . . .

SECTION 5. The annual salary of the county law director is hereby

established at a minimum floor of ninety percent (90%) of the annual salary

paid to the Anderson County General Sessions Court judges and shall be

payable out of the general funds of Anderson County . . . . The county law

director . . . shall be eligible for all employee benefits offered to other

Anderson County employees . . . ; and salary adjustments as authorized and

1

The Act provides that voting members of the Legal Services Advisory Committee shall consist of the

following elected officials of Anderson County: county mayor, county clerk, circuit court clerk, highway

superintendent, assessor of property, register of deeds, sheriff, trustee, and three members of the county

legislative body.

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approved by the county legislative body.

SECTION 6. It shall be the duty of the county law director of

Anderson County to take the oath of office prescribed for other county

officials by the county clerk and appropriate to his or her office . . . .

SECTION 7. The duties of the county law director shall include, but

are not limited to, the following:

(a) Represent and render legal advice to the county

legislative body and all county officials, including, elected

and appointed department heads, employees and duly

appointed boards, commissions and committees in matters

relating to their official work and duties; and

(b) Represent the county in all litigation, whether the

county is suing or being sued in all state or federal courts,

administrative boards and commissions; and

(c) To meet with the county legislative body at all

regular and special meetings; and

(d) To act as the county‟s delinquent tax attorney . . . ;

and

(e) To draft, and/or approve, contracts, leases, deeds,

or other legal instruments to which the county might be a

party, or to review same when requested by county officials;

and

(f) To provide legal opinions on matters requested by

county officials; and

(g) To render opinions with regard to public finance

obligations such as notes and bonds; and

(h) To draft policies, procedures, rules and regulations

upon the request of county officials, commissions,

committees, boards or other governing bodies empowered to

consider and/or adopt the same; and

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(i) To represent the county mayor in all fee petitions

brought by the officials of the various fee offices; and

(j) To monitor and evaluate any and all cases assigned

to insurance counsel by the county‟s insurance carrier; and

(k) To provide annual opinions to auditors regarding

pending or threatened claims or litigation, in accordance with

standards promulgated by the American Bar Association; and

(l) In general, to act as general counsel for Anderson

County and to perform all duties associated with that position.

SECTION 8. County officials should not employ any attorney other

than the county law director to represent the county, or such official, unless

additional or substitute counsel is approved by the county legislative body .

...

SECTION 9. The Anderson County Attorney's Office and the

position of county attorney are hereby abolished and all private acts related

to that position are hereby repealed. The county law director shall have the

same power and authority, as conferred and mandated by state law, as

Tennessee county attorneys have under general law; including, but not

limited to, authority to file suit to abate nuisances, authority to remove

unfaithful public officers, and the authority to enforce zoning and building

code violations. The county law director shall otherwise act as the county

attorney with all powers and duties granted to that position by state law . . .

.

SECTION 10. All necessary expenses incurred by the county law

director in the discharge of his or her official duties shall be paid by

Anderson County. . . .

SECTION 11. The county law director is hereby authorized to

employ such staff members as may be necessary to fulfill his or her duties

with the approval of the county legislative body and with salaries to be

approved by the county legislative body . . . .

SECTION 12. The county legislative body shall provide suitable

rooms and/or office space, with the necessary appurtenances and

conveniences, for the Office of the County Law Director and staff . . . .

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SECTION 13. The county legislative body may employ special

counsel when, in its sole discretion, counsel other than, or in addition to,

the law director is needed.

SECTION 14. The county law director may be terminated at any

time with two-thirds (2/3) majority vote by the Legal Services Advisory

Committee and two-thirds (2/3) subsequent approval by the county

legislative body at their next regularly scheduled meeting. The county law

director will serve at the will of the Legal Services Advisory Committee

and the county legislative body.

Nicholas Jay Yeager was appointed the Law Director of Anderson County in

September 2006. On June 13, 2014, twenty-two citizens of Anderson County filed an

amended petition for ouster against Yeager seeking to remove him from the position of

county law director pursuant to Tennessee Code Annotated section 8-47-101. Section 8-

47-101, commonly referred to as the “ouster” law, Edwards v. State ex rel. Kimbrough,

250 S.W.2d 19, 20 (Tenn. 1952), provides a method for removing individuals from public

office who “knowingly or willfully commit misconduct in office, or who shall knowingly

or willfully neglect to perform any duty enjoined upon such officer by any of the laws of

the state.”2 The ouster law applies to individuals “holding any office of trust or profit.”

The petitioners alleged that the position of county law director was an “office of trust or

2

Tennessee Code Annotated section 8-47-101 provides:

Every person holding any office of trust or profit, under and by virtue of any of the laws

of the state, either state, county, or municipal, except such officers as are by the

constitution removable only and exclusively by methods other than those provided in this

chapter, who shall knowingly or willfully commit misconduct in office, or who shall

knowingly or willfully neglect to perform any duty enjoined upon such officer by any of

the laws of the state . . . shall forfeit such office and shall be ousted from such office in

the manner hereinafter provided.

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profit” within the meaning of the ouster law and alleged sixteen grounds for Yeager‟s

removal from office pursuant to the statute.

On July 11, 2014, Yeager filed a motion to dismiss the petition under Rule

12.02(6) of the Tennessee Rules of Civil Procedure for failure to state a claim upon

which relief can be granted. Yeager asserted that the amended petition should be

dismissed because he was an employee rather than a public official and was therefore not

subject to removal pursuant to the ouster law. Citing relevant case law and provisions of

the Private Act, Yeager argued that the position of county law director lacked certain

characteristics common to public offices, such as a definite term of office or a specific

salary. Additionally, Yeager pointed out that he was subject to removal at any time by

the Legal Services Advisory Committee and the Anderson County Commission. Yeager

asserted that, by filing the ouster action, the petitioners merely sought to circumvent the

specific procedures set forth in the Private Act.

The petitioners responded that Yeager‟s analysis of the characteristics common to

public offices was irrelevant because the general assembly‟s intent to create a public

office was clearly set out in the Private Act by the declaration that “[t]he Office of

County Law Director . . . is hereby created and established . . . .” They argued that

consideration of the characteristics common to public offices is only necessary where

there is no such indicium of legislative purpose. Alternatively, they argued that even if

the general assembly‟s intent to create a public office was not clear, the position of

county law director had enough characteristics common to a public office to qualify.

They pointed out that the Private Act set forth numerous duties, powers, and rights of the

position and that it set a minimum base salary. They pointed out the attorney-client

relationship between the law director and the county, and stressed the importance of trust

and confidence in such relationships. They argued that, standing alone, the nature of the

position as one requiring great public trust and confidence is sufficient to declare it an

office of trust. Finally, they argued that removal under the ouster law was an additional

and cumulative remedy and was therefore not precluded by the removal process set out in

the Private Act.

After a hearing, the chancery court issued an order granting Yeager‟s motion to

dismiss on September 22, 2014. In part, the court‟s order stated:

RULING:

10. In the immediate action, Mr. Yaeger [sic] is not elected by the

people of Anderson County and not appointed for a specific term. The Act

provides for oversight of the position and its duties by the Legal Services

Advisory Committee, hiring of any staff and their salaries are to be

approved by the county legislature, proof and review of expenses by the

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county mayor. Additionally, the act does not include a tenure or duration of

the office, similarly to the act at issue in Buck. Rather, the act specifies the

persons responsible for hiring a legal director, a minimum salary, a

minimum list of duties, and a means to terminate.

11. In reviewing the terms of this act collectively in the light of those

characteristics and terms present in those legislative acts creating a position

of public trust, this court finds the legislature did not intend to create an

office of public trust for the position of Anderson County Law Director.

12. As this court finds the position of law director is not an office of

public trust, this court finds Tennessee Code Annotated § 8-47-101, et. seq.,

is not applicable to the removal of respondent, and petitioners can prove no

set of facts which would entitle them to relief.

THEREFORE, Respondent‟s Motion to Dismiss is GRANTED. All

subsequently set hearings shall be stricken from the court‟s docket. Plaintiff

shall be responsible for all court costs.

The petitioners timely filed a notice of appeal.

II. ANALYSIS

This appeal arises from the grant of a Rule 12.02(6) motion to dismiss for failure

to state a claim upon which relief can be granted. Such a motion “challenges only the

legal sufficiency of the complaint, not the strength of the plaintiff‟s proof or evidence.

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011).

The motion is therefore resolved “by an examination of the pleadings alone.” Id.

(citations omitted). By filing a motion to dismiss, the defendant “admits the truth of all

of the relevant and material allegations contained in the complaint, but . . . asserts that the

allegations fail to establish a cause of action. Id. (citations omitted).

A trial court should grant a Rule 12.02(6) motion to dismiss “only when it appears

that the plaintiff can prove no set of facts in support of the claim that would entitle the

plaintiff to relief.” Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002)

(citing Trau-Med of America v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002)).

Making such a determination is a question of law. On appeal, we review the trial court‟s

rulings on issues of law de novo, with no presumption of correctness. Webb, 346 S.W.3d

at 426 (citations omitted).

The petitioners in this case seek to remove Yeager from the position of county law

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director under the ouster law. The ouster law provides a method for removing

individuals from public office. See Tenn. Code Ann. § 8-47-101 (stating that the law

applies to “[e]very person holding any office of trust or profit, under and by virtue of any

of the laws of the state, either state, county, or municipal . . . .”). It has no application,

however, to remove individuals who are merely public employees. See State ex rel.

Harris v. Buck, 196 S.W. 142, 144 (Tenn. 1917). Accordingly, the dispositive issue in

this case is whether Yeager, in holding the position of county law director, was a public

officer or whether he was a public employee.

“It is often necessary to determine whether the performance of certain services, or

whether a particular position, is an office or a mere employment, or whether a given

person is an officer or a mere employee.” 3 Eugene McQuillin, The Law of Municipal

Corporations § 12:59 (3d rev. ed. 2012) (hereinafter “McQuillin”). Nonetheless, “[t]he

line between the public office and the public employment is sometimes not too clearly

marked by judicial decisions.” Glass v. Sloan, 281 S.W.2d 397, 398 (Tenn. 1955). There

is no single definition of what is necessary to constitute a public officer as distinguished

from an employee. In deciding whether a particular position is a public office within the

meaning of a particular statutory provision, courts must consider the particular facts and

circumstances of each case. State ex rel. Ross v. Fleming, 364 S.W.2d 892, 894 (Tenn.

1963).

One of the earliest Tennessee cases to address the issue of whether a particular

position was an office subject to the ouster law is State ex rel. Harris v. Buck, 196 S.W.

142 (Tenn. 1917). In Buck, citizens sought to remove E.G. Buck from the position of

county engineer of Madison County using the ouster law. Id. at 142. The trial court

entered a decree to oust Buck from what it termed the “office of county engineer.” Id.

After examining the legislation that created the position, the Tennessee Supreme Court

reversed. Id. at 144. The court declared that the dispositive issue was whether, in

enacting the legislation that created the position, the general assembly intended to create

a public office. Id. at 143. As an initial matter, the court noted that “the legislation does

not declare a purpose on the part of the general assembly to create a county office or a

public office of any character.” Id. Next, the court noted that the legislation failed to set

forth many of the “usual characteristics of an office of public trust,” such as its term of

duration, its compensation, and a bond required for the faithful discharge of its duties. Id.

at 143–44 (citing Jones, Purvis & Co. v. Hobbs, 63 Tenn. 113, 119 (1874)). The court

concluded that:

“[I]f it had been intended to create the office of county engineer, the

General Assembly by its own act would, at least, have fixed the tenure, the

duration, the fees or emoluments, the rights and powers, as well as the

duties of the office. It would not have left these important essentials in the

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creation of a public office to be provided for by the act of the quarterly

county court.”

Id. at 144.

Since the supreme court‟s decision in Buck, courts charged with determining

whether a particular position is a public office have recognized that there are certain

characteristics of a public office that are commonly used as guidelines for judicial

analysis. See e.g., Glass v. Sloan, 281 S.W.2d 397, 398-99 (Tenn. 1955) (“[I]t has been

held on good authority that tenure, oath, bond, official designation, compensation and

dignity of position may be considered along with many other things.”); see also 3

McQuillin § 12:59 (“Among the criteria to be considered . . . are: whether the position

was created by law; whether the position was designated as an office; whether the

qualifications of the appointee have been prescribed; whether the duties, tenure, salary,

bond and oath have been prescribed or required . . . .”) (footnotes omitted). However,

courts have also recognized the importance of considering more broadly “the intention

and subject matter of the enactment, the nature of the duties, the method by which they

are to be executed, the end to be attained, etc.” Glass, 281 S.W.2d at 398.

In this case, consideration of the characteristics common to public office is only

minimally helpful. For instance, though the Private Act appears to designate the position

as an office in its statement that the county law director “shall not represent any other

clients in the practice of law while holding office as the county law director,” it generally

distinguishes between the “Office of the County Law Director” and the “position of

county law director.” (Emphasis added.) The Act also sets forth minimum qualifications

for the position, though it authorizes the Legal Services Advisory Committee to

“promulgate and establish additional mandatory job requirements.” Similarly, the Act

does not set a specific term of office for the position, nor does it provide a fixed salary

except to provide for a minimum salary. The Act does set forth the duties of the position

and requires the county law director to take an oath of office, but the Act does not have a

bond requirement. Thus, while the county law director position does have some of the

characteristics of a public office, it lacks others. As these characteristics are not

determinative of the issue, we think it useful to consider the nature of the position in light

of the purpose of the ouster law.

The purpose of the ouster law is to “rid the public of unworthy officials” and “to

improve the public service, and to free the public from an unfit officer.” Comm’rs of

Powell-Clinch Util. Dist. v. Util. Mgmt. Review Bd., 427 S.W.3d 375, 385 (Tenn. Ct.

App. 2013) (quoting State ex rel. Jones v. Looper, 86 S.W.3d 189, 198 (Tenn. Ct. App.

2000)). The law reflects the general assembly‟s deep concerns regarding allegations of

misconduct by public officials. Looper, 86 S.W.3d at 198. Recognizing the gravity of

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such allegations, they established special, expedited judicial procedures for the removal

of unfit officers. Id. These procedures authorize the court to suspend the official pending

a final hearing and determination. Tenn. Code Ann. § 8-47-116. They provide that a

hearing on a motion to suspend can be held on as little as five days‟ notice. Tenn. Code

Ann. § 8-47-117. They limit the number of pleadings parties are allowed to file, shorten

the usual time permitted to answer petitions or complaints, and expressly prohibit

continuances by agreement of the parties. Tenn. Code Ann. §§ 8-47-114, 8-47-115, 8-47-

119. Additionally, they direct both the trial court and the appellate court to give ouster

cases precedence over all other civil and criminal cases. Tenn. Code Ann. §§ 8-47-119,

8-47-125. As the courts have recognized, these procedures demonstrate the legislature‟s

intent to provide a speedy summary method for removing unfit public officials. State ex

rel. Leech v. Wright, 622 S.W.2d 807, 811 (Tenn. 1981). Without such a mechanism, it

is possible that a public official could openly engage in willful misconduct without fear

of losing office prior to the expiration of his or her term. Such a situation is certainly

untenable. However, that possibility does not exist where, as is the case here, the

position in question is subject to oversight by a committee with the power to remove its

holder at any time, with or without cause.

In this case, the Private Act created an oversight committee that is capable of

removing the county law director at any time, for any reason. The Act provides that the

“advisory committee will select and recommend a candidate (for county law director) for

final confirmation by majority vote of the Anderson County legislative body.” It further

provides that “[t]he advisory committee shall monitor and provide oversight to the Office

of the County Law Director and its director.” Finally, the Act provides that “[t]he county

law director may be terminated at any time” by a two-thirds vote of the advisory

committee and two-thirds subsequent approval by the county legislative body. (Emphasis

added.) These provisions, particularly by providing that the law director “will serve at

the will of the Legal Services Advisory Committee and the county legislative body,” are

more indicative of a legislative intent to create an employment position than a public

office subject to the ouster law. Accordingly, we agree with the trial court‟s conclusion

that Yeager, in his position as county law director, was a public employee rather than a

public official.

This conclusion is supported by other Tennessee cases. In Glass v. Sloan, 281

S.W.2d 397, 398-399 (Tenn. 1955), the Tennessee Supreme Court considered whether

the superintendent of roads in Tipton County was a public official or merely a public

employee. In doing so, the court noted that the position was originally created by the

1943 Private Acts, which authorized the county highway board to appoint a

superintendent of roads, fixed a two year period of employment, provided for removal by

the board, and provided that the position was, at all times, under the direction and control

of the board. Id. at 398. The court concluded that under the provisions of the 1943

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Private Acts, the superintendent of roads was “clearly a County employee.” Id. Next, the

court examined the 1951 Private Acts, which amended the 1943 Private Acts. Id. The

court noted that the 1951 Private Acts removed the sections providing for the

appointment, oversight, and removal of the superintendent by the board; the 1951 Private

Acts replaced those provisions with sections that provided that the superintendent of

roads elected by the citizens, granted the superintendent broad powers to allocate funding

for road construction and repair, and set a salary and bond requirement for the position.

Id. Reviewing the amendments made by the 1951 Private Acts, the court declared that

“[i]t seems to us that under this Act (1951 Private Act just quoted) that the

Superintendent of Roads as created by this Act is a County Officer.” Id.

In reaching its conclusion, the court in Glass relied on the reasoning of Prescott v.

Duncan, 148 S.W. 229 (Tenn. 1912), an early Tennessee case also relied on by the court

in Buck. In Prescott, the Tennessee Supreme Court reviewed a section of the 1911

Private Acts, which provided that the Shelby County board of commissioners “are

authorized to appoint the following „officers‟ whose terms of office shall be at the will

and pleasure of the board of commissioners.” Id. at 238. The section also sets out the

titles and maximum salaries of the respective positions. Id. 238-39. Despite the fact that

the act in question characterized the appointees as “officers,” the Tennessee Supreme

Court concluded that they were “employés merely,” and subordinates of the board of

commissioners subject to its supervision. Id. at 239.

The Tennessee Supreme Court‟s holdings in Glass and Prescott are instructive in

this case. In both cases, the court concluded that individuals holding positions subject to

oversight and removal by a board or commission were employees, rather than public

officials. Likewise, the Private Acts in this case provide that the county law director is

subject to oversight by the Legal Services Advisory Committee and may terminated at

any time by the advisory committee and county legislative body. Additionally, we note

that each of these cases preceded the Private Acts that created the county law director

position at issue. The general assembly is presumed to know the state of existing case

law. State v. Powers, 101 S.W.3d 383, 394 (Tenn. 2003). Based on the foregoing, we

agree with the trial court‟s conclusion that Yeager is not a public official subject to

removal under the ouster law.

The petitioners argue that, standing alone, the nature of Yeager‟s position as

county law director is sufficient to qualify as him a public official. They emphasize the

importance of Yeager‟s duties in representing and advising county officials and

transacting legal business on behalf of the county. They cite the Tennessee Supreme

Court‟s opinion in State ex rel. Milligan v. Jones, 224 S.W. 1041, 1042 (Tenn. 1920), in

support of their argument. In Milligan, citizens filed an ouster action against the director

of a school district. Id. In holding that the position of school director was a public office,

11

the court stated that:

The directors have within their control the employment of teachers, the

payment of their salaries, the care and custody of school property, and

many other things of financial interest, which would be sufficient, standing

alone, to declare the office one of trust; but in addition the director has the

decision of the character and nature of the school by the selection of

teachers and other matters of great moral and spiritual trust. An

examination of the sections of the Code cited will show that it was intended

to make the director an important and essential part of the school system.

Id. The petitioners argue that, like the director of schools position in Milligan, Yeager is

charged with matters of great importance and trust in his position as county law director;

they argue that his duties and responsibilities standing alone are sufficient to justify a

holding that he is a public office. We disagree. Though the nature of Yeager‟s duties as

law director are certainly important, they do not require a holding that his position is a

public office. See Preston, 148 S.W. at 239 (“The chairman of the county court is

authorized by the Code to employ counsel to represent the county. Such counsel would

perform legal services for the entire county, but this employment would not make him a

county officer.”). Moreover, unlike Yeager, the school director in Milligan was not

subject to oversight of any other individual, board, or committee. We therefore reject this

argument.

III. CONCLUSION

Though the position of county law director has some of the characteristics

commonly associated with a public office as opposed to mere employment, we conclude

that because the position is subject to the oversight of an advisory committee, which may

remove the individual holding the position with the approval of the county legislative

body, it is not a public office under the ouster law. We therefore affirm the ruling of the

trial court dismissing the petitioners‟ action. Costs of this appeal are taxed to the

petitioners, for which execution may issue.

_________________________________

BRANDON O. GIBSON, JUDGE

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