Kenneth Marino v. Board of Administration City of Memphis Retirement System

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 27, 2015 Session

KENNETH MARINO v. BOARD OF ADMINISTRATION CITY OF

MEMPHIS RETIREMENT SYSTEM

Direct Appeal from the Chancery Court for Shelby County

No. CH-14-0404-3 Oscar C. Carr, III, Chancellor

No. W2015-00283-COA-R9-CV – Filed November 16, 2015

We granted an application for an interlocutory appeal in this case to consider whether the

Board of Administration of the City of Memphis Retirement System is exempt from the

contested case procedures of the Uniform Administrative Procedures Act because the

City of Memphis is organized as a home rule charter form of government. We hold that

the Board is not exempt from the contested case procedures and therefore affirm the trial

court‟s order granting partial summary judgment to the petitioner. This matter is

remanded for further proceedings in accordance with the Uniform Administrative

Procedures Act.

Tenn. R. App. P. 9 Interlocutory Appeal by Permission; Judgment of the Chancery

Court Affirmed and Remanded

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

STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Herman Morris, Jr., City Attorney, Barbaralette G. Davis, Senior Assistant City Attorney

and Jake R. Hayes, Assistant City Attorney, Memphis, Tennessee, for the appellant, City

of Memphis.

John Ford Canale, Memphis, Tennessee, for the appellee, Kenneth Marino.

OPINION

I. FACTS & PROCEDURAL HISTORY

Kenneth Marino (“Marino”) was a firefighter for the City of Memphis. On

October 30, 2013, Marino filed an application for line of duty disability retirement

benefits with the Retirement System of the City of Memphis. The Board of

Administration of the City of Memphis Retirement System (“Pension Board”) held a

hearing on the application on January 30, 2014. After considering medical evaluations

from physicians, the relevant ordinances, and argument on Marino‟s behalf, the Pension

Board approved “ordinary disability” benefits for Marino but denied his request for “line

of duty disability” benefits.

Marino filed a petition for review of the decision in the chancery court of Shelby

County. Among other things, Marino argued that the Pension Board failed to comply

with the contested case provisions of the Uniform Administrative Procedures Act

(“UAPA”), Tenn. Code Ann. § 4-5-301, et seq. Marino relied on Tennessee Code

Annotated section 27-9-114(a)(1), which provides:

(a)(1) Contested case hearings by civil service boards of a county or

municipality which affect the employment status of a civil service

employee shall be conducted in conformity with contested case procedures

under the Uniform Administrative Procedures Act, compiled in title 4,

chapter 5, part 3.

Marino argued that the Pension Board was a civil service board within the meaning of the

statute, and therefore, the Pension Board violated the law and deprived him of rights by

failing to adhere to the contested case provisions of the UAPA. 1 Marino asked the

chancery court to vacate the decision of the Pension Board and remand with instructions

for the Pension Board to comply with the contested case provisions.

Marino subsequently filed a motion for partial summary judgment on the issue of

whether the Pension Board was required to conduct its line of duty disability hearings in

conformity with the contested case provisions of the UAPA. In response, the City of

Memphis admitted that it “did not hold the hearing on Petitioner‟s request for line of duty

disability benefits in conformity with the contested case procedures of Tennessee‟s

Uniform Administrative Procedures Act.” However, the City claimed that it was exempt

from the contested case procedures pursuant to subsection (a)(2) of Tennessee Code

Annotated section 27-9-114, set forth in context below:

(a)(1) Contested case hearings by civil service boards of a county or

municipality which affect the employment status of a civil service

employee shall be conducted in conformity with contested case procedures

under the Uniform Administrative Procedures Act, compiled in title 4,

chapter 5, part 3.

(2) The provisions of subdivision (a)(1) pertaining to hearings by

1

The City admits that its Pension Board is a “civil service board” within the meaning of the statute.

2

civil service boards shall not apply to municipal utilities boards or civil

service boards of counties organized under a home rule charter form of

government.

(Emphasis added.) The City asserted that the Tennessee Court of Appeals had previously

found this exemption applicable to the civil service boards of the City of Memphis in

Morris v. City of Memphis Civil Service Commission, No. W2009-00372-COA-R3-CV,

2009 WL 4547688, at *3-5 (Tenn. Ct. App. Dec. 7, 2009), Burkhart v. City of Clarksville,

No. M2010-00050-COA-R3-CV, 2011 WL 1233562, at *3 (Tenn. Ct. App. Apr. 1,

2011), and Redmon v. City of Memphis, No. W2009-01520-COA-R3-CV, 2010 WL

596385, at *2 (Tenn. Ct. App. Feb. 19, 2010).

In response to these arguments, Marino argued that the statutory exemption in

section 27-9-114(a)(2), by its terms, only applies to “civil service boards of counties

organized under a home rule charter form of government,” (emphasis added) so the City

of Memphis, as a city, does not qualify. Marino also cited Tidwell v. City of Memphis,

193 S.W.3d 555 (Tenn. 2006), in which the supreme court held that a different board of

the City of Memphis, its “On the Job Injury Appeals Panel,” is subject to the contested

case procedures of the UAPA. Finally, Marino submitted a “House Consent Calendar”

and other documents related to the legislative history of section 27-9-114(a)(2), which

stated that the bill would exempt “certain civil service boards from contested case

provisions of [the] Uniform Administrative Procedures Act,” and, more specifically,

“This bill would exclude the civil service boards of Shelby County from the contested

case provisions[.]”

After a hearing, on November 26, 2014, the chancery court entered an order

granting Marino‟s motion for partial summary judgment. The chancery court concluded

that the home rule exception for “county civil service boards does not apply to the City of

Memphis.” Accordingly, the chancery court remanded the matter to the Pension Board to

“conduct a rehearing of Petitioner Marino‟s disability claim in conformity with the

contested case procedures of Tennessee‟s UAPA.” The City filed a motion for

permission to seek an interlocutory appeal, which the trial court granted on February 9,

2015. This Court granted the City‟s application for an interlocutory appeal on March 17,

2015, designating the issue as “whether, under Section 27-9-114(a) of the Tennessee

Code Annotated, the Board of Administration, City of Memphis Retirement System is

exempt from the contested case procedures of the Tennessee Uniform Administrative

Procedures Act.”

3

II. STANDARD OF REVIEW

Tennessee Code Annotated section 27-9-114(b)(1) provides:

Judicial review of decisions by civil service boards of a county or

municipality which affects the employment status of a county or city civil

service employee shall be in conformity with the judicial review standards

under the Uniform Administrative Procedures Act, § 4-5-322.

When reviewing a board‟s decision pursuant to section 4-5-322:

(h) The court may affirm the decision of the agency or remand the case for

further proceedings. The court may reverse or modify the decision if the

rights of the petitioner have been prejudiced because the administrative

findings, inferences, conclusions or decisions are:

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

light of the entire record.

(B) In determining the substantiality of evidence, the court shall take into

account whatever in the record fairly detracts from its weight, but the court

shall not substitute its judgment for that of the agency as to the weight of

the evidence on questions of fact.

Tenn. Code Ann. § 4-5-322(h).

An issue of statutory interpretation presents a question of law, which we review de

novo on appeal, giving no deference to the lower court‟s decision. In re Kaliyah S., 455

S.W.3d 533, 552 (Tenn. 2015) (citing Mills v. Fulmarque, 360 S.W.3d 362, 366 (Tenn.

2012); Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011)).

4

III. DISCUSSION

Resolving the issue on appeal requires an examination of Davis v. Shelby County

Sheriff’s Department, 278 S.W.3d 256 (Tenn. 2009). In Davis, the Tennessee Supreme

Court explained that the UAPA‟s judicial review provision, Tenn. Code Ann. § 4-5-

322(h), applies when reviewing the decision of a civil service board that affected the

employment status of a county or city civil service employee even if the board did not

have to conduct the underlying hearing in conformity with the contested case procedures

of the UAPA. Id. at 263-64. In reaching that conclusion, the court analyzed the statute

that is at issue in this case, Tenn. Code Ann. § 27-9-114, which provides, in relevant part:

(a)(1) Contested case hearings by civil service boards of a county or

municipality which affect the employment status of a civil service

employee shall be conducted in conformity with contested case procedures

under the Uniform Administrative Procedures Act, compiled in title 4,

chapter 5, part 3.

(2) The provisions of subdivision (a)(1) pertaining to hearings by

civil service boards shall not apply to municipal utilities boards or civil

service boards of counties organized under a home rule charter form of

government.

(b)(1) Judicial review of decisions by civil service boards of a county or

municipality which affects the employment status of a county or city civil

service employee shall be in conformity with the judicial review standards

under the Uniform Administrative Procedures Act, § 4-5-322.

The particular board at issue in Davis was the Shelby County Civil Service Merit Board.

The supreme court explained that “Shelby County is a home rule jurisdiction, and as

such, Tennessee Code Annotated Section 27-9-114(a)(2) exempts the Board from the

UAPA‟s contested case hearing procedures.” Id. at 263. However, the court concluded

that this exemption from the UAPA‟s contested case hearing procedures did not change

or affect judicial review of the Board‟s decisions under the UAPA pursuant to subsection

27-9-114(b)(1). The court explained, “Unlike subsection 27-9-114(a), where the General

Assembly clearly expressed its intent to exclude „civil service boards of counties

organized under a home rule charter form of government‟ from compliance with the

contested case procedures of the UAPA, the same exclusion does not appear in

subsection 27-9-114(b).” Id. As a result, the court held that the Shelby County Civil

Service Merit Board did not have to conduct its hearings in conformity with the contested

case procedures under the UAPA, but the Board‟s decision remained subject to review in

accordance with the judicial review standard of the UAPA. Id. at 264.

5

Less than a year later, this Court considered an appeal involving the City of

Memphis Civil Service Commission, Morris v. City of Memphis Civil Service

Commission, No. W2009-00372-COA-R3-CV, 2009 WL 4547688 (Tenn. Ct. App. Dec.

7, 2009). After discussing the supreme court‟s decision in Davis regarding Tennessee

Code Annotated section 27-9-114, we stated:

The provisions of subdivision (a)(1) [regarding contested case procedures]

do not apply to civil service boards organized under a home rule charter

form of government. Tenn. Code Ann. § 27-9-114(a)(2). The City of

Memphis is a home rule jurisdiction. City of Memphis Ordinance No. 1852.

As such, the [City of Memphis Civil Service] Commission is exempted

from subdivision (a)(1).

Morris, 2009 WL 4547688, at *3. Upon further reflection, we conclude that this

statement was erroneous. What we failed to note was that the relevant statute, Tenn.

Code Ann. § 27-9-114(a)(2), only exempts from the contested case procedures

“municipal utilities boards or civil service boards of counties organized under a home

rule charter form of government.” (Emphasis added.) Davis involved the Shelby County

Civil Service Merit Board; Morris involved the City of Memphis Civil Service

Commission. The statute does not broadly exempt “civil service boards organized under

a home rule charter form of government,” as stated in Morris. 2009 WL 4547688, at *3.

In a subsequent case involving the City of Memphis Civil Service Commission,

this Court cited Morris for the notion that the City of Memphis Civil Service Commission

is exempt from section 27-9-114(a)(1)‟s requirements for contested case hearings

“[b]ecause the City of Memphis is a home rule jurisdiction.” Redmon v. City of

Memphis, No. W2009-01520-COA-R3-CV, 2010 WL 596385, at *2 (Tenn. Ct. App. Feb.

19, 2010). Again, this statement was incorrect. The plain language of Tennessee Code

Annotated section 27-9-114(a)(2) only exempts “municipal utilities boards or civil

service boards of counties organized under a home rule charter form of government.”

(Emphasis added.) “We presume that the Legislature intended each word in a statute to

have a specific purpose and meaning.” Arden v. Kozawa, 466 S.W.3d 758, 764 (Tenn.

2015) (citing Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41, 44 (Tenn.

2013)). When the statutory language is clear and unambiguous, we apply its plain

meaning, understood in its normal and accepted usage. Id. The civil service boards of

the City of Memphis simply do not fall within the plain language of the statute. See, e.g.,

Tidwell v. City of Memphis, 193 S.W.3d 555, 557 (Tenn. 2006) (holding that the “On the

Job Injury Appeals Panel” for the City of Memphis is subject to the contested case

6

procedures set forth in the UAPA).2

The City‟s arguments regarding the irrationality of distinguishing between home

rule cities and home rule counties are unavailing. It is not our prerogative to inquire into

the motives of the general assembly or to review the wisdom, reasonableness, or

desirability of a statute. Waters v. Farr, 291 S.W.3d 873, 917-18 (Tenn. 2009) (Koch, J.,

concurring in part and dissenting in part); see also Hargrove v. State, Dep’t of Safety, No.

M2004-00410-COA-R3-CV, 2005 WL 2240970, at *2 (Tenn. Ct. App. Sept. 15, 2005)

(“It is not for the courts to question the wisdom of legislative enactments.”).

We recognize, as recently noted by our supreme court, that “[a]dhering to prior

decisions is generally „the preferred course because it promotes the evenhanded,

predictable, and consistent development of legal principles, fosters reliance on judicial

decisions, and contributes to the actual and perceived integrity of the judicial process.‟”

Rye v. Women’s Care Ctr. of Memphis, MPLLC, --- S.W.3d. ---, 2015 WL 6457768, at

*20 (Tenn. Oct. 26, 2015) (quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct.

2597, 115 L.Ed.2d 720 (1991)). “Nevertheless, „[o]ur oath is to do justice, not to

perpetuate error.‟” Id. at *21 (quoting Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d

593, 599 (Tenn. 1999)). “We would „abdicate our own function‟ were we to refuse to

correct unworkable or erroneous court-made rules.” Id. (quoting Hanover v. Ruch, 809

S.W.2d 893, 896 (Tenn. 1991)). We therefore overrule the decisions in Morris and

Redmon to the extent they hold that any civil service board under a home rule charter

form of government is exempt from the contested case procedures of the UAPA.3

2

The parties dispute whether Tidwell actually considered the applicability of the home rule language in

subsection (a)(2) to the City of Memphis. The supreme court specifically mentioned that section 27-9-

114 “exempts certain entities from the scope of the statute” and quoted the language at issue in (a)(2)

regarding civil service boards in home rule counties. Tidwell, 193 S.W.3d at 562. The court reasoned

that this exemption “indicates that the legislature intended for all administrative bodies functioning in an

adjudicative capacity not specifically exempted to be included within the statute‟s reach.” Id. However,

the pivotal issue under discussion in Tidwell was whether the City‟s on the job injury panel qualified as a

civil service board within the meaning of the statute. The court concluded that it did and directed the City

to hold its hearings in conformity with the contested case requirements of the UAPA. Id. at 564.

Although the court did not expressly state that the City did not qualify for the exemption in (a)(2)

regarding home rule counties, the court clearly acknowledged the existence of the exemption and then

held that the City‟s civil service board must comply with the contested case procedures.

In any event, with or without the holding in Tidwell, we reach the same conclusion. The language

of the statute is plain and unmistakable – it exempts civil service boards of counties organized under a

home rule charter, not cities.

3

The City also claims that its position is supported by a third case, Burkhart v. City of Clarksville, No.

M2010-00050-COA-R3-CV, 2011 WL 1233562, at *3 n.5 (Tenn. Ct. App. Apr. 1, 2011), which involved

review of a decision of a hearing committee for the City of Clarksville. In that case, the Middle Section

7

On appeal, the City raises an additional argument not presented to the trial court

below. The City now claims that its Pension Board is not subject to the requirements for

contested case hearings, regardless of the home rule issue, because its Pension Board

“does not hear contested cases.” “A contested case is defined by the UAPA as „a

proceeding . . . in which the legal rights, duties or privileges of a party are required by

any statute or constitutional provision to be determined by an agency after an opportunity

for a hearing.‟” Tidwell, 193 S.W.3d at 558 (quoting Tenn. Code Ann. § 4-5-102(3))

(emphasis added). The City argues on appeal that the Pension Board‟s process for

considering applications for pension benefits “is actually just a meeting” of the Pension

Board rather than a hearing. The City suggests that its formal meetings “perhaps led Mr.

Marino to believe that these were hearings,” but in reality they were not.

We decline to consider the merits of the City‟s argument at this juncture. The City

failed to raise this argument in response to Marino‟s motion for partial summary

judgment regarding the applicability of the contested case procedures. In fact, in the

City‟s brief in response to the motion for partial summary judgment, the City argued that

its Pension Board‟s “contested case procedures” are exempt from UAPA requirements

because of the home rule language in the statute. (Emphasis added.) It admitted for

purposes of summary judgment that it “did not hold the hearing on Petitioner‟s request

for line of duty disability benefits in conformity with the contested case procedures of

[the UAPA].” (Emphasis added.) The trial court held that the Pension Board‟s

“contested case procedures must be conducted in conformity with the UAPA.” In the

City‟s filings seeking permission for an interlocutory appeal, it represented to the trial

court and again to this Court that its Pension Board “held a hearing” before it denied

Marino‟s request for line of duty disability benefits. The City explained, “The Board

held a hearing, at the end of which it denied Mr. Marino‟s application for line-of-duty

disability benefits[.]” The City never argued in the trial court or in its application for an

interlocutory appeal that its Pension Board does not hold hearings or hear contested

cases, and therefore, the contested case requirements would not apply. Consequently, we

decline to address the issue on appeal. See Correll v. E.I. DuPont de Nemours & Co.,

207 S.W.3d 751, 757 (Tenn. 2006) (quoting Simpson v. Frontier Cmty. Credit Union, 810

S.W.2d 147, 153 (Tenn. 1991)) (“„[I]ssues not raised in the trial court cannot be raised

for the first time on appeal.‟”); In re Bridgestone/Firestone, 286 S.W.3d 898, 902 (Tenn.

Ct. App. 2008) (“we are limited on appeal to the questions certified by the trial court in

of this Court cited Davis in a footnote and parenthetically noted the case as holding that the judicial

review provision of Tennessee Code Annotated section 27-9-114(b)(1) “governed the review of the

Memphis Civil Service Merit Board even though the board was exempt from the UAPA‟s contested case

hearing procedures.” (Emphasis added.) Obviously, this was a misstatement because Davis involved the

Shelby County Civil Service Merit Board. The comparable civil service board for the City of Memphis is

the City of Memphis Civil Service Commission, not the “Memphis Civil Service Merit Board.”

Accordingly, Burkhart does not support the City‟s position in this case.

8

its order granting permission to seek an interlocutory appeal and in this Court‟s order

granting the appeal”).

IV. CONCLUSION

For the aforementioned reasons, the decision of the chancery court is hereby

affirmed and remanded for further proceedings. Costs of this appeal are taxed to the

appellant, City of Memphis, and its surety, for which execution may issue if necessary.

_________________________________

BRANDON O. GIBSON, JUDGE

9