IN THE COURT OF APPEALS OF TENNESSEE
AT MEMPHIS
February 24, 2010 Session
FRANK GARRETT, ET AL. v. CITY OF MEMPHIS ET AL.
Direct Appeal from the Chancery Court for Shelby County
No. CH-08-1610-1 Walter L. Evans, Chancellor
No. W2009-01506-COA-R3-CV - Filed March 29, 2010
This appeal concerns the discretion of the Memphis Police Department to fill vacant civil
service positions with temporary, “acting” personnel prior to the expiration of an active
promotion roster. The trial court concluded the Memphis City Charter does not mandate
permanent promotion of the next eligible employee from an active promotion roster simply
because a vacancy exists. The court further concluded that no charter provision or city
ordinance prohibits the use of acting appointments; rather, the proof showed that the use of
officers in an acting capacity is a longstanding policy within the police department and every
other division of city government. As a result, the court held that the department did not
violate civil service laws when it declined to permanently promote the plaintiffs. Finding no
error in the decision below, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
and Remanded
D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J. and
J. S TEVEN S TAFFORD, J., joined.
David M. Sullivan, Memphis, Tennessee, for the appellants, Frank Garrett, Raymond
Hopkins and William Walsh.
Louis P. Britt, III and P. Daniel Riederer, Memphis, Tennessee, for the appellee, City of
Memphis.
OPINION
I. Background and Procedural History
The plaintiffs/appellants, Frank Garrett, Raymond Hopkins, and William Walsh
(“officers”), are current and former majors in the Memphis Police Department (“MPD”). In
2005, the officers participated in competitive testing for promotion to the civil service rank
of inspector (now “lieutenant colonel”). The resulting promotion roster, which was effective
from September 2005 to September 2008, ranked the officers nineteenth, twentieth, and
twenty-sixth out of forty participants. Over the next three years, the MPD promoted the first
seventeen majors on the promotion roster to the rank of lieutenant colonel, with the final
permanent promotion occurring in February 2008. At that time, the officers were among the
next persons eligible to receive permanent promotion to lieutenant colonel.1
In March 2008, the director of the MPD, Larry Godwin, decided to assign temporary,
“acting” personnel to four vacant lieutenant colonel positions. 2 The police director initially
selected four majors, including Frank Garrett and William Walsh, to serve as acting
lieutenant colonels. In April 2008, the director selected three additional majors to serve in
an acting capacity. Thereafter, the director decided to rotate majors as acting lieutenant
colonels on a six-month basis in order to provide a greater number of persons with
experience managing a precinct and to boost department morale. Thirteen different majors
served as acting lieutenant colonels from March 2008 until the expiration of the promotion
roster in September 2008.
This appeal arises out of a lawsuit alleging that the director circumvented the officers’
right to promotion to the rank of lieutenant colonel through the appointment of acting
personnel. The officers asserted that the failure to permanently promote them prior to the
expiration of the September 2005 promotion roster violated the City’s civil service laws as
well as the age discrimination, race discrimination, and retaliation provisions of the
Tennessee Human Rights Act. Their complaint and amended complaint sought temporary
and permanent injunctions requiring the City to promote them to lieutenant colonel with full
pay and benefits, compensatory damages, actual damages, back pay, attorney’s fees, and
court costs. The trial court granted the officers’ request for a temporary injunction in part,
enjoining the MPD from using majors who were not qualified for permanent promotion as
1
The candidates ranked twenty-first through twenty-fifth on the promotion roster had previously
retired or received appointment to a higher non-civil service rank.
2
Lorene Essex, director of human resources for the City of Memphis, explained that a civil service
employee appointed to serve in an “acting” capacity is permitted to serve temporarily at a higher rank.
Acting personnel receive a temporary pay increase pursuant to the City’s “Employees in an Acting Capacity”
policy, but serve at the sole discretion of the personnel director and may be removed for any reason. The use
of personnel in an acting capacity, which is common in all divisions of Memphis’ city government, allows
a personnel director greater discretion in filling an operational void. For example, three of the first seven
majors selected to serve in an acting capacity in this case were not eligible for permanent promotion to
lieutenant colonel and were not on the active promotion roster. Director Essex testified that the use of civil
service personnel in an acting capacity is valid even when there is an active promotion roster.
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acting lieutenant colonels unless no more persons from the promotion roster were available
to serve in a temporary capacity.
The parties proceeded to trial in January 2009. Following a bench trial, the court
entered judgment in favor of the City on all issues. The court found that the City did not
discriminate or retaliate against the officers on any of the alleged bases. The court further
found that the Memphis City Charter did not require the police director to permanently
promote the officers. The court explained that the charter only requires that, if promotions
are made to civil service positions, the resulting promotions comply with its provisions. The
charter, however, did not require promotions to vacant positions or prohibit the use of
officers in an acting capacity. Because city policy authorized the use of acting personnel, the
court found no error in the decision not to further promote from the September 2005
promotion roster. The court later rejected the officers’ post-trial motions and this appeal
ensued.
II. Issues Presented
The officers present the following issues, as we perceive them, for review:
(1) Whether civil service laws providing a right to undergo competitive
testing for permanent promotions eliminate the discretion of a city
personnel director to temporarily fill vacant positions with acting
personnel.
(2) Whether the officers had a right to permanent promotion that the City
defeated or obstructed.
(3) Whether the City impermissibly discriminated against the officers in
promotion on the basis of nonmerit factors.
The officers did not appeal the court’s ruling in favor of the City on their age discrimination,
race discrimination, and retaliation claims.
III. Standard of Review
Our review of the trial court’s decision is conducted pursuant to Rule 13(d) of the
Tennessee Rules of Appellate Procedure. Under Rule 13(d), we review de novo the
judgment of a trial court in a bench trial, according a presumption of correctness to the
factual findings of the court below. Tenn. R. App. P. 13(d); Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citation omitted). We will not disturb a trial
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court’s findings of fact unless a preponderance of the evidence is to the contrary. Berryhill
v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000) (citation omitted). Our review is de novo with
no presumption of correctness if the trial court does not produce findings of fact. Archer v.
Archer, 907 S.W.2d 412, 416 (Tenn. Ct. App. 1995) (citations omitted). Questions of law
are similarly reviewed de novo with no presumption of correctness. Bowden v. Ward, 27 S
.W.3d 913, 916 (Tenn. 2000) (citation omitted).
IV. Analysis
At the heart of this appeal lies the question of whether the appointment of temporary,
acting personnel deprived the officers of a right to permanent promotion under the City’s
civil service laws. Construction of a city charter and city ordinances, similar to statutory
construction, is a question of law. See Gleaves v. Checker Cab Transit Corp., 15 S.W.3d
799, 802 (Tenn. 2000) (citations omitted). Our principal goal in statutory construction is to
give effect to the intent of the legislature. Hawks v. City of Westmoreland, 960 S.W.2d 10,
16 (Tenn. 1997). “Legislative intent or purpose is to be ascertained primarily from the
natural and ordinary meaning of the language used, without forced or subtle construction that
would limit or extend the meaning of the language.” Carson Creek Vacation Resorts, Inc.
v. State, Dep't. of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993) (citation omitted). It is not within
the province of the courts to alter or amend a statute. Gleaves, 15 S.W.3d at 803 (Tenn.
2000) (citations omitted). Similarly, the judiciary should not substitute its own policy
judgment for that of the legislature. Id. (citation omitted). It is our duty to interpret and
enforce the enactment as written. Id. (citation omitted).
The officers cite two provisions as requiring their permanent promotions to lieutenant
colonel. Memphis City Charter section 250.1 provides:
All applicants for employment in positions protected by this article shall be
subjected to competitive job-related examinations under such rules and
regulations as may be adopted by the Director of Personnel. The examinations
to be provided for shall be of a practical nature and relate to such matters as
will fairly test the relative competency of the applicant to discharge the duties
of the particular position.
Memphis City Ordinance section 3-8-4 similarly provides:
A. All applicants for employment in positions protected by Sections 3-8-2
through 3-8-6 shall be subjected to competitive job-related examinations under
such rules and regulations as may be adopted by the director of personnel.
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B. The examinations to be provided for shall be of a practical nature and relate
to such matters as will fairly test the relative competency of the applicant to
discharge the duties of the particular position. No question in any examination
shall relate to political or religious opinions or affiliations. The examination
shall be conducted and controlled by the director of personnel.
The officers would have this Court read these provisions as prohibiting the appointment of
acting personnel and requiring the permanent promotion of the next eligible civil service
employee whenever a personnel director intends, even if only temporarily, to fill a vacant
position.
We find nothing in either provision to support the officers’ position. Memphis City
Charter section 250.1 and Memphis City Ordinance section 3-8-4 do little more than provide
civil service personnel with the right to undergo competitive testing to qualify for promotion.
Current practice suggests that civil service personnel also have a right, or at the very least an
expectation, to receive permanent promotion in the rank-order of an active promotion roster.
But nothing in the language of these provisions mandates permanent promotion to a vacant
position. And nothing in the language of these provisions forbids the assignment of
temporary, acting personnel. Absent a civil service law to the contrary, these decisions are
within the discretion of the director. See Tusant v. City of Memphis, 56 S.W.3d 10, 20 (Tenn.
Ct. App. 2001). The City is free to enact civil service laws that require mandatory promotion
on a permanent basis if it so chooses. See Morristown Firefighters Ass’n v. City of
Morristown, No. E2000-01942-COA-R3-CV, 2001 WL 274114, at *5 (Tenn. Ct. App. Mar.
20, 2001) (citing Blair v. State ex rel. Watts, 555 S.W.2d 709, 712 (Tenn. 1979)) (explaining
that municipalities must strictly adhere to the mandates of applicable civil service legislation
when selecting personnel for civil service positions). Adoption of the officers’ position,
however, would effectively rewrite the City’s civil service laws to prohibit the appointment
of acting personnel and to mandate permanent promotion as the only means by which to fill
an operational void, which is not the duty of this Court.
The officers next submit that the City defeated or obstructed their right to permanent
promotion by appointing officers to serve in an acting capacity. Memphis City Ordinance
section 3-8-5 provides, in pertinent part:
No person shall wilfully or corruptly, by himself or herself or in cooperation
with any other person:
A. Defeat, deceive or obstruct any person in respect to his or her rights in
relation to any examination or appointment in the classified service[.]
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We are unable, however, to conclude that the City’s civil service laws provided the officers
with a right to permanent promotion. Under the facts, the director afforded the officers the
only right to which they were entitled: the right to undergo competitive, job-related testing.
Thus, we find no violation of section 3-8-5.
Finally, the officers argue that the director discriminated against them on the basis of
nonmerit factors. Memphis City Charter section 249 provides, in pertinent part:
There shall be no discrimination in the City employment of personnel because
of religion, race, sex, creed, political affiliation, or other nonmerit factors, nor
shall there be any discrimination in the promotion or demotion of City
employees because of religion, race, sex, creed, political affiliation, or other
nonmerit factors.
Memphis City Ordinance section 3-8-6 similarly provides:
There shall be no discrimination in the city employment of personnel because
of religion, race, sex, creed, political affiliation or other nonmerit factors, nor
shall there be any discrimination in the promotion or demotion of city
employees because of religion, race, sex, creed, political affiliation or other
nonmerit factors.
These provisions, however, apply to decisions to employ, promote, or demote. Neither
provision pertains to the discretionary decision to fill a position permanently or temporarily.
Naturally, the consideration of whether to make a permanent or temporary appointment must
account for various nonmerit factors, including the best interests of the department and the
citizens of Memphis. The officers’ argument on this issue is without merit.
In conclusion, the officers have failed to demonstrate that the director of the MPD
violated the City’s charter or ordinances when he declined to make additional permanent
promotions from the September 2005 promotion roster. The director clearly complied with
provisions in the City’s charter and ordinances concerning the competitive testing of civil
service employees. Further, the director made all permanent promotions pursuant to the
rank-order in the active promotion roster. Nothing, however, required the director to make
a permanent promotion to every position vacated before the promotion roster expired. City
policy instead permitted the director, in his discretion, to make temporary, acting
appointments to meet the needs of the department. At no point were the officers entitled to
receive permanent promotions. Even if City policy did not permit the use of acting
personnel, nothing in the City’s civil service laws required the director to promote the
officers. The trial court’s decision is affirmed.
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V. Conclusion
For the foregoing reasons, we affirm decision of the trial court. Costs of this appeal
are taxed to the appellants, Frank Garrett, Raymond Hopkins, and William Walsh, and their
surety for which execution may issue if necessary.
_________________________________
DAVID R. FARMER, JUDGE
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