Massey v. Shelby County Retirement Bd.

• Decision Date: 21 February 1991
• Docket Number: No. 38,38
• Parties: Dollie MASSEY, Petitioner/Appellant, v. SHELBY COUNTY RETIREMENT BOARD, Respondent/Appellee. 813 S.W.2d 462
• Court: Tennessee Court of Appeals

Page 462

813 S.W.2d 462

Dollie MASSEY, Petitioner/Appellant, v. SHELBY COUNTY RETIREMENT BOARD, Respondent/Appellee.

No. 38.

813 S.W.2d 462

Court of Appeals of Tennessee Western Section, at Jackson.

Feb. 21, 1991.

Application for Permission to Appeal

Denied by Supreme Court

June 10, 1991.

Asa H. Hoke of Asa H. Hoke & Associates, Memphis, for petitioner/appellant.

Leila C. Taaffe, Shelby County Atty.'s Office, Memphis, for respondent/appellee.

TOMLIN, Presiding Judge, Western Section.

Dollie M. Massey ("Massey") has appealed from a decree of the Chancery Court of Shelby County. That court affirmed the decision of the Shelby County Retirement Board ("Board") that denied disability retirement benefits to Massey. The chancellor reviewed the action of the Board pursuant to the common law writ of certiorari.

Massey raises four issues on appeal: Did the chancellor err: (1) in treating the writ as issued as a common-law writ rather than the statutory writ of certiorari; (2) in refusing to allow plaintiff to present evidence showing that the Board acted arbitrarily and capriciously; (3) in failing to find that the Board acted arbitrarily and capriciously; and (4) in not holding that "Plan A" of the Shelby County Retirement System violated the provisions of Chapter 72 of the Private Acts of 1945? In oral argument counsel for Massey conceded that the appropriate writ in the case under consideration was the common-law writ of certiorari. We therefore limit our consideration to the remaining three issues, which we resolve in favor of the Board.

Massey was employed as a deputy sheriff with the Shelby County Sheriff's Department in 1979, working with female inmates at the Shelby County Jail. In 1981, Massey was injured while on duty. During the course of a fight with two inmates, the backs of both her legs were cut by the sharp edge of a steel table. In the healing process she developed and apparently remains subject to a condition called "Keloid scarring." According to the proof, whether or not a person is susceptible to this condition is not determinable until he or she receives a laceration.

As a result of her condition, Massey was assigned to various low-risk positions in the sheriff's department during 1984-1986 at the same pay rate she received as a deputy sheriff working with the inmates. The Keloid scarring caused Massey to become apprehensive about working in a position in the sheriff's department that would likely bring her in contact with inmates.

In December, 1986, she was offered a position as court bailiff, but inasmuch as it involved possible contact with inmates and raised the possibility of injury, she declined the position. She also declined to accept a position that would require her to serve warrants and subpoenas out of fear of injury that would result in additional scarring. Finally, she was offered a non-uniform, non-enforcement clerical position at approximately thirty-five percent of the pay she received as a hazardous-duty deputy sheriff. She sought to accept this position conditionally, reserving the right to appeal to the Civil Service Commission for its determination of the propriety of the county offering a position at a substantial decrease in pay. When informed that her acceptance of the position would constitute a waiver of her right to appeal, she declined to accept it.

Massey was terminated by the sheriff's department for job abandonment. She later applied for ordinary disability benefits. Several months later, on the day of and immediately prior to a meeting of the Board, the Disability subcommittee of the Board met without Massey or her counsel present for the purpose of making a recommendation to the full Board concerning Massey's application for disability benefits under "Plan A" of the Shelby County Pension System.

Later the same day a hearing was held before the entire Board, with Massey and her counsel present. The subcommittee reported to the full Board that Massey was not qualified to receive ordinary disability benefits. The Board heard testimony from Massey and statements of her counsel and counsel for the Board. The Board also considered letters from four doctors concerning her condition. At the conclusion of the hearing, Massey's request for disability benefits was denied. This action followed.

I. THE SCOPE OF REVIEW

The scope of review exercised by this Court necessarily depends upon whether the writ of certiorari was by common law or by statute. Under the common-law writ of certiorari, the scope of review of the chancellor, as well as this Court, is the same. Reversal or modification of the Board's action may be had only when the trial court determines that the Board acted in violation of constitutional and statutory provisions, exceeded its own statutory authority, followed an unlawful procedure, acted arbitrarily or capriciously, or reached a decision without any material evidence to support it. See Hoover Motor Express Co. v. Railroad & Public Utilities Commission, 195 Tenn. 593, 261 S.W.2d 233 (1953). The trial court does not weigh the evidence. With respect to the evidence represented before the Board, review by this Court is no broader or more comprehensive than that of the trial court. See Watts v. Civil Service Board for Columbia, 606 S.W.2d 274 (Tenn.1980). At the time Massey's petition was filed, there is no question that the common-law writ of certiorari was appropriate for the review of the Board's decision as to an employee's eligibility for retirement benefits. See Love v. Retirement System of the City of Memphis, 12 TAM 43-11, 1987 WL 17246 (Tenn.App., W.S. September 21, 1987).

Initially, Massey argued that writ of certiorari was statutory in nature inasmuch as T.C.A. Secs. 27-9-101, et seq. provides for review of "any board or commission functioning under the laws of this state." At oral argument, however, she conceded that such writ was by common law. Her counsel argued that notwithstanding this concession, the chancellor should have heard additional evidence as required by the Tennessee Administrative Procedures Act (APA), T.C.A. Secs. 4-5-101, et seq. The APA has no application to this case. T.C.A. Sec. 4-5-106(a) provides: "The provisions of this chapter shall not apply to ... county and municipal boards, commissions, committees, departments or officers." Massey's argument that the APA applies to this proceeding is without merit.

In addition, we are compelled to note that during oral argument, counsel for Massey contended that the action of the subcommittee in considering the matter prior to consideration by the full Board violated her due-process rights. An issue raised for the first time on appeal may not be considered by this Court. Rule 13(b), T.R.A.P. See also Aleshire v. Aleshire, 642 S.W.2d 729 (Tenn.App.1981), aff'd (Tenn.1982).

II. THE FAILURE TO ENTERTAIN OTHER EVIDENCE

The chancellor reached his decision based upon the transcript of the record developed before the Board. Plaintiff sought to present to the chancellor "additional evidence" consisting of personnel and medical records of other employees of the Shelby County Sheriff's Department, as well as minutes of certain meetings of the Board. Plaintiff contended that the "additional evidence" would show that under the same or similar circumstances the defendant Board treated some employees differently than it treated plaintiff, and that this evidence would show that the Board acted "fraudulently, illegally, or arbitrarily."

While counsel for plaintiff stated to the court the nature and type of evidence he sought to present, the record does not reflect that those documents were in fact shown to the chancellor, nor were they marked for identification. However, inasmuch as no objection was raised by counsel for the Board, we will consider that the documents were properly presented to the trial court.

In declining to entertain such evidence, the chancellor noted that "arbitrary, illegal, and/or capricious" refers to the Board's handling of the specific case before it, not how the Board handled this case as compared to some other case. He noted that under the common-law writ the court is to review the legality of the lower proceeding, and that the matter of arbitrariness or capriciousness must be shown in the record. We concur with the chancellor's ruling. What plaintiff, in essence, was trying to establish by the "additional evidence" goes to the sufficiency of the evidence. That is, plaintiff was attempting to establish that in other cases with the same or similar evidence...