Shelby County Civil Service Merit Bd. v. Lively

• Decision Date: 10 June 1985
• Citation: 692 S.W.2d 15
• Parties: SHELBY COUNTY CIVIL SERVICE MERIT BOARD, et al., Plaintiffs-Appellees, v. Robert F. LIVELY, Defendant-Appellant, and Gene Barksdale, Sheriff of Shelby County, Tennessee, Intervenor-Appellee. 692 S.W.2d 15
• Court: Tennessee Supreme Court

Page 15

692 S.W.2d 15

SHELBY COUNTY CIVIL SERVICE MERIT BOARD, et al Plaintiffs-Appellees, v. Robert F. LIVELY, Defendant-Appellant and Gene Barksdale, Sheriff of Shelby County, Tennessee Intervenor-Appellee.

692 S.W.2d 15

Supreme Court of Tennessee, at Jackson.

June 10, 1985.

Alan Bryant Chambers, Memphis, for defendant-appellant.

Dan M. Norwood, Memphis, for plaintiffs-appellees.

H. Wallace Maroney, Jr., Memphis, for intervenor-appellee.

OPINION

HARBISON, Justice.

This case involves the constitutionality of a portion of 1971 Tenn.Priv.Acts ch. 110, creating a civil service system for county employees, including the employees of certain county officials, in Shelby County, Tennessee. The Act is comprehensive in scope. Only one portion thereof is challenged in this case. Insofar as pertinent here, the statute purports to eliminate the authority of certain county officials to terminate their deputies at will and to place such deputies under the civil service system, removable only for cause.

In enacting the private act, the General Assembly recognized that a general public statute, T.C.A. Sec. 8-20-109, makes the deputies and assistants of certain officers, including the county sheriff, removable at will. That general statute was a part of 1921 Tenn.Pub.Acts ch. 101, Sec. 18. It applies to clerks and masters, county clerks, clerks of probate, criminal, circuit and special courts, county trustees and registers of deeds as well as county sheriffs.

In the 1971 private act involved here, the General Assembly expressly exempted Shelby County from the provisions of T.C.A. Sec. 8-20-109, supra. The question involved is whether it could lawfully do so or whether the private act is invalid as contravening the provisions of Tenn. Const. art. 11, Sec. 8, which proscribes improper special legislation. The Chancellor held the private act unconstitutional insofar as it contravened the general statute. He found it to be invidious class legislation and that it stated no reason why the general statutes should be applicable.

The litigation does not specifically challenge the status of all persons employed by the county sheriff, but only those commissioned as deputies. The record shows that the sheriff's office has over 550 employees, but of these only 350 are actually deputized. The others are various kinds of secretaries, clerks and administrative officials. Seemingly no question is raised as to the placing of these persons under the civil service system created in the private act.

Further, for thirteen years after the enactment of the private act in 1971, deputies were considered to be under the civil service system. Indeed it is apparently conceded that they are under that system for purposes of employment, promotion and discipline and all other purposes except for termination. The narrow question directly presented in the present case is whether or not a deputy may be discharged by the sheriff at will. Prior to the instant litigation a number of deputies had been disciplined or discharged by the Sheriff's Department, and their cases had regularly been reviewed by the Civil Service Merit Board and thence by the courts, as though they were civil service employees. In some of the cases deputies who had been discharged by the Sheriff were ordered reinstated by the Civil Service Board, and the courts enforced those orders. The present case is the first in which the authority of the Civil Service Merit Board to review a discharge by the Sheriff has been timely and directly raised. Public officials such as the Sheriff are not ordinarily subject to estoppel, as suggested by appellant. In all events, the Civil Service Merit Board, which instituted the present action for a declaratory judgment, is not estopped to have its authority and duties properly adjudicated.

Many years ago this Court said:

"Civil service laws tend to promote the efficiency of governmental employees and, we think, should be regarded with favor. The Legislature has by special acts provided civil service laws for policemen and firemen in a number of municipalities of the State. The constitutionality of such laws seems not to have been questioned, so far as our reported decisions disclose." City of Knoxville v. State ex rel. Hayward, 175 Tenn. 159, 167, 133 S.W.2d 465, 468 (1939).

There the Court sustained a private act creating a civil service and tenure system for teachers in the Knoxville city schools, finding no conflict therein with the general education statutes. See also City of Nashville v. Martin, 156 Tenn. 443, 3 S.W.2d 164 (1928), upholding a civil service system for policemen, firemen and other employees of the City of Nashville. In that case, citing previous decisions, the Court said that it had been established:

"... that the Legislature might freely prescribe the terms and conditions upon which employees of the state or of the municipalities of the State should work, unhampered by Section 8 of Article 1, of the Tennessee Constitution and the Fourteenth Amendment to the Federal Constitution.... Under the authorities ..., it is competent for the Legislature to provide for the character of State employees, the things they shall do, their hours of labor, and it of course follows that the Legislature can stipulate the terms or periods of employment." 156 Tenn. at 449, 3 S.W.2d at 166.

We do not understand that appellees seriously question these principles or the authority of the General Assembly to place deputies of specific county officials under civil service systems. The office of sheriff, of course, as well as those of several other county officials, is a constitutional one. See Tenn. Const. art. 7, Sec. 1. The constitution, however, does not fix or prescribe the duties of the office or deal with employment of personnel. This has long been done by statute. The provisions of T.C.A. Secs. 8-20-101 to -112 provide for the employment of deputies and assistants to the sheriff and to certain other county officers usually referred to as "fee officers." ¹ Applications for such employment are made to the judge of one of the courts, such as a circuit, chancery or criminal court. This procedure was followed by the Sheriff of Shelby County. Although a different system might be devised by the General Assembly, the existing system has been held valid. See Sapp v. State ex rel. Nipper, 524 S.W.2d 652 (Tenn.1975). It is a part of that general system which contains the provisions of T.C.A. Sec. 8-20-109, making all deputies and assistants in any of the offices covered by the statute removable at will by the officer for whom they are acting. ² Nevertheless, in this case the Sheriff does not contend that all of his employees are terminable at will or exempt from the civil service discharge provisions, but only those specifically commissioned by him as deputies.

This is not an exact interpretation of either the general act or the private act, because the general statute makes "any and all" deputies and assistants terminable at will. If the private act cannot apply to deputies, then we do not see how it could logically be applied to clerks, secretaries, dispatchers or other noncommissioned personnel in the sheriff's office or to employees of any of the other officers covered by T.C.A. Sec. 8-20-101.

The principal reason that the sheriff urges for making deputies dischargeable at will, rather than subject to civil service review, is that a deputy has sometimes been said to be the "alter ego" of the sheriff and to act in his place and stead. At one time the sheriff was civilly liable for the actions of his deputies. For this reason it was felt that the sheriff must have the authority to discharge a deputy at will. See discussion in Metropolitan Government of Nashville & Davidson County v. Poe, 215 Tenn. 53, 71-75, 383 S.W.2d 265, 273-275 (1964). In that case it was held that the duties of a county sheriff as chief law enforcement officer could validly be transferred to a metropolitan police department, and the sheriff deprived of most of his traditional duties. The sheriff was held to be subject to the budgetary and purchasing provisions of the metropolitan charter. He was also held subject to the civil service provisions of the Metropolitan Government as to persons employed in a consolidated city-county workhouse, except for the superintendent. The latter was deemed to be a "personal appointee" of the sheriff under the "alter ego" theory.

The "alter ego" aspect of the office of sheriff has been substantially modified, if not eliminated, by the General Assembly. By 1972 Tenn.Pub.Acts ch. 800, now codified at T.C.A. Sec. 8-8-301 to -303, the sheriff and his official bondsmen have been relieved of civil liability for actions of deputies, and much of this liability has been transferred to the county in which the sheriff serves.

In addition, by 1974 Tenn.Pub.Acts ch. 751, now codified as T.C.A. Secs. 8-8-401 to -419, county legislative bodies have been authorized to adopt the "County Sheriff's Civil Service Law of 1974."

Under this law all positions and employees in a sheriff's department except for the sheriff himself, his personal secretary and the cook for the jail, are made subject to civil service in those counties adopting the statute. In addition those counties may also make the chief deputy sheriff subject to civil service, or not, as they see fit. To date thirteen counties have adopted this statute. ³

Both the 1972 and the 1974 legislation above cited were enacted subsequent to the private act under consideration here. Both, however, evince a legislative purpose to modify substantially the previous conception of a deputy sheriff as the "alter ego" of the elected sheriff. The 1974 statutes clearly modified the provisions of T.C.A. Sec. 8-20-109, making the tenure of deputies and other assistants to the sheriff purely at will. Indeed T.C.A. Sec. 8-20-112, enacted as 1984 Tenn.Pub.Acts ch. 912, expressly provides:

"In any county having a...