State of Tennessee Ex Rel Landle Byrge v. Nicholas Jay Yeager ( 2015 )

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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