### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Novem ber 7, 2002

Session BOBBY BOBBITT, ET AL 

### . v. DOROTHY B. SHELL, COMMISSI ONER, ET AL 

### . A Direct Appeal from the Chancery Court for Davidson County No. 98-1682-I The Honorable Irvin H. Kilcrease, Jr., Chancellor

No. M2002-00512-COA-R3-CV - Filed F ebruary 4, 2003

Appellan ts, state employees, w ere subjects of a Reduction In Force ( “RIF”) and appeal the order of the chancery

court dismissing their petition for review of the Commissioner of Personnel’s decision t hat their res pective pos itions wer e correctly resolved in the RIF.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which D AVID R. F ARMER , J. and P ATRIC IA J. C OTT RELL , J., joined. Larry D. Woods, Nashvi lle, For Appellants, Bobby Bobbitt, James Donehew, Everett Jones, Douglas Lawson, James McCallie, and Dwight Shelton
Paul G. Summers, Attorney Gene ral and Reporter, William J. Marett, Jr., SeniorCounsel, Nashville, For Appellees, Dorothy

B. Shell, Commissioner of the Tennessee Department of Personnel and Department of Personnel
OPINION
Petitioner s/Appella

nts appeal the Order of theChancery Court affirming the decision of the Department

of Personnel Commissioner r elatin g to a reduction in force t hat aff ected their employ ment. Bobby B obbitt (“Mr. Bobbitt”), James Donehew (“Mr. Do nehew”), Everett Jones (Mr. Jones”), Douglas Lawson ( “ Mr. Lawson”), James McC allie (“Mr. McCallie”), Dwight Shelton (“Mr. Shelton”), and Martin Re dmond (“Mr. Redman” and, together with Messrs. B obbitt, Donehew, Jones, Lawson, McCallie, and Shelton “Appellants,” or “Petitioners”) were re gular state employees working as Forestry

Aides or Forestry

Technicians. In 19 97, shortf alls in state re venues f orced st ate government

to undergo a RIF . This RIF resulted in the abolishmen t of 134 positions in the Department

of Agriculture (“Ag

riculture”). The Appellants’ positions in the Forestry Division of the departme nt were part of t his RIF.1 The D epartment of Agricult ure sub-divides t

he state i nto six f

orestry distri cts. A dist rict f orester administ ers each of th e multi -county dis tri cts. The “competit ive ar eas ” for D ivision o f Fore stry are the variou s forestry d istricts
acros s t he st ate. At i ssu e in thi s cas e are Forest ry Di strict s 1 and 2.
2 112 0-11 -.08 E XC EP TI ON S AN D N ON -GR IEV AB LE M AT TE RS

...

(8) Actions resul tin g from reduc tions in f orce when a n approv ed redu cti on in f orce plan w as follow ed... (14) matters rel ating to i nt ernal ag ency or progr am management whi ch are based on discretionary decis ion making.
3 Id.
4 T.C.A . § 4-5-22 3 pro vides, in pertinent part, as follows:

Declaratory orde rs. –( a) Any affected person may petit ion an agency for a declaratory order as to the validity o r app licability of a statute , rule or o rder within the prim ary jurisd iction o f the age ncy. T he age ncy sha ll:
(1) Convene a contested case hearing purs uant to t he prov isi ons of

this chapter and issue a declara tory or der which shall be subje ct to revi ew in the Chance ry Cou rt of Davids on Co unty, unless o therwise spec ifically provided by s tatu te, i n the mann er provi ded for

the revi ew of

deci sion s i n cont est ed cas es; or (2) Refus e to issue a dec larato ry ord er in wh ich eve nt the pe rson p eti ti on ing the agency for a d eclara tory or der m ay app ly fo r a declar atory judgment as provided in § 4- 5-224.

* * *
(c) If an agency h as not s et a pet it ion f or a de claratory ord er for a contested case hearing wit

hin si xty (60) da ys a ft er re ceipt of t he pet it ion , th e agen cy s hall be deemed to have denied the petiti on and to have refused to is sue a declaratory order. -2- Appellan ts challen ged Ag

ricult u re’s decision to abolish their positions and the implementation of “competitive areas” used to administer the “bumping and retreating” procedure s affecting their abolishedpositions. 1 Specific ally , Appella nts assert that district foresters were give n sole, unsupervised discretion to determine what p ositions would be eliminated, and to tar get the most highly paid posit ions to be a

bolished. Appellan

ts initially filed grieva

nce actions against Agriculture and proceeded to a L

evel IV hear

ing within the department. Agriculture’s hea ring of ficer d etermined that th e grieva nces resulted from the proper implementation of an approved RIF plan and matters relating to discretionary a

gency and prog ram managemen

t. As such , these ma

tters we re not g rievabl e under the Tennessee Department of Personne l’s Rule 1120-11-.08(8) and (14). 2 Appellan ts Donehew and McCallie requested a L evel V hearing before the Civil Service Commission. Their requests were denied a s non-grievable. 3 On March 5, 1998, A ppellant s petitioned Eleanor Yoakum, the Personnel Commissioner at the time, for a Declaratory Order pursuant to T.C.A. § 4-5-223. 4 Due to a clerical error, the Peti tion for Declaratory Order was not heard within the

sixty ( 60) day

time limit. Consequently, the Appellants filed a Petition for Review-3-

in the Chancery

Court of Davidson County on June 1, 1998. Appellants also filed a motion for a contestedcase he aring a nd, by Order dated November 23, 1998, the chancery court remanded the matter to the Department of

Personne l (“Pers onnel”) to conduct a hearing, pursuant to T.C.A.§ 4-5- 223; however, the court retained jurisdiction over the matter, a nticipating anappeal from thefinal order.
The administrative proceeding was heard on August 24-25 and October 11-12, 1999 before an administrative judge and, on June 19, 2000 and an Initial Orde r was entered. The Initial Or der found in favor of Petitioners and ordered that Petitioners be reinstated with bac kpay. On June 30, 2000, Agriculture petitioned for age ncy revie w of the Initial Order pursua nt to T.C.A. §§ 4-5-314 and 4-5-315. On May 21, 2001, the current Personnel Com missi oner, Dorothy B . Shell, issued a Final Order, which va

cated the In

itial Orde r, and upheld the a

ctions o f Agric ulture. On June 21, 2001, Appellants filed a

Petition for Review, which was subsequently c onsolidated with the original action on August 29, 2001.
The matter

was heard by

the chancery

court on January 18, 2002. On F ebruary 12, 2002, the trial court entered an Order of Dismissal, finding tha t “Respondents properly a d mi nistered the reduction in force pursuant to state law and reg ulations, and that petitioners were afforded due process.” Appellants appeal and raise two issues for our revie w as stated in their brief:
I. Whether th

e termina tio n and lay offs of p etitioner s violated their due process rights since the decision making agency pre jud ged the facts and the law or alternatively whether the decision making age ncy presented the appearance

to a reasonable person of having prejudged the facts and the law.
II. Whether the termination and lay offs violated petitioners’ statutory rights, exceeded respondents’ statut oryau th or it y, w er e a rb it ra ry, capricious and abusive, and whether the record la cks substantial and material evidence to support the decision below.
Bef ore a ddressing the issues before us, we first note that the Chanc ellor’s review of Personnel’s Final Order in this matter is governed by T.C.A. § 4-5-322(h) (Supp. 2002), which sets forth the standar d of revi ew on app eal of a dministra tive proc eeding s as follow s: (h) T he c ourt may aff

irm the decision of the agency or remand the case for fur ther pro ceeding s. The court m ay revers e or modify the decision if the rig

hts of the petitioner

have be en preju diced be cause the administr

ative findings, inferences, conclusions or decisions are: (1) I n violation

of constitutional or

statutory provision s;-4- (2 ) In ex ce ss of

th e s ta tu to ry a ut ho ri ty o f t he ag en cy; (3) Made upon unlawful procedure; (4) Arbitrary or

capricious or characterized by abuse of discr

etion or clearly unw arranted exercise of discretion; or (5) Unsupported by

evidenc e which isbothsubstantial and material in light of the entire record.
In determining the substantiality of evidence, thecourt sha

ll take int o account whatever in the record fairly detracts from

its weight, but the court shallnot substitute its judgmentfor that of the agency as to the weight of the evidence o n question s of fac t.
This Court’s scope of review is the same as in the trial court: to review the findings of fact of the admin

ist rative a gency

upon the standard of substantial and material evidence. DePriest v. Puett , 669 S.W.2d 669 (Tenn. Ct. App. 1984). Although T.C.A. § 4-5-322 does not clearly de fine “substantial and material” e vid ence, courts generally interpret the requirement as requiring “something less than a preponderance of the evidence, but more than a scintilla or glimmer.” Wayne County v. Tennes s ee Solid Waste Disposal Control Bd. , 756 S.W.2d 274, 280 (Tenn. Ct. App. 1988)(citations omitted).
While this Court may consider evidenc e in the record that detracts from its weight, the Court is not allowed to substitute its judgment for that of the agency concerning the weight of

the evidence. See T.C.A. § 4- 5-322(h) ; P ace v. Garbage Disposal Dist. , 390 S.W.2d 461, 463 (Tenn. Ct. App. 1965). The evidence before the tribunal must be such relevant evidence as a re asonable mind might accept as adequ ate to sup

port a ra tional co nclusion a

nd such a s to furnis h a reas onably sound bas is for the action under consideration. See Pace , 390 S.W.2d at 463.

Whether the ter minatio n and layoffs of pet itioners violated their due p rocess r

ights since

the decis ion making

agency pr

ejudged the facts and the law or alternatively whether the decision making agency presented the appearance to a reasonable person of having

prej udged

the facts a

nd the law. Appellan ts assert that Pers onnel had

a direc t pecunia

ry interest in the outc ome of this procee ding (i. e. that it w as in the in terest of the Depa rtment to t

erminate the high est paid employees in orde

r to save money) . Furthermore, Appellants argue that the action and order by Personnel violates their due process rights in that Personnel was allowe d to judge its own conduct and make a decision in its own favor. We cannot ag ree. As to the pecuniary

interest of Personnel, we find the Appellants’ argument tenuous at be st. Under the facts of this case, the person making the decision (i.e. the Commissioner of Personnel) has no pec uniary intere st in the outcome of the case. Although the coffe rs of the State may be

affected by

the RIF, we see no evidence in the record to support a finding that e ither the Department of Personnel or the Commissioner had a substantial pecuniary interest in the outcome of the proceedings.-5-

Furthermore, the Commissioner of Personnel does not have final revie w in these matters. T.C.A. § 4-5-322(h), cited supra , empowers the chancery court to correct any

abuse of discretion or injustice that arises from the decision of the agency. The re medies provided by the Te nnessee Uniform Administrative Procedures Act are sufficient to satisfy due process. See Watts v. Burkhart , 854 F.2d 839, 841 (6 th Cir. 1988) . This issue is, there fore, w ithout mer

it. Whether the termination and layoffs violated petitioners’ statutory rights, exceeded respondents’ statutory authority, were arbi trary, c

apricious a

nd abusive, and

whether t

he reco rd lacks subst antia l and mater

ial ev idence to s uppor

t the deci sion be

low.

Appellants contend that the state of Tennessee violated T.C.A. § 8-30-320 a nd T.C.A. § 8-30-101(a)(7) to the extent that Agriculture used a ny definition of competitive are a different from the d

efinition found in T .C.A. § 8- 30-101(a )(7), wh ich rea ds as follo ws: “Competitive area” means a ge ographic organization a l area, de signated

by t he appoin

ting aut hority , within wh

ich redu ction in force competiti on takes p lace. Whe never f easible , th e ap pointing authority should make the competitive area be the county in which the employee works and each c ounty

that touches the c ounty

in which the employee wor

ks T.C.A. § 8- 30-320 wa s the State ’s appro ved RI F plan fo r the 1997 RIF. The statu te read s, in pertine nt part, a s follows: Layoffs–Not

ice–Abolishment

of positions–Placement.– (a)(1)(A) In accordance

with the rules, an appointing authority may lay off an employee in the c areer

service wheneve r the app ointing a

uthority deems it necessary

by reason of

shortage of work or f

unds, or the aboliti on of a position or other material change in duties or organization. (B) Any car

eer e mp loyee whose position is abolished bec ause of a reduction-in-force

shall be provided written not i ce containing the reason for the layof

f at least ninety (90)days in advanc e of th e effective date of the position abolishment... (2) In determining the o

r der of la yof fs, depa rtmental and total state service shall be th

e predom inant fa ctors. De partmen tal servi ce shall be counted on a ye ar-for-year basis and other state serv i ce shall be ad de d o n a yea r for on e ( 1) yea r b as is to de te rm in e t ot al se ni or it y.
In a ddition, Ag

ricultur e had an approve d RIF

plan on file with Per sonnel. T his RI F plan re ads, in pertine nt part, a s follows:5 W ith the exc eptio n of the p arenth etical, this d efinition is tak en ver batim

from T.C.A. § 8-30-101 (a)(7). -6-

DEFI NITI ONS FOR RE

DUCTI ON I

N FORCE “Bumping” means the action by w hich an employee

of hig her retention level (more state seniority)displaces (takes the job of) an employee of lower retention level (less state seniority) in the same job classification. Example–aCorrectional Officer with 20months stat e serv i ce would bump

a Correctional Of

ficer w ith 18 month s of state service. “Competitive

area” means a geographic or g anizational area, designated

by the appoi nt ing authority , within wh ich redu ction in force compe titi on takes place. Whenever feasible, the appointing authority should make the competiti ve area be the co unty in which the employee works and each county

that touches the county in which the employee w orks. (The Department of Personnel maintains the competitive area des i gnation s for ea ch depa rtment. T

hese designations can be county , region, grand division, etc.). 5
* * *
LAYOFF TO D O LI

ST 1. Identify

the position(s) to be abolished.
2. List all employees by

months of total state service by c lassification in the competitive area. Add 60 mon ths to those who were

eligible for veterans preferenc e when hired. 3. Notify the person( s) whose position(s) is being abolished.
4. Noti fy th e least se

nior (low est total state service) employee that he/she may be a

ffected by a layoff

. If there is a vac ant

position it i s always lea st senior.
5. Look at bumping and retre ating rights for all affec ted emplo ye es. For those employees with no

rights, review v acant po sitions to see if there a re other placeme nt opportu

nities.
6. Career service

employees must be given 90 days written notice in advanceof the pos ition aboli shment. A dvise them to fill out an6 As of Decemb er 1996, Forestry District 1 had 14 p ositions classified as Fo restry A id I, 9 positi ons clas sif ied
as Fore stry Aid II, and 8 posit ions cl assi fied a s Forest ry Technic ian. Forestr y Dist rict 2 had 16 positi ons clas sif ied as Forestry Aid I, 20 positi ons classif ied as Forestry Aid II, and 10 po siti ons classif ied as Forestry Technician. -7- application to be eva

luated by the Depa rtment of Pers onnel so they may be assisted with other e mployment... We find no discrepancy

between the definition of competitive area used in T.C.A. § 8-30- 101(a)(7) and the definition contained in the RI F plan on file with Personnel. Although the legislature favors designation of c ompetitive areas composed of “the county in which the employ ee work s and eac

h county that touches the c ounty

in which th

e employ ee work s,” we note that such composition is required only when f easible. Turning to the record in this case, we find that, as of December 1996, few counties, within the two For estry Districts at issue in this case, had more than one position in each classification. 6 Consequently, composition of competitive areas by county would not be fea sible in this instance. Under the facts of this case, the designation of Forestry

Districts as competitive areas complies with T.C.A. § 8-30-101(a)(7). Appellants next argue that each of them was more se nior by definition under T.C.A. § 8- 30-320(a)(2) than at least one other employ ee of the Department in the same job classification. T.C.A. § 8-30-320 addresses the rights of employ ees who are subject to layoffs or other RIFs. The authority to deter

mine how these statutes are carried out is vested with Personnel. See Tennessee Dept. Of Mental Health & Mental Retardation v. Allison , 833 S.W.2d 8 2 (Tenn. Ct. App. 1992). T.C.A. § 8-30-202 encapsulates the functions of the commissioner of pe rsonnel and reads, in pertine

nt part, a s follows: ( a) The commissioner, as executive head of the depar tment o f personne l, shall direct and supervise all its administrative and technical activities with respect to state service. I n addition to the other duties impo sed upon th e comm issioner by law, the commissioner has the duty to... (6) With respect to the executive service: (A) Prescr ib e rules and regulations for the administration and execution of this chapter... The determination of the positions to be abolished is clearly a matter within the experience and expertise of the administrative agency. So long as ther e is a sound basis in the record to support the agency ’s decision, this court must defer to that decision. See Pace v. Garbage D

isposal Dis t. , 390 S.W.2d 4 61, 463 (Tenn. Ct. Ap p. 1965). The rec ord in this c ase do es no t s up po rt a f

in di ng th at th e a ge nc y ex ce ed ed it s s ta tu to ry a ut ho ri ty. During the course of the 1997 RI F, we find that the Appellants were affor ded all due process considerations under T.C.A. and the rules promulg ated by Ag riculture and approved by7 Mr. Bobbit t was rehi red as a Fores try Aid I but w as s ubsequ entl y se parat ed for job abandonment on March 17, 1 998

. -8- Personne l in complia

nce with T .C.A. Appe

llants re ceived t

imely notice of the fac t that thei

r positions had been identified for abolishment. They were notified of their bumping and retreating rights within their competitive are as. Agriculture made effor ts to reassign the Appellan ts to compa

rable jo bs. Mr. L awson exe

rcised h is right t o bump to a v acant po sition in Sullivan Cou

nty where he continu es his emp loyment with Agricul ture. Me ssrs. Bo

bbitt, Jones, Donehew , and McCa

llie decl ined thei r bumping

options. H aving r

efused t heir bump ing rig

hts, these Appellants were notified of the date their positions would be abolished and infor med of the effec tive date

of their r especti ve lay

offs. The y w ere als o placed

on the lay

off list f or prior ity recall a s provide d in T.C.A. § 8-30-32 1. Messrs . Bobbitt, Shelton, a nd Jones hav e subsequ ently been re hired in f ull-time p ositions. 7 Mr. Donehew has been rehired as a seasonal employee and Mr. McCallie has a

pplied fo r and re ceived h

is retire ment bene

fits.
For the f orego ing rea sons, the O

rder of the chancery

court is a ffirmed . Costs of th

is appeal are assessed equally to the Appellants, Messrs. Bobbitt, Donehew, Jones, Lawson, Shelton, Re dmon and Mc Callie, a nd their r especti ve suret

ies.

__________________________________________ W. FRANK CR

AWFORD, PRE SIDI

NG JUDGE, W. S.