### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE February 13, 2001 Session

MORRISTOWN FIREFIGHTERS ASSOC IATION v. CITY OF MORRISTOWN,

et al. Appeal from the Chancery Court for Hamblen County No. 99-526 Kindall T. Lawson, Judge, by interchange

FILED MARCH 20, 2001
No. E2000-01942-COA-R3-CV

In July 1999, two vacancies arose within the City of Morristown’s fire department (“Fire Department”) due to the retirement of a battalion chief and a lieutenant . T he Civil Service Act provides the procedure for filling vacanc

ies in Morristown’ s fire departmen t and requires the

City to fill vacancies from a Roster prepared by the Civil Service Boa rd (“Board”). When the two vacancies occurred, the Roster in place had been certified

in August

1998, and updated by the Board in November 1998 (“1998 Roster”). The City, however, wanted the Board to pre pare a new Roster. The Board did

not create a newRoster until September 1999 (“1999 Roster”), and in the meantime, the two positions remained unfilled. The City filled the vacancies from the 1999 Roster. The Morristown Firefighters Association (“Plaint iff”) bro ught suit again

st the City of M

orristown, its mayor and City Council members (“Defendants”), alleging violations of the Civil Service Ac t for Defendants’ failure to fill the vacancies from the 1998 Roster. The Trial Court held in favor of Plaintiff and ordered

Defendants to fill the two vacancies from the 1998 Roster. De

fendants appea

l. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; and Case Remanded.
D. M ICHAEL S WINEY , J., delivered the opinion of thecourt, in which H ERSCHEL P. F RANKS , J. and C HARLES D. S USANO , J R ., J., joined.
RichardC. Jessee and Lori L. Jessee, Morr istown, Tennessee, for the Appellants, City of Morristown, Mayor John R. Johnson, and Morristo

wn City Counci

l Members, A. Quillen Eiseman, Claude Jinks, William J. Rooney and Kay Senter. TimothyA. Priest and Adam M . Priest, Knoxville, T ennessee, for th

e Appell e e, Morristown Firefighters Association.-2- OPINION Background
The Morristown Firefighters Association (“Plaintiff”) filed suit seeking a restraining order and permanent injunction against the City of Morristown, its City Council

members, and its ma yor ( “Defendants”) regarding two promotions in the City’s F ire Department. Plaintiff alleged that Defendants

violated the Civil Service Act by failing to make promotions from the Roster of eligible candidates in existence when the vacancies arose.

In July 19 99, two vacancies occurred in the Morristown Fire Department (“Fire Department”) for the positions of battalion chief and lieutenant. Since these positions were located high in the chain-of-command, the promotions to fill these positions would create vacancies in the lower ranks. Placement and promotion of employees of the Fire Department are governed by the Civil Service Act

which requires that promotions be made from the top three persons on the Roster. Priv. L. No. 143 (1994). The Roster is prepared by the Civil Service Board (“Board”) after a testing and interview process.

When the vacancies o

ccurred in July 1999, the existing Roster had been certified in August 1998, andupdat ed by the Board in November 1998 (“1998 Roster”). The testing and interview process for the 1998 Roster was conducted by the Board in May

1998. Defendant

s waited to fill the vacancies until the Board certified a new Roster in Sep temb er 1999 (“1999 Roster”). Defendants

contend that

the Board had fa

iled to maintain an u

p to date Roster as required of it, and, therefore, the City prope

rly refused to fill the vacancy from the 1998 Roster. Defendants main tain that the 1998 Roster wa

s i nva lid at the time the va cancies arose.

Plaintiff contend

s that the Civil Service Act man dat es t hat the Ros ter in e xis ten ce at the tim e a va canc y o ccurs is the Roster from which th e three candida

tes must be chosen.

Plaintiff say

s the 1998 Roster is th

at Roster for thes

e two vacancies.
The Civil Service Act contains t he followi ng:

SE CTI ON 3. BE IT FURTHER ENACTED: All future app ointments to and promotions in such departments, except a s otherwise provided in this Act, shall be made on the basis of fill ing the position with the best qualified candidate, using the following method: Subject

to the stand ar ds set forth in this A ct, the city governing body shall meet with the Board and formulate minimum requirements and weighted se lect ion criteria for each position in the Classified Service.

. . . After the enunciation of such standard

s, a Ros ter sha ll b e kep t by the B oard of all full-t ime-3- p erso nnel in the Classified Service indicating what job classifications within

each respectiv

e departments are eligible to fill. A Roster shall also be kept o

n all applicants

to become members of the Classified Service with appropriate indication of

what job classifications s

uch applicants ar

e eligible to fill

. After the enunciation of such standards, no va cancy shall be filled except by a person on the Roster of persons havin

g the requisite qualifications to f ill suc h va canc y. If any vacancy shall occ

ur with in any branch of the Classified Service, the vacancy shall be offered first to that member of such branch qualified on the Roster who shall be the best qualified. . . .
SECTION

4. BE IT FURTHER

ENACTED: Functions and Duties of the Civil Service Board. . . . It shall be the duty of the Board: (f) To see that the job classifications, the st andard for filling said classifications and the Roster of eligible appointee s for eachclassification a

re kept continuou

sly up to date, and posted in the respective departments of the Classified Service. . . .
* * * * * *
SECTION 9. BE

IT FURTHER EN

ACTED: Appointments

to Vacant Positions: (a) When a position in the Classified Ser vic e becomes vacant, whether entry level or promotional, the governing body of

the City of Morristown shall

make requisition upon the Board for the names of the three (3) persons eligible for

appointment. The Board shall certify the names of the three (3) persons highest

on the eligible lis

t willing to acce

pt employmen

t. * * * * * * (d) Whenever a requisition is to be mad e, or whenever a position is held by a temporary appointee and an eligible l

ist for the class of such position exists, the governing body shall appoi nt a person from among the persons so certified for such position.-4- When seeking place

ment on the Roster, a

pplicants undergo testing and interviews and are given weighted scores by the Board f or such cri teria as experience, test scores, education and interviews. The Civil

Service Commission Rules and Regulations (“Rules”) further addresses the testing pro cess and pro vides, in p ertinent p art, the fol lowing:

1. EXAMINATIONS

a. Testing for p rom otions will be administered on an annual basis. . . .
2. ADVERTISING AND REQUEST FOR PROMOTIO N:

a. On or

before January 10 th of each year, th e C ivil Service Commissi on will advise Fire and Police Departmen t s personnel that f

or[sic] promotional Roster testing will be acc e pted from January 15 th t hrough the 31 st . No requests will be accepted after January 31 st

. b. Applicants

will submit

a written reques

t to the Chief of their department no later than January 31 st

.

c. Th e City Personnel Office will review each request to verify eligibility. Request [sic] will be forwarded to the Civil Service Commission no later than February 10 th

. 3. TESTS AND TESTING

a. Upon receipt of application s b y the Civil Service Commission, the Comm iss ion shall schedule a date for tes ting and o rder the appropriate examinations. . . .

* * * * * *

e. Test

scores shall

be carried over

from year-toyear. However, after

a test score is two years oldan applicant may request to be retested1 The record on appeal shows that t he Board’s ch

airpers on test

ified t hat June 30

th was the deadline for the applications and that

the testing would be conducted sometime thereafter. The Board’s min utes f rom its J une 7, 1999, meeting, however, state that “i t was agreed tests would be given the same ti me every year with the

cut off date being June 30.” -5- along withot her applicants a t the annual test date.
Ne ither the Civil Service Act nor the Rules provide any specific deadline for the Boa rd’s certification or completion of the Roster.

In May 1998, after the Fire Chief submitted a list of eligible candidates and requested testing, the Board conducted testing and interviews of potential candidates. The 1998 Roster was certified in August 1998, and apparently updated in No vember 1998. In April 1999, the Fire Chief informedthe Board heanticipated two vacancies and requested that the Board conduct testing andinterviews so that a new Roster could be created. The Fire Chief explained that since the 1998 Roster was certified, several firefi ghters not on the

1998 Roster becam

e eligible for promotion but hadnot undergone the testing and interview proces s. Moreover, the City contended that several vacancies had been filled from the 1998 Roster, and as a result, the 1998 Roster was depleted.

In July 1999, the tw

o anticipated vac

ancies in the Fir

e Depart ment occurred. T

he City Council met twice in

July 1999, and o

nce in August 199

9, but did not use

the 1998 Roster, which Defendants

claimedwas not current, to fill the vacancies. Instead, the City Council waited for the creation of a new Roster in 1999.

The Board, for the first time, in June 1999, apparently attempted to set a regular, annual testing date, June 30. 1 The Board, howe ver, missed this

deadline and did not perform testing until August 19, 1999. In mid-September 1999, the Board certified the new Roster (“1999 Roster” ). The City Council fi

lled the vacanci

es from the 1999 Roster . As predicted by the Fire Chief, candidates not on the 1998 Roster made the 1999 Roster.

Before the City Council filled the two vacanc ies from the 1999 Roster, Plaintiff brought suit, reques ting tha t the Trial Court order Defendants to use the 1998 Roster to fill the vacancies and to enjoin Morristown f rom creating a

new Roster until

the vacancies were filled from the 1998 Roster. After

the promotions wer

e made from the 19

99 Roster, Plaintiff

amended its Complaint to alle ge that some of its members listed on the 1998 Roster and eligible for the promotions at the time the vacancies occurred were not promoted.

The Trial Court foundin favor of Plaintiff, holding in its Memorandum Opinion that the only list of qualified applicants in existence at the time of the vacancies was the 1998 Roster. Citing §§ 3 and 9 of the Civil Service Act, the Trial Court further found that the City was not authorized to delay prom otio ns until a new Roster was created and that the Civil Service Act mandatedthat

the City make the

promotions from the existing Roster. The Trial Court held that the-6-

promo tions made by the City Council from the 1999 Roster were invalid and that the pr omotion s should be made fro

m the 1998 Roster. De

fendants appea

l.
Discussion
Whilenot stated exactly as such, Defendan ts raise the follow

ing issues on appe

al: 1) whether the Trial Court erred in holding that the City of Morristown was not autho rized t o delay promotions to fill two vacancies which arose in July 1999, when the Roster of eligible candidates hadnot been updated by

the Board since 1998; and 2) whether the Trial Court erroneously held that § 9 of the Civil Serv ice Act, require s the City of Mo

rristown to fill vac

ancies from the Ro

ster in existence when the

vacancy o

ccurs. This appeal involves the interpretation of the Civil Service Act and the Civil Service Commission Rules. Our Supreme Court in Gleaves v. Checker Cab Transit Corp., Inc., 15 S.W.3d 799, 802-803 (Ten

n. 2000), summarize

d our role when the

issue involves statu

tory constr

uction:
‘Construction of a statute is a question of law which we review de novo with no presumption of correctness.’ Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998). . . . A basic rule of s tatu tory construction is to ascertain and give eff ect to the intention and purpose of the legislature. Cars on Creek Vacation Resorts, Inc. v. State Dep’t. of Revenu e, 865 S .W.2 d 1, 2 ( Tenn. 1993) . In determining legislative intent and purpose, a court must not ‘unduly restrict [] or expand[] a statute’s coverage beyond its intended scope.’ Worely v. Weigels, Inc., 919 S.W.2d 589, 593 (Tenn. 19 9 5). . . . Rather, a court ascerta

ins a statu

te’s purpose from the plain and ordinary meaning of i ts lang uage, see Westland West Community Ass’n. v. Knox County, 948 S.W.2d 281, 283 (Tenn. 1997), ‘without forced or subtle construction that would limit or extend the meaning of the language.’ Carson Creek Vacation Resorts, Inc., 865 S.W.2d at 2. * * * * * * [I]t is not for the courts to alter or amend a stat ute. See Town of Mount Carmel v. City of

Kingsport, 217 Tenn. 298, 306, 397 S.W.2d 379, 382 (1965); see also Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995); Manahan v. S tat e, 188 Tenn. 394, 397, 219 S.W.2d 900, 901 (1949). Moreover, a court must not question the ‘reasonableness of [a] statute or substitut[e] [its] own policy judgments for those of the legislature.’ Bellsouth Telecomms., Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997). Instead, courts must ‘presume that the legislature

says i n a s tatute what it means an d means in a statute what it says there.’ Id. Acco rdi ngly,-7- courts must construe a statute as it is written. See Jackson v. Jackson, 186 Tenn. 337, 342, 210 S.W.2d 332, 334 (1948). (alterations in original).

In this matter, we must consider two c ompeting intere

sts found in the Civil

Service Act: Defendants’ interest in obtaining the best qualified can d idates from a continuously updated Roster as outlined in §§ 3 and 4 of the Civil Service Act and Plain tiff’s interest th at Defendants select candidates from the Roster in existence when the vacancies occur as provided by § 9 of the Civil Service Act. A c

ommon purpose runn

ing throughout t

he Civil Service Ac

t is that it i s “‘designed

to eradicate the system of making appointments primarily from political consideration

. . . [and] to establish

a merit system of fitness and efficiency as the basis of app

ointments to the civi

l service.’” Metropolitan Gov’ t of Nashville

and Davidson County

v. Poe , 383 S.W.2d 265, 271-72 (Tenn. 1964 ) (quoting City of Knoxville v. Smith , 138 S.W.2d 422 (1940)).

Desp i te the presence of civil service legislation, the facts of this case demonstrate that difficulties with promo tions sti ll arise. A lthough there is no proof in the record that the promotions were politicized in

this matter, the Civil Service Act and the Rules could be manipulated such that the timing of the creation of a new Roster would facilitate the placement of a f

avored candida

te in a vacancy. Although § 4 of the Civil Service Act dire

cts the Board to k

eep the Roster “c

ontinuously up to date,” neither the Act nor the Rules provide either a specific deadline for the Board to prepare new Rosters or an expiration date for an existing Roster.

When the two vacancies occurred in July 1999, the only Roster in existence and from which Defendants

could fill the vacancies was the 1998 Roster. The proof in the record establishes that when the 1999 Roste

r was certified

, some firefigh

ters not o n the 1998 Roster made the 1999 R oster and were plac ed ahead of ot hers who were on the 1998 Roster. Th is Court, although cognizant of the potentia

l for problem s created by irregular dates for testing and certification of Rosters, doe s no t ha ve “a uth ori ty to sup ply th e void. . . . That is a legislative function. We are restricted to enforcing the

procedure that i

s expressly prescribed.” Blair v. State ex rel. Watts, 555 S.W.2d 709, 713 (Tenn. 1979).

Although we agree that Defendants have an interest in obtaining the best qua lified candidates for vacancies and that regular testing serves this interest, we ag ree with the Trial Court’s determination that Defendants m ust make promotions from the Roster in existence when the vacancies occur. Our Supreme Court has held that “‘[a] valid appointment can only be made by due observation of the civil service rules , an d mus t be made from the appropriate eligible list.’” Atkin v. City of Knoxville , 315 S.W.2d 115, 116 (Tenn. 1958) (alteration in original) (quoting 3 McQuillan on Municipal Corporations § 12.80 3 rd ed.). Further, our Supreme Court held that municipalities must follow the mandate of t he applicab le civil se rvice legisl ation when selecting emplo yees for c ivil service positions and that they do not have any discretion when performing this function. Blair , 555 S.W.2d at 712 (holding th at “[i]t is . . . mandato

ry that th e Ci ty Manager ‘make the desired appointment from the eligible list so certified to him’”).-8- Boileddown to its essential elemen ts, Defendants

argue the Board did not do its job because it failed to keep the Roster “continuously up to date . . . .” Defendants maintain there was no valid Roster in existence at the time the vacancies occurred, and this failure allowed Defendants to wait until the 1999 Roster was created.

WhileDefendants’s a

rgument is

well-made, we are unpersuaded. The 1998 Roster was the only one

in existence

when the v

acancie s occurre d. We note that the 1998 Roster was less than twelve months old when the vacancies occurred. Also, as discussed above, neither the Act nor the Rules provide either a specific deadline by which a new Roster had to be pre pared or a time limit after which the 1998 Roster became invalid.

Section 9 of the Civil Service Act provides that whe

n a vacancy

occurs, Defend

ants “shall mak e req uisition upon the Board for the names of the three (3) persons eligible for appointment. T he Boar d shall certify the names of thre

e (3) persons hig

hest on the eligib

le list willing to accept employment.” Section 9 then provides that “the governing body shall appoint a person from among the persons so certifie d for such po sition.” T his language provides no author ity either to Defendants or to the Board to wait for an updated list, but rather

directs Defendants and the Bo ard to use the Ro ster in place at th e time the vacanc

y occurs. M

oreover, nothing

in the Civil Service Act

or the Rules provid

es a time when a certified Roster stops being valid. Accordingly, we affirm the Trial Court’s holding that Defendants must fill the vacancies from the 1998 Roster since it was the Roster in existence when the vacancies occurred.

Whilewe find nothing in the record before us to support any argument that Defe ndan ts, in waiting to make the appointments from the 1999 Roster, acted “from political consideration . . .”, adoption o f Defendants’ position would increase the risk of political considerations entering into the filling of vacancies. Our adoption of t he Trial Court’s holding means that neither

the City nor th

e Board has the o

ption of waiting f

or a new Roster in

the hopes that a more politica lly favo red candidate w ill be listed on the ne

w Roster. Adoption o

f Defendants’ position would putthe system more at risk rather than helping to eradicate “the system of making appointments

pri mar ily from political consideration. . . .” Metropolitan Gov’t of Nashville and Davidson County, 383 S.W. 2d at 271. Such a result would be c ontrary to t

he purpose of the

Civil Service Act.
Defendants also contendthat withoutany discretion to decide when to fill vacancies of civil service positions, the City’s hands would be tied if it needed to make reductions in the Fire Department’s force due to exig ent circumstances,

including budge

t concerns. This a

rgument is unpersuasive. The Trial Court’s decision, which we af firm, in no way ties the City’s hands if the City no longer needs or desires to maintain a particular position or cannot afford to place someone in tha t po sit ion . In s uch an ev ent , th ere i s no vaca ncy, and, therefore, the procedure mandated by the Civil Service Act to fill a vacancy would not be applicable.-9- CONCLUSION
The judgment of the Trial Court is affirmed and this cause is remanded to the Trial Courtfor such further

proceedings a

s may be req

uired, if any

, consistent with thi

s Opinion, and for collection of the costs below. The costs on appeal are assessed against the Appellants, the City of Morristown, Mayor John R. Johnson, Morristown City Counci l M embers, A. Quillen Eiseman, Cla ude Jin ks, Wil lia m J. Roo ney an d Ka y Sen ter , an d th eir sur ety.

___________________________________ D. MICHAEL SWINEY, JUDGE