FILED

June 2, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF APPEALS 

AT KNOXVILLE

JANET G. SEALS ) JEFFERSON COUNTY

 ) 03A01-9808-CV-00269

Plaintiff-Appellant )

)

)

v . ) HON. REX HENRY OGLE,

) JUDGE

)

JEFFERSON CITY, TENNESSEE and )

JEFFERSON COUNTY, TENNESSEE )

 )

Defendants-Appellees ) AFFIRMED AND REMANDED

CLYDE A. DUNN OF NEWPORT FOR APPELLANT

JEFFREY L. JONES and STEVEN DOUGLAS DRINNON OF DANDRIDGE and

TERRY D. TUCKER OF JEFFERSON CITY FOR APPELLEES

O P I N I O N

 Goddard, P.J. 

The issue presented by this appeal is whether an

amendment to T.C.A. 50-1-304 (commonly known as the Whistle

Blower Statute), which brought employees of the State of

Tennessee within its purview, should be given retrospective

effect.

The Trial Judge held that it should not, resulting in

this appeal. 
2

Plaintiff Janet G. Seals was formerly an employee of

Jefferson Memorial hospital, which is operated as a joint

enterprise by Jefferson City and Jefferson County. Section 4 of

the complaint accurately states the facts necessary for

disposition of this appeal:

4 . Plaintiff was employed by Hospital as a

pharmacist in the Hospital’s pharmacy. During the

early part of 1997, plaintiff observed certain

activities and procedures regarding the Hospital’s

dispensing to patients of out of date drugs and the

borrowing by the Hospital of scheduled II drugs and

other irregular activities which were in violation of

Federal Regulations and in violation of Tennessee

Statutes. Plaintiff immediately reported the

violations to the Hospital’s Risk Management Officer,

which person directed the plaintiff to reduce her

observations of the irregularities in writing to the

Chief Administrator of the Hospital. The Hospital

Administrator then confronted the Hospital’s Chief

Pharmacist about the allegations contained in

plaintiff’s report. Two days later, the Chief

Pharmacist fired plaintiff for reporting the law

violations to the Administrator.

T.C.A. 50-1-304 was amended by a Public Act, which

became effective on June 13, 1997, as follows:

(g) As used in this section:

(1) “Employee” includes an employee of the state,

or any municipality, county, department, board,

commission, agency, instrumentality, political

subdivision or any other entity thereof; and

(2) “Employer” includes also the state, or any

municipality, county, department, board, commission,

agency, instrumentality, political subdivision or any

other entity thereof.
3

Prior to adoption of the amendment, our appellate

courts had held that the Tennessee Governmental Tort Liability

Act did not remove the immunity of governmental entities as to

certain claims. Jacox v. Memphis City Board of Education , 604

S.W.2d 872 (Tenn.App.1980) (libel and slander); Montgomery v.

Mayor of City of Covington , 778 S.W.2d 444 (Tenn.App.1988)

(retaliatory or wrongful discharge); Williams v. Williamson

County Board of Education , 890 S.W.2d 788 (Tenn.App.1994)

(retaliatory discharge).

Moreover, a District Court case, Ketron v. ChattanoogaHamilton County Hosp. , 919 F.Supp. 280 (E.D.Tenn. 1996), which

is, of course, persuasive authority, finds a government entity

immune in a case alleging violation of T.C.A. 50-1-304.

Additionally, as to T.C.A. 50-1-304 as originally

passed, we point out that as a general rule statutes do not apply

to the State or its political subdivisions unless specifically

mandated.

In Keeble v. City of Alcoa , 204 Tenn. 286, 289, 319

S.W.2d 249, 250 (1958), the Court stated the rule thusly: 

Tennessee has long been committed to the rule that

a state, or political subdivision thereof, is not

subject to a statute unless specifically mentioned

therein or unless application thereto is necessarily

implied. The latest expression of this rule is in

Davidson County v. Harmon, 200 Tenn. 575, 582, 292

S.W.2d 777, 780, in which a number of Tennessee cases

are cited and from one of which, i. e. Mayor and
4

Aldermen of Morristown v. Hamblen County, 136 Tenn.

242, 188 S.W. 796, 797, there is quoted a Pennsylvania

case, Jones v. Tatham, 20 Pa. 398, as follows: 

 "The general business of the legislative power is

to establish laws for individuals, not for the

sovereign; and, when the rights of the commonwealth

are to be transferred or affected, the intention must

be plainly expressed or necessarily implied." 

Counsel for Ms. Seals concedes that, as a general rule,

statutes are not given retrospective effect, Woods v. TRW, Inc. ,

557 S.W.2d 274 (Tenn.1977), unless they are remedial,

interpretive or procedural. Saylors v. Riggsbee , 544 S.W.2d 609

(Tenn.1976). Saylors also holds that the test for determining

whether a statute is substantive or procedural is whether it

would disturb vested rights or contractual obligations. Where it

does not it is considered remedial.

In the case a bar it is clear that the vested rights of

the Defendants would be disturbed by the amendment. Notwithstanding the foregoing, counsel for Ms. Seals insists that the

amendment is remedial and relies upon its legislative history,

which he filed as a part of the record. 

As to this point, we note that the Senate and House

sponsors, when addressing the amendment ultimately adopted,

stated the following:

SENATE SPONSOR
5

All of us of this General Assembly thought that when we

passed this language it said no employee, that it meant

what it said, but apparently there are some Courts that

have decided that meant some employees. What this

legislation does in the form that I will present to you

with the amendment is to make clear that when we said a

employee, we meant all employees and we were not trying

to leave anybody out. There have apparently been a

couple of courts that at least decided that county and 

local employees are not covered by this and I think

that if we want anybody in particular to be covered, to

make sure that illegal activities are reported, it

would be government employees. Mr. Speaker with that

explanation I move.

HOUSE SPONSOR

What this legislation does is make clear that the

whistle blower law protections that extend to

government employees also extend to those employees

that may be in a local or (let the house be in order)

these amendments simply clarify that an employee of a

governmental agency that my [sic] be state or local,

when the position is funded by federal dollars, that

they are likewise covered by the whistle blower act

whereby someone cannot be retaliated against if they

report wrong doings or criminal actions on the part of

the agency and these amendments that were adopted in

the Senate, that were presented by the Senate sponsor,

I think clarify even further what we were intending to

do. I renew my Motion.

We seriously question whether the foregoing could be

deemed legislative history because it is the statement of only

two members of the General Assembly as to the intent of the

members of an earlier General Assembly which passed the statute

sought to be amended. In this regard we note that several

jurisdictions have held that the opinions of individual

legislators or the testimony of members as to the intention of

the legislation enacted in a statute may not be given

consideration. Wiseman v. Madison Cadillac Co. , 88 S.W.2d 1007
6

(Ark.1935); Tennant v. Kuhlemeier , 120 N.W. 689 (Iowa 1909);

Board of Education v. Presque Isle County Board of Education , 111

N.W.2d 853 (Mich.1961); D & W, Inc. v. City of Charlotte , 151

S.E.2d 241 (N.C.1966).

We accordingly conclude that the statements of the

members of the General Assembly do not supply sufficient

legislative history to overcome case law regarding applicability

of statutes to governmental entities.

For the foregoing reasons the judgment of the Trial

Court is affirmed and the cause remanded for collection of costs

below. Costs of appeal are adjudged against Ms. Seals and her

surety.

 ______________________________

Houston M. Goddard, P.J. 

CONCUR:

________________________________

Herschel P. Franks, J.

________________________________

Charles D. Susano, Jr., J.