# FILED
March 27, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

EDWARD H. MO ODY, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9707-CH-00311 VS. ) ) Davidson Chancery ) No. 97-159-III STATE OF TENNESSEE DISTRICT ) PUBLIC DEFENDERS CON FERENCE, ) ) Defendant/Appellee. )
APPEALED FROM THE CHAN CERY COUR T OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

J. RONNIE GREER P. O. Box 454 Greeneville, Tennessee 37744 Attorney for Plaintiff/Appellants JOHN KNOX WALKUP Attorney General and Repor ter GINA J. BARHAM Deputy Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243 Attorney for Defendant/Appellee

AFFIRMED AND REMAN DED

BEN H. CANTRELL, JUDGE
CONCURS: TODD, P.J., M.S. DISSENTS: KOCH, J. 

## O P I N I O N- 2 - An assistant district publ ic defende r file d a complaint in the Davi dson County Chancery Court, seeki ng a declaratory judg ment u nder the Uniform Adminis trative ProceduresAct (UAPA) that the District Public Defenders’ Conference had set his salary lev

el too low, in lig ht of his years of prior government ser vice. The ChanceryCourt dismissed the complai nt for lack of subject matter jur isdiction, on the ground that the Confere nce does not meet the def inition o f an agen cy that is found in the UAPA, and that it is therefore not subject to the Act’s provisions. We affirm.

I.

Edward H. Moody was appointed as an assistant district public defender forthe Third Judicial District of Tennessee on July 1, 1992. Prior to this appointment, he had served as a st ate legislator, a special agent of the FBI, a Hamblen County general sessions judge and an assistant district attorney. Mr. Moody’s compensation
as an assistant public defender w as set in accordance wi th Tenn. Code Ann. § 8-14- 207. The version of the statute in e ffect at that time set the compensation of assistantsat a var

ying percenta

ge of t he sa lary received by the district public defender, with the exact percentage to be determined by the number of y ears of prior service.

Under

the statute,the maximum p ercentage of a public defender’s salarythat an assistant could rec eive was 85%, whi ch could be ac hie ved after nine years of satisfactory servi ce. Mr. Moody wa s found to have qualified for this level of compensation as a result of prior state service.

In 1994, Tenn. Code Ann . § 8- 14-207 was amended to increas e the
c ompensati on of district public defenders, and to alter the method of calculati ng compensation for assi sta nts. Starting July 1, 1994, those salaries were to be for a fixed amount that increas ed with additional years of service, rather than for a1 Under both the earlier a nd the lat er statut e, Tenn. Code Ann. § 8- 14-207(d) reads: In com puting the num ber of yea rs of ser vice und er the sa lary scale ap plicable to full-tim e ass istan ts an d dist rict inv estig ators , cred it ma y be giv en fo r an a ssis tant’s prior experience as a l icensed att orney, f ull-time, salari ed law enforcement of ficer or cr imin al inve stiga tor fo r a dis trict at torne y gene ral. Su ch c redit s hall be given only upon the recommendation of t he distri ct publi c defender making the appoi ntment and the approval of the executive com mittee of the district public defenders conference, and may be f or any peri od of time up to,but not exceedi ng the assistant’s experience as a licensed attorney or district investigator. - 3 - percentage of the public defender’s salary. While under the prior schem e the salary of as sistants topped o ut afte r nine year s of servic e, under the new law t hey wer e entitl e d to annual increases until after they had completed their t wentieth year of service.

Mr. Moo dy was given credit for eleven years of prior service, and h i s salarywas set accordingly. He subsequently petitioned the District Public Defenders Conference for a declaratory order tha t by virtue of more than tw enty years of prior government

service, he was entitled to the maximum sa lary the law permitted assistant public defend ers. 1 The conference refused to issue such a declarat ory order, and Mr. Moody filed a complaint for a declaratory judgment and for back pay in the Chancery Court of Dav idson County, invoki ng the prov ision s of Tenn. Code Ann. § 4-5-224 of the Uniform Administ rative Procedures Act (UAPA).

The trial c

ourt di smissed

the comp laint fo r lack o f s u bject matter jurisdicti on, finding that the UAPA did not apply to the Distri ct Public Defenders Conference, because that body did not meet the definition of an “agency,” as set out in Tenn. Code Ann. § 4-5-102(2) of the UAPA. This appeal followed.

II.

The Uniform Administ rative ProceduresAct was enacted in 1974, and
was “. . . designed to clar ify and bring uniformity to the procedure of state adminis trative agencies and judicial r eview of their determin ation . . . .” Tenn. Code- 4 -

Ann. § 4- 5-103(a) . Notwithstanding this breadth of purpose, certain governmental bodies (including the governor, the legislature and the co urts), and certain kinds of proceedings, are specifically exclu de d from the provisions of the Act . Tenn. Code Ann. § 4-5-106. Fu rthe r, the Act has also been found to be “ . . . inapplicable to proceedings that do not fit within its adjudi catory or rule-making definitions.” MidSouth Indoor Horse Racing, Inc. v. Tennessee State Racing Commiss ion , 798 S.W.2d 531, 536 (Tenn. App. 1990). See also Christian v. Tennessee Petrol eum Storage Tank Board, 928 S.W.2d 927 (Te nn. App. 1996).

Tenn. Code Ann. § 4-5-102 of the Act def ines an agency as follows: (2) "Agency" means each state boar d, comm ission, committee, department, officer, or any other unit of state government

authorize d or require d by any s ta tute or constitutional provisi o n to make rules or to determine contested cases;
Thus, a governm ental b ody is not an agency subject to the UAPA, unless it is authorized or required to make rules or determine conteste d cases. The same statute defines “contested case” and “rule” as f ollows:

(3 ) "Contested case" means a proceeding , includ ing a declaratory proceeding, in which thelegal rights, duti es or privileges

of a party are requir ed by any sta

tute o r constitutional provision to be determined by an agency after an opportunity for a heari ng . . .

. . . (10) "Rule" m eans each agency statement of g eneral applicability

that implements or prescri bes law or policy or describesthe procedures or practic e requirements

of any agency. "Rule" includes the amen dment o r repeal of a prior rule, but does not i nclude: (A) Statements concerning onlythe internal management of stat e gov ernment and not affecting private rights, privileges or procedures available to the public;

. . .

Further portions of theAct set out in detail the pr ocedures tobe followed forrulemaking, including public h ear ings on the content of proposed r ules, the
c onduc t of those hearings, approval of the legality of the rul es by the Attorney- 5 -

General, a nd the filing of the rules w ith the Secretary of State, w ith subsequent publication in the monthly administrative register. See Tenn. Code Ann. § 4-5-201, et seq.

The conduct of contested cases is governed by Tenn. Code Ann. § 4-5- 301, et seq. The judicial or quasi-judicial natur

e of such proceedings is i ndicated by sections on such matte r s as separation of functions, ex-parte communicat ions, representation, discover y subpoenas and rules of evi dence.

The District Public Defenders Conference was establish e d by the Legislature in 1989. There is nothing i n the statute establish ing the Conference to indicate that the Legislature i ntend ed to authorize it to make r ules or to determine contested cases in accordance wi th the requirements of Tenn. Code Ann. §§ 4-5-201, et seq. and 4-5-301, et seq. The Legislature is pres umed to have knowledge of its prior enactments and to know the stat e of the law

at the time it passes legis lation. Wilson v. Johnson Cou

nty , 879 S.W .2d at 80 9 (Tenn. 1994). T hus, it co uld have easily made the Conference subj ect to the UAPA if it so desir ed.

The word “rules” is used in the statutory descripti on of the duties of the Confere nce, but t he context does not appear to s ignify the sort of rule- making procedures that are contemplated by the UAPA:

8-14-303. Duties.-- It is the duty of the conference to give consideration t o the en actment of such laws and rules of procedure as in its judg ment may be necessary to the more effective administration o f justice and t hus promote peace and good order in the state. To this end, a committee of its member s sha ll be ap pointed

to draft suitable legislation and submit i ts recommendations to the general assembly.- 6 - We must thus conclude that the Conferen ce is not authorized or required by statute to make rules or to conduct cont

ested cases,as those ter ms are defined in the UAPA.

III.

Appellantrelies almost entirely on a single case, Crawford v. Tennessee Consolidated

Retirement System

, 732 S.W.2d 293 (Tenn. App. 1987) for its argument that the Public Defenders Conference s hould be subject to the Act. In that case, this court found that members of the Attorneys GeneralRetirement System wer e entitled to bring a suit for declar at ory judgmen t under the UAPA against the Tennessee Consolidated Retirement System (TCRS), in part because the TCRS was requir ed by its enabling statute, Tenn. Code Ann.§ 8-34-201, et seq., to adopt and publish rules and regulations for the adminis tration of the fundsit controlled. 732 S.W.2d at 295. Tenn. Code Ann. § 8-34-313.

The court went on to discuss the functi on of the TCRS and to state that “[t]he establishment of mortality a nd service tables a nd interest rates is cer tainly a statement of general applicability

that implements law or po licy a nd directly affects the benefits accruing to a ll pu blic employees subject to the Consolidated Retirement System, and are not mere ly r ules for the internal administ ration of the agency.

. . . “. . . there is an additional reason why the Board is an adjudicative agen t. Bybeing charged with the exclusive management of a division of State Go vernment with exclusive authority to administer and disbur se trust funds to thousands of governmental retirees, the Board is vested with imp lied and necessary pow er and duty to determine the amounts to be disbursed to each retiree. This power involves

rightsof individuals whic h may notbe infringed without due process w hich brings to bear a constitutional mandate to conduct fair hearings and render just decisions in the ‘ contested’ cases which must of necessity arise in the performance of such a duty.” 732 S.W.2d at 296.- 7 - Appellantarguesthat the logic applied to the TCRS applies with e qual force to the Tennessee Public Defenders C onference, by virtue of the obligation of that body’s exec utive dire ctor to “ce rtify the leve l of compensation awarded to assistant district public defenders bas ed on prior service credits,” Tenn. Code Ann. § 8-14-207(b)(3), and to

“[d]raw and approve all requisitions for the pay ment of public monies approp riated for the maintenance and operation of the judicial branch of government which relate to the offices of the distric t publ ic defenders, and [to] audit claims and prepare vouchers for presentation to the Department of Finance and Administr ation, including payroll warrants , . . . .” Tenn. Code Ann. § 8-14-403(f).

If we were to adopt the appel lant’s argument, we w ould be com pelle d to find that any governmental body that was authorized to handle public funds f alls under the provisions of

the UAPA. However,there is an important distinction between the funds administered by the TCRS and those administered by the C onference. In dealing with retirement benefits, the TCRS is dealing w ith the vested rights

of state employee s, se e Abernathy v. TCRS , 655 S.W.2d 143 (Te nn. 1983). As noted in Crawford, disputes about s uch rights necess arily involve due proce ss proceedings that must meet constitutional standards.

The appellant has conceded that Assistant Publi c Def enders are employeesat will, and so they do not have vested rig hts in thei r emplo yment that require constitutional protection.Thus, jus t as the Conference is not requi red or
au thorized by any statutory provision “to make rules or to determine co nteste d2 In 1984 an addi tionalsentence was added to the defini tion of a contested case i n Tenn. Code Ann. § 4-5-102(3 ). That sentence says, “a n agency may commence a contested case at any time with re spe ct to a ma tter w ithin th e age ncy’s jurisd iction .” It cou ld be a rgue d tha t by this provisi on all agen cies of stat e government are author ized to determine contest

ed cases. We are of the opinion , howeve r, that the de finition of age ncy in Ten n. Code Ann. § 4- 5-102(2 ) also app lies to this prov ision, so that only those agenci es already authoriz

ed or empowered to make rules or determ ine conte sted ca ses m ay com men ce a co ntested case w ith respec t to a ma tter within its jurisdi ction. - 8 - cases,” 2 there is also no constitutional provi sion requiring it to take such action, and it is not an “agency”

subject to the provisi ons of the UAPA.

IV. The ord er of the trial court is affir med. Remand this cause to t h e ChanceryCourt of Davidson County for further proceedings consi sten t with t his opinion. Tax the costs on appeal to the appellant.

____________________________ BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

DISSENTING OPINION: WILLIAM C. KOCH, JR., JUDGE