1 Rule 10(b) (Court of Appeals). MEMO RANDUM OPINI ON. The Court, with the

concurren ce of all judges participating in t he case, mayaffirm, rever se or modify the actio ns of t

he tr ial court by memoran dum opinion when a formal op ini on wou ld have no precedential value. When a case is decided by memora ndum opi nion it shall be designat

ed “MEMORANDUM OP INION,” shall not be published, an d sh all not be cited or rel ied on for any reas on in a subseq uent unrel ated case. 

# FILED
Au gust 13, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT

OF APPEA LS OF TEN NESSEE WESTER N SECTION AT J ACKSON

______________________________________________________________________________ WILLI AM R. KEY, Cl erk of Shelby Criminal No. P-17169 the Criminal Courts of C.A. No. 02A0 1-9703-CR-0007 2 Shelby County, Tennessee, Plaintiff, Hon. Chris Craft , Judge v. JULIAN T. BOLTON, Chairman of the Shelby Cou nty Board of Commis sioners, and JIM ROUT, Mayor of Shelby County, Tennessee, Defendan ts. DAVID F. KUSTOFF, Memphis, At torney fo r Plaintiff. ALAN G. CRONE, Assistant Shelby County At

torney, W ilder, Crone, Johnston, Mason & Go odwin, PL C, Memphis, Att

orney f or Defe ndant

s. REVERSED AND REMANDED Opinion filed:

______________________________________________________________________________ MEMORANDUM OPINION 1 TOMLIN, Sr. J. W ill iam R. Key, Clerk of the Criminal Court s of Shelby Count y (hereaf ter “Plaintiff”) filed a petition in the Crim inal Cou rt of Shelby C ounty ag ainst M ark Norris, Chairman of the Shel by County Board of Comm issi oners, and Jim Rout, Mayor of Shelby County ( hereaft er “Defendant s”) see king sal ary incr eases f or vari ous
em plo yee s of th e C rim inal C our t Cle rk’s Of fice i n S helb y C oun ty p ursu ant to T.C .A. § 8-20-101 et seq. Following a benc h tri al the tri al court granted a ll of

the reque sted salary increa ses. Defendants have rais ed two issue s on appeal: (1) whetherthe trial
cour t erred in allow ing p laintiff to b ring a p etition fo r salary increa ses pu rsuan t to T.C.A. §§ 8-20 -101 et seq ; and (2) whether the evidence pr eponderat es agains t the a ction2

of the trial court. For the r easons her einaft er st ated, we reverse the judgment of the court below and rem and for further proceedings. The b asic facts are not in disp ute. Plaintiff filed a petition in the Crim inal Cou rt of Shelby Cou nty seeking pay increa ses for over 1 00 em ployees in the Crim inal Cou rt Clerk’s Office. In thei r answer def endants t ook issue with the reque sted i ncreased compensation for

only 10 posi tions , thi s opposition being on the ground that the request ed salary increa ses exceede d the amount of i ncreases recomm ended by the Shelby Cou nty Co m m ission, and the D irector of Person nel, both of w hom are responsi ble forcarryi ng out the s alary pol icy forShelby County employees. At that time the appr oved salary policy pr ovided fora maximum increa se in sa lary of four percentfor the fis cal year1996-1997. I t was the cont ention of the defe ndants that any increa se great er than the stat ed percent age would creat e a pay inequi ty with other Shelby County employees hol ding a si milar job c lassi fication. The positi ons whose proposed pay r aises were disput ed and thei r respe ctive percent age incr eases ar e as fol lows: three ”Manager A” positi ons, 13%; one “execut ive secret ary” posi tion, 9%; and six “deputy c ourt r oom clerk” positions, 9%. Jim M arti n, the Shelby Count y Adm inis trat or of Pers onnel (her eafte r “Martin”) , te sti fied that it was part of his j ob functi on to eval uate re quests f or sal ary incr eases by carrying out compensation studies on Shel by County employees. Marti n testifi ed further that the Cr i mi na l Cl erk’ s Of

fi ce ha d n ev er

forma l l y r eq ue s t ed t ha t hi s de pa r t me nt pe r f or m a
co mpen sa ti on s tu dy o n t he sa lary in cr ea se s r eq ue st ed in pl ai nt if f’ s c ur re ntpe ti ti on. He furthe r stated th at in ord er to de term ine if a p articular salary increa se w as fair to a ll employees withi n the count y system, a comprehensi ve and detai led anal ysis would have to be perf

ormed over the di ffer ent depar tments withi n the count y. He stat ed further that he w as aw are tha t plaintiff w as un happ y w ith the p erceiv ed ine quities in pay in his offi ce, butalso conce ded thatthe li mited resour ces of hi s offi ce prevent ed him from personally initiating any compensation studies. As we perceive i t, the fir st i ssue tha t we must resol ve is whether or not Chapte r 110 of the Pr ivate Acts, 1971 pr ecludes aShelby County off icia l fr om filing a pe tition to seek a pa y increa se for the employees of hi s depart ment pursuant t o T.C.A. § 8-20-3

101. Defendant s contend that purs uant to the provis ions of Chapt er 110 of the P rivate Acts, 1971 s aid Act provi des the s ole means for s eeking an i ncrease i n the sal aries of
cou nty em plo yee s. The Civil Ser vice Merit Sys tem of Shelby County was cre ated with the enactm ent of Ch apter 110 o f the Private A cts, 1971. A ll Shelby C ounty em ployees are covered by this Act, includi ng the employees af fecte d by plaintiff ’s pet iti on. The Act also es tabli shed the Civi l Servi ce Merit Board whose powers and duties ar e spell ed out in part as fol lows:
Section 6. POWERS AND DUTIES OF BOARD. The powers and duti es of the Civil Service Merit Board shall be as foll ows: (B) To m ake recom m endations to the Secretary an d to the Q uarterly Co urt conc erning the pro cessin g, exa m ination , and c ertification of ap plican ts and the adminis tration of the syste m; (C) To review the class ifi cati on plan, compensation pl an and personnelpolici es and to make recomm endati ons to the secret ary and to the Quarterl y Court regar ding their adoption a nd/or r evisi on; The Act also pr ovides that the Personnel Director of Shelby County would s erve as the Secr etary of

the Civi l Servi ce Merit Board. The duties and responsi bili ties of the Secretary were setforth in the Act , which i ncluded pre paring a c lassi fication plan that would seek to m aintain equity in comp ensation among the various county em ployees, based upon objec tive c rit eria. Pursuant t o this class ifi cati on plan, the Civi l Servi ce M erit Bo ard p rom ulgate d a sc hedu le of co m pens ation fo r all cou nty em ploy ees. In th is regard the Board’s responsibili ty is as fol lows:
SECTION 11. SCHEDULE OF COMPENSATION. For each cl ass of posit ions est ablis hed in the class ifi cati on plan, a study sha ll be made of the rat es paid f

or simil ar ser vices el sewhere and of other inf ormation pertai ning to pr oper rat es of compensati on and a schedul e shall show for each clas s a minimum salary rate, a maximum salary rate a nd such interme diate rate or rates as is equ itable and prop er.
Plaintiff contends that as Cri minal Court Clerk of Shelby County he ha s the alternative right to seek sa lary increases for em ployees in h is office by the filing of a petition pursua nt to T. C.A. § 8-20-101 et seq. . Plai ntif f further conte nds thatpursuant to said code section, the trial court is endow ed w ith the pow er to adjudicate m atters authori zing the posit ion and sal aries of deputy cl erks and as sist ants. The perti nent4

provisions of T.C.A. § 8-20-101 are as follows: 8-20-101. Application for authority to employ deputies.-- (a) Where any one (1) o f the . . . clerk s of p rob ate, c rim inal, c ivil a nd s pec ial co urts,. . . cannot prope rly and ef

fici ently c onduct the affai rs and transact the business of such per son’s of fice by de voting s uch person’ s enti re working time ther eto, such person may employ such deputies and assistants as may be actually necessary to the proper conducting of such person’s office in the foll owing manner and under the f ollowing condi tions , namely: (1) The clerksof th e circ uit, criminal a nd specia l courts

may m ake applic ation t o the judge , or any one ( 1) of the judges of their respective courts ,. . . by petition du ly sworn to, setting for th the fac ts showing the neces sity for a deputy or deputies or assistants, the number required and setting forth the salary that should be paid to each; (Em phasis add ed).
T.C .A. § 8 -20-1 02 re quires that an y petitio n bro ugh t by a c lerk of a cou rt shall
nam e the coun ty executive a s defenda nt. The trial court is also given pow er to m odify in an appropriate way the petiti on’s requests, as f ollows:
The cour t m ay allo w o r disallow the ap plication , either in w hole o r in part, and may allow the whole number of deput ies orassis tants applie d for or a les s number, and may allow the s alari es setout in the appli cati on or smaller s alari es, al l as the fact s justify.
Plaintiff contends that purs uant to §§ 8- 20-101 and 102, the tri al court is gi ven the disc retion to gran t the clerk ’s app lication to em ploy additio nal de puty clerks as w ell as to establi sh their sal aries. I n support of this contenti on, plainti ff cites Dulaney v. McK amey , 856 S.W.2d 144 (Tenn. App. 1992) , a case origi nating out of Sull ivan County. While good authority as far as it goes , it is notreleva nt to the issue before us in the c ase u nder cons ideratio n as in Sulliva n C oun ty there wa s no p rivate a ct sim ilar to the Pri vate Acts, 1971 in exis tence at the ti me the plaintiff ’s pet iti on was fil ed. De fend ants co ntend that T .C.A . § 8-2 0-10 1 is inap plicab le to Sh elby C oun ty
em plo yee s as a resu lt of th e pa ssag e of Ch apte r 11 0 of the P riva te A cts, 1 971 , citing She lby C oun ty Civ il Servic e M erit Bo ard v . Live ly , 692 S.W .2d 15 (T enn. 198 5). In Live ly the is sue befor e the cour t at that ti me w as whether ornot the s herif f of Shel by Co unty had th e auth ority to te rm inate c ertain c om m issione d dep uties pu rsuan t to T.C.A. § 8-2009, which provided that sheriffs had the power t o terminat e any depute at will. The supreme court i n Live ly held tha t the Private Acts, 1971 s uperseded the gene ral statute

— § 8-2 009

— and e xtend ed job protec tion reg arding term ination to5

Shelby County deput ies, noting that the privat e act i n questi on specif ical ly exempted Shelby County fr om the provisi ons of T.C.A. § 8-2009. W hile r elevant , we do not have the Live ly issue be fore us, but a dif ferent
one— wh ether o r not the proc ess ou tlined in the P rivate A cts, 197 1 pro vided the on ly means by which the Criminal Court Clerk might petiti on for an i ncrease i n pay of his or her employees. It i s appropri ate that we here not e some of the obser vations made by the Live ly court regardin g this private act, noting first the G eneral A ssem bly’s motivati on in enact ing same:
It is our o pinion that the Ge neral A ssem bly cla ssified S helby Co unty sep arate ly w ith re spe ct to t he C ivil S erv ice s tatus of d epu ty sh eriffs , as well as em

ployees of

many other county officials , because of the number and com plexity of the c oun ty pers onn el and beca use o f its desire to plac e all of the “a ssis tants and deputi es” of the sheri ff, as well as those of other county o fficers under tenu red civil service system s...(Emph asis added ). Live ly at 19.
The Live ly court then co ncluded that “The c reation of a civil service sy stem fo r a local g over nm ent is a le gitim ate ob jective o f the G enera l Ass em bly, an d on e w hich it may accom plis h within r ather br oad limit s.” Id. at 19. In addition the Live ly court ac knowledged the pot entia l forconfli ct to de velop between any civil service system and the general statutes governing county employees, such as T.C. A. § 8-20-101 et seq.: Almost any county ci vil s ervice system would confl ict with the gener al st at ut es if

it in vol ve d e mpl oye es of th e c oun ty of

fi ce rs co ve re d by T. C. A. § 8- 20- 101
. Nevertheless, it is well-settled that in the structuring of county and municipa l governments, the General Assembly

has broad a uthority. This is almost unli

mited when private

legislation does not contraven e some ma ndatorily applicabl e genera l state law. Id. at 18.(Em phasis add ed).
In Knox County Ex Rel. Kessel v. Personnel Bd. , 753 S.W.2d 357 (Tenn. App. 1988) thi s courtheld as a ge neral pr oposit ion that a privat e act authorizi ng the establ ishment of a s ystem of personne l administrati on for county employees based upon merit pri nciple s was to be gi ven a li beral c onstruc tion. However, in the case atbar, the Privat e Acts, 1971 f aile d to expres sly provi de6

that T. C.A. § 8-20-101 et seqwas no longer appl icabl e in Shelby Count y. Accordingl y,
we are co nstrain ed to fin d that th e trial cou rt correc tly allow ed pla intiff to pro ceed with his pet iti on pursuantto the pr ovisi ons of T.C.A. § 8-20-101 et seq . W e reso lve this issu e in f avo r of p laint iff. Turning now to the second is sue, that of the prepondera nce of the evidence, defen dants conte nd th at eve n if the p rivate a ct estab lishing the S helby Co unty Civil Service Merit

Board does not pr eempt or overri de § 8-20-101 et seq , nonetheless plaintiff fail ed to carry the bur den of proof . In Dulaney v. McKam ey , 856 S.W.2d 144, 146 (Ten n. A pp. 19 92), this cour t stated:

. . . [W]e note thatan appli cati on for authority to employ deputi es or assis tants and to est ablis h their salaries i s to be treate d no diff erentl y than any other l awsuit. Therefore , the acti on of the trial court must be bas ed on f ind ing s of f act e stab lishe d by a pr epo nde ran ce o f the evid enc e. . . . See also Cun ningham v. M oore , 604 S.W .2d 866, 86 8 (Ten n. App . 1980).
From an exam inati on of the r ecord, we observe thatwhile pla inti ff pre sented four wit nesses, all of

whom testifi ed as to the need for the positions atissue, there was no object ive proof

as to why the pay i ncreases should be made, or why the se incr eases sho uld exc eed the m and ated fou r pe rcen t. W e are of the opinion that the plaintif f failed t o carry the burden of proof thrust upon him and that he has fail ed to make out a prima faci a cas e in th is reg ard
. Ac cord ingly, w e are c om pelled to reve rse the judg m ent of th e trial cou rt in
aw ard ing the in crea se in the s alari es c ont este d by def end ants in th e am oun ts tha t he d id. W e furth er rem and th is case to the tria l court fo r a furth er hea ring o r rehea ring, in which the plaintiff is required to presen t to the court objective p roof that such s alary increases are n eeded a nd are co m m ensurate w ith the quality and q uantity of w ork per form ed b y th e res pec tive e m plo yee s. Inasmuch as the r ecord ref lect s that plaintiff has at l east on one oc casion di scussed the matter of a employee compensation study t o be conducted by the Shelby County Administr ator of Personnel , while not legally m anda ted w e think it wo uld b e in ke eping with the sp irit of the a ppro priate provisi ons of Chapter110 of the Pr ivate Acts of 1971 for plaintiff to reques t the7

Ad m inistrator to perfo rm a com pens ation stu dy o n the s pecific salary increa ses w ith wh ich th is ap pea l is co nce rne d. Accordingly, this cause is remanded to the Cri minal Court of Shel by County for further procee dings no t inconsistent w ith this opinion. Co sts in this cause on a ppeal are taxed one-half to plaintiff and one-half t o defendants.

_________________________________________ TOMLIN, Sr. J.

_________________________________________ CRAWFORD, P. J., W . S. (CONC URS)

_________________________________________ HIGHERS, J. (CONC URS)