# FILED
October 29, 19 97 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ SHELBY COUNT Y DEPUTY SH ERIFF’S ASSOCIATION, ET AL, Petitioner s-Appell ants, Vs. A. C. GILLESS,

JR., SHERIF F, of Shelby County, Tennessee, Defendant-Appellee, and Shelby Criminal No. P17139 C.A. No. 02A01-9703-CR-00065 JULIAN T. BOLTON, CHAIRMAN OF BOARD OF COMMISSIONERS OF SHELBY COU

NTY, TENNES SEE; and JIM ROU T, MAYOR O F SHELBY COUNTY, TENNESSEE, Defend ants-App ellees.

___________

________________________________________________________________ _ FROM THE CRMINAL COURT OF SHELBY COUNTY THE HONORABLE CHRIS CRAFT, JUDGE Alan Bryant Chambers; Chambers, Crow, Durham & Holton, of

Memphis, f

or Appel lants Charlie A shford of

Memphis For Appellee, Gill ess Danny A. Presley, Executive Assistant County Attorney Jennifer A. Beene, Senior Assistant County Attorney

For Appellees, Bolton and Rout
AFFIRMED Opinion fi led:

W. FRANK CRAWFORD,

P.J., W.S.
CONCUR: ALAN E. HIGH

ERS, JUDGE HOLLY KIRBY L ILLARD, JU DGE This appeal involves a Sheriff’s petition seeking salary increa ses for d eputi es filed pursuant to T.C.A. § 8-20-101 et seq . The Shelby County Deputy Sheriff’s Association and individual named deputies appeal the order of the trial court denying their petition to intervene.2 The Sheriff of Shelby County filed a salary pet ition in cr

im inal court on July 3, 1996 seeking a 4% pay r

aise for all deput ies and a ssistants, to be eff ective r etroac tiv ely to July 1, 1996. Shelby County, in the named defe ndants’ a nsw er, objected to the effective date of the increa se on the ground that the Shelby County Board of Commissioners’ Resolution approving the 1996-97 Salary Policy required that pay incre ases for all county employees not on the executive pay tables be effective on October

1. The She

riff withdrew his r

equest w ith respe ct to the July 1 effective date and th e petition

was amended by inte

rlineati on to make

the raise effectiveOctober 1. The Court entered the Order F ixing Comp ensation of Employees and Assistant s on July 10, 1996, with pay raises effective October 1, 1996. Later, on July 10, the appella nts, The Shelby County Deputy Sheriff’s Assoc iat ion and ind ividual na

med deput

ies, filed a Petition to Intervene and Reconsider the Order. The intervenors alleged that (1) the Order didnot repr

esent the true dec ision of the

Sheriff ; ( 2) in the alternative, it was an abuse of the Sheriff’s discretion to change his mind regarding the effective date of the proposed raise; (3) The three month delay of the salary i ncreas e depriv ed the de puty sher iffs of th eir prop erty righ

ts under the Tennessee and

U.S. Constitutions, and; (4) it was discrimination to delay the general salary increa se to the dep

uty sheri ff’s for

three mo nths. Shelb y Countyfiled a Motion to Deny Petitioner s’ Petition to I

ntervene asser

ting th at the pe titioners lacked standing to do so. After a heari ng, the co

urt denie d the petition to inte rvene, s tating in it s order: FROM ALL OF WHICH TH E COURT FINDS that the request for salary adjustmentwas brought under T.C.A. 8-20- 101, whic h vests sta nding to ap

ply for salary solely in the sheriff (“the sheriff may in like manner make application to the judge ”), and T .C.A. 8-2 0-102 na mes the c ounty exe cutive a s the sole defendant (“[e] ach of th

e above name d officers shall name in the petition the county executive as the party defendant thereto.”) The legislature has made clear that its intentio n was to re strict thistype of sa lary pet i ti on to only those two parties, and not to allow each petition to become a public forum and discussion of such issues as the amount of law enforcement personnel neede d, and the amount of salaries paid. Therefore, this Court feels that once an agreement

i s reached on sa lary and

personne l increa ses between the she riff and the count

y executive, testimony is taken showing a need for such increases, and a c onsent3 order is entered, appro ve d by this Cou rt after a hearing, that a

ny other p arty aggrieved by such agreement has no statutory authority to interve

ne, seek ing to set that order aside.

The Shelby County Sher

iff’s As sociation

and the individually

named deputies appeal the order of the trial court denying the petition to intervene. The would-be intervenors assert that

even if there

is no sta tuto ry basis for them to intervene, there is nonstatutory authority which provides standing. When the re is no basis f

or interv ention as of right, the deci sion to allo w interve ntion is

a matter within the discretion of the trial court. This decision should not be reversed by an appella te court absent

a showing of abuse of discretion. See Tenn. R. A pp. P. 24.02 ; Ballard v. Herzke , 924 S.W.2d 652, 658 (Tenn. 1996). The county Sheriff has two options through which he may obtain authority to employ and compensa te personne

l to assist him to “properly and efficiently conduct the affairs and transact the business”of his off

ic e. T.C.A. § 8- 20-101(a) (Supp. 1996). The Sheriff may either file a salary petition, which is an adversary proceeding betwee n himself and the count

y executive; or, if the co unty executive and the Sheriff agree on the numbe r of deputies and assistants to be employed and the salary to be paid to them, a letter of agree ment may be prepared

and submitted to the court for approval. T.C.A. § 8-20-101(a)(2) & (c) (Supp. 1996). In the instant case, the Sheriff chose to f

ile a peti tion in the c

riminal c ourt. The interve

nors-ap pellants c oncede

that the st

atutory s cheme do es not provide fo r the involvement

of deputy sheriffs in this process. However , the Sheriff’s Association and the individual deputies assert th at they “have sta nding based on their

interest in the outc ome, thei

r close connection and participation in the fee petition process, and their interest in preserving the integrity of the fee petition process.” Under the Tenn essee Ru les of Civi l Procedu re, ther e are tw o ways by which a person may intervene in an action. Rule 24.01 provides for interve nti on as of right, such as when a statute confer s a n unconditional right to intervene; while Rule 24.02 provides for permissive intervention in certain situations. In the absence of express statutory aut hority, determining whether a party i s entitled

to judicia

l relief “requir es the court to decide whether the party has4

a sufficiently personal stake in the outcome of the controversy to wa rrant the exercise of th e court’s power on its behalf.” Metropolit an A ir Researc

h Testing Auth. (MARTA) v. The Metropolitan Gov’t of

Nashville , 842 S.W.2d 611, 615 (Tenn. App. 1992). Although sheriff’s deputies arguably have a stake i n the outc ome of a Salary Petition, this Court has held that “[t]o establish standing, a party m

ust demons trate (1 ) that it sustained a distinct

and palpable injury, (2) that the injury was caused by the c hallenged co nduct, and (3) that the injury is apt to be redressed by a remedy that the court is prepared to give.” Id . (citations omitted). In MARTA , a losing bidd er c hallenged the award of a vehicle inspection maintenance contract to another entity. Th

is Court held that an unsuccessful bidder whose “bid was responsive and within the

zone of activ e consid

era tion” has standing to challenge a city’s compliance with competitive bidding requirements. Id . At 617. Ev en though MARTA wa s not th e next low est bidder, and thus could not show that it was directly injured , this Court allowed MARTA stan ding to challenge bidding pract ices that were not in accordance with the law. Normally, since MARTA’s bid was not

responsi ve to the s pecific ations inc luded in the invitation to bid, standing to challenge the award of the contract would have beendenied. However, since none of the bids received were responsive, this Court held tha t standing wa s proper because the fact that the contract would have to be rebid gave MARTA anot her opport unity to co mpete an d thus a personal and distin ct intere st in the ou tcome of the su it. T he appellants cite MARTA and analogize the positio ns of the Sh eriff’ s Associa

tion and the individu al deputi es to those of losing bidders. They assert that they are uniquely situated to challenge the salary petition “process that was not in compliance with the law.” The appella

nts reliance on MARTA is misplac ed for tw o reason s. MARTA involved the allegedviolation o f compet itive bidding requir

ements i n the city’s Charter and ordinances as well as an alleged violation of the S unshine Law, T.C.A. § 8-44-101 et seq . (1993), which requires open government meetings. In the case before us, the Sheriff’s Association and the individual deputies have not alleged any statutory or procedural violation in the salary petition process . They ass ert m ere ly that the Sheriff abused his discretion by changing his mind regarding the effective date of the proposed raise. There is no allegation that the actions of the Sheriff or the county were

otherwis e imprope

r. In fa ct, if the Sheriff had not agreed to modify the requested e ffective date of t he propo sed sala

ry incre ases, the

petition w ould have

been in1 Although it appears that the Sheriff consulted with the Sheriff’s Association before

deciding on the proposed raise, neither the Association nor the individual deputies have a right to participate in the process. 5 violation of the She

lby County 1 996-97 Sa

lary Po licy whi ch requi

res that p ay raise s for all county employees not on the executive pay tables be effective on O ctober 1st. Similarly, there is no showing that the Sheriff abused his discretion in, or was coerced into, cha ng ing the effectivedate of the raises. The Sheriff is not required to file a salary petition. He may seek any necessary raise for his deputies or no raise at all. Secondly, given the

nature o f compet

itive bidding, bidde

rs are necessa

rily intima

tely involved in the process. Bidders rely onthe spec ificatio ns include d in an invitation to bid, and on the fa ct that the governme

nt award ing the bid

does not have unfettered discretion to accept nonconforming bids. The case before us is distinguishable because the She riff ha s sole discretion to request the number of assistants he believes are “actually necessary to the prope r conducting” of his office, as well as the salaries he feels are necessary to a ttract andretain th

em. Neither the Sheriff’s Associat

ion nor the

individua l deputie s are inv olved in th is process . 1 They do not bid for

their sal aries a

nd thus ar

e not in co mpetition with othersthat would warr ant granting them watc

hdog statu s compar

able tothat allowed the competitive bidders in MARTA

. Even if the appellants could overcome these hurdles, they have sustained no cogniza

ble injury sufficient to grant

them standing. The deputies assert that they were injured beca use they

were deprived of the proposed four percent ( 4%) raise for a

period of three months. The Sheriff’s Association has alleged that its rights are affected because the dues p ayed by it s members are based on a percentage of the deputies’ salary. However, “[i] n order to support an
ac tion, the interest of a party plaintiff must be a present, substantial interest, as distinguished from a mere e xpecta nc y or future, contingent interest.” 59 Am. Jur. 2d Parties § 31 (1987). Though not b inding upon t his Court, federal case law on point is persuasive. In American Federation of Gove

rnment Employ ees, AFL- CIO v. Camp bell , 659 F.2d 15 7 (1980), the United States Court of A

ppeals f or the Dis trict of Co lumbia Circ uit he ld that government employees acquire a vested

right to a w age in crease onl y when the government issues an order fixing an increase. Id . at 163. At best, the proposedraise to b e given de puties an d assistan

ts was only

an expectancy. As stated earlier, the Sherif f may seek any necessary raise or none at all. In6

addition, any request made by t he Sheri ff is subject to agreement with the county executive, and/or subject to court approval. Therefore, a public statement by the Sheriff that he would seek

a certain raise effective on a c ertain date is merely a request contingent upon agreement withthe county or approval of

the cour t. Any “in

jury” sus tained a s a resul t of the She

riff cha nging his mind, or as a r

esult of the court modifying the terms of an agre ement, is not injury to a prese nt, substantial interest sufficient to grant standing to either the Sheriff’s Association or the individua l deputie s. If this Court were to hold otherwise, the floodga tes would be opened. The appellees include a footnote in their brief which we adopt here : If the statute were interpreted to allow ind ividual employees to challenge the salary rate or

general increase requested by the elected official and without regard to the Salary Policy, potentially every employeeof the 9 or more ele cted off

icials could c ha llenge their salary, the courts and elected off icials would be flooded witha multitude of nev erending lawsuits and the purpose of the Civil Service Merit Act and th

e Salary Polic y would be completely undermined. The consequences of such an argument if succ essful would be dire and absurd for a governme nt to oper ate with a ny measur

e of eff iciency or effectivene ss. Every government employee arguably has a “stake in the outcome” of

such a process, but loss of merely a hoped for, or expected, raise is not an infringement of a property right sufficient to support standing to intervene in the process. We find that t

he trial c ourt did

not abuse its discre tion in denying the appellants’ petition to intervene in the salary petition. The judgment of the tri al court

is affirmed. Costs are assessed against th e appell ants.

___________________________ W. FRANK CR

AWFORD PRESIDING

JUDGE, W .S. CONCUR:

________________________________ ALAN E. HIGHERS, JUDGE

________________________________ HOLLY KIRBY LILLARD, JUDGE