# FILED September 13, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

________________________________________________ EDNA FORBES, Plaintiff-Appellee, Vs. Wilson Chancery No. 9325 C.A. No. 01A01-9602-CH-00089 WILSON COUNTY EMERGENCY COMMUNICATION DISTRICT 911 BOARD and W. J. MCCLUSKEY, Defend ants-App ellants.

___________________________________________________________________________

FROM THE W

ILSON COU

NTY CHANCERY COURT THE HONORABLE C. K. SMITH, CHANCELLOR

W. Gary Blackbur n, Blackburn, Slobe

y, Freema n & Happell of Nashville, For A

ppellant s Margaret L. Behm, Anne C. Martin, Dodson Parker & Behm

of Nashville, For Appellee

VACATED IN PA RT, AFFIRMED I N PART AND RE

MANDED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S. CONCURS: ALAN E. HIGH

ERS, JUDGE CONCURS I

N PART, DI SSENTS IN PAR T: HOLLY KIRBY L ILLARD, JU DGE

This case i n volves the Tennessee open meetings law and the Tenne ssee handicap discrimination law. Plaintiff, Edna Forb es, alle ges that d efenda nts, Wilson County Emergency Communication District 911 Board and W.J. McCluskey, Chairman, violated the Tennessee1 The jury awarded plaintiff back pay of $65,975 f or both the Open Meetings Act violation and the violation of the Tennessee Human Rights Act.

2 Awards of attorney fees are pr ovided for in the Tennessee Human Rights Act, T.C.A. § 4-21-306(a)(7) (1995). 2 Handicap Discrimination Act and the Tennessee open meetings act. After a jury trial with the

use of special interrogatories, the cour t entered an order on the jury verdicts which found violations of both acts and awarded plaintiff $65,975.00 in back pay, 1 $38,675.00 in front pay, $250,000.00 in damages for humiliation and emba rras sment, and $50,000.00 for punitive damages

. The cour

t also awa

rded pla intif f’ s attorney $50,000.00 in fees 2 and $6,45 5.00 in expenses. Defendants thereafte r perfected the present appea l. Edna Forbes was hired by the Wilson County Emergency Communication District 911 Board(91 1 Board or Board) on May 8, 1991 as the first Public Safety Answering Point Supervisor

for the newly cr

eated Bo ard. Prio

r to acc epting a p osition as s uperviso r, Ms. Forbes served on the Board itself, helping to establish the new 911 District. On March 22 , 1993, af

te r sev eral months of discomfort, Ms. Forbes met with her physician, who confirmed that she had colon cancer a nd scheduled her to enter the hospital on March24, 1993. M s. Forbes spent the next two days preparing her office for what she anticipatedwould be a six to ei ght week absence. Among other things, Ms. Forbes asked her son-in-law, John Lauderman, to come in to assist he

r with impu

ting compu

ter infor mation. Ms. Forbes also asked Mr. Lau derman t o assist in the office

until the r elief sup ervisor , Dot Reyno lds, could be available for work. On March 23, 1993, Ms. Fo rbes ca lled W.J. McCluskey , chairman of the 911 Board , to informhim that she had been scheduled for emergency surgery, and that she would be out for six to eight weeks. According to Ms. Forbes, Mr. McCluskey yelled at her when she said she would be out of the office , and told her she would be getting herself into trouble. Ms. Forbes wrote the other 911 Board members to inform them of her absenc e. Ms. Forbes recovered from her surgery and was told by her doctors that she could return to work on May 11, 1993. A few days prior to that date, M s. Forbes informed the count

y attorney, Michael Jennings, that she would be returning to work. Ms. Forbes te stified th at,3

during her entire absence, no one from the 911 Boar d called her regarding her job duties. Ms. Forbes alleged, a

nd the jur y found, th at the 911 Board mad e its dec ision to de

mote Ms. Forbes no t at its re gularly scheduled open meeting on May 10, 1993, but at a meeting of the Personnel Policy Committee several days earlier which was closed to the public. At the closed meeting, Mr. McCluskey presented a list of his concerns regarding Ms. Forbes’ job performance. Ms. Forbes testifie d that, pr ior to her demotion, Mr. McCluskey had only discussed one of the fifteenitems, a travel voucher, with her. Furthermore, the member s of the Personnel Policy Committee testified at trial that they had no indepen dent knowledge of Ms. Forbes’s job performance

prior to the private meeting. Ms. Forbes was not contacted regar ding any o f t he accusations leveled by Mr. McCluskey at the Personnel Policy Committee meeting. At the next regular ly scheduled meeting of the Board, May 10, 1993, the Boardvoted, without discussion, to demote Ms. Forbes from the position of full-time supervisor to that of part-time operator. Ms. Forbes learned of the Board’s decision by way of c ertified letter. The jury found that as a result of her demotion, Ms. Forbes suffered a physical relapse, embarr assment, stress, and lack of sleep. Ms. Forbes testified that, following her demotion, she

was never contacted by the 911 Board to work in a ny capa

city, inc luding tha

t of a par t-time operator. Appellants present eight issues for review; however, weperceive the dispositive issue to be whether the defendant-appellant violated the ope n meetings law. The legislatu

re has declared

that it is the policy of this state that “the formation of public policy and decisions is public business and shall not be conducted in secret.” T.C.A. § 8-44-101 (a)(1993). T.C.A. § 8- 44-102 pr

ovides, a s pertine

nt to the iss ues befo

re us: 8-44-102. Open m eetin gs - “Gove rning body” de fined - “Meeting” defined. - (a) All meetings of any governing body are declared to be publi c meeting s open to th e publi c at all times, except as provided by the Constitution of Tennessee. (b)(1) “Governing body” means: (A) The members of any pu blic body which c o nsists of two (2) or more members, with the authority to make decisio ns for or recomme ndations t o a public body on policy or administration . . . .

* * *4 (C)(b)(2) “Meeting” means the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter. (c) Not hing in this section shall be construed as to require a chancemeeting of

two (2) or more members of a public b ody to be co ns idered a

public me eting. No

such cha

nce mee tings, information assembla

ges, or electronic communication shall be used to decide or

deliberate public business in circumvention of the spirit or requi rements o f this par

t. Public notice must be given of all regular or special meetings of a governmental body. T.C.A. § 8-44-103. Secret votes are prohibited, and minutes of the meeting ar e requi red

. T.C.A. § 8-44-104. T.C.A. § 8- 44-105 pr

ovides in p ertinen

t part: 8-44-105. Action nulli

fied - Exc

eption. - Any action taken a t a meeting in

violation o f this par

t shall be void andof no effect . .

. . At the close

of proof , the tria l court su bmitted a s pecial in

terroga tory for m to the ju

ry . In response to the question “Do you find that the 9 11 boa rd made a decision or deliberated toward a d ecision without notice to the public,” the jury answered “yes.” The scope o f ou r review of findings of fact by the jury is whether there is any m aterial evidenc e to support the verdict. T.R.A.P. 13 (d). The trial court also, in compl iance with T.C.A. § 8-44-106 (b), made the following findings of fact and conclusions of law:

1. The par

ties have stipulate d that no notice was given to t he public of the Personnel Policy Committee meeting which occurred a few days before the

May 10, 1993 911 Board meeting. 2. Five (5) members of the 911 B oard atten ded the Personnel Policy Committee meeting, and five (5) members constitute a quorumfor the 911 Board. T.C.A. §7-76-105(f). Those members were Mr. McCluskey, Mr. Purnell, Mr. Davis, Mr. Carpenter, and Mr. Wharton. 3. Mr. McCluskey, Chair of the 911 Board, asked the committee chair to call the meeting; therefore, this was not a chance meeting or informal assemblage. 4. Mr. Davis arranged for the committee to meet at the Firs t United Methodist Church in Wilson County. All prior committee mee tin gs had bee

n held at t he 911 of fice on E ast Main Str

eet in Lebanon. 5. At the outset of the meeting, the committee chair stated that no5 business was to be conducted at the meeting. However, that does notmean that no business was conducted, for that was t he whole purpose of the meeting. 6. Mr. McClus key had p

repared a list

of grievances of proble

ms he had with Ms. Forbes. He ha d requ ested that the meeting be calledfor the purpose o f discuss ing what to do with Ms. F

orbes. At the meeting, the five (5) 911 Board members discussed that list, deliberating toward a decision to demote her. 7. Although the 911 Boardmembers c laim that th ere wa s no vote taken at the Personnel Policy Committee meeting, there was deliberation towards a decision based upon Mr. Wharton’s tes timony and the actions of the 911 Board at its subsequen t meeting. At the subsequent 911 Board meeting on May 10, 1993, the 911 Board members decided, without an y pr ior deliberation or any discu ssion with

Ms. Forbes , to demote

Ms. Forbes . This May 10, 1993 demotion of Ms. Forbes was an announcement of a decision made at the Personnel Policy Committee meeting a few nights before May 10, 1993. 8. The Personnel Policy Committee did not make a report to the full 911 Board at the May 10, 1993 scheduled meeting regarding its recent meeting. 9. At the May 10, 1 993, 911 B oard meeting, Mr. Carpenter, a member of the Per sonnel Poli cy Committee, made t he motion to demote Ms . Forbes, and Mr. D avis sec onded it. 10. The 911 Bo ard’s decision to d emo te Ms. Forbes, without discussion, at the May 10, 1993 911 Board meeting violatedthe Op en M eetings Act because the Board deliberated towa rds that decision at a previous meeting not open to the public. T.C.A. § 8- 44-101 et seq. ; State of Tennessee v. Town of Kingston Springs , 19 Tam 40-15 (Tenn. App. 1993). 11. The May 10, 1993 decision to demote Ms. Forbes is void and of no effect. Tennessee

Open Meetings Act, T.C.A. § 8-44-105. Our review o f finding s of fac t by the tri al court in civil actions is de novo upon the record of the trial court , acc ompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. T.R.A.P. 13(d). Appellan ts assert that the open meetings act is not applicable in the instant ca se beca use the Pe rsonnel Policy Committee is not a governing body, the committee did not have an y authority to make any decision about plaintiff’s job, and, regard less, no deliberations occurred at the Personnel Policy Committee meeting. In Dorrier v

. Dark , 537 S.W.2d 888 (Tenn. 1976), ou r Supreme

Court, commenting on what constitutes a governing body under T.C.A. § 8-44-102 (b)(1), said:6 It is clear

th at for the purpose of this Act, the Legislature intended to include any board, commission, committee, agency, authority or any other body, by whatever

name, whose origin and authority may be traced to State, City or County legislative action and whose me

mbers ha ve author

ity to make

decisio ns o r re comme ndations on policy or administration affecting the conduct of the bus iness of th

e people in the governmental sector. 537 S.W.2d at 892. Basedon Dorrier , we find that the Personnel Policy Committee was a “governing body”

as contempl ated by T .C.A. § 8- 44-102(b )(1). Mo reover , there i s material evidence in the record to support the verdict of the jury that the911 board, through the Personnel Policy Committee, notonly had the authority to make a decision a bout p laintiff’s job, but did, in fact, make a decision or deliberate toward a decision regard

ing plainti ff’s emp loyment a t a sched uled, pri vate meeting, held without notice to the public. The evidence does not preponderate against the trial court’s findings thatthe discussions which were held at that meeting culminated in a motion at the subseque

nt 911 Boar

d meeting

to demote

Mrs. Forbe s. Fi nally, the personnel policy committee maintained no minute s of its meeting, a s required by T.C.A. § 8-44-103. Accordingly, the record supports a finding that the open meetings act was violated and thus, that the action of the 911 Board is “void and of no effect.” T.C.A. § 8-44-105. Since the boar d’s action is void, pla

intiff ha s not been demoted and is reinstated to her position as supervisor. Because there was no demotion, plaintiff has not been discriminated against “in thehiring, firing andother te

rms and conditions of employment,” T.C.A. § 8-50-103(a), and thus has no cause of action under the handicap discrimination laws. For the reasons stated herein, the judgment of the trial court holding defendants liable for violation of the handicap discrimination statute is vacated. The judgment of the trial court holding that defendants violated the open meetings act is affirmed, an d plaintiff’s purported demotion is void and of no effect. The case is remanded to the trial court for such further proceedings as may be necessary to determine proper compensation due plaintiff from May 10, 1993. The tria

l court sh ould

also take such additional steps as are necessary to comply with the provision s of T.C.A . § 8-44-1 06. Costs of the appe al are a ssessed a gainst the appella nts.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S.7

CONCUR:

_________________________________ ALAN E. HIGH

ERS, JUDGE

_________________________________ HOLLY KIRBY L ILLARD, JU DGE