### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE October 1, 2002 Se ssion LARRY KERR , vs. ANDERSO N COUNTY, TENNESSEE Direct Appeal from the Circuit Court for Anderson County No. 99LA0258 Hon. James B. Scott, Circuit Judge

FILED JANUARY 21, 2003 No. E2002-00020-COA-R3-CV

The Trial Judg e held pla

intiff’s employ

ment Contr

act w as valid

and enforceable. On appea l, we re ve rs e o n t he gr ou nd s t he pr ov is io ns in th e C on tr ac t a re ag ai ns t p ub li c p ol ic y. Tenn. R. App. P .3 Appeal as of Right; Jud gment

of the Circ

uit Court Revers ed, and the action dismissed. H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which C HARLES D. S USANO , J R ., J., and D. M ICHAEL S WINEY , J., joined.

David S. Cla

rk, Oak Ri dge, Te

nnessee , for App ellant. Dail R. Cantrell, Clinton, Tennessee, for Appellee.

OPINION

The determinative issue before the Court is the validity of an “employ

ment cont ract” entered on the 9 th day of Apr il, 1993 between the plaintiff “employ ee” and the governmen t o f Anderson County, State of Tenne ssee, “employe r”. Following an evi denti ary hearin g, the Trial Court foundthe contract was a valid and binding co ntract between the County a nd the plaintiff, and that it was intended that the plaintiff fulfillcertain obligations under the contract which w ere set forth, and the Court found tha t th e defenda nt had fa iled to pro ve the pla

intiff ha d breached the c ontract

by f ailing to perfor m. Plaintiff’s action alleged that in 1993 he was approac hed reg arding a position at1 The Co unty Exe cutiv e test ified the po siti on was termi nated due to a cut i n fund ing. -2- Anderson County High School for a teach er and f ootball c oach. He

turned do wn the of

fer bec ause it paid $ 9,000.00 less than he would have made as a teacher /football coach in Knox County. He further averred that he was contacted by the Anderson County Executive, the Budget Director, and several County

Commissione

rs, and w as told ab out anothe r part-t ime positio n that wasavailab le withthe County which would not interfer e with his employment as a tea cher. Plaintiff accepted the posi tion and the Contract was signed by him, the County Executive, the County Attorney and the Directo r of Schoo ls. The Contract

states tha

t the plain

tiff was to “supervise and develop various educational prog rams to be implemented in the Anderson County School Sy stem, which will be mutually determined between the Employee and the County

Executive.” The Contract then states the plain tiff will be compe

nsated $9 ,000.00 in

twelve mo nthly

installme nts for thi s work, and that the terms of the Contract “are to run conc urren tly with the Emp loyment Contr act ente red into betweenthe Employee and the Anderson County Boa

rd of Education, concerninghis employment as a teach er in the Anderso n County

School System. Employee’s contract with the A nderson C ounty Board of E ducation is renewed annually . It is the intention of the Employer, Anderson C ount y Governm ent, th at t he two agreements run concur rently, for the dur

ation of the Employee’ s employment

with the Anderson County Boa rd of Education.” The Contract further states that there is “no need

for an annual renewal

with the Anderson County Gover nment concerning this particular Employment

Agree ment, in tha

t it is directly

tied to the employment ag reement previously

entered into between the Employee and the Anderson County B oard of Education.” Plaintiff averred that he was paid pursuant to this Contract from 1993 t o 1 998, but in 1998 there was a change of administration for Ander son County and plaintiff “was informed” that the County did not intend to honor the Contract 1 any long er, which caused this actio n to be bro

ught. A considerable amount of evidence at trial revolve d around the plaint iff’s dut i es under the Contract, and to what extent he performed any duties as required by the Contract. As to the c onditions of plaintiff’s obligations under the Contract, and his performance , the Tri al Cour t aptly observed:

. . . I

think basically these other ma tters were not those matters that were a condition nec essarily

to the contract. They

were just what y ou could call – based upon the proof and the inference I

draw, they

were tokenconditions that weren’t really all that condition al to be me

t. The parties a

re appa rently in agreement tha

t this Contra

ct was f or a one-y

ear ter m, but defendant argues that the Contract could thus be terminated by the County at the end of a

oneyear term for discontinuation of fundin g or wha tever r eason it c hose. The

Contract expressly states, however, that the Contract will run “for the duration of the employee’ s employment with Anderson County Board o f Educa

tion.” Thu s, pursuant to its plain and unambiguous terms, the Contract could2 Th e d ur at io n o f t he Co nt ra ct is de te rm in ed by a th ir d p ar ty. -3- only be te rm in at ed by t he Co un ty i f plainti ff’s employment with the B oard of Education was terminated. We hold that the provision in the Contract requiring the County to fund it so long as pl aintiff i s employ

ed in the public sch ool sy stem of the County , is in cont

raventi on of the Pu

blic Policy of this Stat

e, as its te rms require the County

to continu e to fund the Contract for an indef inite period of time. The oft-quoted controlling principle, is set forth in the case of City of Knoxville v. Ambrister , 196 Tenn. (1953), p.7, quoting Whitley v. W hite, 176 Tenn. 206, 140 S.W.2d 157, 159: Contract s made for the purpose of unduly controlling or affect

ing off icial conduct of the exercise of legislative, administrative and judicial functions, are plainly opposed to public policy. They strike at the very f

oundations of government and intend to destroy that confidenc e in the integr ity and discretion of public action which is essential to the preservation of civilized society. The principle is universal and is applied without any r eference to the mere outwar d form and purpose of the alleged transaction. The Contract

unduly controls and aff

ects the official conduct of the County legislative body a

nd the administrative Executive, as it contractually binds them to fund a nd administer the contract for an indefini te period of

time, 2 without re gard to

the fina ncial co ndition of

the County

or the ne ed to continue the services called for in the Cont ract. Also se e, Haymon v. City of Chattanooga , 513 S.W.2d 185 ( Tenn. Ct. App. 1974); and Benton v. City of Chattanooga, et al., 1998 Tenn. App. Lexis 454 (filed July 20, 1998).

Defendant

argue s that it wa s error

for the Co

urt to rec use the County

Attorneyposttrial. Defendant

concedes that the County Attorney appeared as a substitute counsel following the trial, and that t

he Attorney

testifie d at trial . Plaintiff mo ved to rec use the County Attorney from representing th e Co unty, based on DR5-102, and the Trial Court granting the Motion, stating the County Attorney could only

continue representingth e County long enoug h to file a Notice of Appeal. DR5-102 states that a lawye r “shall” withdraw from rep re sentation if it becomes apparent that the lawyer

will be called as a witness on behalf of the cl ient, unle ss the testimony relates solely to an unc ontested matter, t he testimo ny r

elates so lely

to a matter of formality , or the testimonyrelates solely

to the nature and value of legal ser vices rendered in the case by the lawyer

. In this case, the Attorney testified that he had reviewed the minu tes of the County Commission meeti ngs during the relevant time period, and found no entries showing that the Contract in question had been approved. The Coun ty Clerk for Ande rson County testified he was a custodian of the records for

the County

Commission’s minutes, and the parties then stipulated that there was no entry in the minut

es showin g that the Commission had appr oved this Co ntract.-4- The Trial Court found the Coun ty A ttorney’s testimony was basically c

umulative, given the testimony of the Clerk, bu t that suff icient g rounds sti ll existed to

warran t his recu sal. The Trial Court’s action disqualifying an attorne y is s crutinized for an abuse of discretion, under the abuse of discretion standard. See Clinard v. Blackwood , 46 S.W.3d 177-182 (Tenn. 2001); State v. Rubio , 746 S.W.2d 732 (Tenn. Crim. App. 1987).

In th is ca se , t he Co un ty A tt or ne y’ s testimony was cumulative at best, as the Trial Cour t fou nd. The Attorney w as not a party de fendant at that time, and his testimony did not ultimately

relate to a contested issue, as the parties stipulated, there we re no c ou nty commission minute s ref

lecting the Contract at issue had been considered and voted upon by the Commission. We conclude

there wa s no valid r

eason to r emove the

County Attorney from r

epresenting the

County on appeal in this action.

We pretermit all other

issues raised on appeal and reverse the Trial Court’s enforcing the Contract for the reasons heretofore stated. The cause is remanded

to be dismissed, with the cost of the appeal assessed to La rry Kerr.

_________________________ H ERSCHEL P ICKENS F RANKS , J.