                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                            October 23, 2007 Session

   CHATTANOOGA FIRE FIGHTERS ASSOCIATION LOCAL 820 and
     TARA WEAVER, vs. CITY OF CHATTANOOGA, TENNESSEE,
    CHATTANOOGA CITY COUNCIL, and CHATTANOOGA FIRE
                        DEPARTMENT

                Direct Appeal from the Chancery Court for Hamilton County
                 No. 06-0490, Part 2    Hon. Howell N. Peoples, Chancellor



               No. E2007-00125-COA-R3-CV - FILED DECEMBER 27, 2007



Petitioner was disciplined by the Chattanooga Fire Department, which discipline was approved by
the City Council. She then petitioned the Chancery Court for a Writ of Certiorari, and the
Chancellor, upon conducting a hearing, held that the discipline exceeded that allowed by the City
Code, in that the Department had forced her to take leave time against her accrued leave for the days
in excess of the 30 days allowed. On appeal, we affirm.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.


Kenneth O. Fritz, Chattanooga, Tennessee, for appellants.

Jimmy F. Rodgers, Chattanooga, Tennessee, for appellees.



                                            OPINION


               Petitioners, Chattanooga Fire Fighters Association Local 820 and Tara Weaver, filed
a Petition for Writ of Certiorari asking the Chancery Court to issue a writ to review the City
Council’s suspension of Capt. Tara Weaver.
                Weaver alleged that she was employed by the Chattanooga Fire Department, and that
on March 29, 2006, she was ordered by Battalion Chief Morton to go home, and she was not allowed
to return to work until May 25, 2006. Further that on April 11, 2006, Fire Chief Wendell Rowe
conducted a hearing regarding Weaver’s alleged insubordination on March 29, 2006, and imposed
a 28 day suspension starting April 16, 2006, and ending May 26, 2006. Weaver alleged that Chief
Rowe decided that the time she had already been out of work (March 29 - April 15) would be
deducted from her personal leave time that she had earned and saved. She averred that she never
requested that this time be considered personal leave time, nor did she accept it as such.

              Weaver appealed Rowe’s decision to the City Council, and the Council upheld
Rowe’s decision in its entirety.

               Petitioners asserted in the Trial Court that §13.45 of the Charter of the City of
Chattanooga and §2-174(a) of the Chattanooga City Code provide that no employee would be
suspended for longer than thirty days. Further, that by placing Weaver on leave as of March 29,
Rowe effectively began her suspension as of that date, which made her suspension longer than thirty
days. Petitioners, by amendment, sought a declaratory judgment “that the methodology and length
of the suspension imposed on Capt. Tara Weaver violated the Charter of the City of Chattanooga and
Chattanooga City Code.”

                In its Answer, the City basically admitted the facts contained in the Petition, but
denied that any relief was warranted. In a transcript of the City Court hearing filed by the defendant,
Rowe admitted that the time Weaver was off from March 29 to April 15 was treated as personal
leave time, although not requested, and Rowe stated that “we can assign personal leave.”

               At the hearing before the Trial Court, the parties’ attorneys agreed that the facts were
basically undisputed as regarding the important dates. Further, that following the hearing before the
City Council, the parties agreed that Weaver could return to work on May 15, 2006, as the ordinance
only allowed a 30 day suspension.

                Weaver’s attorney insisted that the issue was whether her suspension actually started
on March 29, when she was sent home, and whether the Department should have been allowed to
treat the period from March 29 to April 15 as personal leave. The City attorney countered that if
Weaver wanted to appeal the use of her personal leave, she should have filed a grievance, but
Weaver’s attorney responded that grievances could only be filed regarding suspensions, demotions,
or dismissals.1

                The Trial Court held that the Association had no standing, and that there would be
no declaratory judgment. The Court then found that Weaver was sent home and not allowed to work
from March 29 to April 11, and that she was adversely impacted when the Department decided to
designate this as personal leave.

       1
           The City ultimately agreed with this position in its Brief.

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                The Court, in its Final Order, found that the City’s decision to place Weaver on
personal leave from March 29 to April 11 “constituted and[sic] adverse impact and was unlawful
under Chattanooga City Charter §13.45 and Chattanooga City Code §2-174(a).” The Court directed
the City to restore Weaver’s personal leave for that period.

                On appeal, these issues are raised:

                1.      Whether the Trial Court had jurisdiction to find that the appellant did not
                        have authority to require Weaver to use her personal leave involuntarily?

                2.      Whether the Trial Court had jurisdiction to order the City to reinstate said
                        personal leave?

                3.      Whether the Trial Court erred in finding that the Association lacked standing
                        in the case and in refusing to issue a declaratory judgment?

                Appellant argues that on a petition for writ of certiorari, the trial court’s review power
is limited. We have previously stated that, in such a situation, “the trial court may reverse or modify
the Board's action only if the court concludes that the Board ‘has acted in violation of constitutional
or statutory provisions or in excess of its own statutory authority; has followed unlawful procedure
or been guilty of arbitrary or capricious action; or has acted without material evidence to support
its decision.’” Gross v. Gilless, 26 S.W.3d 488, 492 (Tenn. Ct. App. 1999), quoting Watts v. Civil
Serv. Bd., 606 S.W.2d 274, 277 (Tenn. 1980), cert. denied, 450 U.S. 983 (1981).

               Appellant argues that the Council did not make a decision on whether Weaver was
inappropriately forced to use her personal leave time from March 29 to April 11. Weaver argues that
the Council upheld Rowe’s decision in its entirety, which encompassed the involuntary use of
Weaver’s personal leave and the impermissible length of the actual suspension.

                  Our review of the transcript of the City Council hearing demonstrates that the Council
did, in fact, affirm Rowe’s disciplinary action against Weaver in its entirety, including the length of
the suspension. The attorneys argued to the City Council over the language of Chattanooga City
Charter §13.45 and Chattanooga City Code §2-174(a), relating to the permissible length of a
suspension, and whether the 30-day limit related to calendar days or work days. Also discussed, was
whether the Fire Department could force an employee to take personal leave. The Chairperson then
questioned whether the Council was being asked to decide both the propriety of the judgment as well
as the type of discipline, including the length of the suspension, and the attorneys replied in the
affirmative.

              We conclude that the ruling of the Council upheld not only that the termination and
insubordination occurred, but also upheld the discipline given in all respects, which included Weaver
being sent home on March 29 and not allowed to work thereafter (even though her suspension


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purportedly did not begin until April 16) and thus forced her to use her personal leave time during
that period until the “official” start of her suspension.

                Appellant argues that city employees can be placed on a leave of absence without pay,
and shall be required to then use all earned compensatory leave and personal leave time prior to
being placed on leave without pay. Chattanooga City Code §2-163. Also, that the heads of
departments have discretion regarding the use of an employee’s personal leave. Chattanooga City
Code §2-161(e). Our review of these Code sections demonstrate that they speak in terms of an
employee’s request for a leave of absence without pay, and an employee’s request for the use of
personal leave time. In this case, it is undisputed that the employee made no request for leave for
the time in dispute. We affirm the ruling of the Trial Court that the Council affirmed an unlawful
discipline.

                The Trial Court also directed the City to restore Weaver’s personal leave for that time
period, but the City argues this was improper. However it does not cite this Court to any authority
for that position. This Court has often held that the inferior tribunal’s decision may be reversed or
modified upon a showing that the tribunal acted illegally or arbitrarily, or exceeded its authority,
which was shown in this case. See Gross.

                 Finally, petitioner asserts that the Trial Court erred in finding that the Fire Fighters
Association lacked standing, and in failing to issue a declaratory judgment. Petitioner asserts that
the Trial Court overlooked the request for a declaratory judgment at the beginning of its
Memorandum Opinion, and then when it was pointed out, the Court simply stated it would not grant
the same without elaboration. Petitioner’s Brief suggests the Association’s fear that without
guidance from the Court on the length of suspension issue, this situation will be repeated in the
future, despite the City’s concession in this case that Weaver’s suspension should not have exceeded
30 calendar days.

                As this Court has previously explained:

                “It is well settled in this State that the courts decline a declaratory judgment where
                the question to be determined is based upon a contingency which may never occur."
                Otherwise the courts might wander into the "limitless field of advisory judgments."
                A declaratory judgment action will not lie based on future, remote, or uncertain
                probabilities.

Fuller v. Campbell, 109 S.W.3d 737,740 (Tenn. Ct. App. 2003)(citations omitted).

               Essentially, the Association asked for an advisory opinion on a situation that they
think might occur in the future. We hold that the Trial Court did not err in refusing to grant a
declaratory judgment on this issue.

                We affirm the Judgment of the Trial Court and remand, with the cost of the appeal


                                                  -4-
assessed to the City of Chattanooga.




                                             ______________________________
                                             HERSCHEL PICKENS FRANKS, P.J.




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