                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               November 1, 2016 Session

                          MARK HENDERSON
             V. CITY OF MOUNT PLEASANT, TENNESSEE ET AL.

                 Appeal from the Chancery Court for Maury County
                         No. 15-544  David L. Allen, Judge


              No. M2016-00639-COA-R3-CV – Filed November 28, 2016


Petitioner, the interim city manager for the City of Mount Pleasant, Tennessee, filed suit
seeking a declaratory judgment that the votes of two commissioners to terminate his
employment were void due to a conflict of interest. He contends their votes were void
because ethics complaints filed by Petitioner against the two commissioners were
pending at the time of the vote. The trial court dismissed the petition for failure to state a
claim upon which relief can be granted, pursuant to Tenn. R. Civ. P. 12.02(6), upon the
finding that the petition failed to allege facts which would show that the commissioners
had a personal financial interest in the outcome of the vote on Petitioner‟s employment.
Petitioner appealed; we affirm.

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

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which
RICHARD H. DINKINS and W. NEAL MCBRAYER, JJ., joined.

Mark Henderson, Mount Pleasant, Tennessee, Pro Se.

Daniel H. Rader IV and Daniel H. Rader III, Cookeville, Tennessee, for the appellees,
City of Mount Pleasant, Tennessee; Delores Blankenship; Mike Davis; Ricky Frazier;
and Michael Hay.

John D. Burleson and Matthew R. Courtner, Jackson, Tennessee, for the appellees Robert
Shackelford and George Vestal.

                                         OPINION

      On July 21, 2015, the City of Mount Pleasant, Tennessee, through its five member
board of commissioners, hired Mark Henderson (“Petitioner”) as interim city manager.
Over the following months, two city commissioners grew dissatisfied with Petitioner‟s
job performance, and at a meeting on October 2, 2015, Commissioners Ricky Frazier and
Delores Blankenship moved to terminate Petitioner‟s employment. However, this motion
failed by a vote of 2-3.

      Thereafter, Petitioner filed ethics complaints against Commissioners Frazier and
Blankenship with the city attorney, Quinn Brandon Stewart. Ms. Stewart notified the
commissioners of the complaints and began an investigation into the allegations.

       On November 3, 2015, the board of commissioners held a special meeting “to
discuss and act upon the interim city manager‟s position.” At the beginning of this
meeting, Ms. Stewart advised the Commission that, in her legal opinion, it would be a
conflict of interest for Commissioners Frazier and Blankenship to vote on any issue
involving Petitioner given that the ethics complaints he filed against them were pending.
Thereafter, a motion was made to appoint Petitioner as permanent city manager under the
same contractual terms as the previous city manager for a term of one year. Despite Ms.
Stewart‟s opinion, Commissioners Frazier and Blankenship participated in the vote on
this motion, which resulted in the motion‟s failure by a 2-3 vote. Commissioner Frazier
then moved to terminate Petitioner. This motion passed 3-2, with Commissioners Frazier
and Blankenship once again participating in the vote. Commissioners Frazier and
Blankenship subsequently moved to hire a new interim city manager, which motion also
passed 3-2.

       The following day, Petitioner notified Ms. Stewart that it was his position that he
had been elected permanent city manager at the November 3, 2015, meeting. Petitioner
argued that the votes of Commissioners Frazier and Blankenship were void as a result of
their conflict of interest; therefore, the initial motion to make Petitioner permanent city
manager passed by a 2-1 vote.

       Petitioner then filed a petition with the Maury County Chancery Court under
Tenn. Code Ann. § 29-14-103, naming the City of Mount Pleasant, Commissioner
Frazier, and Commissioner Blankenship as respondents.1 The petition sought a
declaratory judgment that the votes of Commissioners Frazier and Blankenship on
November 3, 2015, were a nullity due to the ethics complaints pending against them and
that the motion to make Petitioner permanent city manager be declared to have passed.
Further, the petition requested that the court order specific performance of Petitioner‟s
contract for employment with the city for one year. Petitioner also requested a temporary

       1
         The petition also named Michael Hay, the individual hired to replace Petitioner as interim city
manager, and Commissioner Mike Davis, the third commissioner that voted to terminate Petitioner, as
respondents. By a subsequent amendment, Petitioner also added as respondents the two remaining city
commissioners, Robert Shackelford and George Vestal.


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restraining order preventing the board of commissioners from hiring a permanent city
manager pending a final resolution of the matter.

        On December 2, 2015, the respondents filed a joint motion to dismiss the petition
for failure to state a claim upon which relief can be granted and a response in opposition
to Petitioner‟s request for a restraining order. This motion argued that, although
Tennessee conflict of interest law prevents an elected official from voting on a measure
in which they have a personal financial interest, the vote in question did not involve a
monetary interest for any of the commissioners and, therefore, did not constitute a
conflict of interest as a matter of law. Thus, the respondents argued that the petition failed
to state a claim upon which relief can be granted.

      Following a hearing on this motion but before the court ruled, Petitioner filed a
motion to amend his petition. The proposed amendment sought to add, inter alia,
language to the petition relating to the financial interests of Commissioners Frazier and
Blankenship. Specifically, the motion sought to add the following:

       The proposed ouster in each of the ethics complaints would have resulted
       in a loss of income to both Frazier and Blankenship in the form of their
       salaries under Charter provision 6-20-204, which is the same as T.C.A. 6-
       20-204. This meets the requirement of a personal financial interest under
       Tennessee conflicts of interest law, as ethics violations may only be filed
       by “an official or employee of the city” pursuant to the municipal
       code section 1-410. With Petitioner terminated, the ethics complaint would
       in effect disappear, and thus each had a direct financial interest in both
       terminating Petitioner as interim city manager and not hiring him on a
       permanent basis.

       In light of this motion, the court held a second hearing on January 13, 2016, after
which it took the matter under advisement. Thereafter, the court filed a written opinion
and order granting Petitioner‟s motion to amend but dismissing the amended petition
under Rule 12.02(6) for failure to state a claim upon which relief can be granted. The
court noted that

       [t]he key to the Tennessee Conflicts of Interest Law is personal financial
       interest. If the municipal official in question has no personal financial
       interest in the municipal contract or work that raised the question of a
       conflict of interest, there is no violation of the Conflicts of interest Law.

The court determined that no such personal financial interest existed for the
commissioners under the facts alleged by Petitioner because the vote to remove Petitioner
from his position had no bearing on the pending ethics investigation. The court observed
that Mount Pleasant municipal code does not limit the power to file an ethics complaint

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to only “an official or employee” of the city; instead, the city attorney is required to
investigate any credible ethics complaint. Thus, the court concluded that, because the
vote to remove Petitioner did not constitute a conflict of interest as a matter of law, the
petition failed to state a claim upon which relief can be granted.

        Petitioner then filed a motion to alter or amend judgment, which motion was
denied by the trial court. Thereafter, Petitioner initiated this appeal and argues that the
trial court erred in dismissing his petition under Rule 12.02(6).

                                  STANDARD OF REVIEW

       A Tenn. R. Civ. P. 12.02(6) motion to dismiss challenges only the legal
sufficiency of the complaint, not the strength of the Petitioner‟s proof or evidence. Webb
v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 427 (Tenn. 2011). “The
resolution of a 12.02(6) motion to dismiss is determined by examination of the pleadings
alone. A defendant who files a motion to dismiss „admits the truth of all the relevant and
material allegations contained in the complaint, but . . . asserts that the allegations fail to
establish a cause of action.‟” Id. (quoting Brown v. Tenn. Title Loans, Inc., 328 S.W.3d
850, 854 (Tenn. 2010)).

        When considering a motion to dismiss, courts “must construe the complaint
liberally, presuming all factual allegations to be true and giving the Petitioner the benefit
of all reasonable inferences.” Id. (citing Trau–Med of Am., Inc. v. Allstate Ins. Co., 71
S.W.3d 691, 696 (Tenn. 2002)). A trial court should grant a motion to dismiss “only
when it appears that the Petitioner can prove no set of facts in support of the claim that
would entitle the Petitioner to relief.” Id. (quoting Crews v. Buckman Labs. Int'l, Inc., 78
S.W.3d 852, 857 (Tenn. 2002)). We review the trial court's legal conclusions regarding
the adequacy of the complaint de novo with no presumption of correctness. Id.; Doe v.
Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999).

                                         ANALYSIS

      At issue in this case is whether, under the facts alleged in Petitioner‟s complaint,
Commissioners Frazier and Blankenship had a conflict of interest that precluded them
from voting on Petitioner‟s continued employment.

       Conflicts of interest in Tennessee are governed primarily by Tenn. Code Ann.
§ 12-4-101. See City of New Johnsonville v. Handley, No. M2003-00549-COA-R3-CV,
2005 WL 1981810, at *14 (Tenn. Ct. App. Aug. 16, 2005); 27 Tenn. Prac. Const. Law.
§ 3:15. Section 12-4-101 provides, in relevant part,

       (a)(1) It is unlawful for any officer, committee member, director, or other
       person whose duty it is to vote for, let out, overlook, or in any manner to

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        superintend any work or any contract in which any municipal corporation,
        county, state . . . or other political subdivision created by statute shall or
        may be interested, to be directly interested in any such contract. “Directly
        interested” means any contract with the official personally or with any
        business in which the official is the sole proprietor, a partner, or the person
        having the controlling interest. . . .

        ...

        (b) It is unlawful for any officer, committee member, director, or other
        person whose duty it is to vote for, let out, overlook, or in any manner to
        superintend any work or any contract in which any municipal corporation,
        county, state . . . or other political subdivision created by statute shall or
        may be interested, to be indirectly interested in any such contract unless the
        officer publicly acknowledges such officer‟s interest. “Indirectly interested”
        means any contract in which the officer is interested but not directly so, but
        includes contracts where the officer is directly interested but is the sole
        supplier of the goods or services in a municipality or county.

Tenn. Code Ann. § 12-4-101 (emphasis added).

       The key to assessing whether a conflict of interest exists under this statute is
personal financial interest. See Sid Hemsley, Conflicts of Interest in Tennessee, Univ. of
Tenn. Municipal Technical Advisory Service Opinion (2008).2 “If the municipal official
in question has no personal financial interest in the municipal contract or work that raised
the question of a confliction of interest,” there is no violation of Tenn. Code Ann. § 12-4-
101. Id.; see also Tenn. Op. Atty. Gen. No. 09-175, 2009 WL 3764110, at *2 (Tenn. A.G.
Nov. 6, 2009) (“This Office has indicated in the past that the interest referred to under
[Tenn. Code Ann. § 12-4-101] is a pecuniary interest.”).

       For example, in Gillham v. City of Mt. Pleasant, a residential property owner
challenged the procedures used by the city commission in granting a rezoning application
submitted by two industrial companies. Gillham v. City of Mt. Pleasant, No. M2010-
02506-COA-R3-CV, 2012 WL 1079333, at *1 (Tenn. Ct. App. March 29, 2012). The
property owner asserted, inter alia, that the city mayor and a commissioner had a conflict

        2
           The Municipal Technical Advisory Service (“MTAS”), a part of the Institute for Public Service,
is a state entity, which “exists to provide studies and research in municipal government, publications, and
educational conferences and to furnish technical, consultative, and field services to municipalities of the
state in problems relating to fiscal administration, accounting, tax assessment and collection, law
enforcement, improvements and public works, and in any and all matters relating to municipal
government.” Tenn. Code Ann. § 49-9-407. Opinions issued by the MTAS are available at
http://www.mtas.tennessee.edu/web2012.nsf/Web/Knowledgebase+ByTitle.


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of interest and that their participation granting the application invalidated the procedure.
Id. Thereafter, the defendants filed a motion to dismiss which was granted by the trial
court. Id.

       On appeal, we concluded that neither the mayor nor the commissioner had a
conflict of interest in the rezoning application. Id. at *8. We reasoned,

       [t]he only basis for [Plaintiff‟s] allegations of conflict of interest is the fact
       that both Mayor Hendrix and Commissioner Colvett had public duties in
       their roles with the power system. In other words, [Plaintiff] has never
       claimed that either the mayor or the commissioner had any personal or
       private interest in the outcome of the rezoning procedure. There is no
       allegation that either could possibly profit personally from the rezoning.
       Neither is alleged to have any ownership or other interest in the two
       companies that sought the change in zoning.

Id. at *8 (emphasis added). Thus, we affirmed the trial court‟s dismissal of the complaint.
Id. at *1.

       In this case, Petitioner alleged that Commissioners Frazier and Blankenship had
personal financial interests in the vote to terminate his employment because this vote
affected the viability of the ethics complaints pending against the commissioners.
Specifically, Petitioner‟s amended complaint states,

       The proposed ouster in each of the ethics complaints would have resulted
       in a loss of income to both Frazier and Blankenship in the form of their
       salaries. . . This meets the requirement of a personal financial interest
       under Tennessee conflicts of interest law, as ethics violations may only be
       filed by “an official or employee of the city” pursuant to the municipal
       code section 1-410. With Petitioner terminated, the ethics complaint would
       in effect disappear, and thus each had a direct financial interest in both
       terminating Petitioner as interim city manager and not hiring him on a
       permanent basis.

       In order to determine whether the pending ethics complaints created a conflict of
interest for Commissioners Frazier and Blankenship in the vote to terminate Petitioner,
we must review the relevant municipal ordinances. Section 1-410 of the Mount Pleasant
Municipal Code provides, in relevant part,

       (1) The city attorney is designated as the ethics officer of the municipality.
       Upon the written request of an official or employee potentially affected by
       a provision of this chapter, the city attorney may render an oral or written
       advisory ethics opinion based upon this chapter and other applicable law.

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        (2)(a) Except as otherwise provided in this subsection, the city attorney
        shall investigate any credible complaint against an appointed official or
        employee charging any violation of this chapter, or may undertake an
        investigation on his own initiative when he acquires information indicating
        a possible violation, and make recommendations for action to end or seek
        retribution for any activity that, in the attorney‟s judgment, constitutes a
        violation of this code of ethics.

        ...

        (c) When a complaint of a violation of any provision of this chapter is
        lodged against any member of the municipality‟s governing body, the
        governing body shall either determine that the complaint has merit,
        determine that the complaint does not have merit, or determine that the
        complaint has sufficient merit to warrant further investigation. . . .

Mount Pleasant, Tenn., Municipal Code § 1-410 (emphasis added).

        As discussed above, Petitioner argues that, under Section 1-410, only “an official
or employee” of the city may file an ethics complaint. However, there is simply no
language in the city ordinance supporting this argument. Although subsection (1) of the
ordinance appears to limit the ability to seek advisory ethics opinions from the city
attorney to officials or employees of the city,3 the ordinance has no such restriction on the
ability to file an ethics complaint. To the contrary, subsection (2) requires the city
attorney to investigate “any credible complaint” against an appointed official or city
employee. Id. (“[T]he city attorney shall investigate . . .”). Additionally, after a complaint
is filed, the city‟s governing body must determine whether or not the complaint has merit.
Id. (“[T]he governing body shall . . . determine . . .”). Section 1-410 does not condition
these obligations upon whether or not the complainant is an official or employee of the
city.

       Therefore, it is clear that the viability of Petitioner‟s ethics complaints against
Commissioners Frazier and Blankenship was not dependent upon his continued
employment. Thus, because the vote on Petitioner‟s employment had no bearing on the
pending ethics complaints, Commissioners Frazier and Blankenship did not have a
personal financial interest in the vote by virtue of the complaints. Moreover, Petitioner
has failed to allege that the commissioners had any other personal financial interest in the


        3
           As seen above, Section 1-410(1) states, “Upon the written request of an official or employee . . .
the city attorney may render an oral or written advisory ethics opinion[.]” (emphasis added).


                                                   -7-
outcome of the vote on his employment. Accordingly, we affirm the trial court‟s
conclusion that Petitioner failed to state a claim for a conflict of interest.


                                    IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against Mark Henderson.


                                                 ________________________________
                                                 FRANK G. CLEMENT, JR., P.J., M.S.




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