                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                  November 27, 2000 Session

         HARRY JAMES TUSANT, JR., ET AL. v. CITY OF MEMPHIS

                 A Direct Appeal from the Chancery Court for Shelby County
                 No. 00-0484-2    The Honorable Floyd Peete, Jr., Chancellor



                    No. W2000-01431-COA-R3-CV - Filed February 6, 2001


Petitioners, Memphis police officers, filed a petition in chancery court for writ of mandamus to
require the city to promote them to certain civil service ranks after they successfully completed the
promotional process and are otherwise eligible and qualified for promotion. The trial court denied
the petition, and petitioners have appealed.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY KIRBY LILLARD, J., joined.

David M. Sullivan, Memphis, For Appellants

Louis P. Britt III, David P. Knox, Memphis, For Appellee

                                              OPINION

         On March 31, 2000, petitioners, Harry James Tusant, Jr., John D. Birch, Tommy W. Bracey,
Ernestine T. Davidson, Willie C. Greenwood, and George M. Olive, filed an amended petition for
issuance of mandamus against the respondent, City of Memphis. The petition states that petitioner,
Tusant, is employed as a major by the Memphis Police Department and petitioners, Birch, Bracey,
Davidson, Greenwood, and Olive, are employed as sergeants by the Memphis Police Department.
It is averred that in 1996 Tusant participated in the promotion process to the rank of inspector, and
the remaining petitioners participated in the promotion process to the rank of lieutenant, both
positions being civil service ranks. The petition avers that after the testing process, Tusant ranked
10th out of 28 on the eligibility list for inspector and was the next to be promoted from that list, and
that the other petitioners were the next to be promoted from the lieutenant’s eligibility list.
Petitioners allege that the city charter, Sections 69 and 70, provide that the city council is authorized
to designate the number of inspectors and lieutenants. For the fiscal years 1999 and 2000, the
authorized inspectors for employment was set at 13, and the fiscal year for 1999 began on July 1,
1998. The petition further avers that there were ample vacancies for the position of lieutenant for
the fiscal years involved and that the police department administrators had stated that there was a
critical shortage of lieutenants. Petitioner Tusant alleges that he was told by the former police
director Winfrey that once a federal court injunction was lifted concerning the promotions that
Tusant would be promoted to inspector and that in February of 2000, the injunction was dissolved.
It is averred that the police department then promoted some 20 individuals to sergeant who were on
the eligibility list for promotion from the 1996 promotion process. Petitioner Tusant requested the
current police director to promote him, but his request was refused, and the current director filled
two vacancies at the rank of inspector with individuals who were not on the eligibility list and has
filled one vacancy with someone with a lower place on the eligibility list than Tusant. The petition
further alleges that the respondent’s refusal to promote the petitioners is discrimination against them
for non-merit factors and is in violation of provisions of the Charter of the City of Memphis and the
Ordinances of the City of Memphis, as quoted in their petition as follows:

               City Charter
               Sec. [249]. Director of personnel.

               . . . . There shall be no discrimination in the City employment of
               personnel because of religion, race, sex, creed, political affiliation, or
               other non-merit factors, nor shall there be any discrimination in the
               promotion or demotion of City employees because of religion, race,
               sex, creed, political affiliation or other non-merit factors. (Ord. No.
               3233, § 4, 8-31-82).

               Sec. [250.1]. Examinations for applicants for employment.

               All applicants for employment in positions protected by this article,
               shall be subjected to competitive job-related examinations under such
               rules and regulations as may be adopted by the Director of Personnel.
               The examinations to be provided for shall be of a practical nature and
               relate to such matters as will fairly test the relative competency of the
               applicant to discharge the duties of the particular position. These
               examinations should be developed in conjunction with other tools of
               personnel assessment and complemented by sound programs of job
               design to aid significantly in the development and maintenance of an
               efficient work force and in the utilization and conservation of human
               resources. No question in any examination shall relate to political or
               religious opinions or affiliations. The examination shall be conducted
               and controlled by the Director of Personnel.

               City Ordinances



                                                  -2-
                Section 9-3 Examinations for applications for employment.

                (a) All applications for employment in positions protected by this
                article shall be subjected to competitive job-related examinations
                under such rule and regulations as may be adopted by the director of
                personnel.

                (b) The examinations to be provided for shall be of a practical nature
                and relate to such matters as will fairly test the relative competency
                of the applicant to discharge the duties of the particular position. No
                question in any examination shall relate to political or religious
                opinions or affiliations. The examination shall be conducted and
                controlled by the director of personnel.

                Sec. 9-5. No discrimination in city employment.

                There shall be no discrimination in the city employment of personnel
                because of religious, race, sex, creed, political affiliation, or other
                nonmerit factors, nor shall there be any discrimination in the
                promotion or demotion of city employees because of religion, race
                sex, creed, political affiliation, or other nonmerit factors.

                Sec. 9-4. Miscellaneous offenses in connection with civil service.

                No person shall willfully or corruptly, by himself or in cooperation
                with any person:

                (1) Defeat, deceive or obstruct any person in respect to his rights in
                relation to any examination or appointment in the classified services.

        The petition further alleges that there are vacancies for the positions sought by the petitioners
and that the petitioners are fit and qualified for the promotions, and that the respondent, through its
police department, is willfully defeating and obstructing the petitioners’ rightful promotions. The
petition prays that the court issue a writ of mandamus requiring the respondent to make the
promotions to which these petitioners are entitled.

        The city’s answer to the petition admits that petitioner Tusant was the next individual on the
eligibility list to be promoted and admits that petitioners Greenwood, Bracey, Birch, Olive, and
Davidson are numbered 119, 120, 121, 123, and 125 on the promotion roster for the rank of
lieutenant; that the roster expired on May 29, 1998, and the last promotion made was for the
individual ranked 118. The city denies that it is violating any provisions of the charter and the
ordinances of the city and denies that the petitioners are entitled to require the promotions as alleged.



                                                  -3-
        A hearing was held on April 25, 2000. The City of Memphis conceded that in 1996 the
police department conducted a promotional process for the ranks of sergeant, lieutenant, major, and
inspector, resulting in lists of individuals eligible for promotion. The petitioners introduced proof
that after May of 1998, when the police department claims that these lists had expired, nearly 100
people had been promoted from these “expired lists.” The proof established that in a reverse
discrimination case in federal court, a preliminary injunction was issued limiting the number of
promotions the city could make from the 1996 promotional list to remain in effect until the court
resolved the case then pending. The then police director, Winfrey, elected to treat the two-year
limitation period for the promotion lists as being tolled during the time that the injunction was in
play and that this was in his discretion. Director Winfrey testified that he over-saw the promotional
process and issued the eligibility lists for the respective ranks and that the policy of the police
department had been to make promotions on the strict rank order from those lists. He testified that
Tusant was listed 10th on the eligibility list for inspector and that the 9th person listed had been
appointed to inspector. He met with Tusant concerning a possible move to information systems, an
area where Tusant had previously worked, and he was prepared to promote Tusant to the inspector
position in that department. He testified, however, that the city’s attorneys handling the federal
lawsuit advised him not to make any promotions as that might aggravate the situation in federal
court. With that advice, the director informed Tusant that he would not promote him at that time but
would promote him when the injunction was lifted, but the director retired before the injunction was
lifted.

        Kathy Todd, chief of administrative services of the police department in 1996, testified that
it is within the discretion of the police director to extend the expiration date of the promotional
rosters, and that such an extension was made under former Director Ivy’s administration.

        Harry Tusant testified that in November or December of 1998, he was called to the office of
Director Winfrey and told by the director that he would be promoted to the rank of inspector once
the injunction was lifted. After the federal injunction was lifted, Tusant went to the current director
of police, Crews, and requested that the vacant positions be filled from the current roster. Later, after
Director Crews had sought the advice of the city’s attorney on the matter, he told Tusant that the city
was not obligated to promote, and that the promotion process would be starting anew in the near
future. Tusant testified regarding three individuals who had been promoted to “acting inspector”,
two of which were not eligible for a promotion to inspector, and a third who ranked below Tusant
on the promotion roster. Tusant testified that he consulted police records and determined that these
three individuals were receiving full inspector pay instead of “out of class pay” as they should have
received per police department policy.

        Richard McBryde, executive commander of police administration, testified that the three
individuals referred to by Tusant who were promoted to “acting inspector” erroneously receive full
inspector pay for a period of time, but that error has been corrected, and they are now receiving the
correct “out of class pay.”




                                                  -4-
        Petitioner Tommy W. Bracey testified regarding his qualification for eligibility for promotion
to lieutenant in 1996. Bracey testified that the last promotions from the 1996 roster were made in
June of 1998, after which the promotional rosters supposedly expired. According to Bracey, an
information bulletin dated February 2000 listed the names of sergeants that were promoted from the
1996 promotion roster. Bracey stated that he qualified for a promotion to lieutenant in 1996, but has
been told by the police department that to be promoted to lieutenant he must take part in a new
process that will begin soon. Bracey testified that although there are open lieutenant slots and he is
qualified to be promoted to lieutenant, he has not even been promoted to acting lieutenant.
Sometime after the department promoted 20 sergeants from the 1996 promotional process, Bracey
was told by Deputy Chief Moses that the individuals left on the 1996 promotional roster were not
going to be considered for “acting lieutenant” because the list was closed and promotions could no
longer be made from that list. Moses gave no explanation as to why the sergeant’s list remained
valid, while the lieutenant’s list had expired. Bracey testified that at all times from1998 to present,
there have been a sufficient number of lieutenant vacancies in the police department to promote him
and the other petitioners in this lawsuit. Bracey is unaware of any police department policy that
requires the city to fill all the vacancies in the police department.

        Walter E. Crews, current director of the police department, testified that at the time of trial,
he had been in his current position for five months, and with the police department for thirty-one
years. Director Crews testified that he had a conversation with Tusant in which Tusant told him that
Director Winfrey had discussed with him the possibility of being promoted to inspector. Director
Crews informed Tusant that he knew nothing about a promotion, but would discuss it with their
attorney, Mr. Britt. Mr. Britt informed Director Crews that there was no obligation to promote
Tusant since there was no particular promotion date promised. Director Crews testified that the
duration of a promotion roster was generally two years, and a change in that time period would be
at the discretion of the director. Director Crews sought Mr. Britt’s advice regarding the promotion
requested by Tusant, because he wanted to give Tusant the benefit of the doubt and make sure that
any decision had legal substance. Regarding promotions in the department, Director Crews stated
that due to the federal injunction, he had initially not made any promotions to inspector. When the
injunction was lifted, he did make promotions to sergeant, however, he made no other promotions.
He testified that the department is currently using people that were doing the job of inspector as
acting inspectors, but that they will have to go through the next promotional process, because the
1996 list has expired. He has plans to begin the promotional process for inspector as soon as the
department has completed the process for sergeant, lieutenant, and major. In explaining his
appointment of the three acting inspectors, director Crews stated that Major Schwill was placed
because he had been the executive officer of the South Precinct and had run the operation on a day
to day basis when Inspector Alfred Gray, commander of the South Precinct, was moved to the
detective division to fill a vacancy. When Inspector Gill Leverne, commander of the training
academy, was moved to the OCU unit, Major Coria Williams was moved to the position of
commander of the training academy. Major Cooper was already the acting commander of the West
Precinct. Crews instructions regarding the pay of these individuals was that they would receive full
inspector’s pay in light of the fact that they had become commanders. Subsequently, either Mr.
McBryde or his legal advisor informed him that he had made a mistake in giving them full inspector


                                                  -5-
pay, and the error was corrected. Director Crews stated that the reason for having a promotional
roster was so everyone can see how they finished in the total ranking, and management can have
some concept of who can be promoted. The police department worked together with the Memphis
Police Association for contractual purposes and derived a formula used in the promotional roster
process including the consideration of seniority, test scores, and other criteria. According to Director
Crew’s personnel people, previously but not recently, there have been acting inspectors chosen from
a non-roster list. He testified that both Schwill and Williams were familiar with the positions that
they moved into as acting inspectors, and it seemed logical to have them serve in their new
capacities. Appointing acting inspectors outside of the promotional roster and beginning the
promotional processes are both within the director’s discretion. The individuals promoted in June
of 1998 will not have the requisite two years of service in order to be eligible for the next level of
promotion. It is within Director Crews’ discretion to move back the time period to allow them to
qualify for promotions; however, Director Crews stated that he has elected to go by the contract
guideline negotiated with the Memphis Police Association. With regard to the upcoming
promotions, Director Crews further testified that he has the discretion to extend the time of a
promotional roster, and exercised that discretion in February of 2000 by promoting 20 sergeants from
the 1996 promotional roster, which by its own terms had expired. Director Crews states that he
exercised his discretion in January of 2000 in not following the promotional roster for the rank of
inspector, and whether he used or did not use the roster was within his discretion. He explained that
there were a lot of people left on the list after these promotions, as they only promoted the next few
numbers on the list: 17, 18, 19, and 20. Crews testified that due to an inability to promote for four
years under the federal injunction, the department was desperate for investigators, who are at the
rank of sergeant. He also admitted that there is currently a shortage of lieutenants in the police
department and that there are 58 vacancies for the rank of lieutenant, however, states that there is
nothing that requires the city to fill all vacancies in the police department. In explaining his
decisions regarding the promotions of inspector and lieutenant, he testified that the police department
is currently in the promotional process, which will alleviate the shortage of lieutenants and sergeants.
The petitioners are eligible to participate in the upcoming process, and will in no way be prejudiced
by their participation in this case.

           In an order dated June 5, 2000, the chancellor denied the petition for a writ of mandamus
stating:

                  The court, having considered the entire record, the testimony of the
                  witnesses, and applicable law, is of the opinion that the petitioners
                  have not shown that they have a clear and specific legal right to be
                  promoted nor have they shown there exists a duty which ought to be
                  performed, therefore petitioners are not entitled to receive the relief
                  of mandamus.
                         IT IS THEREFORE, ORDERED, ADJUDGED AND
                  DECREED that the Petition for Issuance of a Writ of Mandamus is
                  denied with costs of this cause to be assessed against petitioners.



                                                   -6-
         It is from this order that the petitioners appeal, presenting one issue for review as stated in
their brief: “Whether the trial court erred by denying petition for the issuance of a writ of mandamus
when the proven facts established petitioners had a clear and specific legal right to be promoted and
defendant had a duty to promote them?”

        Appellants submit that city ordinance § 28-41, which provides the police director with the
authorization to appoint as many chief inspectors, inspectors, captains, lieutenants, sergeants,
detectives, and patrolmen, along with other listed police personnel as may be needed, can not be
superior to the city charter, which vests the city council with the exclusive duty to establish by
ordinance the number of officers to be employed at each rank in the police department. The police
department has the legal duty to enforce the ordinance by staffing the ranks as designated by the city
council. Appellants argue that ordinance § 28-4 is in direct conflict with the charter.

        The city defends its action in promoting persons on the sergeant’s list after it expired, while
not promoting appellants, stating that the promotions were in accordance with an agreement between
the city and the Memphis Police Association. The city asserts that no promotions to inspector were
made from the inspector eligibility roster after it expired in May of 1998. In March of 1999, former
Director Winfrey appointed one major to the position of executive major or “acting inspector” on
a temporary basis. In January of 2000, Director Crews appointed two majors to executive majors,
or “acting inspectors.” The individuals appointed to those positions were to fill an immediate need
and the appointments were not permanent. “Acting inspectors” will be required, as will all majors,
to compete in the upcoming promotional process, if they desire the rank of inspector. The city
asserts that the director of police services has the discretionary authority to fill positions authorized
by the city council, and that it is not uncommon for a number of authorized positions to remain
vacant. Appellants are eligible to participate in the proposed promotion process.

          The city asserts that the trial court correctly denied the petition for the writ of mandamus,
because of its nature as an extraordinary remedy, which lies only in enforcing ministerial acts, and
is not to control a legislative or discretionary duty. The city asserts that the promotion of individuals
in the Memphis Police Department is a discretionary duty for which the director is solely
responsible, and not a purely ministerial act in which the director exercises no discretion as claimed
by the appellants.

        The general rule regarding the issuance of a writ of mandamus is that the writ is not issued
to control or coerce discretionary power by a board or officer, but will lie to enforce the performance
of an official duty and to compel the exercise of power. State v. Mayor & Alderman, 184 Tenn. 1,
195 S.W.2d 11 (1946); White’s Creek Tpk. Co. v. Marshall, 61 Tenn. (2 Baxt.) 104 (1872); and

         1
             Sec. 28-4 Appointment of other officers and employees of divisio n. The dire ctor of po lice services is
hereby authorized and empow ered to appoint one deputy director, four (4) deputy chiefs and as many ch ief inspectors,
inspectors, captains, lieutenants, sergean ts, detectives and patrolm en, together with su ch emerg ency police, secretaries,
clerks, stenographers, operators, janitors, turn-keys, desk lieutenants, desk sergeants, mechanics, matrons, women police
officers and such other help as may be needed to efficiently police the city and to efficiently conduct the police division
of the city.

                                                            -7-
Barnhart v. Neiser, 25 Tenn.(6 Hum.) 493 (1846). In determining whether an act is a “ministerial
act” for which mandamus may lie, courts look to whether the law defines the duties to be performed
“with such precision and certainty as to leave nothing to the exercise of judgement.” Lamb v. State,
207 Tenn. 159, 338 S.W.2d 584, 586 (1960)(quoting C.J.S. Mandamus \sec 63, page 101). Where
the duty involves the exercise of discretion or judgement the act is discretionary. Id. A discretionary
act, which will not support the issuance of a mandamus to compel performance, is defined as one
done by an official who has lawful authority to determine whether or not he will perform the act.
Bradley v. State ex rel. Haggard, 222 Tenn. 535, 438 S.W.2d 738 (1969).

                         For an act to be enforced by a writ of mandamus, the act must
                be purely "ministerial." Peerless Construction Co. v. Bass, 158
                Tenn. 518, 520, 14 S.W.2d 732 (1929). If the right to have the act
                performed is doubtful, the right must be first established in some
                other form of action. Mandamus is a summary remedy, extraordinary
                in its nature, and to be applied only when a right has been clearly
                established. Peerless, 14 S.W.2d at 733. The writ of mandamus will
                not lie to control official judgment or discretion, but it is the proper
                remedy where the proven facts show a clear and specific legal right
                to be enforced, or a duty which ought to be and can be performed.
                State ex rel. Weaver v. Ayers, 756 S.W.2d 217, 221 (Tenn.1988),
                citing State ex rel. Ragsdale v. Sandefur, 215 Tenn. 690, 696, 389
                S.W.2d 266, 269 (1965).

Hackett v. Smith County, 807 S.W.2d 695, 698 (Tenn.Ct.App. 1990). Furthermore, a mandamus
will not lie where a right is doubtful. State ex rel. Weaver v. Ayers, 756 S.W.2d 217, 221 (Tenn.
1988).

         Generally, where a public official has any discretion concerning the doing of an act, the
issuance of a mandamus is not available. Davis v. Fentress County Bd. Of Educ., 218 Tenn. 280,
402 S.W.2d 873 (1966). Where the exercise of judgment or discretion is required, he may be
compelled by the issuance of a mandamus to perform the duty, however his judgment regarding the
details in the performance of the duty are to be left unfettered. Blair v. State ex rel. Watts, 555
S.W.2d 709 (Tenn 1977). Where an official has the duty to do an act only after making
determinations, evaluations or judgments, a wit of mandamus will not lie to do the act in any
particular way. Seagle-Paddock Pools of Memphis, Inc. v. Benson, 503 S.W.2d 93 (Tenn. 1973).
 A court will not substitute its judgment for that of an official vested with discretion unless the
official has clearly acted arbitrarily and without regard to his duty in the exercise of that discretion.
 See State v. Mayor & Aldermen, 184 Tenn. 1, 195 S.W.2d 11, 13 (1946). A court will not, by
mandamus, disturb the decision and action of boards and officers vested in discretionary powers,
“except where they act in an arbitrary and oppressive manner [citation omitted], or act beyond their
jurisdiction [citation omitted], or where they refuse to assume a jurisdiction which the law devolves
upon them [citation omitted].” Peerless Const. Co. v. Bass, 158 Tenn. 518, 14 S.W.2d 732 (Tenn.
1929).


                                                  -8-
        The petitioners assert that §692 and §703 of the city charter vest exclusive authority in the city
council to establish by ordinance the number of officers to be employed at each rank in the police
department, as may be necessary to efficiently conduct the department. Petitioners further assert that
the charter requires the city council each year to pass a budget ordinance designating the number
of employees for each rank in the police department, and the mayor is responsible for carrying out
the budget ordinance passed by city counsel. Petitioners argue that the administration of this duty
is clearly ministerial and therefore mandamus is an appropriate remedy. In their reply brief,
petitioners assert in their reply brief that ordinance §28-4 “ostensibly confers on the police director
[the authority] to appoint as many employees as he wants, is in direct conflict with the Charter.”

        If there is a conflict between the charter and the ordinances, it has long been the law in this
state that ordinances of the city are subordinate to the charter. See Marshall & Bruce Co. v. City
of Nashville, 109 Tenn. 495, 512, 71 S.W. 815, 819 (1903); State ex rel. Lewis v. Bowman, 814
S.W.2d 369, 373 (Tenn. Ct. App. 1991). In Stuermer v. City of Chattanooga, 914 S.W.2d 917
(Tenn. Ct. App. 1995), the Court stated:

                          City ordinances are subordinate to charter provisions. Wilgus
                   v. City of Murfreesboro,532 S.W.2d 50 (Tenn. Ct. App. 1975).
                   However, where an ordinance is susceptible of two constructions, the
                   court will adopt the construction which would render it valid.
                   Hermitage Laundry Co. v. City of Nashville, 186 Tenn. 190, 209
                   S.W.2d 5 (1948). Those questioning the validity have the burden of
                   proof. Town of Surgoinsville v. Sandidge, 866 S.W.2d 553 (Tenn.
                   Ct. App. 1993). Where possible, a statute and ordinance on the same
                   subject will be reconciled, and effect given to both. SPE, Inc. v.
                   Metropolitan Government of Nashville and Davidson County, 817
                   S.W.2d 330 (Tenn. Ct. App. 1991).

Id. at 920.

        We disagree with petitioners that there is a conflict between the charter and the ordinance.
The city charter provides guidelines for the formulation and administration of a city budget which
includes budgeting by the city counsel the maximum number of positions allowable for each rank
in the police department. City ordinance §28-4 vests the police director with discretion to work
within the budgetary restraints mandated by the city council. We construe the budgetary mandates


         2
           § 69 of the City Charter prov ides: The [City Council], in addition to all other powers delegated to it, is hereby
authorized and fully empowered, by ordinance, to determine the number of officers and employees in each grade, rank
and classification to b e employe d by the City of Mem phis in the po lice depar tment and to fix the salaries of said officers
and employees.

         3
           § 70 provides: There shall be but one chief of police and one chief of detec tives, but the [City C ouncil] shall
be empowered by ordinance to designate the number of captains, lieutenants, sergeants, detec tive sergeants, detectives,
patrolme n and all othe r officers and e mployees as may be ne cessary to efficien tly conduct the departm ent.

                                                             -9-
and discretionary power vested in the director to be reconciled and not conflicting. The testimonies
of Kathy Todd, former Director Winfrey and Director Crews support the proposition that the director
has discretion in the process of filling vacant positions within the police department and is not
required to fill a position merely because it is vacant. As expressed by Our Supreme Court in Davis
v. Fentress County Bd. Of Ed., 218 Tenn. 280, 402 S.W.2d 873, (Tenn. 1966):

                        The rule is so general and obvious as to be almost axiomatic
                that a public officer clothed with discretionary or Quasi judicial
                power, as contradistinguished from mere ministerial duty, cannot be
                coerced by mandamus, or restrained by injunction in the exercise of
                his judgment under that power; otherwise, the court would substitute
                its judgement for his, which is not permissible. Insurance Co. v.
                Craig, 106 Tenn. 621, 639, 62 S.W.155 (1901).

Id. at 874. Therefore, we find that the director acted within his discretionary powers concerning the
promotions in question.

        Accordingly, the order of the trial court is affirmed, and the case is remanded to the trial court
for such further proceedings as necessary. Costs of this appeal are assessed against the appellants,
Harry James Tusant, Jr., John D. Birch, Tommy W. Bracey, Ernestine T. Davidson, Willie C.
Greenwood, and George M. Olive, and their sureties.



                                                __________________________________________
                                                W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                                  -10-
