                    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,

      Defendants-Appellants.
___________________________________________________________________________

                 FROM THE WILSON COUNTY CHANCERY COURT
                  THE HONORABLE C. K. SMITH, CHANCELLOR




                W. Gary Blackburn, Blackburn, Slobey, Freeman & Happell
                              of Nashville, For Appellants

                Margaret L. Behm, Anne C. Martin, Dodson Parker & Behm
                               of Nashville, For Appellee




            VACATED IN PART, AFFIRMED IN PART AND REMANDED

                                      Opinion filed:



                              FILED
                             September 13, 1996

                              Cecil W. Crowson
                             Appellate Court Clerk        W. FRANK CRAWFORD,
                                                          PRESIDING JUDGE, W.S.
CONCURS:
ALAN E. HIGHERS, JUDGE

CONCURS IN PART, DISSENTS IN PART:
HOLLY KIRBY LILLARD, JUDGE



       This case involves the Tennessee open meetings law and the Tennessee handicap

discrimination law. Plaintiff, Edna Forbes, alleges that defendants, Wilson County Emergency

Communication District 911 Board and W.J. McCluskey, Chairman, violated the Tennessee
Handicap Discrimination Act and the Tennessee open meetings act. After a jury trial with the

use of special interrogatories, the court 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 embarrassment, and $50,000.00 for punitive

damages. The court also awarded plaintiff’s attorney $50,000.00 in fees2 and $6,455.00 in

expenses. Defendants thereafter perfected the present appeal.

       Edna Forbes was hired by the Wilson County Emergency Communication District 911

Board (911 Board or Board) on May 8, 1991 as the first Public Safety Answering Point

Supervisor for the newly created Board. Prior to accepting a position as supervisor, Ms. Forbes

served on the Board itself, helping to establish the new 911 District.

       On March 22, 1993, after several months of discomfort, Ms. Forbes met with her

physician, who confirmed that she had colon cancer and scheduled her to enter the hospital on

March 24, 1993. Ms. Forbes spent the next two days preparing her office for what she

anticipated would be a six to eight week absence. Among other things, Ms. Forbes asked her

son-in-law, John Lauderman, to come in to assist her with imputing computer information. Ms.

Forbes also asked Mr. Lauderman to assist in the office until the relief supervisor, Dot Reynolds,

could be available for work.

       On March 23, 1993, Ms. Forbes called W.J. McCluskey, chairman of the 911 Board, to

inform him 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 absence.

       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, Ms. Forbes informed the county

attorney, Michael Jennings, that she would be returning to work. Ms. Forbes testified that,



       1
        The jury awarded plaintiff back pay of $65,975 for both the Open Meetings Act
violation and the violation of the Tennessee Human Rights Act.
       2
        Awards of attorney fees are provided for in the Tennessee Human Rights Act, T.C.A.
§ 4-21-306(a)(7) (1995).

                                                2
during her entire absence, no one from the 911 Board called her regarding her job duties.

       Ms. Forbes alleged, and the jury found, that the 911 Board made its decision to demote

Ms. Forbes not at its regularly 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 testified that, prior to her demotion, Mr. McCluskey had only discussed one of the

fifteen items, a travel voucher, with her. Furthermore, the members of the Personnel Policy

Committee testified at trial that they had no independent knowledge of Ms. Forbes’s job

performance prior to the private meeting. Ms. Forbes was not contacted regarding any of the

accusations leveled by Mr. McCluskey at the Personnel Policy Committee meeting. At the next

regularly scheduled meeting of the Board, May 10, 1993, the Board voted, 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 certified letter.

       The jury found that as a result of her demotion, Ms. Forbes suffered a physical relapse,

embarrassment, stress, and lack of sleep. Ms. Forbes testified that, following her demotion, she

was never contacted by the 911 Board to work in any capacity, including that of a part-time

operator.

       Appellants present eight issues for review; however, we perceive the dispositive issue

to be whether the defendant-appellant violated the open meetings law.

       The legislature 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 provides, as pertinent to the issues before us:

               8-44-102. Open meetings - “Governing body” defined -
               “Meeting” defined. - (a) All meetings of any governing body are
               declared to be public meetings open to the public at all times,
               except as provided by the Constitution of Tennessee.

               (b)(1) “Governing body” means: (A) The members of any public
               body which consists of two (2) or more members, with the
               authority to make decisions for or recommendations to a public
               body on policy or administration . . . .

                               *               *                *

                                                 3
               (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) Nothing in this section shall be construed as to require a
               chance meeting of two (2) or more members of a public body to
               be considered a public meeting. No such chance meetings,
               information assemblages, or electronic communication shall be
               used to decide or deliberate public business in circumvention of
               the spirit or requirements of this part.

       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 are required.

T.C.A. § 8-44-104.

       T.C.A. § 8-44-105 provides in pertinent part:

               8-44-105. Action nullified - Exception. - Any action taken at a
               meeting in violation of this part shall be void and of no effect . .
               ..

       At the close of proof, the trial court submitted a special interrogatory form to the jury.

In response to the question “Do you find that the 911 board made a decision or deliberated

toward a decision without notice to the public,” the jury answered “yes.” The scope of our

review of findings of fact by the jury is whether there is any material evidence to support the

verdict. T.R.A.P. 13 (d).

       The trial court also, in compliance with T.C.A. § 8-44-106 (b), made the following

findings of fact and conclusions of law:

               1. The parties have stipulated that no notice was given to the
               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 Board attended the Personnel
               Policy Committee meeting, and five (5) members constitute a
               quorum for 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 First
               United Methodist Church in Wilson County. All prior committee
               meetings had been held at the 911 office on East Main Street in
               Lebanon.

               5. At the outset of the meeting, the committee chair stated that no

                                                4
               business was to be conducted at the meeting. However, that does
               not mean that no business was conducted, for that was the whole
               purpose of the meeting.

               6. Mr. McCluskey had prepared a list of grievances of problems
               he had with Ms. Forbes. He had requested that the meeting be
               called for the purpose of discussing what to do with Ms. Forbes.
               At the meeting, the five (5) 911 Board members discussed that
               list, deliberating toward a decision to demote her.

               7. Although the 911 Board members claim that there was no vote
               taken at the Personnel Policy Committee meeting, there was
               deliberation towards a decision based upon Mr. Wharton’s
               testimony and the actions of the 911 Board at its subsequent
               meeting. At the subsequent 911 Board meeting on May 10, 1993,
               the 911 Board members decided, without any prior deliberation
               or any discussion 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, 1993, 911 Board meeting, Mr. Carpenter, a
               member of the Personnel Policy Committee, made the motion to
               demote Ms. Forbes, and Mr. Davis seconded it.

               10. The 911 Board’s decision to demote Ms. Forbes, without
               discussion, at the May 10, 1993 911 Board meeting violated the
               Open Meetings Act because the Board deliberated towards 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 of findings of fact by the trial court in civil actions is de novo upon the record

of the trial court, accompanied by a presumption of the correctness of the finding, unless the

preponderance of the evidence is otherwise. T.R.A.P. 13(d).

       Appellants assert that the open meetings act is not applicable in the instant case because

the Personnel Policy Committee is not a governing body, the committee did not have any

authority to make any decision about plaintiff’s job, and, regardless, no deliberations occurred

at the Personnel Policy Committee meeting.

       In Dorrier v. Dark, 537 S.W.2d 888 (Tenn. 1976), our Supreme Court, commenting on

what constitutes a governing body under T.C.A. § 8-44-102 (b)(1), said:


                                                5
                 It is clear that 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 members have authority to make decisions or
               recommendations on policy or administration affecting the
               conduct of the business of the people in the governmental sector.

537 S.W.2d at 892.

       Based on Dorrier, we find that the Personnel Policy Committee was a “governing body”

as contemplated by T.C.A. § 8-44-102(b)(1). Moreover, there is material evidence in the record

to support the verdict of the jury that the 911 board, through the Personnel Policy Committee,

not only had the authority to make a decision about plaintiff’s job, but did, in fact, make a

decision or deliberate toward a decision regarding plaintiff’s employment at a scheduled, private

meeting, held without notice to the public. The evidence does not preponderate against the trial

court’s findings that the discussions which were held at that meeting culminated in a motion at

the subsequent 911 Board meeting to demote Mrs. Forbes. Finally, the personnel policy

committee maintained no minutes of its meeting, as 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 board’s

action is void, plaintiff has not been demoted and is reinstated to her position as supervisor.

Because there was no demotion, plaintiff has not been discriminated against “in the hiring, firing

and other terms 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, and 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 trial court should also take such additional steps as are necessary to comply with the

provisions of T.C.A. § 8-44-106. Costs of the appeal are assessed against the appellants.

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

                                                6
CONCUR:

_________________________________
ALAN E. HIGHERS, JUDGE

_________________________________
HOLLY KIRBY LILLARD, JUDGE




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