                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON
______________________________________________________________________________

WILLIAM R. KEY, Clerk of                   Shelby Criminal No. P-17169
the Criminal Courts of                           C.A. No. 02A01-9703-CR-00072
Shelby County, Tennessee,

       Plaintiff,
                                                   Hon. Chris Craft, Judge
v.

JULIAN T. BOLTON, Chairman
of the Shelby County Board of
                                 FILED
Commissioners, and JIM ROUT,
                              August 13, 1997
Mayor of Shelby County, Tennessee,
                                 Cecil Crowson, Jr.
       Defendants.               Appellate C ourt Clerk

DAVID F. KUSTOFF, Memphis, Attorney for Plaintiff.

ALAN G. CRONE, Assistant Shelby County Attorney, Wilder, Crone, Johnston,
Mason & Goodwin, PLC, Memphis, Attorney for Defendants.

REVERSED AND REMANDED

Opinion filed:
______________________________________________________________________________

                               MEMORANDUM OPINION1


TOMLIN, Sr. J.

       William R. Key, Clerk of the Criminal Courts of Shelby County (hereafter

“Plaintiff”) filed a petition in the Crim inal Court of Shelby C ounty against Mark

Norris, Chairman of the Shelby County Board of Comm issioners, and Jim Rout, Mayor

of Shelby County (hereafter “Defendants”) seeking salary increases for various

employees of the Criminal C ourt Clerk’s Office in Shelby County pursuant to T.C.A. §

8-20-101 et seq. Following a bench trial the trial court granted all of the requested

salary increases. Defendants have raised two issues on appeal: (1) whether the trial

court erred in allowing plaintiff to bring a petition for salary increases pursuant to

T.C.A. §§ 8-20-101 et seq; and (2) whether the evidence preponderates against the action



       1
         Rule 10(b) (Court of Appeals). MEMORANDUM OPINION. The Court, with the
concurrence of all judges participating in the case, may affirm, reverse or modify
the actions of the trial court by memorandum opinion when a formal opinion would
have no precedential value. When a case is decided by memorandum opinion
it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall
not be cited or relied on for any reason in a subsequent unrelated case.
of the trial court. For the reasons hereinafter stated, we reverse the judgment of the

court below and remand for further proceedings.

       The basic facts are not in dispute. Plaintiff filed a petition in the Crim inal Court

of Shelby County seeking pay increases for over 100 em ployees in the Criminal Court

Clerk’s Office. In their answer defendants took issue with the requested increased

compensation for only 10 positions, this opposition being on the ground that the

requested salary increases exceeded the amount of increases recommended by the

Shelby County Commission, and the Director of Personnel, both of whom are

responsible for carrying out the salary policy for Shelby County employees. At that

time the approved salary policy provided for a maximum increase in salary of four

percent for the fiscal year 1996-1997. It was the contention of the defendants that any

increase greater than the stated percentage would create a pay inequity with other

Shelby County employees holding a similar job classification.

       The positions whose proposed pay raises were disputed and their respective

percentage increases are as follows: three ”Manager A” positions, 13%; one “executive

secretary” position, 9%; and six “deputy court room clerk” positions, 9%. Jim M artin,

the Shelby County Administrator of Personnel (hereafter “Martin”), testified that it was

part of his job function to evaluate requests for salary increases by carrying out

compensation studies on Shelby County employees. Martin testified further that the

Criminal Clerk’s Office had never formally requested that his department perform a

compensation study on the salary increases requested in plaintiff’s current petition. He

further stated that in order to determine if a particular salary increase was fair to all

employees within the county system, a comprehensive and detailed analysis would have

to be performed over the different departments within the county. He stated further that

he was aware that plaintiff was unhappy with the perceived inequities in pay in his

office, but also conceded that the limited resources of his office prevented him from

personally initiating any compensation studies.

       As we perceive it, the first issue that we must resolve is whether or not Chapter

110 of the Private Acts, 1971 precludes a Shelby County official from filing a petition

to seek a pay increase for the employees of his department pursuant to T.C.A. § 8-20-


                                              2
101. Defendants contend that pursuant to the provisions of Chapter 110 of the Private

Acts, 1971 said Act provides the sole means for seeking an increase in the salaries of

county employees.

       The Civil Service Merit System of Shelby County was created with the

enactm ent of Chapter 110 of the Private Acts, 1971. All Shelby County em ployees are

covered by this Act, including the employees affected by plaintiff’s petition. The Act

also established the Civil Service Merit Board whose powers and duties are spelled out

in part as follows:


       Section 6. POWERS AND DUTIES OF BOARD. The powers and duties of
       the Civil Service Merit Board shall be as follows:
       (B) To make recom mendations to the Secretary and to the Quarterly Court
       concerning the processing, examination, and certification of applicants
       and the administration of the system;                (C) To review the
       classification plan, compensation plan and personnel policies and to make
       recommendations to the secretary and to the Quarterly Court regarding
       their adoption and/or revision;


       The Act also provides that the Personnel Director of Shelby County would serve

as the Secretary of the Civil Service Merit Board. The duties and responsibilities of the

Secretary were set forth in the Act, which included preparing a classification plan that

would seek to m aintain equity in compensation among the various county em ployees,

based upon objective criteria. Pursuant to this classification plan, the Civil Service

Merit Board promulgated a schedule of compensation for all county em ployees. In this

regard the Board’s responsibility is as follows:


       SECTION 11. SCHEDULE OF COMPENSATION. For each class of
       positions established in the classification plan, a study shall be made of
       the rates paid for similar services elsewhere and of other information
       pertaining to proper rates of compensation and a schedule shall show for
       each class a minimum salary rate, a maximum salary rate and such
       intermediate rate or rates as is equitable and proper.


       Plaintiff contends that as Criminal Court Clerk of Shelby County he has the

alternative right to seek salary increases for em ployees in his office by the filing of a

petition pursuant to T.C.A. § 8-20-101 et seq.. Plaintiff further contends that pursuant

to said code section, the trial court is endow ed with the power to adjudicate m atters

authorizing the position and salaries of deputy clerks and assistants. The pertinent

                                              3
provisions of T.C.A. § 8-20-101 are as follows:


       8-20-101. Application for authority to employ deputies.--(a) Where any one
       (1) of the . . . clerks of probate, criminal, civil and special courts,. . .
       cannot properly and efficiently conduct the affairs and transact the
       business of such person’s office by devoting such person’s entire working
       time thereto, such person may employ such deputies and assistants as may be
       actually necessary to the proper conducting of such person’s office in the
       following manner and under the following conditions, namely:
               (1) The clerks of the circuit, criminal and special courts may m ake
       application to the judge, or any one (1) of the judges of their respective
       courts,. . . by petition duly sworn to, setting forth the facts showing the necessity
       for a deputy or deputies or assistants, the number required and setting forth the
       salary that should be paid to each; (Emphasis added).


       T.C.A. § 8-20-102 requires that any petition brought by a clerk of a court shall

name the county executive as defendant. The trial court is also given power to modify

in an appropriate way the petition’s requests, as follows:


       The court may allow or disallow the application, either in w hole or in
       part, and may allow the whole number of deputies or assistants applied for
       or a less number, and may allow the salaries set out in the application or
       smaller salaries, all as the facts justify.


       Plaintiff contends that pursuant to §§ 8-20-101 and 102, the trial court is given

the discretion to grant the clerk’s application to employ additional deputy clerks as well

as to establish their salaries. In support of this contention, plaintiff cites Dulaney v.

McK amey, 856 S.W.2d 144 (Tenn. App. 1992), a case originating out of Sullivan

County. While good authority as far as it goes, it is not relevant to the issue before us

in the case under consideration as in Sullivan County there was no private act similar to

the Private Acts, 1971 in existence at the time the plaintiff’s petition was filed.

       Defendants contend that T.C.A. § 8-20-101 is inapplicable to Shelby C ounty

employees as a result of the passage of Chapter 110 of the Private Acts, 1971, citing

Shelby County Civil Service M erit Board v. Lively, 692 S.W .2d 15 (Tenn. 1985). In

Lively the issue before the court at that time was whether or not the sheriff of Shelby

County had the authority to terminate certain commissioned deputies pursuant to

T.C.A. § 8-2009, which provided that sheriffs had the power to terminate any depute at

will. The supreme court in Lively held that the Private Acts, 1971 superseded the

general statute—§ 8-2009— and extended job protection regarding termination to

                                                 4
Shelby County deputies, noting that the private act in question specifically exempted

Shelby County from the provisions of T.C.A. § 8-2009.

       While relevant, we do not have the Lively issue before us, but a different

one— whether or not the process outlined in the Private A cts, 1971 provided the only

means by which the Criminal Court Clerk might petition for an increase in pay of his or

her employees. It is appropriate that we here note some of the observations made by

the Lively court regarding this private act, noting first the General Assembly’s

motivation in enacting same:


       It is our opinion that the General A ssem bly classified Shelby County
       separately with respect to the Civil Service status of deputy sheriffs, as
       well as employees of many other county officials, because of the number and
       com plexity of the county personnel and because of its desire to place all
       of the “assistants and deputies” of the sheriff, as well as those of other
       county officers under tenured civil service system s...(Emphasis added).

Lively at 19.


       The Lively court then concluded that “The creation of a civil service system for a

local government is a legitimate objective of the General Assembly, and one which it

may accomplish within rather broad limits.” Id. at 19.

       In addition the Lively court acknowledged the potential for conflict to develop

between any civil service system and the general statutes governing county employees,

such as T.C.A. § 8-20-101 et seq.:


       Almost any county civil service system would conflict with the general
       statutes if it involved employees of the county officers covered by T.C.A.
       § 8-20-101. Nevertheless, it is well-settled that in the structuring of county and
       municipal governments, the General Assembly has broad authority. This is
       almost unlimited when private legislation does not contravene some mandatorily
       applicable general state law.

Id. at 18.(Em phasis added).


       In Knox County Ex Rel. Kessel v. Personnel Bd., 753 S.W.2d 357 (Tenn. App.

1988) this court held as a general proposition that a private act authorizing the

establishment of a system of personnel administration for county employees based upon

merit principles was to be given a liberal construction.

       However, in the case at bar, the Private Acts, 1971 failed to expressly provide

                                               5
that T.C.A. § 8-20-101 et seq was no longer applicable in Shelby County. Accordingly,

we are constrained to find that the trial court correctly allowed plaintiff to proceed with

his petition pursuant to the provisions of T.C.A. § 8-20-101 et seq. We resolve this

issue in favor of plaintiff.

       Turning now to the second issue, that of the preponderance of the evidence,

defendants contend that even if the private act establishing the Shelby County Civil

Service Merit Board does not preempt or override § 8-20-101 et seq, nonetheless

plaintiff failed to carry the burden of proof. In Dulaney v. McKam ey, 856 S.W.2d 144,

146 (Tenn. App. 1992), this court stated:


       . . . [W]e note that an application for authority to employ deputies or
       assistants and to establish their salaries is to be treated no differently than
       any other lawsuit. Therefore, the action of the trial court must be based
       on findings of fact established by a preponderance of the evidence. . . .

See also Cunningham v. Moore, 604 S.W .2d 866, 868 (Tenn. App. 1980).


       From an examination of the record, we observe that while plaintiff presented

four witnesses, all of whom testified as to the need for the positions at issue, there was

no objective proof as to why the pay increases should be made, or why these increases

should exceed the m andated four percent.

       We are of the opinion that the plaintiff failed to carry the burden of proof thrust

upon him and that he has failed to make out a prima facia case in this regard.

       Accordingly, w e are compelled to reverse the judgment of the trial court in

awarding the increase in the salaries contested by defendants in the am ounts that he did.

We further rem and this case to the trial court for a further hearing or rehearing, in

which the plaintiff is required to present to the court objective proof that such salary

increases are needed and are commensurate with the quality and quantity of work

perform ed by the respective employees.           Inasmuch as the record reflects that

plaintiff has at least on one occasion discussed the matter of a employee compensation

study to be conducted by the Shelby County Administrator of Personnel, while not

legally mandated we think it would be in keeping with the spirit of the appropriate

provisions of Chapter 110 of the Private Acts of 1971 for plaintiff to request the



                                              6
Administrator to perform a com pensation study on the specific salary increases with

which this appeal is concerned.

      Accordingly, this cause is remanded to the Criminal Court of Shelby County for

further proceedings not inconsistent with this opinion. Costs in this cause on appeal are

taxed one-half to plaintiff and one-half to defendants.




                                         _________________________________________
                                         TOMLIN, Sr. J.



                                         _________________________________________
                                         CRAWFORD, P. J., W. S. (CONCURS)



                                         _________________________________________
                                         HIGHERS, J.             (CONCURS)




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