                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                             October 8, 1999 Session

      VIRNIE M. FULKS v. J. HULAN WATSON, SUPERINTENDENT
                       OF SCHOOLS, ET AL.

                  Appeal from the Chancery Court for Rutherford County
                       No. 97CV-1362      Don R. Ash, Chancellor



                     No. M1999-02800-COA-R3-CV - Filed June 18, 2001


This declaratory judgment action was filed by a dissatisfied school system employee who was
transferred from his position as Manager of Property, Plant, and Maintenance to the position of
maintenance worker and ultimately was informed that he would not be rehired. The employee
claimed these employment actions were improper because he was tenured and certified. He also
sought additional compensation or compensatory time for extra hours he worked. The trial court
determined that the employee was not tenured, could be transferred, and was entitled to only a
limited amount of compensatory time. The court also found that the superintendent had authority
not to renew the employment with proper notice, but that sufficient notice of nonrenewal had not
been provided. We affirm.

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

PATRICIA J. COTTRELL , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J, M.S.
and WILLIAM C. KOCH , Jr., J., joined.

Robert L. Huskey, Manchester, Tennessee, for the appellant, Virnie M. Fulks.

George H. Rieger, II, Nashville, Tennessee, for the appellees, J. Hulan Watson, Superintendent of
Schools and the Rutherford County Board of Education.

                                           OPINION

       Virnie M. Fulks, the former Property, Plant, and Maintenance Manager for the Rutherford
County School System filed this action after he was transferred to the position of maintenance
worker and then informed that he would not be rehired when his contract expired. He sought a
declaratory judgment holding that because he was a certified, tenured employee, the Superintendent
and the Board of Education lacked the authority to demote or discharge him. He also sought
compensation or compensatory time (“comp time”) for additional hours he accrued over his regular
forty hour work week.

        Employees of the Rutherford County School System were divided into two groups: certified
and classified. Certified employees were required to maintain a valid state license to hold their
positions. Classified employees were not.1 Teachers, principals, and guidance counselors held
certified positions. Food service workers, maintenance workers, and their supervisors held classified
positions. Certified employees were entitled to be notified by April 15 of each year if they were not
going to be rehired the following year. Classified employees were hired for one-year terms of
employment. They were entitled to fifteen (15) days' notice of non-renewal of their contract before
the end of the contract period. See Tenn. Code Ann. § 49-2-301(f)(32).

        The Rutherford County Board of Education hired Virnie M. Fulks in January 1991 as
Property, Plant, and Maintenance Manager, a newly created position. Mr. Fulks was initially hired
as a classified employee in a classified, salaried position. The notice announcing the open position
did not list a teaching or other license as a requirement for the position. The application Mr. Fulks
completed was titled “Classified Employment Application.” He had been trained as a shop teacher,
but his certification had lapsed at the time the Board hired him. On June 4, 1993, the then-
superintendent, Mr. Carlton, forwarded to the finance director a memorandum he had written in
October of 1992, but which had apparently been misplaced, regarding a salary adjustment for Mr.
Fulks since he had regained his teaching license. In pertinent part, that memo stated:

         He [Mr. Fulks] was hired as a degreed person but found his certification had expired.
         He then went back and completed course work for certification and should be
         changed as everyone else when they earn advanced degrees, etc. Please proceed with
         Payroll Change Form and place him as a certified employee effective 7-1-92.

          In the spring of every year, the Rutherford County Board of Education was presented with
a list of personnel recommended for rehire for the next year. Consideration of recommendations for
non-certified, or classified, personnel was apparently usually done at a June meeting.2 A memo
dated July 9, 1991 to the Board, provided in accordance with Board policy requiring the
superintendent to “recommend non-certified personnel for election or reelection by the Board,”
included Mr. Fulks in a group described as noncertified supervisors. On the rehire list for school
year 1992-93, Mr. Fulks was listed on the classified employee list, as one of a group of central office
classified supervisors. His name appeared again on the rehire list for classified employees for school
year 1993-94.



         1
          Board of Education policy defined non-certified/classified staff members as “personnel whose regular
employment status does not require certification in accordance with rules and regulations of the State Department of
Educatio n.”

         2
          After 1992's Education Improvement Act, these lists must be considered as advisory only, because that Act
gave exclusive authority to hire or not renew employment of personnel, except for tenured or tenure-eligible teachers,
to the superin tendent. See Tenn. Code Ann. § 49-2-310(f)(1)(EE ).

                                                          2
        However, for the school year 1994-95, Mr. Fulks’s name was listed with certified personnel
recommended for rehire, and at a meeting on April 7, 1994, the Board voted to “approve the
reemployment and termination of certified employees as presented. The list will be part of the
permanent minutes.” However, for the school year 1995-96, Mr. Fulks was included on the
Classified Rehire List, again listed with a group called “Central Office Supervisors.”

        On July 1, 1997, Defendant Watson was appointed superintendent. He had previously been
a principal in the school system. As a principal, he had become acquainted with Mr. Fulks and,
during the intervening years, had become dissatisfied with his performance. When he became
superintendent, Mr. Watson decided to replace Mr. Fulks as Property, Plant and Maintenance
Manager. By letter dated July 28,1997, Mr. Fulks was informed that “the Superintendent approved
on July 18, 1997, your transfer from your position as Property, Plant & Maintenance Manager to a
position as a Maintenance Worker in the Maintenance Department effective July 15, 1997.”
Although Mr. Fulks still received the same salary, he was removed from any supervisory
responsibilities and was required to turn in his cell phone and truck.

        As a result of these changes in his employment situation, Mr. Fulks commenced this
declaratory judgment action in October, 1997. He sought an order declaring that he was tenured, that
he had been improperly reclassified, and that he was entitled to compensation for extra hours he had
worked. By letter dated June 10, 1998, Mr. Watson informed Mr. Fulks that he had not been re-
elected for employment for the 1998-99 school year and that his final work day was June 30, 1998.
Mr. Fulks amended his complaint to challenge his termination.

        After hearing the evidence, the trial court dismissed Mr. Fulks’s claim that he was entitled
to tenure, finding that he failed to show that he had ever affirmatively been granted tenure. See
Tenn. R. Civ. P. 41.02(2). On the remaining issues, the court determined that the Board had voted
to elect Mr. Fulks as a certified employee in April 1994 and had provided no notice of a change in
that status. As a non-tenured, certified employee, the court found, Mr. Fulks was entitled to be
informed by April 15 that he was not being rehired. The court concluded that because Mr. Fulks
received insufficient notice, he was entitled to employment for another school year and back pay.
However, the court held that the Superintendent possessed the statutory authority to reassign Mr.
Fulks to the duties of maintenance worker and compensate him at the rate of pay for the position
assigned. It also held that Mr. Fulks was entitled to some limited compensation for the extra time
he worked. Mr. Fulks appealed. For the reasons set out below, we affirm the trial court’s decision.

                                       I. Standard of Review

         We turn first to the proper standard of review for the issues presented in this appeal. Because
this is an appeal from a decision made following a bench trial, the familiar standard set forth in Tenn.
R. App. P. 13(d) governs our review. Accordingly, we must review the record de novo under the
presumption that the findings of fact are correct "unless the preponderance of the evidence is
otherwise." Tenn. R. App. P. 13(d). We must also give great weight to such factual findings by the
trial court that rest on determinations of credibility. Randolph v. Randolph, 937 S.W.2d 815, 819


                                                   3
(Tenn.1996). No presumption of correctness attaches to the trial court's conclusions of law. Tenn.
R. App. P. 13(d); Hansel v. Hansel, 939 S.W.2d 110, 111 (Tenn. Ct. App.1996).

                                              II. Tenure

        At the close of plaintiff’s proof, the trial court dismissed plaintiff’s claim based on tenure,
holding that Mr. Fulks did not establish that the Board had affirmatively granted him tenure. We
affirm the trial court’s ruling on this issue.

         Mr. Fulks argues that he was tenured because he held a teaching license and, by rehiring him
after his probationary period had expired, the Board effectively granted him tenure. Teacher tenure
is governed by Tenn. Code Ann. § 49-5-501 - 515, known as the Teacher Tenure Act. “[T]he basic
purpose of the Teacher Tenure Act . . . is to afford a measure of job security to those educators who
have attained tenure status. The General Assembly recognized that the efficient administration of
the local educational systems of this state requires stability of programs and trained personnel.”
Ryan v. Anderson, 481 S.W.2d 371, 374 (Tenn. 1972) (citing State v. Yoakum, 201 Tenn. 180, 297
S.W.2d 635 (1956)). Tenn. Code Ann. § 49-5-501(11)(A) (1996) defines “tenure” as the “statutory
requirements, conditions, relations and provisions in this part, under which a teacher employed by
a board holds a position as a teacher under the jurisdiction of the board.” A teacher who has been
granted permanent tenure is entitled to certain procedural safeguards, including charges, notice,
hearings, and de novo judicial review before he or she can be dismissed or suspended. Tenn. Code
Ann. § 49-5-511 - 513.

       The prerequisites for permanent tenure are set forth in Tenn. Code Ann. § 49-5-503(2)
(1996), which provides that permanent tenure applies to any teacher who:

               (A) Has a degree from an approved four-year college or to any vocational
               teacher who has the equivalent amount of training established and licensed
               by the state board of education;
               (B) Holds a valid professional license based on training covering the
               subjects or grades taught;
               (C) Has completed a probationary period of three (3) school years or
               not less than twenty-seven (27) months within the last five-year
               period, the last year to be employed as a regular teacher; and
               (D) Is reemployed by the board for service after the probationary
               period.

      Teachers do not acquire tenure merely because they satisfy these criteria, however.
Tennessee law also provides that:

        Upon completion of the probationary period, any teacher who is reemployed or
        retained in the system is entitled to the tenure status for which such teacher is
        qualified by college training and licensing; provided that the superintendent shall


                                                  4
         notify the board prior to reelection by the board that the teacher, if reelected, will
         attain tenure status.

Tenn. Code Ann. § 49-5-504(b).

       Tenure is never automatically granted, and compliance with the prerequisites of Tenn. Code
Ann. § 49-5-503(2) is “merely a condition precedent to eligibility for tenure.” Sanders v. Vinson,
558 S.W.2d 838, 842 (Tenn. 1977) (emphasis in original). “The conference of tenurial status is
dependent not only upon service but also upon affirmative action by the Board of Education.” Id.
The Supreme Court has further stated, “Tenn. Code Ann. § 49-5-504(b), which requires notice by
the superintendent, is a limitation on Tenn. Code Ann. § 49-5-503(2) . . .” Reeves v. Etowah City
Sch. Bd. of Educ., 806 S.W.2d 176, 179 (Tenn. 1991).

        The rule in Sanders was recently reaffirmed in Bowden v. Memphis Bd. of Educ., 29 S.W.3d
462 (Tenn. 2000), a case in which a teacher who satisfied all the criteria in Tenn. Code Ann. §
49-5-503(2), including the reemployment provision, was informed that he would not be rehired. It
was undisputed that the Board of Education was not notified that the teacher would attain tenure
status when he was reemployed. The Court held that without the requisite notification given to the
Board, the teacher did not achieve permanent tenure status under the Teacher Tenure Act when he
was reemployed. Thus, the subsequent decision by the Board not to rehire the teacher was lawful.
Bowden, 29 S.W.3d at 465-66.

         It is clear that, notwithstanding Mr. Fulks’s argument to the contrary, Tennessee law requires
actual notice to and affirmative action by a board of education before tenure is conferred. Nothing
in the record before us shows that the superintendent notified the Board that Mr. Fulks would acquire
tenure if he was rehired after the probationary period or that the Board took any affirmative action
to grant Mr. Fulks tenure.3 Thus, even if Mr. Fulks had otherwise satisfied the criteria of Tenn. Code
Ann. § 49-5- 503(2), we agree with the trial court that he was not granted tenure.

        Mr. Fulks does not assert that the Board affirmatively, with notice, specifically granted him
tenure. Instead, he argues that the Board’s rehire of him after his probationary period was effectively
a grant of tenure, an argument disapproved in the cases discussed above. He also argues that he
should be deemed to have tenure because certain administrators omitted his name from a list of
employees eligible for tenure that was presented to the Board of Education. Without question, if Mr.
Fulks were otherwise eligible for tenure, Tenn. Code Ann. § 49-5-504(B)

         imposes a mandatory duty on the Superintendent to inform the Board before a
         re-election [reemployment] vote that their vote will grant tenure. Reeves v. Etowah


         3
           The record includes a rehire list of certified personnel, and a number of names are followed by the word
“tenure,” or by notations indicating how many years remained before tenure eligibility, reflecting how notice was
generally provided to the B oard. On the one list where Mr. Fulks’s name appeared under certified personnel, no notation
followed his name.

                                                           5
       City Board of Education, 806 S.W.2d 176 (Tenn. 1991), leaves no room for doubt
       that the statute means what it says.

Debord v. Bledsoe County Bd. of Educ., No. 03A01-9801-CH-00009, 1998 WL 453680 at * 3 (Tenn.
Ct. App. Aug. 6, 1998) (perm. app. denied Dec. 21, 1998). However, a superintendent’s dereliction
of the duty to inform the board of education “cannot negate the [notice] requirement.” Id. Were
this court to interpret the notification requirement as waivable if notice is not given, the language of
Tenn. Code Ann. § 49-5-504(b) “would, for all practical purposes, be rendered surplusage.”
Bowden, 29 S.W.3d at 466.

         Thus, the trial court was correct in deciding that Mr. Fulks had never been granted tenure.
Additionally, we are not convinced Mr. Fulks was eligible for tenure. His entire employment with
the Rutherford County Board of Education was in a position which did not require a teaching
certificate, and he held no teaching responsibilities or supervisory responsibility over teachers. Tenn.
Code Ann. § 49-2-301(f)(1)(FF) provides, “All persons who are employed in a position for which
no teaching license is required shall be hired on a year-to-year contract. The superintendent shall
provide a person who is employed in such a position fifteen (15) days’ notice of non-renewal of the
contract before the end of the contract period.” This language indicates that persons in such
positions do not get tenured in those positions because their employment remains on a year-to-year
basis.

       Mr. Fulks maintains he was a teacher as that term is defined in Tenn. Code Ann. § 49-5-
501(10), which includes “teachers, supervisors, principals, superintendents and all other certificated
personnel employed by any local board of education, for service in public, elementary and secondary
schools in Tennessee . . .” Whether or not he falls within that definition because he obtained a
teaching certificate, such certification was not a requirement of the position he held, and
consequently his employment is governed by Tenn. Code Ann. § 49-2-301(f)(1)(FF). State statute
requires that persons employed in the following positions hold licenses of qualification:
superintendent (or director of schools), Tenn. Code Ann. § 49-2-301; school principals, Tenn. Code
Ann. § 49-2-303; teaching supervisors (for the supervision of teaching), Tenn. Code Ann. § 49-2-
304; and teachers, Tenn. Code Ann. § 49-5-403.

         Additionally, whether or not Mr. Fulks can be considered a teacher under the definitional
section of the Act, there are other prerequisites for tenure eligibility, as listed above. We have found
no cases directly addressing the issue of whether persons who hold teaching certificates but do not
work in a position which requires such licensure are eligible for tenure. However, we think holdings
on similar issues provide some guidance. In Lyons v. Rasar, 872 S.W.2d 895, 895-97 (Tenn. 1994)
the Tennessee Supreme Court determined that a food supervisor was not a “teacher” for purposes
of attaining tenure. The plaintiff in that case held a school service personnel certificate issued by the
Tennessee Department of Education as a Food Service Supervisor. Id. at 896. She maintained,
therefore, that she was a certified supervisor within the statutory definition of “teacher.” Id.




                                                   6
        In determining that petitioner did not qualify as a “teacher” eligible for tenure under the Act,
the Court found that statutory definition includes only those certificated personnel possessing a
professional Tennessee teacher’s license. Id. at 897. In reaching that conclusion, the Court found
that one of the statutory prerequisites to attaining permanent tenure was that a teacher hold “a valid
professional license based on training covering the subjects or grades he is teaching.” Id. (emphasis
in original). The Court also found that the specific personnel positions listed in the definition -
“teachers, supervisors, principals, superintendents” - are required by law to possess a valid
Tennessee teacher’s professional license. Id.

        Although the Court’s ultimate holding in Lyons was that only those persons holding valid
teaching certificates were eligible for teacher tenure, we do not interpret that holding to mean the
converse is true: that having such a certificate automatically makes a person tenure eligible when his
or her only employment by the school system has been in a position that does not require
certification as a teacher. To so find would require us to ignore the prerequisites of certification in
the subjects taught or that the probationary period include one-year as a regular teacher. Tenn.
Code Ann. § 49-5-503(2).

         In addition, the Teacher Tenure Act also provides that “Administrative and supervisory
personnel shall have tenure as teachers and not necessarily tenure in the specific type of position in
which they may be employed.” Tenn. Code Ann. § 49-5-501(11)(A). The Tennessee Supreme Court
has interpreted this provision as giving a person who was a tenured teacher and was also a coach two
sets of rights under the Act: “(1) his position as a teacher is protected by tenure, assuming that he has
acquired tenure status, and (2) his position as a coach is protected by whatever contract he has with
the board to perform coaching duties, but not by tenure.” White v. Banks, 614 S.W.2d 331, 334
(Tenn. 1981). Since Mr. Fulks’s only employment was in a position which was not subject to tenure,
his only “rights” would be those attached to that administrative position, whatever those might be.
Thus, we think it questionable that Mr. Fulks was even eligible for tenure under the Teacher Tenure
Act.

                                      III. Non-Renewal of Employment

       The trial court’s conclusion, affirmed herein, that Mr. Fulks was not tenured results in the
conclusion that he was not entitled to the protections from discharge or suspension given to tenured
employees. He was only entitled to those protections provided by statute or Board policy regarding
non-tenured employees.4 The primary issue involves his right to re-employment absent timely notice
of non-renewal.

       The re-employment rights due Mr. Fulks are determined, in the first instance, by whether he
was a certified or classified employee. State statute does not make a distinction on the basis of
whether a person holds a license or certificate. Instead, it provides that persons who are employed


        4
          The record does not include a contract between Mr. Fulks and the Board, and he does not assert that such a
contract ex isted or that he h ad any con tractual rights sep arate from tho se granted b y statute or po licy.

                                                         7
in a position for which no teaching license is required shall be hired on a year-to-year contract and
are entitled to fifteen days’ notice of nonrenewal before the expiration of the current contract. Tenn.
Code Ann. § 49-2-301(f)(1)(FF). Rutherford County Board of Education policy, however, provides
that non-tenured, certified employees who are not to be re-employed for the next year must be
notified by April 15.

         Mr. Fulks was hired as the Property Plant and Maintenance Manager for the school system
in January of 1991 and remained in that position until the employment action he now complains of.
It is undisputed that the position he held did not require a teaching license or certificate. The Board
maintains the position was a classified position and that Mr. Fulks was a classified employee. It also
asserts that the fact that Mr. Fulks reinstated his teaching license did not alter his status as a
classified employee or the status of his position as a classified, non-certificated position. It further
maintains he was employed on a year-to-year basis and his employment for 1997-98 was as a non-
certified/classified employee.5

        Mr. Fulks contends that the school superintendent who hired him intended that he be a
certified employee and sent written direction to appropriate staff to so list Mr. Fulks after he had his
teaching license reinstated, retroactive to July 1992. The list for re-hire submitted to the Board for
the 1992-93 school year listed Mr. Fulks as a classified employee. However, Mr. Fulks was included
on the rehire list of certified personnel presented to the Board in April of 1994 and was approved for
rehire for the next school year. In April 1995 when the rehire list was presented to the Board, Mr.
Fulks was listed as classified. There is little explanation about the change in Mr. Fulks’s listing.

       The trial court found that Mr. Fulks was a “non-tenured certified employee” because the
Board of Education had voted to “elect Mr. Fulks as a certified employee in its minutes of April
1994.” The court found that Mr. Fulks was never notified of any change of status from certified to


         5
           The Board asserts in its brief that “for the 19 97/98 sc hool year, the school year at issue and in wh ich Plaintiff
was transferred, Plaintiff was re-employed as a non-certified/classified employee.” We do not find a re-hire list for the
1997-98 school year in the record . However, the record includes Board minutes from its meeting on August 21, 1997,
with an attachme nt titled “Classified P ersonnel A ction” July 16, 1997-July 25, 1997. That list includes the following
entry:

         Request for Transfer

         Mitchell Fulks                                   PRESENT:            Central Office, Plant
         (Approved 7/18/97)                                                   Maintenance & Property Manager

                                                          PROPOSED:           Mainten ance De partment,
                                                                              Maintenance Worker

                                                          Effective July 15, 1997
                                                          Superintendent’s Req uest




                                                              8
classified after the 1994 meeting and that such action could not be taken unilaterally. From the
bench, the court stated:

         The first thing I’m going to find is that the School Board in 1994 passed a resolution
         that nobody knows how Mr. Fulks’ name got on, but it says that he is a certified
         employee. That is of April, 1994. I think it’s because of the efforts of Mr. Carlton.
         I don’t know that for sure, but it looks that way to me. . . . [A]s of April, 1994, he
         was a certified employee, non-tenured certified employee.

        The court found that Mr. Fulks, as a non-tenured certified employee, was entitled under
statute and under policy of the Board to notification of non-rehiring on or before April 15 of a given
year for the upcoming school year.6 Therefore, the court concluded that the Board had failed to give
Mr. Fulks notice he would not be rehired for the 1998-99 school year, since notice of renewal had
been sent in June of 1998. The result was that Mr. Fulks was entitled to another year of employment
through June 30, 1999.

        The trial court obviously relied on the Board’s own policies governing “non-tenured
certified” employees and implicitly held that the Board could grant more liberal notice requirements
than state law required. We agree and note that, by statute, all actions of a superintendent or director
of schools are required to be consistent with existing board policy. Tenn. Code Ann. § 49-2-
301(f)(1)(HH).

        There is merit in the Board’s position that the actual holding of a teacher certificate does not
take one out of the definition of classified employee as “personnel whose regular employment status
does not require certification.” However, the then-superintendent and the Board took affirmative
action to place Mr. Fulks in the category of certified personnel. The trial court determined that this
decision had certain consequences regarding notice of non-renewal of employment under the Board’s
own policies. We do not disagree, but that conclusion does not affect Mr. Fulks’s status as tenured
or tenure-eligible under state law.

        The Board does not actually appeal the trial court’s decision that Mr. Fulks was entitled to
another year of employment, but does vehemently argue, however, that Mr. Fulks was a classified,
not certified, employee. The Board argues against Mr. Fulks’s contention that he was a certified
employee because its construes that contention as part of Mr. Fulks’s tenure argument. We perceive
the distinction between certified and classified personnel to be outcome significant only to the issue
of the amount of notice required for nonrenewal. Because the Board has failed to raise the issue of
the extra year of employment, the trial court’s ruling stands. In any event, the evidence does not
preponderate against the trial court’s finding that Mr. Fulks was a non-tenured certified employee

         6
              Mr. Fulks also maintains that when Mr. Watson assumed the superintendent’s position he wanted to terminate
Mr. Fulks’s employment but was informed that the time to notify Mr. Fulks of non-renewal of the contract for the
upcom ing year had p assed. M r. Watso n’s testimony is co nsistent with the basics of this argument. However, we find
it of little import to the issue before us since Mr. Watson did not take over until July 1 , when it would have been too late
to notify either a ce rtified or classified employee of nonrene wal.

                                                             9
whose re-employment was governed by the Board’s policy specifically covering such employees.

        In ruling on this issue, the trial court directed that Mr. Fulks receive back pay from June 30,
1998 until he was placed back at work “calculated at the rate for a maintenance worker for the
Rutherford County Board of Education. In the alternative, the County can elect to pay him the salary
he would have earned from June 30, 1998 to June 30, 1999 without putting him back to work.” Mr.
Fulks objects to the trial court’s decision that his pay would be set as a maintenance worker instead
of the rate of pay for his managerial position. That issue, along with Mr. Fulks’s challenge to his
transfer in July 1997, must be resolved in the context of the law regarding transfers of school board
employees.

                                            IV. Transfer

        The record reflects that from July 1997, when Mr. Watson first removed Mr. Fulks’s
managerial responsibilities and transferred him to a position as maintenance worker, until the
attempted notice of non-renewal of his employment effective June 30, 1998, Mr. Fulks was paid the
same salary he had made as Property, Plant and Maintenance Manager. However, his duties were
drastically changed. Mr. Fulks argues this transfer, which he calls a demotion, was invalid.

       With regard to this issue, the trial court found:

       the Superintendent of Schools, under statutory authority, had authority to reassign the
       Plaintiff’s function and assign him to duties of a maintenance worker. . . . Pursuant
       to Exhibit 15 [the letter notifying Mr. Fulks], superintendent Hulon Watson had the
       authority to transfer Mr. Fulks as a maintenance worker position effective July 15,
       1997.

       Mr. Fulks argues that this ruling was in error regarding both the change in duties and the
reduction in salary for the 1998-99 school year.

        Tennessee Code Annotated § 49-2-301(f)(1)(EE) expressly authorizes superintendents “to
employ, transfer, suspend, non-renew and dismiss all personnel, licensed or otherwise, except as
provided in § 49-2-203(a)(1) and in chapter 5, part 5 of this title.” This provision was added to the
statutory list of powers and duties of the superintendent as part of the Education Improvement Act
of 1992.

       The first referenced exception refers to the statute which gives the Board the duty to elect and
contract with, upon the recommendation of the superintendent, tenured or tenure-eligible teachers.
Because that statute deals with hiring, it is not relevant herein. The second exception is to the
Teacher Tenure Act, Tenn. Code Ann. §§ 49-5-501 et seq. The transfer provision of the Act is found
in Tenn. Code Ann. § 49-5-510 which, at the time of Mr. Fulks’s transfer read:

        The superintendent, when necessary to the efficient operation of the school system,


                                                  10
         may transfer a teacher from one location to another within the school system, or from
         one type of work to another for which the teacher is qualified and licensed.

The Act defines a transfer as “removal from one (1) position to another position under the
jurisdiction of the same board.” Tenn. Code Ann. § 49-5-501(12).

        Mr. Fulks maintains his transfer is subject to review under the Tenure Act’s transfer
provision and case law interpreting it. He bases this argument on his contention that he is a tenured
teacher and/or that he is a “teacher” as defined in the Act. We have already decided that Mr. Fulks
was not tenured. We have found no authority, and neither party has cited any, dealing with whether
the transfer of an employee who is a “teacher” as defined in the Act but is not tenured is governed
by Tenn. Code Ann. § 49-5-510.7

         Similarly, there are no cases interpreting the effect of the 1992 amendment regarding
transfers and its relationship to the Teacher Tenure Act. However, we must read the transfer
amendment in conjunction with the other provisions of the Education Improvement Act. In
particular, the transfer section was part of Section 13 of 1992 Tenn. Pub. Act, ch. 535, which added
to the list of duties to be assigned to the superintendent and provided:

         Tennessee Code Annotated, Section 49-2-301, subsection (f), is amended by adding
         thereto the following new subdivisions:

                  (1)      Employ, transfer, suspend, non-renew and dismiss all
                           personnel within the approved budget, except as provided in
                           Section 49-2-203(a)(1) and in Part 5 of Chapter 5 of this title.

                  (2)      All persons who are employed in a position for which no
                           teaching license is required shall be hired on a year-to-year
                           contract. The superintendent shall provide a person who is
                           employed in such a position fifteen (15) days’ notice of non-
                           renewal of the contract before the end of the contract period.

                  (3)      The superintendent may dismiss any employee under his
                           jurisdiction for incompetence, inefficiency, insubordination,
                           improper conduct or neglect of duty, provided that no one


         7
          In McKenna v. Sumner County Bd. of Educ., 574 S.W.2d 527 (T enn. 1978), the Supreme Court determined
the proper standard for judicial review of transfers under the Teacher Tenure Act. The Court used the term “tenured
employee” in some instances and simply “employee” in others. McKe nna, 574 S.W.2d 533-34. The employee at issue
in McKenna was tenured, as have been the emplo yees whose transfers have b een exam ined unde r the Act in other cases.
Pullum v. Smallridge, 652 S.W .2d 338 (Tenn. 1 983); White v. Banks, 614 S.W.2d at 334; Mitchell v. G arrett, 510
S.W.2d 894, 89 8 (Tenn . 1974); Pemberton v. Wilson, 481 S.W.2d 760, 770 (Tenn. 1972); Galyon v. Collins, No. 03A01-
9711-CH-00513, 1998 W L 3313 00 (Te nn. Ct. App. June 24, 1998)(perm. app. denied N ov. 2, 1998). We have found
no cases inv olving challen ges to transfers o f untenured e mployees under the T eacher T enure Act.

                                                         11
                              shall be dismissed without first having been given in writing,
                              due notice of the charge or charges and an opportunity for
                              defense.

                    (4)       All actions of the superintendents or their designees shall be
                              consistent with the existing board policies, rules, contracts
                              and regulations.

        Reading all parts of this provision together, we interpret the legislature’s limitation to one
year of employment, requiring yearly renewal, for persons in positions for which no teaching license
is required as a clear indication of its intent that such persons not be eligible for tenure. That
interpretation is consistent with the Tenure Act’s transfer provision that a superintendent may
transfer a teacher “from one type of work to another for which the teacher is qualified and licensed.”
(emphasis added). This language presumes that the teacher was qualified and licensed for his or her
original position, which means a position for which a license is required.

          It is well-settled that the guiding principle of statutory construction is to ascertain and
          give effect to the legislative intent without unduly restricting or expanding a statute’s
          coverage beyond its intended scope. State v. Sliger, 846 S.W.2d 262, 263 (Tenn.
          1993). In seeking to ascertain legislative intent, we must look to the entire statute in
          order to avoid any forced or subtle construction of the pertinent language. McClain
          v. Henry I. Siegel Co., 834 S.W.2d 295 (Tenn. 1992). Accordingly, statutes ‘in pari
          materia’ - - those relating to the same subject or having a common purpose - - are to
          be construed together, and the construction of one such statute, if doubtful, may be
          aided by considering the words and legislative intent indicated by the language of
          another statute. Belle-Aire Village, Inc. v. Ghorley, 574 S.W.2d 723, 725 (Tenn.
          1978); Spence v. Miles Laboratories, Inc., 810 F. Supp. 952 (E.D. Tenn. 1992).

Lyons v. Rasar, 872 S.W.2d at 897.

        Therefore, we conclude that the Teacher Tenure Act exception to Tenn. Code Ann. § 49-2-
301(f)(1)(EE) does not apply to employees whose only employment in a school system has been in
a position for which no license is required.8 Mr. Fulks’s transfer is subject only to the very broad

          8
           The Tenure Act’s provisio n authorizes superintend ents to transfer even tenured teachers so long as the transfer
is not arbitrary and capricious o r actuated by political or other imp roper motives. Pullum, 652 S.W .2d at 340 ; McKenna,
574 S.W.2d at 527; Mitchell, 510 S.W .2d at 898 ; Galyon, 1998 W L 3313 00. Thus, even if Mr. Fulks were entitled to
the protection s afforded te nured teac hers, he wou ld be require d to show tha t the transfer was a rbitrary, capricious, or due
to imprope r motives. Fur ther, “[W] e must presu me that the ac tions of a bo ard or sup erintendent are not arbitrary or
capricious, but are reasonable and fair unless there is clear evidence to the contrary.” Mitchell, 510 S.W.2d at 898 (citing
Blair v. Mayo, 224 Tenn. 108, 450 S.W.2d 582 (1970)). Mr. Fulks has produced no such evidence. While Mr. Watson
testified that he had planned to replace Mr. Fulks if he were ever appointed superintendent, that intention was based upon
Mr. Watso n’s dissatisfaction with Mr. Fulks’s performance. The superintendent testified that he had problems with Mr.
Fulks on two or three occasions, at least one of which raised questions about Mr. Fulks’s financial dealings with school
                                                                                                                    (continued ...)

                                                               12
discretion given to the superintendent to transfer employees.9 Mr. Fulks has failed to identify any
other limitation on the superintendent’s discretion. It is clear that, with the proper amount of notice,
the superintendent could have chosen not to renew Mr. Fulk’s employment for any reason not
otherwise prohibited by law,10 and we find no basis for establishing a more stringent restriction on
the superintendent’s authority to transfer. Accordingly, we affirm the trial court’s determination that
the superintendent had authority to reassign maintenance worker duties to Mr. Fulks.

        Although Mr. Fulks characterizes the employment actions taken (including being relieved
of supervisory responsibilities, even though retaining supervisory pay, and the separate reduction of
his salary as ordered by the court for the additional year of employment) as a “demotion,” that word
does not appear in any of the relevant statutes. The Supreme Court, recognizing that omission, has
determined that “demotions” of tenured teachers must be analyzed as either a termination or a
suspension.

         McKenna involved a transfer of position from a full-time principal of a large
         elementary school to that of principal and teacher at a smaller elementary school and
         a reduction in annual salary of $2,145, which the principal alleged was a “demotion.”
         One of the central issues was whether the shift constituted a “dismissal and
         suspension,” § 49-1412, or a “transfer,” § 49-1411. This Court found that only a
         “transfer had occurred, and held that the statutes and case law restrict tenure to the
         position of teacher and do not extend to any particular job assignment and that
         T.C.A. § 49-1411 was separate and distinct from the statutes governing dismissal
         and suspension.

Pullum v. Smallridge, 652 S.W.2d 338, 340 (Tenn. 1983).

        Even tenured employees may be transferred to a position with less responsibility and at lower
pay. Pullum v. Smallridge, 652 S.W.2d at 340-41 (transfer from principal to teacher at reduced
salary); White v. Banks, 614 S.W.2d 331 (transfer from teacher and coach to only teacher, with loss
of coaching supplemental pay); Galyon v. Collins, 1998 WL 331300 at *4-8 (transfer from


         8
          (...continued)
system property. In addition, while a number of administrators in the school system were satisfied with Mr. Fulks’s work,
his handling of the job was not without controversy. Mr. Fulks received an official letter of reprimand from Dr. Ragsd ale
in October of 1996 for his handling of inmate labor over a period of years, including representations he had made to the
body in ch arge of inma tes and his failure to comp ly with a directive n ot to use inma te labor aro und studen ts.

         9
           An employee whose position does not require a license has some employment protections. For example, such
an employee may be dismissed during his one-year term of employment only after notice of charges and a hearing and
is entitled to board and judicial review of such action. Te nn. Code Ann. § 49 -2-301(f)(1 )(GG). H owever, a decision
not to renew em ployment o r a decision to transfer an em ployee to a nother po sition does no t invoke such procedural
protections.

         10
         For example, employm ent actions taken because of illegal discrimina tory motive a re prohib ited. No cla im
of such motivation has been made in this case.

                                                           13
administrative position as attendance supervisor and budget director to teaching position at lower
salary). “The fact that such transfer was to a lower-paying teacher position from an administrative
position would only have bearing on the question of abuse of discretion.” McKenna, 574 S.W.2d at
531. Thus, in the teacher tenure context, “demotions” have been analyzed as transfers. Because we
have affirmed the transfer to maintenance worker duties, we affirm the trial court’s conclusion that
Mr. Fulks’s salary for the additional year of employment could be commensurate with that of the
position he was transferred into.

                                          V. “Comp Time”

        Mr. Fulks also claimed entitlement to compensation for hours he worked in excess of forty
hours per week. The policy regarding compensatory time in effect during some of Mr. Fulks’s
employment allowed employees to take time off from work at least equal to the amount of time they
worked in excess of their usual work week. That policy was adopted and/or followed by a former
superintendent, Mr. Carlton. After Dr. Ragsdale succeeded Mr. Carlton as superintendent in July
or August of 1994, he abolished “comp time” for salaried personnel. Mr. Fulks’s claims to payment
for accrued but unused compensatory time relate to time periods both before and after July 1994.
The trial court’s resolution of these issues was based, in large part, on the reasonableness of Mr.
Fulks’s expectation that he would receive either pay or time off for the extra hours he claimed he
worked in view of the policy in effect at the time. In this regard, the trial court found:

       Regarding comp time, Mr. Fulks and others agreed that former superintendent, Elam
       Carlton, allowed employees to compile such a benefit. Mr. Fulks admitted
       superintendents since then did not continue this practice . . .

       Thus, for the time after July 1994, the trial court found there was no policy which would
allow Mr. Fulks to claim or accrue either time off or additional compensation for time worked in
excess of his regular work week. The evidence does not preponderate against that finding.

        Nonetheless, Mr. Fulks maintains he is entitled to compensatory pay for extra time spent on
two projects after Mr. Carlton left office, a renovation project at John Coleman School and repairs
of tornado damage at Smyrna Middle School. Mr. Fulks asserted that the school system agreed to
pay overtime or provide “comp time,” whichever he wanted. He stated that to timely complete the
renovation he accrued 112 hours of overtime in a little over a month. Mr. Fulks also testified that
he worked many extra hours repairing the tornado damage at Smyrna Middle School. He claimed
that the school finance officer told him to keep up with the extra time and he would “probably get
paid for that, due to the fact that it was an insurance job.”

        The financial officer denied that he ever told Mr. Fulks that he would receive “comp time”
for renovating John Coleman School. He testified that Mr. Fulks asked about receiving “comp time”
in a discussion about repairing the tornado damage at Smyrna Middle School and he responded:

       . . . I said, well, I don’t know whether you will or not. I said, I’ll take it up with the


                                                  14
       Superintendent, but I can’t promise it. . . I turned around and asked him [whether he
       wanted “comp time” or overtime] because if he wanted comp time, he had to declare
       it on the front. So I said, if you get it, do you want comp time or do you want
       overtime pay? And he said it really didn’t matter to him, as long as it was one or the
       other.

       Mr. Fulks also testified about this conversation, stating that the financial officer

       told me to keep up with the time, which I did document, on not only myself but all
       the maintenance employees, and that time was turned in . . . And he said I would
       probably get paid for that, due to the fact that it was an insurance job.

       Mr. Fulks further testified about a conversation with the financial officer regarding the
renovations at John Coleman School:

       . . . I said, it will take a lot of overtime. And he said, that’s okay, we’ll pay it. And
       I said, yeah, but Dr. Ragsdale has said that we don’t need comp time, overtime. He
       said, which one do you want? And I said, it doesn’t matter, whichever one you can
       work out. And so, he told me - - I can’t say he said yes, I will pay you. I can’t say
       that. He just said, which one do you want? And I said, it doesn’t matter, whichever
       one you can work with. And I finished the job and worked 112 hours in that less than
       30 days.

        The trial court found that although Mr. Fulks stated he “discussed alternatives with Mr.
Shirley [the financial officer]. . . They made no agreement.” On this basis, the trial court denied Mr.
Fulks’s request for additional compensation for these two projects. The evidence does not
preponderate against the trial court’s finding that Mr. Fulks and the financial officer “made no
agreement” about extra pay or “comp time” for making the above mentioned repairs and renovations.
Consequently, the record supports the trial court’s decision not to award compensation for this work
which was completed after the school system ceased its policy of providing “comp time.” It is
undisputed that Mr. Fulks was a salaried employee. Testimony in the record indicates that salaried
employees were not entitled to “comp time.” Accordingly, we affirm the trial court’s denial of
“comp time” for the work on Smyrna Middle School and John Coleman School.

       Mr. Fulks’s other claim for additional compensation rests on hours of “comp time” he asserts
he accumulated prior to Mr. Carlton’s leaving office as superintendent and accrued during the time
the “comp time” policy was in effect. Because of the testimony regarding Mr. Carlton’s policy, the
court awarded Mr. Fulks some of the time he claimed. On appeal, Mr. Fulks disputes the amount.


       The trial court found:

       Regarding comp time, Mr. Fulks and others agreed that former superintendent, Elam


                                                  15
         Carlton, allowed employees to compile such a benefit. . . . Because of this, and based
         on Exhibit 20 that Mr. Fulks maintained, he is to receive comp time for January
         through April 1994 only. This amount, after deducting credits reflected on Exhibit
         20, shows a balance of ninety-one (91) hours. In the event Mr. Fulks returns to work,
         he will be allowed to take this time off and be paid for it. In the event Mr. Fulks is
         not put back to work, but receives a year’s salary, he will receive no additional funds
         for comp time.

        Mr. Fulks argues that the trial court erred in finding that he was only entitled to ninety-one
(91) hours of “comp time.” He maintains that during the time in question, he accrued 1009 hours,
and relies on the aforementioned Exhibit 20.

        At the close of the trial, the trial court originally ruled that Mr. Fulks was entitled to all the
compensatory time he claimed, which was 1009 hours. Later, however, the trial court notified
counsel that it intended to modify its earlier ruling to limit Mr. Fulks’s accumulated comp time to
the amounts shown on Exhibit 20 as earned between January and April 1994. After other filings and
a motion to clarify, the trial court entered its final order which decided the issue as set out above.
The record does not include a transcript of a hearing on the motion to clarify11 or otherwise reveal
the reason for the trial court’s change; however, we surmise that the decision is based upon the lack
of evidence in the record for time accumulated prior to 1994.

        As proof of his “comp time,” Mr. Fulks offered Exhibit 20, three documents entitled “Daily
Attendance Record,” which consisted of a grid listing the months vertically and the days horizontally
across the top. The three such documents were separately dated 1994, 1995, and 1996. They include
numbers, reflecting hours, penciled into the grid, most of which were either preceded by a “+” or
enclosed in brackets. Because the court determined that compensatory time accrual was not
available after July of 1994, none of the documentation after that date is relevant to calculation of
the time actually accrued by Mr. Fulks. The “Daily Attendance Record” for 1994 does not reflect the
earning of “comp time” after April of 1994, but appears to reflect use of such time. This fact
explains the trial court’s use of the months January through April.


         11
           The court’s final order states:

         Following the hearing of the case and announcement of the Court’s ruling from the bench, the Court
         reconsidered certain aspects of its earlier ruling and sent a letter to counsel dated August 21, 1998,
         which is adopted herein by reference, and by which the Court made certain amendments to its earlier
         ruling. Plaintiff’s counsel filed a Motion to Clarify in resp onse to the a mendm ents made by the letter
         of August 21 , 1998. T he Court h eard the M otion to Cla rify and Defendant’s response thereto on
         Septemb er 27, 19 98. In argum ent of its Mo tion to Clarify, Plaintiff sought to change ce rtain points
         of the Court’s am endmen ts. The Court declined Plaintiff’s request to modify its amendments, and
         maintained its amendm ents to its earlier ruling as follows . . .

          Thus, the order m entions a hea ring on the m otion to clarify. We note that the Board filed a Corrected
Designation of Addition al Parts of the Record which includes an entry titled “Transcript of post-trial hearing.” However,
the clerk’s certifica te of appella te record d oes not list any suc h transcript as inc luded in the re cord on appeal.

                                                           16
         Mr. Fulks argues that he is entitled to compensatory time he had accrued prior to 1994 and
that the 91 hours calculated by the court must be added to that accumulated total. He asserts that the
correct figure for the amount accumulated prior to January 1994 is found in a notation on the Daily
Attendance Log for 1994. Unfortunately for this argument, that explanation was made for the first
time in his attorney’s letter to the trial court after receipt of the court’s proposed modification of its
order. There is no such explanation in the evidence in the record. The only testimony in the record
regarding Exhibit 20 is that it depicted overtime Mr. Fulks started accumulating under Mr. Carlton;
that his comp time was recorded “hour for hour;” and that Exhibit 20 was a daily log. Mr. Fulks did
not explain at trial what any of the notations meant or how he arrived at his figure of over 1000 hours
of accumulated comp time. Therefore, based on the evidence at the trial, we conclude that the
evidence does not preponderate against the trial court’s finding; Mr. Fulks provided testimony and
documentary evidence to support only ninety-one hours of compensatory time.12 As the claimant,
he had the burden of proof as to the amount of time due him. Elrod v. J.C. Penny Life Ins. Co., No.
M1999-02195-COA-R3-CV, 2000 WL 798651 at *4 (Tenn. Ct. App. Jun. 22, 2000) (no Tenn. R.
App. P. 11 application filed); Hogan v. Coyne Int’l Enterprises Corp., 996 S.W.2d 195, 206 (Tenn.
Ct. App. 1998); Winford v. Hawissee Apartment Complex, 812 S.W.2d 293, 296 (Tenn. Ct. App.
1991).

                                                   VI. Conclusion

         Accordingly, we affirm the trial court’s determinations that Mr. Fulks did not have tenure,
that his transfer to another position was authorized, that he was not eligible for “comp time” for
renovating John Coleman School or repairing Smyrna Middle School, and that he is entitled to an
additional year of employment through June 30, 1999, that his compensation for that additional year
can be based on the salary for the maintenance position into which he was transferred, and that Mr.
Fulks was entitled to compensation for 91 hours of “comp time” at the rate of pay in effect at the
time he accrued that time. Costs are taxed to the Appellant, Mr. Fulks, for which execution may
issue if necessary.


                                                                 ________________________________
                                                                 PATRICIA J. COTTRELL, JUDGE




         12
           On appeal, the Board asserts that the trial court correctly limited Mr. Fulks’s accrued comp time to the hours
earned during the time period from January through April of 1994. The Board does not dispute Mr. Fulks’s entitlement
to that amount of comp time, apparently acknowledging that the former superintend ent allowed salaried em ployees to
earn and take compensatory time off when they worked more than forty hours per week. The Board asserts that in view
of the record the trial court acted within its discretion in determining the amount of compensatory time for which Mr.
Fulks was due compensation.

                                                          17
