                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    April 10, 2000 Session

                  MARION COUNTY BOARD OF EDUCATION
               v. MARION COUNTY EDUCATION ASSOCIATION

                     Appeal from the Chancery Court for Marion County
                          No. 6392    Jeffery Stewart, Chancellor



                    No. M1999-00213-COA-R3-CV - Filed August 7, 2001


This is an appeal from a declaratory judgment action on behalf of the Marion County School Board
seeking a determination as to whether or not the decision by the director of schools to transfer a
principal to a teaching position was subject to binding arbitration under a collective bargaining
agreement in effect between the school board and the Marion County Education Association. A
cross-claim was filed by the Association requesting an injunction to force the Board to arbitration,
and both parties filed motions for summary judgment. The trial court granted the Association’s
motion for summary judgment and mandated the Board to go to final and binding arbitration under
the agreement. We reverse the decision of the trial court and hold that the statutory authority of the
director of schools to hire and select principals may not be limited by a collective bargaining
agreement and that such an agreement cannot authorize an arbitrator to determine who will be
principal at a particular school.

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

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

William Henry Haile, Nashville, Tennessee, for the appellant, Marion County Board of Education.

Richard Lee Colbert, Nashville, Tennessee, for the appellee, Marion County Education Association.

                                             OPINION

        Defendant Don Stewart was a tenured economics teacher when he was appointed principal
of Jasper Elementary School by the Plaintiff Board of Education (the “Board”) in 1997. Mr. Stewart
had begun his second year as principal when Paul Turney was appointed director of Marion County
Schools in September 1998. Mr. Turney’s appointment was made pursuant to the Education
Improvement Act, Tenn. Code Ann. § 49-5-301(d), which eliminated popularly elected
superintendents.1

        In March 1999, Mr. Turney informed Mr. Stewart that he would not be rehired as principal.
Instead, Mr. Stewart was assigned for the 1999-2000 school year to return to teach economics at
Marion County High School where he worked prior to his principalship. Mr. Turney then appointed
someone else as principal. The record provides no reason for the transfer.

        Mr. Stewart and Defendant Marion County Education Association (the “Association”),2 filed
a formal grievance under the bargaining agreement between the Board of Education and the
Association, seeking reinstatement and claiming that the Board of Education violated provisions of
the collective bargaining agreement.

        The School Board denied the grievance at each step. The Association finally submitted the
matter to the American Arbitration Association, claiming provisions of the collective bargaining
agreement were violated in the transfer of Mr. Stewart and that binding arbitration was contemplated
by the agreement.

        The Board responded by commencing this declaratory judgment action and seeking an order
enjoining the arbitration. It argued that the decision to transfer Mr. Stewart to a teaching position
was not subject to binding arbitration under the collective bargaining agreement. The Association
and Mr. Stewart asserted a counterclaim against the Board, alleging that the Board’s refusal to
arbitrate violated the collective bargaining agreement and Tenn. Code Ann. § 49-5-609(a) and sought
an order requiring the Board to proceed with arbitration.3

        Both parties filed motions for summary judgment. After hearing oral arguments, the trial
court granted Mr. Stewart and the Association’s motion for summary judgment, finding that the
decision not to renew Mr. Stewart’s contract as principal was subject to arbitration under the
collective bargaining agreement and ordering arbitration to proceed. The Board then commenced
this appeal and moved for a stay of arbitration pending appeal, which was denied. The Board
unsuccessfully renewed the motion for a stay in this court.

         The arbitrator found that a number of the provisions of the collective bargaining agreement

         1
          Upon enactmen t of the Educ ation Improvement Act, local legislative bodies were given the option to delay
implementation of appointment of the director of schools in transitioning from an elected school superintendent. Tenn.
Code Ann. §§ 49-2-20 3(a)(15 )(B) and 49-2-30 1(c). See also County of Shelby v. McWherter, 936 S.W.2d 923 (Tenn.
Ct. App. 1996). Marion County exercised that option, and the change w as effective with the beginning o f Mr. Tu rney’s
term in Sep tember o f 1998.

         2
         The Association is the recognized professional employees’ organization representing the certified employees
of the Marion County school system.

         3
          Tenn. Code Ann. § 49-5-609(a)(8) states that it is unlawful for a Board of Education or its designated
representative to “[r]efuse to in good faith mediate, arbitrate and/or participate in fact-finding efforts pursuant to this
part.”

                                                            2
had been violated by Mr. Turney and the Board and ordered that Mr. Stewart “be reinstated as
principal at Jasper Elementary School, made whole as to wages and back wages, insurance,
retirement, etc.” Moreover, the arbitrator found that “the Director of Schools did not practice
procedures as outlined in the contract as to this grievance with regard to evaluations, records,
personnel file and notification of deficiencies. In the future cases the Marion County Board of
Education should comply with the notice requirements and the due process provisions of this
contract.”4 In response to the arbitration outcome, the Board passed a resolution to conditionally
reinstate Mr. Stewart as principal pending the conclusion of this cause.

                                                             I.

        A trial court’s grant of a motion for summary judgment presents a question of law that we
review de novo without a presumption of correctness. Goodloe v. State, 36 S.W.3d 62, 65 (Tenn.
2001) and Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000). Since the material facts in this case
are undisputed, our review focuses on the interpretation and application of various statutes. Thus,
we are presented with a pure question of law. Our review is de novo on the record of the proceedings
below, but there is no presumption of correctness as to the trial court’s ruling. Billington v.
Crowder, 553 S.W.2d 590, 595 (Tenn. Ct. App. 1977); Myint v. Allstate Ins. Co., 970 S.W.2d 920,
924 (Tenn. 1998) (“Construction of a statute is a question of law which we review de novo, with no
presumption of correctness.”).

                                                            II.

        The primary issue in this case is whether the director’s decision to transfer Mr. Stewart from
a position as principal to a teacher position was subject to arbitration under the collective bargaining
agreement between the Board of Education and the Association. Determination of that issue requires
examination of generally-applicable state law provisions regarding authority for personnel decisions,
the lawful scope of a locally negotiated agreement, and the terms of the agreement at issue herein.

                                      A. State Law On Personnel Decisions

       The Education Improvement Act of 1992 vested the director of schools, or superintendent,5
with the power to employ, transfer and discharge employees of the school system.6 The statute


         4
          Both parties filed motions asking this court to consider the arbitration decision as a post-judgment fact pursuant
to Tenn. R . App. P. 1 4. Those motions are granted. T he merits of that d ecision are n ot, howeve r, before this co urt.

         5
          Although the EIA abolished the office of superintendent of public instruction, the newly created director of
schools may be referred to as “superintendent.” Tenn. Code Ann. § 49-2-301(d). The education statutes use the terms
interchange ably, and references to superintendent are deemed references to the director of schools. Tenn. Code Ann.
§ 49-2-203(a)(15)(A).

         6
         Prior to the EIA, such duties lay with the Board, the superintendent, or a combination, depending on the type
of employee and the action involved.

                                                             3
provides that it is the duty of the Board of Education to assign to the director the duty:

         Within the approved budget and consistent with existing state laws, board policies
         and locally negotiated agreements covering licensed personnel, to employ, transfer,
         suspend, non-renew and dismiss all personnel, licensed or otherwise, except as
         provided in § 49-2-203(a)(1) [requiring grants of tenure be approved by the Board]
         and in chapter 5, part 5 of this title [protections and discipline of tenured teachers].
         Nothing in this subdivision shall be construed to alter, diminish, or supersede the
         Education Professional Negotiations Act, compiled in chapter 5, part 6 of this title.

Tenn. Code Ann. § 49-2-301(f)(1)(EE).7

       Additionally, and more specifically, Tenn. Code Ann. § 49-2-303(a)(1) grants the
superintendent the exclusive power and duty to select, contract with and hold accountable all
principals. Tenn. Code Ann. § 49-2-303(a)(1) states:

         Each local superintendent shall employ principals for the public schools. The
         employment contract with each principal shall be in writing, shall not exceed the
         contract term of the current superintendent,8 and may be renewed. The contract shall
         specify duties other than those prescribed by statute and shall include performance
         standards and require periodic written evaluations by the superintendent to be
         conducted in the manner and frequency that the superintendent determines proper.
         Reasons for the non-renewal of a contract may include, but are not limited to,
         inadequate performance as determined by the evaluations. A principal who has
         tenure as a teacher shall retain all rights of such status, expressly including those
         specified in § 49-5-510.9




         7
          Amend ments after the Education Improvement Act of 1992 added the additional language regarding “existing
state laws, board policies and locally negotiated agreements.” 1998 Tenn. Pub. Acts, ch. 826.

         8
         A board may employ a director of schools under a written contract of up to four (4) years duration, which may
be renewed. Tenn. Code Ann. § 49-2-203 (a)(15)(A).

         9
           Tenn. Code A nn. § 49-5 -510 is par t of the Tea cher Te nure Act, §§ 49-5-50 1 - 515. “[T]he b asic purpose of
the Teacher Tenure Act . . . is to afford a measure of job security to those educato rs who have attained tenure status. The
General Assembly re cognized 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 T enn. 180 , 297 S.W .2d 635 (1956) ). Tenn. C ode 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 und er the jurisdictio n of the Bo ard.” A tea cher who h as been gra nted perm anent 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.

                                                             4
        The section’s reference to teacher tenure rights reflects the well-settled principle that a
principal has no tenure in that position.10 Tenn. Code Ann. § 49-5-501(11)(A); McKenna v. Sumner
County Bd. of Educ., 574 S.W.2d 527, 530 (Tenn. 1978). Tenn. Code Ann. § 49-2-303(a)(1) clearly
dispels any expectation of tenure in the position of principal, making retention in such position
subject to contracts which, by statute, cannot exceed four years. Reassignment of a principal to a
position with only teaching duties has been held to be a “transfer within the system,” as that term is
used in Tenn. Code Ann. § 49-5-510. Pullum v. Smallridge, 652 S.W.2d 338, 340-41 (Tenn. 1983);
White v. Banks, 614 S.W.2d 331, 334 (Tenn. 1981); Warren v. Polk County Bd. of Educ., 613
S.W.2d 222, 225-26 (Tenn. 1981); McKenna v. Sumner County Bd. of Educ., 574 S.W.2d at 533-34.

         That statute provides:

         The superintendent, when necessary to the efficient operation of the school system,
         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; provided,
         that transfers shall be acted upon in accordance with board policy and any locally
         negotiated agreement.

Tenn. Code Ann. § 49-5-510.

         This provision authorizes a superintendent to transfer a tenured teacher when the transfer is
for the efficient operation of the school system. Our courts have interpreted that statute as giving
superintendents (and boards when board approval was required for transfer) wide discretion, and
courts will generally not interfere in such a management decision so long as the transfer was not
arbitrary and capricious or actuated by political or other improper motives. Pullum v. Smallridge,
652 S.W.2d at 340; McKenna, 574 S.W.2d at 527; Mitchell v. Garrett, 510 S.W.2d 894, 898 (Tenn.
1974); Gaylon v. Collins, No. 03A01-9711-CH-00513, 1998 WL 331300 at *7 (Tenn. Ct. App. Jun.
24, 1998) (perm. app. denied Nov. 2, 1998). Further, the courts have presumed “ that the actions
of a board or superintendent are not arbitrary and 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)).

                                      B. Locally Negotiated Agreements

        As quoted above, some of the relevant statutes now include limitations on superintendent
discretion based upon compliance with locally negotiated agreements covering licensed personnel.
A 1998 enactment added the words “and consistent with existing state laws, board policies, and
locally negotiated agreements covering licensed personnel” to Tenn. Code Ann. § 49-2-


         10
           Marion County has a private act which allows principals to gain tenure in position. There is some question
whether that act remain s valid due to its apparent c onflict with the EI A. See Knox County Educ. Ass’n v. Knox C ounty
Bd. of Educ., No. E2000-01019-COA-R3-CV, 2001 WL 87472 *6 (Tenn. Ct. App. Feb. 2, 2001) (no Tenn. R. App. P.
11 application filed). Tha t issue is not before us.

                                                           5
301(f)(1)(EE) regarding the superintendent’s authority to employ, transfer, suspend, non-renew and
dismiss all employees. 1998 Tenn. Pub. Acts, ch. 826. In addition, Tenn. Code Ann. § 49-5-510
requires that the transfer of a tenured teacher be made “in accordance with any locally negotiated
agreement.” Id.

        The locally negotiated agreements referred to in these statutes are those adopted pursuant to
Tenn. Code Ann. § 49-5-601 et. seq., the Education Professional Negotiations Act. The Act
authorizes recognition of a professional employees’ organization as the exclusive representative of
all professional employees of a board of education for the purpose of negotiating with the board;
negotiation on specified conditions of employment; and the preparation and execution of a
memorandum of understanding reflecting agreements reached in the negotiation. Tenn. Code Ann.
§§ 49-5-605, -606, -611, and -612.

        It is clear, however, that the legislature did not intend, by adoption of the Negotiations Act,
to alter the assignment of duties made elsewhere in statutes pertaining to local administration of
schools. Tenn. Code Ann. § 49-5-604 specifically expresses the legislative intent in this regard:

       Those rights and responsibilities of boards of education, superintendents and
       professional employees as contained in this title are not statutorily modified or
       repealed by this part.

       In addition, the legislature has limited the scope of negotiations and the subjects which may
be covered in an agreement between a board of education and the professional association
negotiating on behalf of the professional employees. In particular, the legislature has stated:

       The board of education and the recognized professional employees’ organization
       shall negotiate in good faith the following conditions of employment:

       (1) salaries or wages;
       (2) grievance procedures;
       (3) insurance;
       (4) fringe benefits;
       (5) working conditions;
       (6) leave;
       (7) student discipline procedures; and
       (8) payroll deductions.

Tenn. Code Ann. § 49-5-611(a). The statute further provides that “nothing shall prohibit the parties
from agreeing to discuss other terms and conditions of employment in service, but it is not bad faith,
as set forth in this part, to refuse to negotiate on any other terms and conditions.” Tenn. Code Ann.
§ 49-5-611(b).

        In addition to limiting the scope of negotiations, the legislature has also limited the scope of


                                                   6
any agreement resulting from the negotiations.

         The scope of a memorandum of agreement shall extend to all matters negotiated
         between the board of education and the professional employees’ organization;
         provided, that the scope of such agreement shall not include proposals contrary to:
         (1) Federal or state law or applicable municipal charter;
         (2) Professional employee rights defined in this part; and
         (3) Board of education rights contained in this title.11

Tenn. Code Ann. § 49-5-612(a).

        In addition, boards and associations entering into agreements regarding the conditions of
employment for professional employees of the board are specifically authorized to include in such
agreement “procedures for final and binding arbitration of such disputes as may arise involving the
interpretation, application or violation of such agreement.” Tenn. Code Ann. § 49-5-612(c).

                                                 C. The Agreement

        The relevant provisions of the agreement between the Marion County Education Association
and the Marion County Board of Education include, first, the arbitration provision. In essence, that
provision allows the Association to submit to final and binding arbitration any grievance filed by an
employee which is not resolved to the satisfaction of the grievant or the Association. While the
provision gives the arbitrator the authority to award reinstatement, financial reimbursement, damages
and other remedies, it specifically states the arbitrator has no power to rule on matters of law.

        The agreement defines grievance as “any claim by a teacher or the Association that there has
been a violation, misinterpretation, or misapplication of the terms of this agreement; a violation of
the right of the teacher or the Association to fair treatment; or a violation, misinterpretation, or
misapplication of any established written policy or practice of the Board.”

         Mr. Stewart’s grievance form described his grievance as:

         Reduction in rank with possible loss of compensation and professional advantage,12
         coupled with improper use of personnel file, no evaluations and multiple contract


         11
           Although the statute speaks of rights of a board of education, the Education Professional Negotiations Act
cannot be constru ed to mo dify those powers that were later transferred to the director of schools from the board by the
Educatio n Improv ement Ac t.

         12
           The grievance used these terms because they are used in the agreem ent as triggering r equireme nts for certain
procedures. Remova l of a principa l from his or her supervisory duties and reassignment to a teaching position, even
when accomp anied by a re duction of sa lary is a transfer within the system, not a demotion, suspension, or removal from
office. McKenna, 574 S.W.2d at 530. On ap peal, the Association and Mr. Stewart take the position his reassignment
was a transfer un der Te nn. Code Ann. § 49 -5-510 an d subject to the transfer pro visions of the ag reement.

                                                            7
        violations tied to removal from principal’s position.

       He also listed the specific provisions of the agreement he alleged to have been violated. On
appeal, Mr. Stewart and the Association identify those provisions as follows:13

         1. All transfers shall be performed pursuant to T.C.A. Title 49(5-510)

         2. An involuntary transfer or reassignment shall be made only after a meeting
         between the employee involved and the superintendent at which time the employee
         will be notified in writing of the specific reasons for the change.

         3. In those cases where an involuntary transfer is to be made for administrative
         reasons, the transfer shall be made for just case [sic], and there shall be a majority
         vote of the Board with the recommendation of the superintendent.

         4. Non-tenured teachers shall be observed for purposes of evaluation at least three
         (3) times during the school year. Two of these observations shall occur prior to
         March 1 of each year and shall be scheduled so that no more than one (1) observation
         is made in any thirty (30) day period.

         5. The Board shall not base any adverse action against a teacher upon materials
         which are not contained in such teacher’s personnel file unless the materials had been
         placed in the file at the time of the incident giving rise to such materials and the
         teacher had been notified at such time that such materials were being placed in the
         file.

         6. The Board, in recognition of the concept of progressive improvement, shall require
         notification to a teacher in writing of any alleged deficiencies, indicate expected
         correction, and indicate a reasonable period of correction.
         (2) In the event that a deficiency could result in termination of employment, the
         teacher shall be responsible for notifying the Association.

         7. No teacher shall be suspended, disciplined, reprimanded, adversely evaluated,
         reduced in rank or compensation or deprived of any professional advantage without
         just cause.

         8. The Association and the Board agree that there shall be no discrimination in the
         hiring, training, assignment, promotion, transfer or discipline of teachers or in the
         application or administration of the Agreement on the basis of race, creed, color,
         national origin, age, sex, domicile or marital status. Further, there shall be no


        13
            The parties identify these provisions by the numbering system and headings in the agreement. Because they
are not seq uential, we are listing them nume rically for the sake of simplicity.

                                                         8
       discrimination against any teacher because of his/her membership in the Association,
       his/her participation in any activities of the Association or collective professional
       negotiations with the Board, or his/her institution of any grievance, complaint or
       proceeding under this agreement, or law or otherwise with respect to any terms or
       conditions of employment.

       9. (A) The personal life of a teacher is an appropriate concern of the Board when it
       prevents the teacher from performing properly his/her assigned functions
       (B) No religious or political activities of any employee or the lack thereof shall be
       grounds for discipline or discrimination with respect to the employment of such
       teacher.

                                                 III.

        In the case before us, Mr. Stewart and the Association contend that the Board agreed to
arbitrate a dispute arising under the agreement and that Mr. Stewart’s transfer was the proper subject
of the grievance procedures established in the agreement. Therefore, they contend, the trial court
correctly concluded that the grievance was arbitrable. They further contend that the relief granted
by the arbitrator was within his power under the agreement, and that the merits of the grievance were
not before the court.

        The Board, on the other hand, contends that the authority to select and appoint principals is
a non-delegable duty resting exclusively with the director of schools, and the statutes cannot be read
to make a delegation to the Board, the Association, or an arbitrator. They further contend that this
statutorily-conferred responsibility cannot be limited by the collective bargaining agreement,
according to the terms of the bargaining statutes themselves.

        In Carter County Bd. of Educ. v. Carter County Educ. Ass’n, No. 03A01-9509-CH-00318,
1996 WL 251827 at *3 (Tenn. Ct. App. May 14, 1996) (perm. app. denied Oct. 7, 1996), this court
determined that the statutory duty to elect a principal is non-delegable and not an issue subject to
collective bargaining. In that case, a disappointed applicant for a vacant principal position, who was
also a teacher in the system, filed a grievance challenging the hiring of another applicant, and she
and the Association requested binding arbitration under the collective bargaining agreement. The
trial court enjoined the arbitration, and this court affirmed.

        In reaching its conclusion, this court found that, by then-existing statute, only the board of
education had the right or authority to fill the position of principal and, consequently, selection of
a principal was not subject to collective bargaining. We further stated:

       And even if such an issue were included by the mutual consent of the parties into the
       collective bargaining agreement, it would be in direct violation of T.C.A. § 49-5-
       611(a) and § 49-5-602(a)(3). It would also be a non-delegable authority not subject
       to binding arbitration and in violation of § 49-2-203(a)(1) which confers the duty on


                                                  9
        the local board of education to elect principals, supervisors, etc.

Id. at *3.

        The court also determined that the apparently universal rule is that issues that lie within the
prerogative of management are not proper subjects for collective bargaining or negotiation. Id. In
particular, the court relied on 84 A.L.R.3d 242, Bargainable or Negotiable Issues in State Public
Employment Relations, and the authorities cited therein:

        Perhaps the single greatest, and almost universally recognized, limitation on the
        scope of bargaining or negotiation by state public employees is the concept of
        managerial prerogative as it has developed in the public sector. In essence, the
        concept creates a dichotomy between “bargainable” issues, that is, those issues which
        affect conditions of employment, and issues of “policy” which are exclusively
        reserved to government discretion and cannot be made mandatory subjects of
        bargaining.

Id. at *3 (quoting 84 A.L.R.3d 242). The court also quoted with approval the decision of the
Supreme Judicial Court of Massachusetts in Berkshire Hills Reg’l Sch. Dist. Comm. v. Berkshire
Hills Educ. Ass’n, 377 N.E.2d 940 (Sup. Jud. Ct. Mass. 1978), which held that the power to appoint
a principal is within the school committee’s non-delegable managerial prerogative, largely because
of the scope of the principal’s duties and role in management. This court determined that Tennessee
statutes give principals an even broader range of duties than Massachusetts statutes.

        The Association and Mr. Stewart argue that the Carter County decision is not applicable
herein because it dealt with the filling of a vacant principalship, not the transfer of a principal. They
also argue that the 1998 amendments requiring that the superintendent’s authority regarding certain
personnel decisions be exercised consistently with locally negotiated agreements were a legislative
overruling the Carter County decision. We note that the 1998 amendments regarding compliance
with locally negotiated agreements were not added to the statute on the superintendent’s authority
specifically regarding employment of principals.

        In a more recent case, this court examined whether principals are members of the bargaining
unit for purposes of negotiating certain terms of the collective bargaining agreement. Knox County
Educ. Ass’n v. Knox County Bd. of Educ., No. E2000-01019-COA-R3-CV, 2001 WL 87472 (Tenn.
Ct. App. Feb. 2, 2001) (no Tenn. R. App. P. 11 application filed). Adopting language from Tenn.
Op. Att’y Gen. 97-106 (July 28, 1997) and reading the Education Improvement Act together with the
Education Professional Negotiations Act, this court concluded that “principals are members of the
bargaining unit for the purpose of negotiating those aspects of employment still under the control
of the Board, while they are not members of the bargaining unit for the purpose of negotiating
employment issues that are under the control of the superintendent.” Id. at *11. The Opinion of the
Attorney General relied upon by the court opined that under the EIA, principals negotiate with the
superintendents, or directors, “regarding matters related to performance, accountability, and contract


                                                  10
renewal. Therefore, the bargaining units may not negotiate these matters with the school board on
behalf of the principals.”

        Both the Carter County and the Knox County opinions are based on the fact that the
Education Improvement Act gives exclusive authority to the director of schools to employ principals,
to contract with them for non-statutory duties and performance standards, and to determine that a
contract should not be renewed. Tenn. Code Ann. § 49-2-303(a)(1). The statute establishes no
requirement for a minimum length of contract, but expressly limits its duration to the term of the
contracting director of schools. It also includes no requirement that actions regarding employment
of principals be consistent with collective bargaining agreements.

       Specific statutory provisions, such as the one governing employment of principals, will be
given effect over conflicting general provisions, such as Tenn. Code Ann. § 49-2-301(f)(1)(EE)
governing all employees of the school system. Dobbins v. Terrazzo Mach. & Supply Co., Inc., 479
S.W.2d 806, 809 (Tenn. 1972).

         The reason and philosophy of the rule [giving effect to specific statutory provisions
         over general ones] is that where the mind of the legislature has been turned to the
         details of a subject and they have acted upon it, a statute treating the subject in a
         general manner should not be construed as intended to affect the more particular
         provision.

Lambert v. Invacare Corp., 985 S.W.2d 446, 448 (Tenn. Ct. App. 1998) (quoting Woodroof v. City
of Nashville, 183 Tenn. 483, 192 S.W.2d 1013, 1015 (Tenn. 1946)).

                                                             IV.

        The Association and Mr. Stewart do not dispute that it was Mr. Stewart’s transfer from the
principal position that was the subject of the grievance and the arbitration. They maintain, however,
that the manner in which a principal is transferred to a teaching position is properly subject to
collective bargaining, includable in an agreement resulting from that bargaining, and, therefore
subject to grievance and arbitration.14


         14
            The Association has argued that courts are limited in addressing the merits of a gr ievance that is su bject to
an arbitration clause, citing, among other cases, Mechanics Universal Joint Div. Borg-Warner Corp. v. Fooshee, 354
S.W.2d 59 (Tenn. 1962) and Major League Baseball Players Ass’n v. Garvey, 69 U.S.L.W. 3725 (2001). We do not
disagree and do not interp ret the questio n before us o r our resolutio n of it as addre ssing the merits o f Mr. Stewa rt’s
transfer. Neither do we view the question to be whether the agreement makes the transfer grievable and, therefore,
subject to arbitration. See Un ited Steelw orkers of A meric a v. Warri or & Gulf Navigation Co., 363 U.S. 574, 582-83
(1960). (“An orde r to arbitrate the particular grievance sh ould not be denied unless it may be said with positive
assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.”) The question
before us is whether state law authorizes the inclusion in a collective bargaining agreement between a school board and
the professional employees’ association provisions which require arbitration of a superintendent’s choice of principals.
If such provisions are beyond statutory authority, they cannot be enforced.

                                                             11
       Where, however, the agreement allows someone other than the superintendent to decide who
will be principal at a particular school, that argument must fail. The legislature has clearly
determined that superintendents have exclusive authority to employ principals, and we find no
language in the Education Professional Negotiations Act or elsewhere to indicate that the legislature
intended that authority could be exercised by an arbitrator.

       In Tennessee Small Sch. Sys. v. McWherter, 894 S.W.2d 734 (Tenn. 1995), the Tennessee
Supreme Court explained the enactment of the Education Improvement Act of 1992 against the
backdrop of litigation over funding of school systems and the interrelationship of the funding
mechanism, the Basic Education Program, part of the EIA, and the new provisions relating to
performance standards for local school systems and accountability of local school officials.

         The significant provisions of the BEP other than funding are characterized as
         governance and accountability measures. These reforms are designed to address “the
         relative indifference” to education demonstrated by some local systems, which this
         Court found to be a contributing factor to the inequities in educational opportunities.
         Tennessee Small School Sys. v. McWherter, 851 S.W.2d at 156. The BEP purports
         to accomplish these objectives by granting to local officials more discretion in the
         management of the system and holding those officials accountable for obtaining
         measurable accomplishments in providing an effective educational system.

Id. at 736-37 (emphasis added).

         Interpreting the Education Professional Negotiation Act to remove decisions about who will
fill the important managerial role of principal15 at a particular school from the director of schools
would be inconsistent with the legislative intent as expressed by our Supreme Court. It would also
be inconsistent with the clear language of Tenn. Code Ann. § 49-2-303(a)(1). By limiting a
principal’s contract to the term of the current superintendent, the legislature clearly intended that a
new superintendent be free to choose principals unencumbered by pre-existing contractual
obligations. Faced with this clear statement of intent, we are unwilling to interpret less specific
language elsewhere as authorizing usurpation of a superintendent’s right to choose principals
because of an agreement entered into before the superintendent’s term by the Board and the
Association.

        The question of whether Mr. Stewart would remain principal of Jasper Elementary School
was not subject to arbitration because that decision was solely the province of the director of schools
and could not be delegated to an arbitrator. See Carter County Bd. of Educ. v. Carter County Educ.
Ass’n, 1996 WL 251827. Therefore, any provisions of the agreement, or any interpretations of those

         15
            Tenn. Code A nn. § 49-2 -304 sets o ut the broad manageria l, supervisory, a nd policy-re lated duti es of the
principal. In Fleming v. Wade, 568 S.W .2d 287 , 289, 29 0 (Tenn . 1978) o ur Suprem e Court ch aracterized principals as
“key figures in the orderly and efficient operation of the schools.” The court also noted that “The Board of Education
and the superintendent must necessarily be accorde d conside rable discre tion in the employment and retention of such
personne l.”

                                                           12
provisions, which purport to remove the authority to select principals from the superintendent are
beyond the permissible scope of such agreements. Tenn. Code Ann. § 49-5-604; Tenn. Code Ann.
§ 49-5-612(a).

        In addition, the Association was not empowered to negotiate on behalf of principals any
provisions relating to employment issues under the control of the superintendent. Knox County
Educ. Ass’n v. Knox County Bd. of Educ., 2001 WL 87472 at *11. Neither was the Board of
Education authorized to agree to a limitation on the incoming director of schools’ authority to select,
negotiate directly with, and contract with principals. Thus, any provisions, or any interpretations of
those provisions, which have the effect of limiting the superintendent’s discretion with regard to
selection, length of contract, renewal or non-renewal of contracts, performance, or accountability of
principals are beyond the permissible scope of the agreement.

                                                           V.

        Mr. Stewart and the Association argue that the agreement may properly include provisions
regarding transfers and that failure to comply with those provisions is a subject for grievance and,
therefore, arbitration. Tenn. Code Ann. § 49-5-510 provides that superintendents may transfer
tenured teachers among schools and among positions “provided, that transfers shall be acted upon
in accordance with board policy and any locally negotiated agreement.” We have already concluded
that an agreement which envisions substitution of the judgment of an arbitrator for discretion of the
director of schools in the selection of principals is not authorized by law. Therefore, to the extent
the transfer sections of the agreement are interpreted to apply to removal of a tenured teacher from
a principalship to a teaching position, they cannot be enforced to allow an arbitrator to reinstate the
transferred teacher to the principal position.16

        We do not interpret the 1998 amendment to Tenn. Code Ann. § 49-5-510 to authorize the
inclusion in or enforcement of provisions in a locally negotiated agreement which would restrict the
superintendent’s authority to remove a tenured teacher from a principal position and reassign that
teacher to other duties.

         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


         16
          Interpretation of the agreem ent is not befo re this court. W e note, however, that the decision in Knox C ounty
Educ. Ass’n v. Knox County Bd. of Educ. creates some question o n whether those provisions can be applied to transfers
from principal positions.

                                                           13
       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 895, 897 (Tenn. 1994).

        In seeking to ascertain the legislature’s intent, we note that no amendment regarding a locally
negotiated agreement was added to the statute authorizing the superintendent to select and contract
with principals. As explained above, we discern the clear legislative intent is to provide discretion
to the superintendent to make this important personnel decision. We find no clear expression of
intent to subject that discretion to terms negotiated between the board of education and the
association.

        The legislature has stated that a principal who is also a tenured teacher retains rights of
tenured teachers, including “those specified in § 49-5-510.” That statute authorizes transfers “when
necessary to the efficient operation of the school system.” Our Supreme Court has explained the
limitations on transfers of tenured teachers and the role of the courts in disputes regarding such
transfers:

       An employee so transferred, however, is entitled to be protected from arbitrary and
       capricious action, or from transfers actuated by political or other improper motives.
       To this end he may bring a direct action in the courts to have determined the question
       of whether or not the transfer was made in accordance with the statutory
       requirements. Judicial review is limited to determining that question, and must be
       conducted in light of the broad discretion which the statutes clearly give to the
       superintendent and to the Board.

McKenna v. Sumner County Bd. of Educ., 574 S.W.2d at 534.

        This decision recognized that the court’s review should be circumscribed by the statutory
discretion vested in local school boards and superintendents, the inherently executive nature of
personnel management decisions, and the presumption that public officials are discharging their
duties in good faith. State ex. rel. Pemberton v. Wilson, 481 S.W.2d 760, 770 (Tenn. 1972); Mayes
v. Bailey, 209 Tenn. 186, 192, 352 S.W.2d 220, 223 (1961). Thus, the Supreme Court has held that
the scope of judicial review of local transfer decisions is “limited.” Pullum v. Smallridge, 652
S.W.2d at 341; McKenna v. Sumner County Bd. of Educ., 574 S.W.2d at 534. The courts have
continued to limit their review of transfer decisions made by local officials and to afford discretion
to those officials. See, e.g., Springer v. Williamson County Bd. of Educ., 906 S.W.2d 924 (Tenn. Ct.
App. 1995).

        Thus, Mr. Turney’s decision to transfer Mr. Stewart was reviewable, but by a court and under
a limited standard of review. A court will not substitute its judgment for that of the superintendent,
but will only inquire into whether the decision was arbitrary, capricious, or improperly motivated.


                                                  14
        We need not determine whether a collective bargaining agreement may impose substantive
requirements for transfers, such as a for cause limitation, beyond the statutory standard.17 Neither
are we required to determine whether an agreement can impose procedural requirements, such as
notice and a hearing. 18 We have determined that, regardless of compliance with such terms, a
superintendent’s decision to transfer a principal cannot be subjected to binding arbitration wherein
an arbitrator can make the choice of who will be principal.

                                                           VI.

        The Board asserts that the court improperly granted an injunction requiring the Board to
arbitrate. The Association and Mr. Stewart had requested the injunction on the basis of the Board’s
refusal to arbitrate as provided in the bargaining agreement. The Association and Mr. Stewart assert
that the Board’s actions in seeking a declaratory judgment and stay of arbitration constituted refusal
to arbitrate.

        Parties can agree to arbitrate certain issues. However, the agreement herein removed from
an arbitrator’s authority any questions of law. As this opinion demonstrates, the question of whether
Mr. Stewart’s transfer was subject to arbitration is a question of law requiring interpretation of
several statutory provisions. The Board properly sought judicial interpretation and asked for a
declaratory judgment which would have disallowed the arbitration. We find nothing improper in this
action, and do not consider it evidence of bad faith refusal to arbitrate under Tenn. Code Ann. § 49-
5-609(a)(8).

        The injunction was issued as part of the trial court’s decision that the transfer was subject to
arbitration. In view of our decision herein, and in view of this court’s earlier denial of the Board’s
motion to stay, the question of whether the injunction should have been granted is moot.

                                                           VII.

        For the reasons stated herein, the decision of the trial court requiring the Board to submit to
binding arbitration over Mr. Stewart’s transfer is reversed. Since the Board was not required to
arbitrate the transfer, the result of the arbitration is void. Further, the arbitrator was without authority




         17
            The agreement herein attempts to subject the director’s determination regarding transfer, when that transfer
is “involuntary” and made for administrative reasons, to approval by the Board. Such a requirement imposed on a
transfer from a principalship would ap pear to dire ctly conflict with the director’s authority under Tenn. Code Ann. § 49-
2-303(a)(1).

         18
           Absent such provisions, our courts have determined that transfer of a tenured employee need not be preceded
by a formal written notice or a hearing . McKenna v. Sumner County Bd. of Educ., 574 S.W .2d at 533 -34; Pemberton
v. Wilson, 481 S.W.2d at 770.

                                                           15
to reinstate Mr. Stewart and that decision cannot be enforced. This cause is remanded to the trial
court for further actions consistent with this opinion. Costs of this appeal are taxed to the
Association and Mr. Stewart, for which execution may issue if necessary.



                                                    ____________________________________
                                                    PATRICIA J. COTTRELL, JUDGE




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