Does a Tennessee police department have to follow special due-process steps before issuing a written reprimand to an officer?

Subject

Opinion No. 13-64, Written Reprimands of Police Officers, August 22, 2013

Plain-English summary

Sen. Mae Beavers asked whether Tenn. Code Ann. § 38-8-304, which sets a notice-and-response procedure before certain disciplinary actions against police officers, applies to a written reprimand. The AG concluded it usually does not. The statute is triggered only by one of four specific employment actions: dismissal, demotion, suspension without pay, or transfer for punitive reasons. A written reprimand standing alone does not meet that list.

If a particular "reprimand" actually does one of those four things in substance, the procedural requirements still apply. The label on the document does not control; the underlying employment action does. So a "written reprimand" that also imposes a demotion or unpaid suspension still triggered the statute. A pure reprimand, without an accompanying disciplinary action from the four-item list, did not.

The AG reached that result by applying the standard Tennessee rule of statutory construction that the inclusion of specific items in a list implies the exclusion of others not listed (the expressio unius canon). Because the General Assembly enumerated four discipline categories and omitted reprimands, the AG inferred that reprimands fall outside the statute.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Tenn. Code Ann. § 38-8-304 has been amended multiple times since 2013, and local police departments often add their own collective bargaining or civil-service procedures on top of the statutory minimum. Anyone evaluating current discipline procedures should pull the current statute text and check the relevant city charter or departmental policy.

Background and statutory framework

Tenn. Code Ann. § 38-8-304 (as it stood in 2013). Before a police officer was dismissed, demoted, suspended without pay, or transferred for punitive reasons, the department had to:

1. Notify the officer in writing of all charges, the basis for them, and the action that may be taken.
2. Give the officer an opportunity, within a reasonable time after the written notice, to respond orally and in writing. The time limit was set by the agency but could not be less than five calendar days unless the officer agreed.
3. Allow the officer to be assisted by counsel at the officer's own expense during the response.

Statutory interpretation framework. Britt v. Dyer's Employment Agency, Inc., 396 S.W.3d 519, 523 (Tenn. 2013), restated the standard rule that Tennessee courts give words "their natural and ordinary meaning in the context in which they appear and in light of the statute's general purpose," and look no further if the language is clear. Phillips v. Tenn. Technological Univ., 984 S.W.2d 217, 219 (Tenn. 1998), recognized the canon that mention of one subject implies exclusion of others not mentioned.

Common questions

Did this opinion mean police departments could reprimand officers without any procedure at all?

No. It only addressed Tenn. Code Ann. § 38-8-304. Other procedural sources, such as local civil service rules, collective bargaining agreements, departmental policies, and federal constitutional due process when a property interest in continued employment was implicated, could each impose their own steps. The opinion was narrow.

What if a reprimand effectively functioned as a demotion?

The AG noted that if the written reprimand "takes one of the employment actions" listed in the statute against the officer, the procedures applied. A reprimand styled as such but combined with a pay cut, loss of grade, or punitive reassignment would have triggered the statute.

Why did the statute pick those four discipline categories?

The four are the most severe employment consequences short of criminal action: termination, loss of grade and pay, unpaid suspension, and forced reassignment as punishment. The General Assembly drew the procedural line at actions with significant impact on an officer's livelihood. Lesser actions like a written warning or a verbal counseling did not get the same statutory protection.

Did the AG's analysis change if the officer was a probationary employee?

The opinion did not address probationary status. Other sections of Tenn. Code Ann. Title 38, Chapter 8, draw distinctions among officers based on certification status; some procedural protections did not apply to probationary officers. Anyone advising a specific situation in 2013 would have checked both the discipline statute and the certification framework.

Citations

Tenn. Code Ann. § 38-8-304. Cases: Britt v. Dyer's Employment Agency, Inc., 396 S.W.3d 519, 523 (Tenn. 2013); Phillips v. Tenn. Technological Univ., 984 S.W.2d 217, 219 (Tenn. 1998).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-064.pdf

Original opinion text

August 22, 2013

Opinion No. 13-64

Written Reprimands of Police Officers

QUESTION

Does Tenn. Code Ann. § 38-8-304 affect the process for issuing a written reprimand to a police officer and, if so, how does this statute affect that process?

OPINION

No, unless the written reprimand takes one of the employment actions against a police officer described in Tenn. Code Ann. § 38-8-304.

ANALYSIS

Chapter 8 of Title 38 of the Tennessee Code governs the employment and training of police officers, and Tenn. Code Ann. § 38-8-304 specifically addresses the process to be followed before a police officer may be dismissed, demoted, suspended without pay or transferred for punitive reasons. This statute specifically provides:

Before any dismissal, demotion, suspension without pay or transfer for punitive reasons may be imposed, the following must be complied with:

(1) The police officer shall be notified in writing of all charges, the basis for the changes, and the action that may be taken;

(2) The police officer shall be given an opportunity, within a reasonable time limit after the date of the written notice provided for in subdivision (1), to respond orally and in writing to the charges. The time limit shall be determined by the agency, but in no event shall it be less than five (5) calendar days unless agreed to by the police officer, and

(3) In making a response, the police officer may be assisted by counsel at the officer's own expense.

Tenn. Code Ann. § 38-8-304.

When construing statutes such as Tenn. Code Ann. § 38-8-304, Tennessee courts will determine and effectuate the General Assembly's intent and purpose by focusing on the text of the statute and giving "the words their natural and ordinary meaning in the context in which they appear and in light of the statute's general purpose." Britt v. Dyer's Employment Agency, Inc., 396 S.W.3d 519, 523 (Tenn. 2013). If the statute's language is clear and unambiguous, a court will "look no further to ascertain the statute's meaning."

By its plain terms, Tenn. Code Ann. § 38-8-304 applies only to any "dismissal, demotion, suspension without pay or transfer for punitive reasons." It does not apply to a written reprimand unless the reprimand takes one of the actions against the officer specifically listed in Tenn. Code Ann. § 38-8-304. See Phillips v. Tenn. Technological Univ., 984 S.W.2d 217, 219 (Tenn. 1998) (court recognizing the rule of statutory construction that the mention of one subject in a statute means the exclusion of other subjects that are not mentioned.) The General Assembly's exclusion of any reference to disciplinary action short of dismissal, demotion, suspension, or punitive transfer supports an inference of its intent that the application of Tenn. Code Ann. § 38-8-304 be limited to those disciplinary actions. If one of those disciplinary actions is taken, then the employer of the police officer must follow the process established by Tenn. Code Ann. § 38-8-304.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

GORDON W. SMITH
Associate Solicitor General

Requested by:

The Honorable Mae Beavers
State Senator
6 Legislative Plaza
Nashville, Tennessee 37243-0223