IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE KEN STEPHENS ) ) Petitioner/Appell

ant, ) Appeal No.

) M1998-00125-COA-R3-CV v. ) ) Davidson County Chancery ROANE STATE COMMUNITY ) No. 97-2695-I COLLEGE ) ) Respondent/Appellee. )

COURT OF APPEALS OF TENNESSEE APPEAL FROM THE CHAN CERY COURT FOR DAVIDSON COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE IRVIN H. KILCREASE, JR. PRESIDING

JERROLD L. BECKER SAMUEL W. BROWN BECKER, THOMFORDE, BROWN, KNIGHT & HE STER, P.C. P.O. BOX 1710 KNOXVILL

E, TENNES SEE 37901-1710 ATTORNEYS FOR PETITIONER/APPELLANT

PAUL G. SUMMERS ATTORNEY GENERAL WILLIAM J. MARETT, JR., ASSISTANT ATTORNEY GENERAL CORDELL HULL BUILDING 525 5 TH AVENUE, NORTH NASHVILL

E, TENNES SEE 37243 ATTORNEYS FOR RESPONDENT/APPELLEE

VACATED AND REMAND ED PATRICIA J. COTTRELL, JUDGE CONCUR: CANTRELL , J. CAIN, J. 

# OPINION

Appellant Ken Ste

phens is a tenured pro

fessor at Appelle

e Roane State Comm

unity College (“

Roane State”) w

ho was suspended for six months without pay for violating the sexual harassment policies of the Tennessee Board of Regents and Roane State. Professor Stephens seeks appellate review



# FILED

February 18, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk-2-

of the trial court’s affir mance of the administrative de cision to suspen d him. Because the trial court reviewed this case by applying the judicial review standards provided under the Uniform Administrative Procedures Act (“UAPA”), Tenn. Code Ann. § 4-5-101, et seq. , rather than the m ore specific provisions of Tenn. Code Ann. § 49-8-304 , we vacate its d ecision and rem

and this case. Roane State hired Professor Stephens to teach computer programm

ing in 1989. He beca

me tenured in 199 1. This case arose in 1996, after one of Prof

essor Stephens’s female student s lodged a sexual hara

ssment complaint against him, claiming he created a hostile environment and engaged in unwelcome se

xual conduct while a

cting in his official

capacity as a professor. After an inv estigati on of the s tudent’s co mplaint, Roa ne State’s president impose

d a one-year su spension without pay . Professor Ste phens appealed to the Board of Regents, and hearings were held before an administrative law judge (“ALJ”). A fter considering the hotly disputed evidence, the ALJ concluded that Professor Stephens’s conduct constituted sexual harassm

ent, in violation of po

licies of the Board

of Regents and Roane State, in that his c

onduct unreasonably

interfered with the complaining student’s academ

ic performan

ce and created a h

ostile, intimid

ating and offensive educational environment for the student. The ALJ, however, reduced the suspen sion to one-half year with out pay. Because neither party petitioned the Board for appeal and the Board did not issue a notice of

intention to review the ALJ’s orde r pursuant to Tenn. Code Ann. § 4-5-315,

the ALJ’s orde

r became the f

inal order of the Board of Regents in June 1997. The Notice of An Initial Order Becoming a Final Order, issued by

the Administra

tive Procedures D

ivision of the Secre

tary of State’s Office, included notice that any party aggrieved by the final order could seek judicial

review, citing T

enn. Code Ann. §4- 5-322. Professor Stephens sought review of the administrative

decision in-3-

Chancery Court by filing a pet ition for judicial rev iew pursuant to the UAPA, specifically,

Tenn. Code Ann.§ 4-5-322. In his peti tion, Professor S tephens alleged that the Boa

rd of Regents had ac

ted in violation of cons

titutional or statutory provisi

ons, arbitrarily

and capriciously , and had abused its di scretion by sanctioning Pr

ofessor Stephens fo

r conduct which, a

s a matter of l

aw, did not rise to the level o

f sexual harassm

ent and by refus

ing to allow inquiry

into the views of the complaining student’s psychologist. The petition also alleged that the order was

not supported by subs

tantial and mat

erial evidence in l

ight of the entire reco

rd. The trial court e

xplicitly conduct

ed its review of the

administrative proceedings pursuant to the UAPA, sta ting, “Review

in this court is not de

novo , but is confined to the record made before the Board. Factual issues must be reviewed upon a st andard of substant ial and material evidence.” (citations omit

ted). The court specifically set out the standard of review it

was applying by

including the language

of Tenn Code Ann.§4-5-322 in its opinion: The court may

affirm the de

cision of the agency

or remand this case for furth

er proceedings. T

he court may

reverse or modify the decision if the rights of the petitioner have been prejudiced becau se the administr ative findings, infe

rences, conclusions or decisions are: (1) In violation of constitutional or statutory provisions; (2) In excess of

the statutory au

thority of the ag

ency; (3) Made upon unlawful procedure; (4) Arbitrar

y or capricious

or characterize

d by abuse of discretion or cle

arly unwarra

nted exercise of discretion; or (5) Unsupported b

y evidence whic

h is both substantial or ma

terial in the light of

the entire record

. In determining the substantiality of the evidence, the court shall take into accou

nt whatever in the r

ecord fairly detracts from

its weight, but the c

ourt shall not substitute its judgment fo

r that of the agency

as to the weight of t

he-4- evidence on questions of

fact. Applying this standard applicable to judicial review under the UAPA, the trial court determi

ned that the six-m

onth suspension without pa y was supported b

y substantial and materi al evidence and was no t arbitrary or capricious. Professor Stephens appealed these fin dings to this court. I. Both parties procee

ded below and based t

heir original argum

ents in this court on the assumption that the judicial review provisions of the UAPA applied to the trial c

ourt’s review of

the order suspending P

rofessor Stephens. There is nothing in the record to indicate that the parties considered or asked the trial court to co nsider the applicab ility of Tenn. Code Ann.§§ 4 9-8-301, et seq. , to this case. T

hat set of statutes de

als with tenured fa

culty at instituti

ons within the state university and community college system , which includes Roane State. T

his court asked both par

ties to provide supplem

ental briefs on the issue of whether

Tenn. Code Ann.§ 49-8-304 (1996), w hich deals with judicial review

of certain adm

inistrative actions i

nvolving discipline of tenured faculty , applied to this case. We have re ceived and considere

d the parties’ supplem

ental briefs. Tenn. Code Ann.§ 49-8-304(a) states as follows: (a) A faculty

member w

ho has been awarde

d tenure, and who has been dismissed or suspended for cause, may obtain de novo judicia

l review of the fi

nal decision by filing a petition in a c

hancery court having jurisdiction within thirty (3 0) days of the fi nal decision, and co

pies of the petition shall be served upon the board and all parties of record. “A well esta

blished rule of statut

ory construction

is that a specific provision of a statute controls over the general.” Cooper v. Alcohol Comm’n of the City of Memp

his , 745 S.W.2d 278 , 280 (Tenn. 1988) . Thus, in Frye v. Memphis State Univ ., 671 S.W.2d 467, 4 68-9 (Tenn .1984 ), our Supre me Court h eld tha t in ter minatio n proce edings for ten ured st ate uni versit y facult y, Tenn. Code Ann.§§ 49-8-302 - 304 applie d, rather than the

UAPA. The Court specifically

stated:1 It follows that the heightened burden of proof required for termination of a te nuredfaculty member by Tenn. Code Ann. § 49-8-303(a)(4) does not apply to Professor

Ste phens’s suspension proce

edings.

-5- It is our opinion that the

General Assem

bly intended for them [the provisions o f Tenn. Code Ann. § 49-8-3 01, et seq. ] to apply to pr

oceedings such as these, rather than fo r the more gener

al provisions of the A

dministrative Procedures Act t

o be used. Frye , 671 S.W.2d a

t 468-469. While the set of statut es at Tenn. Code Ann. §49- 8-301, et seq. , deals specificall

y with tenured f

aculty at institu

tions within the state university and community college s ystem, see Frye , 671 S.W.2d a t 468-69; see also Phillips v. Board of Regents , 771 S.W.2d 410 , 411 (Tenn. Ct.App. 1988), sections 49-8- 302 and 303 establish proc edures and grounds for termination of

tenured faculty . Thus, although tho se sections were f ound to apply to the term

ination proceedings a

t issue in Frye , they explicit ly do not apply to this acti

on in which suspension of Professor Stephe

ns was the only sanction sought or im

posed. 1 However, by its language, Tenn . Code Ann. § 49-8-304, which gove

rns judicial revie

w of administr

ative decisions rega

rding tenured faculty, applies specifically to faculty m embers who have been awarded tenure a

nd are “suspende

d for cause.” It

is undisputed that Prof

essor Stephens was “ suspended for cause. ” In light of the plai n language of the statute, Frye’s precedent, and the governing rules of sta

tutory construct

ion, we must conclud

e that Tenn. Code Ann. § 49-8-304 appli es to both the dismissal and susp

ension for cause of t

enured college and un

iversity facul

ty members. See Frye , 671 S.W.2d a t 468. In its supplemental brief, Roane State contends that §49-8-304 does not apply here because Ten n. Code Ann. § 49-8-30 1, et seq. , relate only to terminations of

tenured faculty

and not to suspensions. I t maintains that

the State Board of Re

gents’ policies int

erpret “suspe

nded for cause,” w

ithin the meaning of § 49-8 -304, as a suspension p ending terminat

ion, and that because Professor Stephens was not suspended pen ding termination , Tenn. Code Ann

.-6-

§ 49-8- 304 do es not a pply. These argume

nts ignore the "card

inal rule" of statuto

ry construction: to give effect to legi slative intent. Rippeth v. Connell y , 60 Tenn. App. 430, 433, 447 S.W.2d 380, 381 (1969); see Schering-Plough Healthcare Produc

ts, Inc. v. State Bd

. of Equalization , 999 S.W.2d 773, 775 (Tenn. 1 999). Legislative intent and purpose is to be ascertained primarily from the natur

al and ordinary meaning of the language used, whe

n read in the context of the entire act or statute, without an

y forced or subt

le construction to lim

it or expend [sic] the import of that language. Oliver v. King , 612 S.W.2d 152 , 153 (Tenn.1981). Courts must cons

true statutes as they

find them, and

must grant their

fullest possible eff

ect, without unduly restricting th em or expanding them beyond thei r intended scope. See Wilson v. Johnson County, 879 S.W.2d 807, 809 (Tenn.1994); Watts v. Putnam County , 525 S.W.2d 488, 494 (Tenn.1 975). Because §49-8-304 specifically addresses s uspensions for cau se, we must reject

Roane State’s u

nduly restricti

ve reading of that st

atute as applying solely to suspensions pending termina tion. Such an inter

pretation ignores the plain language adopte

d by the Genera

l Assembly

and fails to grant m

eaning to the legislature’s words, “who has been . . . suspended for cause.” II. Having decided that §49-8-304 applies here, we must consider whether the failu

re to apply the st

andard of review required by that statute gave rise to reversib le error. See Tenn. R. App. P. 36(b). Our Supreme Court has held that it did in

Frye , 761 S.W.2d a

t 468. Where it a

pplies, Tenn. Cod

e Ann. §49-8-304 requires a de novo judicial review. See Wells v. Tennessee Bd. of Regents , No. M1998-00459-S C-R3-CV, 1999 W L 1211480 (Tenn. Dec. 20, 1999).

There is a fundamental difference in the role of a trial court reviewing an administrative action under the UAPA and that of a trial court-7-

performing a de novo review. The S upreme Court ha s recognized this difference: [T]he UAPA requires that the trial court review factual issues upon a standard of substantial and material evidence. But this i s not a broad, de novo review. It is restricted to the r

ecord and the agenc

y findings ma

y not be reversed or m

odified unless arbitr

ary or capric

ious or characterized by an abuse, or clearly unwarranted exercise, of discretion and must stand if supported by substantial and material evidence. CF Indus. v. Te

nnessee Public Serv

. Comm'n, 599 S.W.2d 536, 540 (Tenn. 1980). In short, the

UAPA prohibits th

e court from su

bstituting its judgm

ent of the evidence for th at of the administrative decision-maker. In contras t, a “hearing de novo requires the trial court to reconsider

and redeterm

ine both the facts and the law from all the evidence as if no such dete rmination had been previously made .” Cooper v. Alcohol C omm’n of the City o

f Memphis , 745 S.W.2d at 281 (emphasis added). A court conducting a de novo review of administrative

proceedings mus

t make an indepe

ndent examinati

on of the evidence, including

any evidence sup

plemental to the

administrative

record, and “redetermine the facts and th e law from all the evidence befo re the court.” Cooper v. Williamson County Bd. of Educ. , 746 S.W.2d 176 , 180-181 (Tenn. 1987). In addition, the two different review procedures have different rules regarding whether evidence additional to that in the administrative record may be introduced before

the trial court. J

udicial review unde

r the UAPA is,

by statute, c onfined t o the recor d. Tenn. Cod e Ann. § 4-5- 322(g). Onl y “[i]n cases of alleged ir

regularities in proc

edure before the a

gency, not show

n in the record,” may proof be taken in the trial court. Id. De novo review under Tenn. Code Ann.§ 49-8-304, however , is not so limite

d. In Frye , the Court held: in affirming th

e decision of the adm

inistrative body,

the Chancellor noted tha

t issues of veracity

and credibility

of the witnesses wer

e involved, and that t

here was conflic

ting evidence on severa

l points. He specif

ically decline

d to review such issues or to "substitute my judgment" for that of the hearing com

mittee and the u

niversity offic

ials.2 It should be n oted that the A LJ specificall y found that P

rofessor Stephen

s’s conduct, withoutan incident occurring betwee n the student and the professor in his office, would not have led to a finding of

sexual harassment

“ with a significant penalty.” Professor Stephens denied that the office incident, testified to by the complaining student, ever occurred, but the ALJ believed the stude

nt. Thus, issues of c

redibility of

the witn esses and we ight of the evidence are involved. -8- Counsel for appellees insisted that the Chancellor was confined to review

ing the administr

ative record for material or s

ubstantial evidence only, and counsel for appellant complained that the previous Chancellor had precluded him f

rom offering e

vidence that mi

ght bear upon veracity and credibilit y. In our opinion th is was error. " De novo judicial review " in this statute and conte

xt means a new

hearing in the chancery cour

t based upon the adm

inistrative recor

d and any additional or

supplemental ev

idence which eithe

r party wishes to adduce re

levant to any issue . The Chancellor may, of c ourse, confine new

evidence to that whi

ch is truly supplemental or

additional and is not re

quired to hear all of the evi dence a new if he does no t find t his nec essary. Otherwise there

would be little need

for the adminis

trative transcript. How

ever, he may

permit introduc

tion of any and all evidence wh

ich he deems ne

cessary to ena

ble him to dispose of the i ssues presented. Frye , 671 S.W.2d a

t 469. One of Professor

Stephens’s prim

ary argum

ents challenges the sufficiency of the evidence. 2 Clearly, the erroneous application of the UAPA materially affected the standard of review the trial court used to analy ze that evidence, as demonstrated by the trial court’s explicit statement that its review “is not de novo ” and that it review ed factual issues “

upon a standard of substantial and m

aterial evidence. ” Under Tenn. C ode Ann. § 49-8-304, Professor Stephens was entitled to a de novo review, and the absence of such a review forecl

oses our appellate r

eview of this case . Thus, the case must be remanded for review under th e proper standard. See id. ; Tenn. R. App. P. 36(b). III. Relying on Tenn.

R. App. P. 36(a

), Roane State a

rgues that even if Tenn. Code Ann. § 49-8-304 applies, Professor Stephens’ failure to seek review under that statutory secti on instead of the UA

PA or to seek perm

ission3 I n his Petition for Review, Professor Stephens requested “[t]hat in those instances of

alleged irregularities in disco very a nd trial procedur es before the Ag

ency as se

t forth herein above, proof thereon be taken in this Court to supplement the record.” We interpret this a s a request under the UAPA’s limited provision for admission of additional evidence in the trial court. See Tenn. Code Ann. §4-5-322(g).

4 For example, Professor Stephens’s issue regarding the denial of his discovery reque st and his inability to present certain evidence can properly be decided by the trial court in th

e context of a request to pr

esent supplementa

l evidence in that

court. -9- to supplement the record in the trial court 3 should foreclose our granting relief to him. Both parties proceeded below under the theory that the UAPA applied, beginning w

ith the Board of Reg

ents’ notice rega

rding the method for seeking judici

al review. Fur

ther, we cannot a

gree with Roane S tate’s assertion that Professor Stephens can show no harm consistent with Tenn. R. App. P. 36(b) resulting from the trial court’s re view of the Board’ s decision under the UAPA s

tandard. Profes sor Stephens was sta tutorily entitle

d, by virtue of his status a

s a tenured professo

r, to the court’ s de novo review of his suspension. Such a r

eview includes the c

ourt’s weighing of

the evidence and the opportunity to a

sk the court to presen

t additional or supplem

ental relevant proof. See Frye , 671 S.W.2d a t 469; Wells v. Tenne

ssee Bd. of Rege

nts , 1999 WL 1211480 at * 5 (ho

lding that the chance

llor has “broad

discretion” in allowing additional evidence during the de novo review). In lig ht of our decision to remand this case for application of Tenn. Code Ann. § 49-8- 304, we pretermi

t the remaining

issues presented in th

is appeal. 4 IV. Because this case is before us as an appeal from a decision issued under the UAPA, our exercis e of jurisdiction was cl early appropriate. See Tenn. Code Ann. § 4-5-323(a). However, our decision to remand so that Tenn. Code Ann.§ 49-8-304 may be applied raises j urisdictional questions in any subsequent app

eal. Tenn. Code

Ann. §49-8-304(d) p

rovides that “[

t]he decree of the cha

ncery court w

ill be subject to re

view by appeal to the supreme court as provided in the Tennessee Rules of Appellate Procedure.” Should one of the parties desire further appellate review after remand, a direct appeal to the Supreme Court may be appropriate. See Wells, 1999 WL 1211480 at * 3; Phillips v. State B d. of Regents , 863 S.W.2d 45, 47 (Tenn.-10-

1993). V. Accordingly,

the judgment of

the trial court is va

cated and this case is remanded fo

r further procee

dings consistent with t

his opinion. Costs of th

is appeal shall be taxe d to Appellee.

_____________________________ PATRICIA J. COTTRELL, JUDGE CONCUR:

__________________________________ ______ BEN H. CANTRELL, PRESIDING JUDGE, M. S.

__________________________________ ______ WILLIAM B. CAIN, JUDGE