# FILED January 8, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk JAMES T. MORRIS, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9605-CH-00247 v. ) ) Davidson Chancery THE BOARD OF EDUCATION OF THE ) No. 95-3084-III METROPOLITAN NASHVILLE PUBLIC ) SCHOOLS, ) ) Defendant/Appellant. )



### COURT OF AP PEALS OF TE NNESSEE MIDDLE SECT ION AT NASH VILLE
APPEAL FROM

THE CHANCE RY COURT FO R DAVIDSON COUNTY AT NASHVILL E, TENNESSE E
THE HONORAB LE ROBERT S . BRANDT, C HANCELLOR

CHARLES HAMPTON WHITE RICHARD L. COLBERT Cornelius & Collins Suite 2700 Nashville City Center 511 Union Street P. O. Box 190695 Nashville, Tennessee 37219 ATTORNEYS FOR PLAINTIFF/APPELLEE

JAMES L. MURPHY, III JUDY J. SHELL 204 Metropolitan Courthouse Nashville, Tennessee 37201 ATTORNEYS FOR DEFENDANT/APPELLANT

AFFIRMED AND REMANDED



### SAMUEL L. L EWIS, JUDGE1 Corporal punishment is permitted in Metro public schools if done

pursuant to procedures set forth in school policy. 2 

# O P I N I O N Defendant/appellant, the Board of Education of the Metropolitan Nashville Public Schools ("Board"), appeals from the judgment of the Chancery Court for Davidson County which held that the Board could not use an Administrative Law Judge ("ALJ") to conduct a hearing on whether to dismiss plaintiff/appellee, James Morris, a non-tenured teacher in the Metro school system. The facts out of which this case arose are as follows.

The Board employed plaintiff as a teacher at the Carter Lawrence Middle School during the 1994-95 school year. In 1995, plaintiff was charged with having improperly administered corporal punishment. 1 Ina letter dated 27 June 1995, the superintendent of schools informed plaintiff of the charges made against him and that
a hearing had been set for 1 August 1995. After conducting the hearing, the superintendent determined that plaintiff's conduct warranted his dismissal and placed him on leave without pay.

The superintendent presented the charges against plaintiff to the Board and recommended that the Board dismiss plaintiff from his employment. Subsequently, the superintendent notified plaintiff in writing that the Board had voted that, if true, the charges against plaintiff warranted his dismissal. Along with the notification, the superintendent supplied plaintiff with a copy of the charges that the superintendent had forwarded to the Board and a copy of a memorandum furnished by the Commissioner of Education for the State of Tennessee regarding plaintiff's right to demand a hearing.3 Plaintif f requ ested a hearing before the Board on the charges. Thereafter, the Board voted to have an ALJ hear the case. Before the hearing, plaintiff filed a complaint for declaratory judgment and injunctive relief. Plaintiff asked the court to issue
a restraining order enjoining the Board from usi ng an ALJ. Plaintiff claimed that the use of the ALJ as proposed by the Board violated the provisions of Tennessee Code Annotated section 49-5- 512 and plaintiff's right to due process.

On6 October 1995, the court entered a memorandum opinion. The court held that the Board, not the superintendent, had the authorityto terminate plaintiff. In addition, it held that Tenne s see Code Annotated section 49-5-512 contemplates that the hearing will be before the Board, not an ALJ. The court also held that title 7, chapter 7 of Tennessee Code Annotated does not allow the Board to use an ALJ because the act only applies to "appellate boards." On that same day, the court entered an order restraining and enjoining the Board from having an ALJ conduct a contested case hearing on the charges against plaintiff. The court did note, however, that the Board could conduct the hearing itself as long as the hearing was in compliance with Tennessee Code Annotated section 49-5-512.

On2 November 1995, plaintiff filed a motion for summary judgment. The Board filed a response and a cross-motion for summaryjudgment. As stated by the court, the only issue remaining was: "Is the Metropolitan Board of Education authorized to have an administrative lawjud ge conduct Mr. Morris' dismissal hearing?" On8 January 1996, the court entered its final judgment granting summaryjudgment in favor of plaintiff. The court found as follows:

That the Metropolitan B oard of Education cannot have an administrative law judge conduct a hearing that the Metropolitan Board of Education could rely2 Tenn. Code Ann. § 49-2-301(f)(31) & (33)(1996). This section provides as follows:.

(f) It is the duty of the board of education to assign to its superintendent the duty to:

. . . . (31) Employ, transfer, suspend, non-renew and dismiss all personnel within the approved budget, except as provided in § 49- 2-203(a)(1) and in chapter 5, part 5 of this title;

. . . . (33) The superintendent may dismiss any employee under the superintendent's jurisdiction for incompetence, inefficiency, insubordination, improper conduct or neglect of duty; provided, that no one shall be dismissed without first having been given in writing, due notice of the charge or charges and an opportunity for defense . . . . Id. (emphasis added). 4

uponto dismis s t he Plaintiff. The recently enacted statute, T.C.A. § 7-7-105, only authorizes administrative law judges to conduct hearings on matters appealed to boards and commissions of the county. The hearing that is contemplated befo r e the MetropolitanBoard of Education would not be an appeal to a board or commission because Title 49 of the Tennessee Code provides that only the Metropolitan Board of Education has the authority to dismiss Mr. Morris. Therefore, an administrative law judge may not conduct Mr. Morris' dismissal hearing.

Thereafter, the Board filed a timel y n otice of appeal and presented the following issues:

1. Title 49 provides that it is the duty of the school superintendent to dismiss non-tenured teachers when appropriate. Title 49 provides that it is the duty of the Board of Education to dismiss tenured teachers. In eachcas e, the teacher must have an opportunity to be heard. Must a hearing be conducted by the Board of Education before a non tenured teacher may be dismissed? 2. Section 7-7-105 of the Tennessee Code permits countyboards, such as the Boar d of Education, to use administrative law judges to hear matters appealed to the boards. Does Title 49's hearing requirement prohibit the Board of Education from using an administrative law judge, as expressly permitted in se ction 7-7-105, to hear an appeal from a dismissal of a non-tenured teacher?

We respectfully disagree with the trial court's determination that only the Board had the authority to dismiss p lai ntiff. Plaintiff is a non-tenured teacher. The General Assembly has provided that the superintendent, not the Board, has the authority and duty to dismiss non-tenured teachers. 25 Tennessee Code Annotated section 49-2-301(f)(31) provides that the Board is to assign the superintendent the duty of dismissing certain personnel except those covered under Tennessee Code Annotated section 49-2-203(a)(1) and title 49, chapter 5, part 5. Tenn. Code Ann. § 49-2-301(f)(31 )(1 996). Tennessee Code Annotated section 49-2-203(a)(1) provides:

(a) It is the duty of the local board of education to: (1) . . . Elect, upon the recommendation of the superintendent, teachers who have attained or are eligible for tenure and fix the salaries of and make written contracts with such teachers. Tenn. Code Ann. § 49-2-203(a)(1)(1996). This section applies only to tenured teachers. The references to personnel in title 49, chap ter 5, part 5 are also to tenured teachers. Moreover, the attorney general has opined that title 49 permits superintendents to hire, fire, transfer or suspend employees other thante nured teachers without school board approval. Tenn. Op. Atty. Gen. No. 93-66 (1993). We agree with this opinion.

Tenne ssee Code Annotated section 49-2-301(f)(33) establishe s the procedure that the superintendent must follow before dismissing employees under the superintendent's juris dicti on. First, the employee must receive written notice of the charges. Second, the superintendent must provide the accu sed an opportunity to defend himself. Tenn. Code Ann. § 49-2-301(f)(33)(1996).

Recently, the United States District Court for the Eastern Dist ric t of Tennessee entered a Memorandum Opinion in a case involving similar facts. Moore v. Board of Educ. , No. 2:94-CV-274 (E.D. Tenn. 23 Apr. 1996) (Memorandum Opinion). Specifically, the district court addressed the plaintiff's claim that the procedures set forth in Tennessee Code An no tated section 49-2-301(f)(33) failed to satisfy due process requirements. In Moore , the6

superintendent gave the teacher written notice of the charge against her and an opportunity to defend herself in a hearing before the superintendent. Id. at 5-7. Like the plaintiff in this case, the teacher was represented by an attorney. Id. at 4. The district court considered the teacher's claim that she had been denied due process and held as follows:

It is obvious from the facts that [the teacher] was givena pre-termination "right of reply hearing" withthe essential e lement s of due process as required by Cleveland Board of Education v. Loudermill , 470 U.S. 532 at 546, 105 S.Ct. 1487, 94 L. Ed. 2d 494 (1985). She was given written notice of the charges, an explanation of her emp loyer's evidence, and an opportunityto present her side of the story at a hearing, with the assistance of counsel.

. . . . In our case, it is clear that [the teacher] was accorded the termination procedures offered to nontenured teachers under the Education Improvement Act of 1991. The proof was th at [ the superintendent] relied upon Tennessee Code Annot ated section 49-2-301(f)(33) . . . . [I]t is clear that Ms. Moore received the process to which she was due under this statute . . . . Id. at 13-16.

The General Assembly has given the board of educat ion the dutyof dismissing teachers. In addition, it has given the boards the duty to assign the duty of terminating non-tenured teachers to superintendents. Tenn. Code Ann. §§ 49-2-203(a)(7) & -301(f)(31) & (33)(1996). It is the opinion of this court that these sections reflect the General Assembly's int e ntion to increase the superintendent's powers to administer the schools and must include the ability to dismiss non-tenured teachers.

Inthe instant case, the superintendent gave plaintiff writtennotice of the charges against him. The superintendent also gave plaintiff an opportunity to present a defense at a hearing. T he sup erintendent conducted a hearing on 1 August 1995 which plaintiff attended with hi s atto rney. After plaintiff was given7

writtennotice of the charges against him and a hearing, the superintendent determined that plaintiff should be dismissed. Neverth ele ss, he did not dismiss plaintiff. Instead, he simply referred the charges to the Board and suspended plaintiff without pay. The Board insists that any hearing after the superintendent's actionwould be in the nature of an ap peal. Thus, the Board argued that Tennessee Code Annotated section 7-7-105, which allows administrative agencies to use A LJ's to hear matters appealed to them, authorized it to use an ALJ to conduct the hearing.

The chancery court held that an ALJ could not conduct plaintiff's hearing. The court found that only the Board could dismiss Mr. Morris. Based on this finding, the court reasoned that the hearing before the Board would not have been an appeal.

While we agree with the end result reached by the court, we
cannot agree with the reasoning. Clearly, the statutes grant the superintendent the authority to dismiss non-tenured teachers such
as Mr. Morris. Ironically, the fact is that in this case the superintendent failed to exercise that authority. In ste ad, he simply suspended plaintiff and referred the charges to the Board. Thus, this is not an appeal because neither the superintendent nor the Board made a decision to dismiss plaintiff. That is, plaintiff has never been dismissed on the charge of insubordination. Because the hearing is not an appeal, the Board may not use an ALJ.

Inconclusion, it is th e opinion of this court that Tennessee Code Annotated section 49-2-301(f) grants superintendents the authority to dismiss non-tenured teachers. A superintende n t must, however, comply with the procedural requirements set forthin T ennessee Code Annotated section 49-2-301(f)(33) in or der t o sati sfydue process requirements when exercising that authority.8

Finally, as to the present case, the Board can not use an ALJ because neither the superintendent nor the Board terminated Mr. Morris. Ther efore, it results that the judgment of the chanc er y court is affirmed in results only. We note that this decision does not in any way affect any other rights plaintiff may have against the Board. Costs on appeal are assessed to defendant/appellant, The Board of Education of the Metropolitan Nashville Public Schools, and the cause is remanded to the chance ry co urt for any further necessary proceedings.

______ ________________________ ___ _ SAMUEL L. LEWIS, JUDGE

CONCUR:

_________________________________ HENRY F. TODD, P.J., M.S.

WILLIAM C. KOCH, JR., JUDGE DISSENTING IN SEPARATE OPINION