FILED

January 8, 1997

Cecil W. Crowson

Appellate Court 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 APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE ROBERT S. BRANDT, CHANCELLOR

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. LEWIS, JUDGE
1

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 In a 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

Plaintiff requested 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 using 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. 

On 6 October 1995, the court entered a memorandum opinion.

The court held that the Board, not the superintendent, had the

authority to terminate plaintiff. In addition, it held that

Tennessee 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.

On 2 November 1995, plaintiff filed a motion for summary

judgment. The Board filed a response and a cross-motion for

summary judgment. As stated by the court, the only issue remaining

was: "Is the Metropolitan Board of Education authorized to have an

administrative law judge conduct Mr. Morris' dismissal hearing?"

On 8 January 1996, the court entered its final judgment granting

summary judgment in favor of plaintiff. The court found as

follows:

 That the Metropolitan Board of Education cannot

have an administrative law judge conduct a hearing

that the Metropolitan Board of Education could rely
2

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

upon to dismiss the 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 before

the Metropolitan Board 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 timely notice 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 each case, the teacher must

have an opportunity to be heard. Must a hearing be

conducted by the Board of Education before a nontenured teacher may be dismissed?

 2. Section 7-7-105 of the Tennessee Code permits

county boards, such as the Board 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 section 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

plaintiff. 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.2
5

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)(1996). 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,

chapter 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 than tenured

teachers without school board approval. Tenn. Op. Atty. Gen. No.

93-66 (1993). We agree with this opinion.

Tennessee Code Annotated section 49-2-301(f)(33) establishes

the procedure that the superintendent must follow before dismissing

employees under the superintendent's jurisdiction. First, the

employee must receive written notice of the charges. Second, the

superintendent must provide the accused an opportunity to defend

himself. Tenn. Code Ann. § 49-2-301(f)(33)(1996).

Recently, the United States District Court for the Eastern

District 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 Annotated section 49-2-301(f)(33)

failed to satisfy due process requirements. In Moore, the
6

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

given a pre-termination "right of reply hearing"

with the essential elements 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 employer's

evidence, and an opportunity to 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 that [the

superintendent] relied upon Tennessee Code

Annotated 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 education the

duty of 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 intention to increase the

superintendent's powers to administer the schools and must include

the ability to dismiss non-tenured teachers.

In the instant case, the superintendent gave plaintiff

written notice of the charges against him. The superintendent also

gave plaintiff an opportunity to present a defense at a hearing.

The superintendent conducted a hearing on 1 August 1995 which

plaintiff attended with his attorney. After plaintiff was given
7

written notice of the charges against him and a hearing, the

superintendent determined that plaintiff should be dismissed.

Nevertheless, 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

action would be in the nature of an appeal. Thus, the Board

argued that Tennessee Code Annotated section 7-7-105, which allows

administrative agencies to use ALJ'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

can not 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. Instead, 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.

In conclusion, it is the opinion of this court that

Tennessee Code Annotated section 49-2-301(f) grants superintendents

the authority to dismiss non-tenured teachers. A superintendent

must, however, comply with the procedural requirements set forth in

Tennessee Code Annotated section 49-2-301(f)(33) in order to

satisfy due 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. 

Therefore, it results that the judgment of the chancery

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 chancery court 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