The opinion
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.
)
) FILED
January 8, 1997
COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
Appellate Court Clerk
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
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.
1
Corporal punishment is permitted in Metro public schools if done
pursuant to procedures set forth in school policy.
2
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
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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 non-
tenured 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
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).
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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
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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 non-
tenured 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
6
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.
7
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
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