IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
KEN STEPHENS )
) February 18, 2000
Petitioner/Appellant, ) Appeal No. Crowson, Jr.
Cecil
) M1998-00125-COA-R3-CV
Appellate Court Clerk
v. )
) Davidson County Chancery
ROANE STATE COMMUNITY ) No. 97-2695-I
COLLEGE )
)
Respondent/Appellee. )
COURT OF APPEALS OF TENNESSEE
APPEAL FROM THE CHANCERY COURT
FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE IRVIN H. KILCREASE, JR. PRESIDING
JERROLD L. BECKER
SAMUEL W. BROWN
BECKER, THOMFORDE, BROWN, KNIGHT & HESTER, P.C.
P.O. BOX 1710
KNOXVILLE, TENNESSEE 37901-1710
ATTORNEYS FOR PETITIONER/APPELLANT
PAUL G. SUMMERS
ATTORNEY GENERAL
WILLIAM J. MARETT, JR.,
ASSISTANT ATTORNEY GENERAL
CORDELL HULL BUILDING
525 5TH AVENUE, NORTH
NASHVILLE, TENNESSEE 37243
ATTORNEYS FOR RESPONDENT/APPELLEE
VACATED AND REMANDED
PATRICIA J. COTTRELL, JUDGE
CONCUR:
CANTRELL, J.
CAIN, J.
OPINION
Appellant Ken Stephens is a tenured professor at Appellee Roane
State Community College (“Roane State”) who 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
of the trial court’s affirmance of the administrative decision to suspend 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 more specific
provisions of Tenn. Code Ann. § 49-8-304, we vacate its decision and remand
this case.
Roane State hired Professor Stephens to teach computer
programming in 1989. He became tenured in 1991. This case arose in 1996,
after one of Professor Stephens’s female students lodged a sexual harassment
complaint against him, claiming he created a hostile environment and engaged
in unwelcome sexual conduct while acting in his official capacity as a
professor.
After an investigation of the student’s complaint, Roane State’s
president imposed a one-year suspension without pay. Professor Stephens
appealed to the Board of Regents, and hearings were held before an
administrative law judge (“ALJ”). After considering the hotly disputed
evidence, the ALJ concluded that Professor Stephens’s conduct constituted
sexual harassment, in violation of policies of the Board of Regents and Roane
State, in that his conduct unreasonably interfered with the complaining
student’s academic performance and created a hostile, intimidating and
offensive educational environment for the student. The ALJ, however,
reduced the suspension to one-half year without pay.
Because neither party petitioned the Board for appeal and the Board
did not issue a notice of intention to review the ALJ’s order pursuant to Tenn.
Code Ann. § 4-5-315, the ALJ’s order became the final order of the Board of
Regents in June 1997. The Notice of An Initial Order Becoming a Final
Order, issued by the Administrative Procedures Division of the Secretary of
State’s Office, included notice that any party aggrieved by the final order
could seek judicial review, citing Tenn. Code Ann. §4-5-322.
Professor Stephens sought review of the administrative decision in
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Chancery Court by filing a petition for judicial review pursuant to the UAPA,
specifically, Tenn. Code Ann. § 4-5-322. In his petition, Professor Stephens
alleged that the Board of Regents had acted in violation of constitutional or
statutory provisions, arbitrarily and capriciously, and had abused its discretion
by sanctioning Professor Stephens for conduct which, as a matter of law, did
not rise to the level of sexual harassment and by refusing to allow inquiry into
the views of the complaining student’s psychologist. The petition also alleged
that the order was not supported by substantial and material evidence in light
of the entire record.
The trial court explicitly conducted its review of the administrative
proceedings pursuant to the UAPA, stating, “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 standard of substantial and material evidence.”
(citations omitted). 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 decision of the agency or remand
this case for further proceedings. The court may reverse or
modify the decision if the rights of the petitioner have been
prejudiced because the administrative findings, inferences,
conclusions or decisions are:
(1) In violation of constitutional or statutory
provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion;
or
(5) Unsupported by evidence which is both
substantial or material in the light of the entire record.
In determining the substantiality of the evidence, the court
shall take into account whatever in the record fairly
detracts from its weight, but the court shall not substitute
its judgment for that of the agency as to the weight of the
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evidence on questions of fact.
Applying this standard applicable to judicial review under the UAPA, the trial
court determined that the six-month suspension without pay was supported by
substantial and material evidence and was not arbitrary or capricious.
Professor Stephens appealed these findings to this court.
I.
Both parties proceeded below and based their original arguments in
this court on the assumption that the judicial review provisions of the UAPA
applied to the trial court’s review of the order suspending Professor Stephens.
There is nothing in the record to indicate that the parties considered or asked
the trial court to consider the applicability of Tenn. Code Ann.§§ 49-8-301, et
seq., to this case. That set of statutes deals with tenured faculty at institutions
within the state university and community college system, which includes
Roane State. This court asked both parties to provide supplemental briefs on
the issue of whether Tenn. Code Ann. § 49-8-304 (1996), which deals with
judicial review of certain administrative actions involving discipline of
tenured faculty, applied to this case. We have received and considered the
parties’ supplemental briefs.
Tenn. Code Ann. § 49-8-304(a) states as follows:
(a) A faculty member who has been awarded tenure, and
who has been dismissed or suspended for cause, may
obtain de novo judicial review of the final decision by
filing a petition in a chancery court having jurisdiction
within thirty (30) days of the final decision, and copies of
the petition shall be served upon the board and all parties
of record.
“A well established rule of statutory construction is that a specific
provision of a statute controls over the general.” Cooper v. Alcohol Comm’n
of the City of Memphis, 745 S.W.2d 278, 280 (Tenn. 1988). Thus, in Frye v.
Memphis State Univ., 671 S.W.2d 467, 468-9 (Tenn.1984), our Supreme
Court held that in termination proceedings for tenured state university faculty,
Tenn. Code Ann. §§ 49-8-302 - 304 applied, rather than the UAPA. The
Court specifically stated:
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It is our opinion that the General Assembly intended for
them [the provisions of Tenn. Code Ann. § 49-8-301, et
seq.] to apply to proceedings such as these, rather than for
the more general provisions of the Administrative
Procedures Act to be used.
Frye, 671 S.W.2d at 468-469.
While the set of statutes at Tenn. Code Ann. §49-8-301, et seq.,
deals specifically with tenured faculty at institutions within the state
university and community college system, see Frye, 671 S.W.2d at 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 procedures and grounds for
termination of tenured faculty. Thus, although those sections were found to
apply to the termination proceedings at issue in Frye, they explicitly do not
apply to this action in which suspension of Professor Stephens was the only
sanction sought or imposed.1 However, by its language, Tenn. Code Ann. §
49-8-304, which governs judicial review of administrative decisions regarding
tenured faculty, applies specifically to faculty members who have been
awarded tenure and are “suspended for cause.” It is undisputed that Professor
Stephens was “suspended for cause.” In light of the plain language of the
statute, Frye’s precedent, and the governing rules of statutory construction,
we must conclude that Tenn. Code Ann. § 49-8-304 applies to both the
dismissal and suspension for cause of tenured college and university faculty
members. See Frye, 671 S.W.2d at 468.
In its supplemental brief, Roane State contends that §49-8-304 does
not apply here because Tenn. Code Ann. § 49-8-301, et seq., relate only to
terminations of tenured faculty and not to suspensions. It maintains that the
State Board of Regents’ policies interpret “suspended for cause,” within the
meaning of § 49-8-304, as a suspension pending termination, and that because
Professor Stephens was not suspended pending termination, Tenn. Code Ann.
1
It follows that the heightened burden of proof required for termination of a tenured faculty
member by Tenn. Code Ann. § 49-8-303(a)(4) does not apply to Professor Stephens’s
suspension proceedings.
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§ 49-8-304 does not apply.
These arguments ignore the "cardinal rule" of statutory construction:
to give effect to legislative intent. Rippeth v. Connelly, 60 Tenn. App. 430,
433, 447 S.W.2d 380, 381 (1969); see Schering-Plough Healthcare Products,
Inc. v. State Bd. of Equalization, 999 S.W.2d 773, 775 (Tenn. 1999).
Legislative intent and purpose is to be ascertained
primarily from the natural and ordinary meaning of the
language used, when read in the context of the entire act or
statute, without any forced or subtle construction to limit
or expend [sic] the import of that language.
Oliver v. King, 612 S.W.2d 152, 153 (Tenn.1981). Courts must construe
statutes as they find them, and must grant their fullest possible effect, without
unduly restricting them or expanding them beyond their 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.1975).
Because §49-8-304 specifically addresses suspensions for cause, we
must reject Roane State’s unduly restrictive reading of that statute as applying
solely to suspensions pending termination. Such an interpretation ignores the
plain language adopted by the General Assembly and fails to grant meaning 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 failure to apply the standard of review required by that statute
gave rise to reversible error. See Tenn. R. App. P. 36(b). Our Supreme Court
has held that it did in Frye, 761 S.W.2d at 468. Where it applies, Tenn. Code
Ann. §49-8-304 requires a de novo judicial review. See Wells v. Tennessee
Bd. of Regents, No. M1998-00459-SC-R3-CV, 1999 WL 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
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performing a de novo review. The Supreme Court has recognized this
difference:
[T]he UAPA requires that the trial court review factual
issues upon a standard of substantial and material
evidence. But this is not a broad, de novo review. It is
restricted to the record and the agency findings may not be
reversed or modified unless arbitrary or capricious or
characterized by an abuse, or clearly unwarranted exercise,
of discretion and must stand if supported by substantial
and material evidence.
CF Indus. v. Tennessee Public Serv. Comm'n, 599 S.W.2d 536, 540 (Tenn.
1980). In short, the UAPA prohibits the court from substituting its judgment
of the evidence for that of the administrative decision-maker. In contrast, a
“hearing de novo requires the trial court to reconsider and redetermine both
the facts and the law from all the evidence as if no such determination had
been previously made.” Cooper v. Alcohol Comm’n of the City of Memphis,
745 S.W.2d at 281 (emphasis added). A court conducting a de novo review of
administrative proceedings must make an independent examination of the
evidence, including any evidence supplemental to the administrative record,
and “redetermine the facts and the law from all the evidence before 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. Judicial review under the UAPA is, by
statute, confined to the record. Tenn. Code Ann. § 4-5-322(g). Only “[i]n
cases of alleged irregularities in procedure before the agency, not shown 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 limited.
In Frye, the Court held:
in affirming the decision of the administrative body, the
Chancellor noted that issues of veracity and credibility of
the witnesses were involved, and that there was conflicting
evidence on several points. He specifically declined to
review such issues or to "substitute my judgment" for that
of the hearing committee and the university officials.
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Counsel for appellees insisted that the Chancellor was
confined to reviewing the administrative record for
material or substantial evidence only, and counsel for
appellant complained that the previous Chancellor had
precluded him from offering evidence that might bear upon
veracity and credibility.
In our opinion this was error. "De novo judicial review" in
this statute and context means a new hearing in the
chancery court based upon the administrative record and
any additional or supplemental evidence which either party
wishes to adduce relevant to any issue. The Chancellor
may, of course, confine new evidence to that which is truly
supplemental or additional and is not required to hear all of
the evidence anew if he does not find this necessary.
Otherwise there would be little need for the administrative
transcript. However, he may permit introduction of any
and all evidence which he deems necessary to enable him
to dispose of the issues presented.
Frye, 671 S.W.2d at 469.
One of Professor Stephens’s primary arguments 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 analyze that
evidence, as demonstrated by the trial court’s explicit statement that its review
“is not de novo” and that it reviewed factual issues “upon a standard of
substantial and material evidence.” Under Tenn. Code Ann. § 49-8-304,
Professor Stephens was entitled to a de novo review, and the absence of such
a review forecloses our appellate review of this case. Thus, the case must be
remanded for review under the proper standard. See id.; Tenn. R. App. P.
36(b).
III.
Relying on Tenn. R. App. P. 36(a), Roane State argues that even if
Tenn. Code Ann. § 49-8-304 applies, Professor Stephens’ failure to seek
review under that statutory section instead of the UAPA or to seek permission
2
It should be noted that the ALJ specifically found that Professor Stephens’s conduct,
without an incident occurring between 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 student. Thus, issues of credibility of the witnesses and weight of the
evidence are involved.
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to supplement the record in the trial court3 should foreclose our granting relief
to him. Both parties proceeded below under the theory that the UAPA
applied, beginning with the Board of Regents’ notice regarding the method
for seeking judicial review. Further, we cannot agree with Roane State’s
assertion that Professor Stephens can show no harm consistent with Tenn. R.
App. P. 36(b) resulting from the trial court’s review of the Board’s decision
under the UAPA standard. Professor Stephens was statutorily entitled, by
virtue of his status as a tenured professor, to the court’s de novo review of his
suspension. Such a review includes the court’s weighing of the evidence and
the opportunity to ask the court to present additional or supplemental relevant
proof. See Frye, 671 S.W.2d at 469; Wells v. Tennessee Bd. of Regents, 1999
WL 1211480 at * 5 (holding that the chancellor has “broad discretion” in
allowing additional evidence during the de novo review). In light of our
decision to remand this case for application of Tenn. Code Ann. § 49-8-304,
we pretermit the remaining issues presented in this appeal.4
IV.
Because this case is before us as an appeal from a decision issued
under the UAPA, our exercise of jurisdiction was clearly 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 jurisdictional questions in
any subsequent appeal. Tenn. Code Ann. §49-8-304(d) provides that “[t]he
decree of the chancery court will be subject to review 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 Bd. of Regents, 863 S.W.2d 45, 47 (Tenn.
3
In his Petition for Review, Professor Stephens requested “[t]hat in those instances of
alleged irregularities in discovery and trial procedures before the Agency as set forth herein
above, proof thereon be taken in this Court to supplement the record.” We interpret this as 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 request and
his inability to present certain evidence can properly be decided by the trial court in the context
of a request to present supplemental evidence in that court.
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1993).
V.
Accordingly, the judgment of the trial court is vacated and this case
is remanded for further proceedings consistent with this opinion. Costs of this
appeal shall be taxed to Appellee.
_____________________________
PATRICIA J. COTTRELL, JUDGE
CONCUR:
________________________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M. S.
________________________________________
WILLIAM B. CAIN, JUDGE
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