Matthew Keith Hubbard v. Claiborne County Board of Education

10/13/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 26, 2021 Session

MATTHEW KEITH HUBBARD v. CLAIBORNE COUNTY BOARD OF
EDUCATION ET AL.

Appeal from the Chancery Court for Claiborne County
No. 19336 Elizabeth C. Asbury, Chancellor
___________________________________

No. E2020-00517-COA-R3-CV
___________________________________

A tenured teacher appealed his dismissal for unprofessional conduct and insubordination.
He contended that the decision of the Board of Education lacked sufficient evidentiary
support. The teacher also contended that the decision was arbitrary and capricious and in
violation of his constitutional and statutory rights. The trial court affirmed the Board’s
decision. Upon review, we conclude that the teacher received pre-termination notice of the
charges and evidence against him. And the Board complied with the procedural framework
in the Tenure Act. See Tenn. Code Ann. § 49-5-512 (2020). The evidence does not
preponderate against the trial court’s findings that the teacher was guilty of unprofessional
conduct and insubordination. We further conclude that the teacher failed to establish that
the Board’s decision was arbitrary or in violation of statutory or constitutional rights. So
we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
C.J., and KRISTI M. DAVIS, J., joined.

Richard L. Colbert and C. Joseph Hubbard, Nashville, Tennessee, for the appellant,
Matthew Keith Hubbard.

Janet Strevel Hayes and Chris W. McCarty, Knoxville, Tennessee, for the appellees,
Claiborne County Board of Education, Joseph A. Miller, Shane Bunch, Terry Keck, Neta
Munsey, Justin Cosby, Linda Fultz, Shannon England, and Wade Breeding.
 OPINION

I.

A.

For almost twenty years, Matthew Keith Hubbard taught special needs children in
the Claiborne County school system. He obtained permanent tenure in 2004. By all
accounts, his classroom performance has been exemplary. But his behavior outside the
classroom ultimately led to his dismissal.

On April 16, 2018, Mr. Hubbard was arrested for driving under the influence. He
pled guilty, and his driver’s license was revoked for one year. He was also ordered to pay
a fine, spend 48 hours in jail, and attend an alcohol awareness program.

Driving while intoxicated can be grounds for dismissal of a tenured teacher.
Mr. Hubbard met with the Director of Schools to discuss the consequences of his behavior.
Although disappointed with Mr. Hubbard’s unprofessional conduct, the Director imposed
a three-day suspension, without pay, rather than dismissal. As the Director informed
Mr. Hubbard at the time,

I . . . will not and cannot ignore your many years of valuable service to
Claiborne County Schools as a special education teacher. It is that valuable
service and your ability with our special education students which have
caused me to decide against your dismissal.

But the Director warned Mr. Hubbard that future conduct issues could lead to further
discipline, including dismissal.

A few months later, Mr. Hubbard was arrested for driving on a revoked license.
While investigating the arrest, the Director learned that Mr. Hubbard had threatened
another teacher. This time, the Director asked the Board of Education to approve dismissal
charges against Mr. Hubbard for unprofessional conduct and insubordination. After
receiving the Board’s approval, the Director notified Mr. Hubbard of the dismissal charges.
In response, Mr. Hubbard requested a full and complete hearing before an impartial hearing
officer.

B.

The hearing officer heard testimony from multiple witnesses, including the Director
of Schools; the Assistant Director; Mr. Hubbard; Mr. Hubbard’s wife, Pam Hubbard; and
several teachers and administrators in the Claiborne County school system. Mr. Hubbard’s

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co-workers and principal attested to his outstanding performance in the classroom. In their
interactions with him, Mr. Hubbard always displayed a calm, professional demeanor.

As the Director explained, he considered pursuing dismissal charges against
Mr. Hubbard after his April 2018 conviction for driving under the influence. But he
decided to give the teacher another chance in light of his stellar classroom performance.
Even so, he warned Mr. Hubbard not to engage in any further unprofessional conduct.
Then, less than six months later, Mr. Hubbard was arrested again.

In October of that year, one of Mr. Hubbard’s sons had a late basketball practice at
a Claiborne County middle school. Midway through practice, Mrs. Hubbard demanded to
speak with the head basketball coach, Glen Smith. After speaking with Mrs. Hubbard, the
visibly shaken coach told one of his assistants, Jason Miracle, that Mr. Hubbard was
en route to pick up his son. And he relayed that Mr. Hubbard was believed to be intoxicated
and possibly violent.

Coach Miracle promptly locked all the gym doors and called 9-1-1. The police
questioned both Coach Miracle and Mrs. Hubbard. When Mr. Hubbard arrived, the police
were still on the scene. He drove slowly through the parking lot without stopping. An
officer arrested Mr. Hubbard on his way home for driving on a revoked license. He was
not charged with an alcohol-related offense.

When asked about his October arrest, Mr. Hubbard explained that, after his license
was revoked in April, he obtained a restricted license. Unbeknownst to him, the restricted
license was no longer valid. Still, the new charges were dismissed after he obtained another
restricted license and installed an ignition interlock device.

While investigating the October incident, the Director met with Mrs. Hubbard, who
was also a teacher in the Claiborne County school system. She told the Director of rumors
of an affair between Coach Smith and herself, rumors her husband apparently believed to
be true. The month prior, Mr. Hubbard had sent his wife a number of disturbing text
messages about Coach Smith. She shared a few examples:

I’ve texted Glen [Smith] twice now to inform him that I’m aware of the
situation and going to settle things with him. I’ll beat the hell out of him.

I know exactly where he lives. I’ll be waiting.

I know where he lives and works. I’m going to confront him.

Upon further questioning from the Director, Mrs. Hubbard revealed that her
husband could become angry when drinking. She had seen him punch walls and other

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objects.1 And he had previously confronted another teacher about an alleged affair. She
suspected that her husband had been drinking on October 4. So, when she learned he was
on his way to the gym, she decided to warn Coach Smith.

The Director viewed Mr. Hubbard’s threats as more unprofessional conduct and a
clear violation of his previous directive. Threats directed at a co-worker presented a safety
issue for the school system.

The Assistant Director confirmed that the Director told Mr. Hubbard to avoid further
unprofessional conduct. As he recalled, Mr. Hubbard was told “that this kind of behavior
wouldn’t be tolerated and that the next occurrence could lead up to dismissal.”
Mr. Hubbard acknowledged that he was given a verbal directive. But he claimed that the
Director merely warned him to avoid future arrests and similar issues.

The Assistant Director also disclosed that Mr. Hubbard had received a verbal
reprimand in 2014 after a previous arrest for driving under the influence.2 At that time, the
former director of schools warned Mr. Hubbard about the potential consequences of further
unprofessional conduct. Mr. Hubbard’s counsel objected to this testimony as outside the
scope of the charges. The hearing officer ruled that he would consider the previous incident
only as evidence that Mr. Hubbard was on notice that his behavior outside the classroom
could be grounds for discipline.

For his part, Mr. Hubbard blamed his wife and Coach Smith for the unnecessary
alarm at the gym. He had not been drinking. He only went to the gym to pick up his son
from practice. When he saw his wife in the parking lot, he “was satisfied that [his] son was
being picked up.” So he headed home.

But he confessed that he was a protective and jealous husband. He had previously
confronted another teacher about a suspected affair. In his words, “when I get emotional,
I do and say things that are not quite appropriate.”

Mr. Hubbard explained that he became convinced that “something was going on”
between his wife and Coach Smith. In September, he sent approximately five
confrontational text messages to Coach Smith. Among those messages was this one: “I am
aware of the situation. I’m going to settle things. I will beat the hell out of you.”
Mr. Hubbard admitted that threatening a co-worker was unprofessional. But he viewed his
text messages as “emotional outbursts,” not threats. Still, he understood the Director’s

1
Mr. Hubbard acknowledged that he had thrown a few punches but denied having an anger
management problem.
2
The 2014 charge was later reduced to reckless driving.
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concerns. He regretted his choice of words. And he acknowledged that his behavior was
inappropriate. But he never intended to harm Coach Smith.

Mrs. Hubbard agreed that her husband had never hurt anyone. She described him
as a good man when sober. Mr. Hubbard conceded that he had a drinking problem. But,
with the help of his wife’s physician, he was trying to stop.

C.

The hearing officer concluded that Mr. Hubbard received adequate notice of the
charges. The officer also determined that Mr. Hubbard’s threats of violence against a
colleague constituted both unprofessional conduct and insubordination. And dismissal was
appropriate under these facts and circumstances.

Mr. Hubbard appealed to the Board of Education. By a five-to-one vote, the Board
approved the hearing officer’s decision. So Mr. Hubbard sought further review in chancery
court.

In his chancery court petition, Mr. Hubbard alleged that the evidence did not support
the Board’s decision. And he asserted that the Board had violated his statutory and
constitutional rights by relying on evidence beyond the scope of the notice of charges.
Finally, he claimed that the Board’s approval of the hearing officer’s decision was arbitrary
and capricious.

The chancery court ruled in the Board’s favor. The court found no evidence that
the proceedings before the Board or the Board’s decision was arbitrary and capricious or
in violation of Mr. Hubbard’s constitutional or statutory rights. Mr. Hubbard was
adequately apprised of the charges against him. And the evidence supported both grounds
for dismissal. The court also determined that dismissal was the appropriate remedy.

II.

The Tenure Act is designed “to protect school teachers from arbitrary demotions
and dismissals.” Cooper v. Williamson Cty. Bd. of Educ., 746 S.W.2d 176, 179 (Tenn.
1987) (citation omitted). The Act delineates five exclusive grounds for suspension or
dismissal, including unprofessional conduct and insubordination. Tenn. Code Ann. § 49-
5-511(a)(2) (2020).

The Act also mandates a procedural framework for teacher discipline. Lemon v.
Williamson Cty. Sch., 618 S.W.3d 1, 16 (Tenn. 2021). The first step is the presentation of
written charges to the Board of Education, “specifically stating the offenses that are
charged.” Tenn. Code Ann. § 49-5-511(a)(4). If the Board approves the charges, the

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director of schools must notify the teacher and provide the teacher with a copy of the
charges and a notice of legal rights. Id. § 49-5-511(a)(5).

The teacher may demand a “full and complete hearing on the charges before an
impartial hearing officer.” Id. § 49-5-512(a) (2020). The Board has the burden of proof at
the hearing. See Cooper, 746 S.W.2d at 182. After the hearing, the hearing officer must
issue “written findings of fact, conclusions of law and a concise and explicit statement of
the outcome of the decision.” Tenn. Code Ann. § 49-5-512(a)(9).

If the teacher is dissatisfied with the hearing officer’s decision, the teacher must first
appeal to the Board. Id. § 49-5-512(c)(1). No new evidence may be introduced. Id. § 49-
5-512(c)(3). But the teacher may appear before the Board and explain why the hearing
officer’s decision should be modified or reversed. Id. The Board may send the record back
for additional evidence, revise the penalty, or either sustain or reverse the decision. Id.

Both parties then have the right to seek review of the Board’s decision in chancery
court. Id. § 49-5-512(c)(4). Review in chancery court is “de novo on the record of the
hearing.” Id. This standard of review does not permit the parties to submit new evidence
on the merits of the charges. Emory v. Memphis City Sch. Bd. of Educ., 514 S.W.3d 129,
142 (Tenn. 2017). The court’s review is “limited to the written record of the hearing before
the board and any evidence or exhibits submitted at the hearing.” Tenn. Code Ann. § 49-
5-513(g) (2020). New evidence may be submitted at this juncture only “to establish
arbitrary or capricious action or violation of statutory or constitutional rights by the board.”
Id.

In chancery court, no presumption of correctness attaches to the Board’s decision.
Emory, 514 S.W.3d at 141. The court makes “a fresh and independent determination of
both the facts and the law.” Finney v. Franklin Special Sch. Dist. Bd. of Educ., 576 S.W.3d
663, 677 (Tenn. Ct. App. 2018). But the burden of proving the charges remains with the
Board. Saunders v. Anderson, 746 S.W.2d 185, 189 (Tenn. 1987). The teacher has the
burden of proving any allegations that the Board acted arbitrarily or in violation of the
teacher’s rights. Crosby v. Holt, 320 S.W.3d 805, 817 (Tenn. Ct. App. 2009).

On appeal, we apply our familiar standard of review for appeals after a bench trial.
Emory, 514 S.W.3d at 142. We presume that the trial court’s factual findings are correct
unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). We review
questions of law de novo, with no presumption of correctness. Emory, 514 S.W.3d at 142.

A.

A tenured teacher has a constitutional right to due process. Thompson v. Memphis
City Sch. Bd. of Educ., 395 S.W.3d 616, 627 (Tenn. 2012). “At a minimum,” the teacher
is entitled “to pre-termination notice of the charges . . . , an explanation of the employer’s
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evidence, and an opportunity to present [his or] her side of the story to the employer.” Id.
The notice should “fairly apprise the teacher of the charge[s] against him and enable him
to prepare his defense in advance of the hearing.” Turk v. Franklin Special Sch. Dist., 640
S.W.2d 218, 220 (Tenn. 1982) (citation omitted).

Mr. Hubbard complains that his 2014 arrest was not included in the notice of
charges. Asserting that this appeal is “on all fours” with our supreme court’s decision in
Turk v. Franklin Special School District, he argues that the Board violated his rights by
relying on evidence beyond the scope of the charges. See id. Mr. Hubbard’s reliance on
the Turk decision is misplaced.

In Turk, the charging document informed the teacher that she was charged with
unprofessional conduct based on her recent conviction for driving under the influence. Id.
at 219. But, at the hearing, the Board also considered evidence of a prior automobile
accident, as well as, the teacher’s absentee record and drinking habits. Id. at 219-20. The
previous accident factored heavily in the Board’s decision to dismiss the teacher. Id. at
220. Our supreme court held that “it was fundamental error” for the Board to base its
dismissal decision on extraneous matters “not specified in writing prior to the hearing.” Id.
And the recent conviction, standing alone, was insufficient to support the dismissal
decision. Id. at 220-21.3

We face notably different facts. The notice of charges fully apprised Mr. Hubbard
of the charges and evidence against him. The Director charged Mr. Hubbard with
unprofessional conduct and insubordination. The notice specified that these charges were
based on his April 2018 conviction, the warning to avoid future issues, his subsequent
arrest for driving on a revoked license, and his threats directed at a co-worker. While the
notice did not mention his 2014 arrest, the Board did not base its decision on that previous
arrest. The hearing officer found Mr. Hubbard guilty of both charges based on his threats
to a co-worker. And the Board upheld that decision. The trial court independently came
to the same conclusion. The 2014 arrest was considered, if at all, as evidence that
Mr. Hubbard knew the possible consequences of unprofessional behavior outside the
classroom.

B.

1. Unprofessional Conduct

“Conduct unbecoming to a member of the teaching profession” includes immorality,
dishonesty, felony convictions, ethical violations, and improper use of intoxicants. Tenn.

3
Our supreme court cautioned that a single conviction for driving while intoxicated, under different
circumstances, could support dismissal of a tenured teacher. Turk, 640 S.W.2d at 221.

7
Code Ann. § 49-5-501(3) (2020). This non-exclusive list is a “good starting point” for
determining whether a charge of unprofessional conduct has been proven. Taylor v.
Clarksville Montgomery Cty. Sch. Sys., No. M2009-02116-COA-R3-CV, 2010 WL
3245281, at *8 (Tenn. Ct. App. Aug. 17, 2010).

Teachers must “adhere to the highest ethical standards.” Tenn. Code Ann. § 49-5-
1002(1) (2020). Teachers accept this heavy responsibility out of a “desire for the respect
and confidence of . . . colleagues, . . . students, . . . parents[,] and . . . members of the
community.” Id. § 49-5-1002(2). At all times, they are expected to “[c]onduct themselves
in a manner that preserves the dignity and integrity of the education profession.” Id. § 49-
5-1004(c)(2) (2020). “[F]alse or malicious statements about a colleague” are expressly
prohibited. Id. § 49-5-1004(b)(7).

The court found that Mr. Hubbard’s repeated threats to and about a co-worker
constituted unprofessional conduct. The evidence does not preponderate against this
finding. Mr. Hubbard’s conduct did not reflect the high ethical standards of the education
profession. He admitted that threatening another teacher was unprofessional and that his
behavior was inappropriate. Yet he maintains that his text messages fell short of being
actual threats. We disagree. Mr. Hubbard sent multiple messages to Coach Smith about
the rumored affair. At least twice, he threatened to “settle the matter” with a physical
beating. As he told his wife, he knew where Coach Smith lived and worked. While
Mr. Hubbard may view his messages as empty threats, Coach Smith clearly did not. He
was visibly shaken by the news that Mr. Hubbard was on his way to the gym.
Mr. Hubbard’s “emotional outbursts” set in motion a chain of events that had a decidedly
negative impact on the Claiborne County school system.

2. Insubordination

The trial court also found that Mr. Hubbard was guilty of insubordination.
Insubordinate conduct typically involves “a defiance of authority.” Morris v. Clarksville-
Montgomery Cty. Consol. Bd. of Educ., 867 S.W.2d 324, 327 (Tenn. Ct. App. 1993). A
teacher who refuses or fails “to carry out specific assignments made by . . . the director of
schools . . . when the . . . assignment[] [is] reasonable and not discriminatory” may be
insubordinate. Tenn. Code Ann. § 49-5-501(7)(A). To warrant dismissal of a tenured
teacher on this basis, the teacher must have refused or failed “to obey some order which a
superior . . . is entitled to give and have obeyed.” Morris, 867 S.W.2d at 327.

The trial court found that the Director ordered Mr. Hubbard to avoid future issues.
Mr. Hubbard concedes that the Director gave him an order, but argues that the order was
much narrower. The evidence on this point was conflicting. The court credited the
testimony of the Board’s witnesses. We find no basis in this record to set aside the court’s
finding.

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 Mr. Hubbard then argues that the Director’s order lacked the specificity necessary
to meet the statutory definition of insubordination. See Tenn. Code Ann. § 49-5-501(7)(A);
cf. Morris, 867 S.W.2d at 328 (concluding that the insubordination charge had not been
proven because the “words used by the witnesses d[id] not amount to an order”). The
Director’s order, when considered in context, was not overly broad. In April, Mr. Hubbard
pled guilty to driving under the influence. He knew that his unprofessional conduct had
placed his continued employment as a tenured teacher in jeopardy. Because of his
exemplary record as an educator, the Director chose a lesser sanction. But this leniency
came with an explicit warning against further instances of unprofessional conduct. The
Director did not mandate perfection on Mr. Hubbard’s part. All teachers make mistakes.
Rather, he gave Mr. Hubbard specific instructions to avoid the type of egregious behavior
that could lead to his dismissal.

Mr. Hubbard knew he had received a directive. He also knew that threatening a co-
worker was unprofessional. Yet, only a few short months after the Director’s order, he
sent threatening messages to a co-worker. His decision to engage in unprofessional
conduct despite the Director’s order was insubordinate.

C.

Proof of a statutory ground for dismissal does not end the matter. The question of
the appropriate punishment remains. See Finney, 576 S.W.3d at 690. “Whether dismissal
is warranted . . . must be determined on a case by case basis after a careful review of
attendant circumstances.” Ripley v. Anderson Cty. Bd. of Educ., 293 S.W.3d 154, 157
(Tenn. Ct. App. 2008).

Mr. Hubbard complains that neither the hearing officer nor the Board independently
determined whether dismissal was appropriate. And this failure, in his view, “rendered the
entire hearing process arbitrary and in violation of his statutory rights.”

The hearing officer concluded that dismissal was appropriate on these facts.
Mr. Hubbard maintains that the hearing officer afforded undue deference to the Board’s
initial approval of the charges. Based solely on the notice of charges, the Board determined
that the specified conduct, if proven, warranted Mr. Hubbard’s dismissal. See Tenn. Code
Ann. § 49-5-511(a)(5). After the hearing, the officer found that the charges had been
proven. See id. § 49-5-512(a). But he expressed reluctance to set aside the Board’s
“judgment” without “clear evidence” that the Board “acted arbitrarily or unreasonably.”
See Childs v. Roane Cty. Bd. of Educ., 929 S.W.2d 364, 365 (Tenn. Ct. App. 1996) (“It is
presumed that actions of a board are not arbitrary and capricious, but are reasonable unless
there is clear evidence to the contrary.”). The Board’s initial decision, made without the
benefit of a full and complete hearing, was not entitled to deference. The hearing officer
had a statutory obligation to “decide what disposition to make of the case.” Id. § 49-5-
512(a)(9).
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 Even if the hearing officer’s analysis was flawed, this error was harmless. See Tenn.
R. App. P. 36(b). The Board revisited this issue at Mr. Hubbard’s appeal hearing. After
reviewing the record and hearing argument from counsel for both parties, the Board
rejected a motion to reduce the penalty to a one-year suspension. Instead, the Board
approved the hearing officer’s decision, including his conclusion that dismissal was
appropriate.

D.

Mr. Hubbard also argues that the Board violated his statutory rights by voting to
uphold the hearing officer’s decision without first sustaining the charges. The relevant part
of the Tenure Act provides,

The board shall hear the appeal on the record and no new evidence shall be
introduced. The affected employee may appear in person or by counsel and
argue why the decision should be modified or reversed. The board may
sustain the decision, send the record back if additional evidence is necessary,
revise the penalty or reverse the decision. Before any findings and decision
are sustained or punishment inflicted, a majority of the membership of
the board shall concur in sustaining the charges and decision.

Tenn. Code Ann. § 49-5-512(c)(3) (emphasis added).

While separate votes may be ideal, nothing in the cited statute precludes a single
vote sustaining both the charges and the decision. And, absent a contrary indication, we
conclude that the Board’s vote fulfilled the statutory requirement.

Mr. Hubbard maintains that deposition testimony from the individual members of
the Board demonstrates a lack of consensus on the charges. We disagree. The Board’s
consensus is evidenced by the official vote of its members. The Board, as a public body,
acts through its official minutes. See Tenn. Code Ann. § 8-44-104 (2016). The Board
members posed questions to counsel for both parties about the evidence at the hearing and
the hearing officer’s decision. Having considered the evidence, a majority of the
membership of the Board then voted to uphold the hearing officer’s decision.

Yet Mr. Hubbard argues that our previous decision in Winkler v. Tipton County
Board of Education, 63 S.W.3d 376 (Tenn. Ct. App. 2001), supports his position. We
cannot agree. In Winkler, we considered whether the Board of Education had properly
notified a teacher of its “findings and decision” after an evidentiary hearing on two charges
of unprofessional conduct. Id. at 377, 381; see Tenn. Code Ann. § 49-5-512 (1996). At
that time, the Tenure Act contained no right to a hearing before an impartial hearing officer.
Tenn. Code Ann. § 49-5-512 (1996). Rather, the Board decided the case and notified the
10
teacher of its findings and decision after a full evidentiary hearing. Id. In Winkler, the
Board notified the teacher that it “has determined that [her] actions . . . were improper.”
Id. at 380. But it revised her dismissal to a one-year suspension. Id. The trial court upheld
the Board’s decision. Id. at 381. The sparse written findings left us unable to determine
whether the Board found the teacher guilty of unprofessional conduct. Id. at 382. During
deliberations, some Board members expressed the opinion that the teacher was only guilty
of poor judgment. Id. These comments, coupled with the Board’s vaguely-worded letter
to the teacher, did not satisfy the Board’s statutory obligation to “make known its ‘findings
and decision.’” Id. (quoting Tenn. Code Ann. § 49-5-512(a)(9) (1996)).

Here, we have no doubt as to the Board’s findings and decision. The Board publicly
upheld the hearing officer’s decision. The hearing officer made extensive findings of fact
and conclusions of law. He specifically found Mr. Hubbard guilty of both unprofessional
conduct and insubordination based on his threatening messages. Mr. Hubbard has not
shown that the Board acted arbitrarily and capriciously or in violation of his constitutional
or statutory rights. See Crosby, 320 S.W.3d at 817.

III.

Mr. Hubbard was adequately apprised of the charges and evidence against him.
There is sufficient evidence to support the trial court’s findings of unprofessional conduct
and insubordination. And Mr. Hubbard failed to show that the Board’s decision was
arbitrary and capricious or in violation of his statutory or constitutional rights. So we
affirm.

s/ W. Neal McBrayer
W. NEAL MCBRAYER, JUDGE

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