            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

                                         -2-
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

                                        -3-
          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:

                                        -4-
           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.


                                              -5-
§ 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

                                       -6-
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.

                                      -7-
           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.

                                              -8-
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.

                                               -9-
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




                                     -10-
