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

                                      3
         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).

                                     4
         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



                                          5
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




                                      8
