             IN THE COURT OF APPEALS OF TENNESSEE
                        AT KNOXVILLE
                                                            FILED
                                                             August 6, 1998
RICKY H. DEBORD,                       )     BLEDSOE CHANCERY
                                                           Cecil Crowson, Jr.
                                       )                    Appe llate Court C lerk
      Plaintiff/Appellant                    )      NO. 03A01-9801-CH-00009
                           )
v.                         )                 HON. JOHN W. ROLLINS
                           )                 JUDGE
THE BLEDSOE COUNTY BOARD )
OF EDUCATION and THAD R.   )
COLVARD, Superintendent of )
BLEDSOE COUNTY SCHOOLS, )                    AFFIRMED
                           )
     Defendants/Appellees  )


Charles Hampton White and Rebecca Wells Demaree, Nashville, for Appellant.
Stephen T. Greer and Russell Anne Swafford, Dunlap, for Appellees.


                                OPINION

                                             INMAN, Senior Judge

      The plaintiff challenged his dismissal as a teacher in the Bledsoe County

School System, claiming that he attained tenure status on August 7, 1995 when

the Board of Education re-elected him for the 1995-96 school year, thereby

according him tenure, since it was his fourth year of service, all as provided by

T.C.A. § 49-5-501, et seq.

      He alleged that one week later, on August 15, 1995, the Board convened

a specially-called meeting and one of its members, Alfred Terry, attempted to

change his vote to “No,” and that Superintendent Colvard on the same day

advised him by letter that the Board “had rescinded its prior action.”

      The plaintiff alleged that the August 15, 1995 action was a nullity and a

breach of his contract of employment, that as a tenured teacher he could not be

dismissed except for statutory cause, that he was prepared to teach at the school
to which he had been assigned, and that he was entitled to be restored to his

position as a classroom teacher and to be made whole for his monetary losses.

      The Board admitted that at a scheduled meeting on August 7, 1995, it

voted to re-hire the plaintiff as a teacher at the Rigsby Elementary School and

the Mary V. Wheeler Elementary School for the 1995-96 school year, but

alleged that “it voted to rescind the previous action” on August 15, 1995 before

the plaintiff assumed any duties for the upcoming school year.

      Both defendants allege that before the August 7, 1995 meeting of the

Board the Superintendent “had not recommended” that the plaintiff be re-hired,

and that the Board had not been notified by the Superintendent that the plaintiff,

if rehired, would attain tenure status, as required by T.C.A. § 49-5-504(b).

      The Chancellor made these findings:

      1.     The plaintiff Ricky Debord was a physical education teacher
             employed by the Bledsoe County Board of Education during the
             1992-93, 1993-94 and 1994-95 school years.

      2.     At the regularly scheduled Board meeting in April of 1995 the Board
             did not re-elect Debord to a position in the Bledsoe County School
             system for the 1995-96 school year, and written notice of his non-
             rehire was sent to and received by him before April 15, 1995.

      3.     At the Board’s regularly scheduled meeting on August 7, 1995, a
             motion was made by Board member Wanda Redwine and duly
             seconded to hire Debord for the 1995-96 school year. The Board was
             not advised by Superintendent Colvard that Debord would acquire
             tenure if hired. The Board then voted on Redwine’s motion and the
             motion passed by a vote of 5 to 4.

      4.     One week later, at a specifically called Board meeting on August 14,
             1995, Board member Alfred Terry rescinded his vote on Rick Debord
             from yes to no without objection from and by consent of the Board.

      5.     On August 15, 1995, Superintendent Thad R. Colvard sent a letter to
             Rick Debord informing him that the Board had rescinded its vote and
             that he would not be employed by the Bledsoe County Board of
             Education for the 1995-96 school year.

      6.     On August 16, 1995, Debord showed up for the first day of in-service
             for school employees. At the beginning of the in-service, Debord was
             informed by Superintendent Colvard that the Board had rescinded its

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             vote and that he would not be employed for the 1995-96 school year.
             Debord advised Superintendent Colvard that he was aware of the
             action of the Board, but that he had been advised by his attorney to
             show up for the first day of in-service. Debord then left the in-
             service.

      7.     Before a teacher may be conferred tenure status, T.C.A. § 49-5-504(6)
             imposes a mandatory duty on the Superintendent to inform a Board
             prior to a re-election vote that their vote will grant tenure to the
             subject teacher. As Superintendent Colvard did not so inform the
             Bledsoe County Board of Education at the time of their August 7,
             1995 vote to rehire Rick Debord, tenure was not conferred upon
             Debord by that vote.

      8.     However, the Court finds that Debord and the Board entered into a
             one year contract of employment for the 1995-96 school year, that
             Debord began work and relied on the contract, and therefore, he is
             entitled to all of the rights he would have been afforded under that
             one year contract as a teacher in Bledsoe County School System.

      The plaintiff appeals and presents for review the issue of whether the

August 7,1995 vote conferred tenure. The defendants present for review the

issue of whether the Court erred in holding that the “plaintiff was granted a one-

year contract.”

      Our review of the findings of fact made by the trial Court is de novo upon

the record of the trial Court, accompanied by a presumption of the correctness

of the finding, unless the preponderance of the evidence is otherwise. TENN. R.

APP. P., RULE 13(d); Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn.

1996). Where there is no conflict in the evidence as to any material fact, the

question on appeal is one of law, and the scope of review is de novo with no

presumption of correctness accompanying a chancellor's conclusions of law.

Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn. 1993).

      At the August 7, 1995 regular meeting, eight members were present.

Various actions were taken involving the election and transfer of teachers, one

of whom was the plaintiff, who was hired as a teacher for the 1995-96 school

year by a vote of five to three.


                                        3
         At the August 14, 1995 meeting, seven members were present.1 Two

teachers were hired pursuant to motions made and seconded. Thence follows

this minute entry:

         “Terry rescinds vote on Ricky Debord and changes vote to No.” 2

         The following day Superintendent Colvard by letter to the plaintiff

advised him,

         “The Bledsoe County Board of Education took action to hire you for
         the 1995-96 school year at the August 7, 1995 regular meeting. I
         regret to inform you that the action taken on August 7, 1995 was
         rescinded at a meeting held on August 14, 1995.”

         We concur in the Chancellor’s findings of fact, and in his conclusion of

law that T.C.A. § 49-5-504(6) imposes a mandatory duty on the Superintendent

to inform the Board before a re-election vote that their vote will grant tenure.

Reeves v. Etowah City Board of Education, 806 S.W.2d 176 (Tenn. 1991)

leaves no room for doubt that the statute means what it says. It is not

controverted that Superintendent Colvard failed to abide his duty to the Board,

notwithstanding that he admitted his awareness of the requirement, but his

dereliction cannot negate the requirement. The plaintiff could not acquire

tenure under these circumstances.

         We further concur in the Chancellor’s finding that the August 7, 1995

action constituted a contract between the plaintiff and the Board for a one-year

term. While the Chancellor did not address the issue of the validity of the

attempt by member Terry to change his vote at a called meeting one week later,

we think that the action was a complete nullity.




         1
             Linda R edwine , who m ade the m otion at the Augu st 7, 1995 meeting to hire the p laintiff, was ab sent.
         2
         An age nda for th e Augu st 7, 1995 meeting was furn ished the b oard m embe rs on Au gust 1, 19 95.
There was no agenda for the August 14, 1995 meeting.

                                                             4
      The plaintiff does not address the legal propriety of the attempted

‘rescission,’ 3 being content to argue that the matter was settled at the August 7,

1995 meeting and that any action to dispossess him must conform to the

requirements of due process and in accordance with the statutory procedures for

notice of changes with an opportunity to be heard. We do not believe it

necessary to delve that far into the issue. So far as the record reveals, member

Terry merely stated, a week after he cast his vote, that he was rescinding it.

There was no agenda, no notice, no motion, no discussion, no effort to follow

rules of order, and we hold the purported ‘rescission’ was ineffective for any

purpose. The minutes do not reveal whether other members were given the

opportunity to vote again, although the record reflects that none of them

objected to the announcement of Mr. Terry that he was changing his vote.

Whether the Board had adopted by-laws for its procedural governance does not

appear; whether it had adopted formal or informal rules of order likewise does

not appear in the record. As the minutes of the August 24 meeting reflect, after

two transfers had been hired, Mr. Terry simply stated that he was rescinding his

yes vote on Debord and voting, No.

      It is no part of our duty to prescribe appropriate rules for the transaction

of business by the Boards of this State; we are content to hold that the attempt

by member Terry to change his vote in the matter shown was a nullity.

Ordinarily, any action taken by the Board may be rescinded by a majority vote,

if rights have not attached;4 here, there was no motion to rescind the action

taken at the August 7, 1995 meeting. Given the circumstances, if member Terry




      3
          An attempt by a member to change his vote. It was not a rescission in legal contemplation.

      4
          See, Roberts Rules of Order, Revised, sect. 37.

                                                       5
could lawfully change his vote one week after casting it, he could change it one

month or one year afterward.

      Moreover, we note that although the minutes reflect only that member

Terry changed his vote from yes to no, the Superintendent informed the plaintiff

“that the action taken on August 7, 1995 was rescinded at a meeting held on

August 14, 1995.” The minutes do not reflect this fact; there was no motion

made to rescind the Board’s action in hiring the plaintiff, and the Board did not

rescind its action. The Superintendent apparently mistakenly assumed that the

mere statement of member Terry that he was changing his vote was a rescission

of the earlier action.

      Finally, we think the Chancellor’s finding that the plaintiff accepted the

contract tendered to him on August 7, 1995 is supported by a preponderance of

the evidence. We concur in the findings that the plaintiff acted in reliance upon

the contract by entering upon his duties immediately upon being hired.

      The judgment is affirmed at the costs of the parties evenly.



                                       _______________________________
                                       William H. Inman, Senior Judge
CONCUR:



_______________________________
Houston M. Goddard, Presiding Judge



_______________________________
Charles D. Susano, Jr., Judge




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