                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                      July 9, 2002 Session

                RONNIE SYKES v. ROBBIE RICHARDSON, ET AL.

                 A Direct Appeal from the Chancery Court for Smith County
                       No. 6265    The Honorable Don R. Ash, Judge



                    No. M2001-02097-COA-R3-CV - Filed August 13, 2002


        Tenured teacher filed a petition for review of board of education action discharging him from
his teaching position. The trial court, the Honorable Don R. Ash, presiding by interchange, upheld
the decision by the board of education. Petitioner appeals. We affirm.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,J.
and HOLLY KIRBY LILLARD, J., joined.

John H. Baker, III of Murfreesboro for Appellant, Ronnie Sykes

Robert G. Wheeler, Jr., Nashville, for Appellees, Robbie Richardson and the Smith County Board
of Education

                                             OPINION

       This case arises under the Tennessee Teachers’ Tenure Act, T.C.A. § 49-5-501, et seq. (1996)
(“TTA”). Appellant/Petitioner, Ronnie Sykes (“Mr. Sykes”), was a tenured teacher in the Smith
County Schools. Until his suspension in October of 1997, Mr. Sykes had most recently taught
Vocational Agriculture at Smith County High School. The record indicates that Mr. Sykes received
favorable performance reviews and had served as principal for several schools during his 28 years
with the Smith County school system.

         Mr. Sykes dismissal was precipitated by events which occurred on October 22, 1997
concerning Mr. Sykes’ fiancé, Christine Price (“Ms. Price”), his roommate, Michael Velosic (“Mr.
Velosic”), and C.P., a fifteen year-old girl who had run away from a State juvenile facility in Bradley
County, Tennessee. On that date, police pulled over Ms. Price, Mr. Velosic, and C.P. following a
tip that the group was passing forged checks in Mr. Sykes’ name. After learning that Ms. Price and
Mr. Velosic lived with Mr. Sykes and used illegal drugs, the police brought Mr. Sykes in for
questioning regarding the checks and alleged drug use in his home. During his interview with
police, Mr. Sykes executed a consent form allowing the police to search his home. When asked what
they might find, Mr. Sykes informed the police that he was aware of a marijuana pipe in the
bathroom of his home.

        During their search of Mr. Sykes’ home, police found drug paraphernalia, including: posters
promoting the use of illegal drugs; a marijuana pipe; a plate with drug residue on it; a homemade
drug pipe; a spoon used for cooking crack cocaine; rolling papers; and a rolling machine. According
to police testimony presented at the Board of Education hearing on Mr. Sykes’ termination, the
paraphernalia “was scattered. . . throughout the house.” Michael Thompson, the Director of the
115th Judicial District Drug Task Force, one of the officers who conducted the search, testified that
Mr. Sykes’ house “was typical of a house that was pretty much running rampant in drugs.”

         During their investigation, the police learned that C.P. was a runaway from a State juvenile
facility, and had been living in Mr. Sykes’ home for approximately 10 days. Mr. Sykes testified that,
although he suspected C.P. had run away from the juvenile facility, he did not report her
whereabouts to the proper authorities because she had recently given birth to a baby she was not able
to keep, and he felt badly for her.1 Based upon their investigation, the police issued two criminal
warrants against Mr. Sykes for contributing to the delinquency of a minor and possession of drug
paraphernalia on October 22, 1997. Mr. Sykes was subsequently suspended from his teaching and
bus driving duties on October 23, 1997. On November 11, 1997, Robby Richardson, Superintendent
of the Smith County Board of Education sent a memorandum to Mr. Sykes, charging him with
conduct unbecoming to a member of the teaching profession as defined in T.C.A. 49-5-511(a)(3).
On January 17, 1998, Mr. Sykes accepted pretrial diversion on both of the criminal charges.

       The Smith County Board of Education (the “Board”) held a hearing to determine whether
Mr. Sykes should be dismissed from his tenured teaching position. At the end of the hearing, the
Board voted five to two in favor of a finding that the charges against Mr. Sykes were proven by a
preponderance of the evidence, and five to one, with one member abstaining, to dismiss Mr Sykes
immediately.

       Mr. Sykes filed a “Complaint and Petition for Writ of Certiorari” with the Chancery Court
of Smith County on April 6, 1998. which the trial court granted on April 22, 1998. At a hearing held
on June 20, 2001, the trial court stated that the Board’s decision would be affirmed. On July 24,
2001, the trial court entered an order sustaining the decision of the Board. Attached to, and
incorporated into, that Order were the trial court’s Findings of Fact and Conclusions of Law filed
on July 23, 2001, providing:




         1
          The record indicates that C.P. had previously lived with Mr. Sykes and Ms. Price in October of 1997 with the
approval of the D epartment of H uma n Services and C.P.’s mo ther.

                                                         -2-
        In 1997, Chief Lewis of the Carthage police department
interviewed Mr. Ronnie Sykes in the course and scope of their
investigation of worthless checks being passed around the Carthage
area by three individuals, Christine Price, Michael Velosic, and C.P..
During the course of their investigation, Mr. Sykes told Chief Lewis
C.P. had recently begun to reside with him and Ms. Price. He was
aware that C.P. was a runaway. In fact, C.P. was an escapee from a
juvenile facility in another county.

       When asked if the police could search his residence, Mr.
Sykes gave consent. He did disclose to Chief Lewis they would find
a marijuana pipe in the bathroom area of the house. Upon inspection
of Mr. Sykes home, Detective Mike Thompson and Chief Lewis
recovered various drug paraphernalia including rolling papers,
measuring scales, a cooking spoon, medical hemostats, razor blades
used for crack cocaine, a rolling machine, a homemade pipe for
smoking crack cocaine, as well as the previously mentioned
marijuana pipe. Many of these items were recovered from the master
bedroom of the home.

        Evidence presented by the Police Department at trial indicated
that in their opinion the home appeared as though it was “running
rampant in drugs” and was “common with individuals using crack
cocaine as a drug house.” Mr. Sykes was eventually charged with
contributing to the delinquency of a minor and possession of drug
paraphernalia. Ms. Price and Mr. Velosic were also charged with
possession of drug paraphernalia and each pled guilty. Mr. Sykes was
granted pre-trial diversion on both charges.

        At the time of his arrest, Mr. Sykes was a fifty-year old
teacher at Smith County High School. After the conclusion of the
criminal cases, a school board hearing was held on whether to
continue the tenure of Mr. Sykes. Mr. Sykes testified while he
recognized it is unlawful to possess drug paraphernalia, he did not
know of any unlawful drug usage in his home. In fact, he knew his
fiancee, Christine Price, to be a crack cocaine addict although
testifying Ms. Price had never used drugs in his presence.

       Though he stated he knew for what activity the drug
paraphernalia was used, he had only seen paraphernalia in his home
on a few occasions. Mr. Sykes further testified he knew it was
unlawful to harbor an escaped minor, but did not report C.P. to the



                                 -3-
authorities even though she lived in the Sykes residence for 10 to 11
days.

        On November 11, 1997, Superintendent Richardson advised
the Smith County Board of Education he had suspended Mr. Sykes
without pay. Richardson also notified Mr. Sykes he was being
charged with the cause for dismissal of a tenured teacher known as
“conduct unbecoming to a member of the teaching profession.” The
basis for the charges against Mr. Sykes and the recommendation for
dismissal by Mr. Richardson was the result of the two criminal
warrants being filed against Mr. Sykes. On November 19, 1997, Mr.
Sykes was notified the Smith County School Board had certified the
charges against him on the grounds of unprofessional conduct or
conduct unbecoming to a member of the teaching profession. He was
given a statement of his procedural rights issued by the Tennessee
Department of Education per T.C.A. 94-5-511.

       Smith County High School Principal Roger Lewis testified the
school had numerous programs aimed at educating children against
drug use. He further testified the School Board has a policy
prohibiting paraphernalia by students and Mr. Sykes’ actions are
counter to what he, as principal, is trying to accomplish in
discouraging students from using drugs.

        Smith County School Superintendent Robbie Richardson
recommended Mr. Sykes’ dismissal as a tenured teacher because the
conduct displayed by Mr. Sykes was unbecoming as a member of the
teaching profession and was in direct violation of the job description
of a secondary school teacher. The job description reads, in part,
“[the job] was to represent the school and community in a positive
manner.” Mr. Richardson did not have that authority at the time of
this hearing to fire Mr. Sykes. He occupied his office by way of
election and only had the power and authority to recommend the
dismissal of the Plaintiff Sykes.

        Testimony was also presented regarding the “immoral
activities” in Mr. Sykes’ relationship with his financée Christine
Price.

                             THE LAW

       This case comes before this court on a writ of certiorari
(T.C.A. 49-5-5139(a)). The standard by which this matter is


                                 -4-
              reviewed is de novo with no presumption of correctness attaching to
              the School Board’s finding of fact, and this Court is required to
              determine all issues as if no prior determination had been made;
              substituting judgment for that of the school board. (Henderson v.
              Members of the Benton County Board of Education, 2000 Tenn. App.
              LEXIS 223). The burden of proof to be considered is a
              preponderance of the evidence that the facts in the record exist that
              meet one of the statutory causes for dismissal of a tenured teacher.
              (Williams v. Pittard, 604 S.W.2d 845 (1980).

                      Five elements may be considered by this court when
              determining the termination of a tenured teacher in the State of
              Tennessee when charged with “conduct unbecoming a member of the
              teaching community.” They include but are not limited to, a)
              immorality; b) conviction of a felony or a crime involving moral
              turpitude; c) dishonesty, unreliability, continued willful failure or
              refusal to pay one’s just and honest debts; d) disregard of the Code of
              Ethics of the Tennessee Education Association in such a manner as
              to make one obnoxious as a member of the profession; or e) improper
              use of narcotics or intoxicants. (T.C.A. 49-5-501(3)). It appears Mr.
              Sykes was given clear notice of the charges against him as well as a
              statement of his procedural rights issued by the Tennessee
              Department of Education per T.C.A. 49-5-511.

                       A significant question here is whether or not there is a rational
              nexus between Mr. Sykes’ charges, whether convicted or not, and his
              ability to teach and influence young people in Smith County. Based
              upon the record, the question must be answered in the affirmative.

                      This Court finds the “immoral activities” between Mr. Sykes
              and Ms. Price were irrelevant and the focus of the School Board’s
              decision encompassed the charges of drug paraphernalia and the
              contributing to the delinquency of a minor. It is also apparent to this
              court that the action of the Smith County School Board against Mr.
              Sykes was not “arbitrary and capricious.” Based upon the facts and
              the existing laws, it is the opinion of this Court that the decision of
              the Smith County Board of Education be affirmed. Costs shall be
              assessed to Mr. Sykes. Mr. Wheeler shall draw the Order.

        Mr. Sykes appeals the Order of the Smith County Chancery Court and presents the following
four issues for our review: (1) Whether the Board denied Appellant his statutory and due process
rights to a full and fair hearing by considering matters which were not included in the notice of
charges provided to Appellant; (2) Whether the Board incorrectly determined that service of two


                                                 -5-
criminal warrants was sufficient grounds for termination of a tenured teacher; (3) Whether the
Board’s decision was arbitrary and capricious because the Board improperly reasoned that, because
drug paraphernalia was found in Appellant’s home, Appellant must be guilty of illegal possession
of drug paraphernalia; and (4) Whether there was material evidence to support the Board’s finding
that Appellant should be terminated from his tenured teaching position. For the following reasons,
we affirm the trial court’s order.

        Judicial review of teacher tenure cases is controlled by T.C.A. § 49-5-513 which, as pertinent
to the issue before us, provides:

               (a) A teacher under “permanent tenure” or “limited tenure” status
               who is dismissed or suspended by action of the board may petition for
               a writ of certiorari from the chancery court of the county where the
               teacher is employed.

               (b) The petition shall be filed within thirty (30) days from the receipt
               by the teacher of notice of the decision of the board. The petition
               shall state briefly the issues involved in the cause, the substance of
               the order of the board, or the respects in which the petitioner claims
               the order of the board is erroneous, and praying for an accordant
               review. The petition shall be addressed to the presiding chancellor
               and shall name as defendants the members of the board and such
               other parties of record, if such, as were involved in the hearing before
               the board.

                               *               *              *

               (f) All defendants named in the petition, desiring to make defense,
               shall do so by answer (in which grounds of demurrer shall be
               incorporated) to the petition within thirty (30) days from the date of
               the filing of the petition, unless the time be extended by the court. .
               ..

               (g) The cause shall stand for trial and shall be heard and determined
               at the earliest practical date, as one having precedence over other
               litigation, except suits involving state, county or municipal revenue.
               The review of the court shall be limited to the written record of the
               hearing before the board and any evidence or exhibits submitted at
               such hearing. Additional evidence or testimony shall not be admitted
               except as to establish arbitrary or capricious action or violation of
               statutory or constitutional rights by the board.




                                                   -6-
       This Court, in Winkler v. Tipton County Bd. of Educ., 63 S.W.3d 376, 381 (Tenn. Ct. App.
2001), noted the appropriate standard of review for cases under the TTA:

                       Judicial review of a teacher dismissal case pursuant to T.C.A.
               § 49-5-513 requires the chancery court to review the transcript of the
               hearing before the board in order to determine whether there was any
               material evidence to support the board's decision. If there is, it is
               the responsibility of the trial court to affirm. On the question of
               whether the Board acted arbitrarily, capriciously or illegally, the trial
               court may hear new evidence and must make independent findings in
               this regard. Our scope of review on appeal from chancery court is no
               greater than that court's review of the Board decision. See Goodwin
               v. Metropolitan Board of Health, 656 S.W.2d 383, 387 (Tenn. Ct.
               App.1983).

Id. (quoting Wallace v. Mitchell, No. W1999-01487-COA-R3-CV, 2000 Tenn. App. LEXIS 558,
at *6-7 (Tenn. Ct. App. Aug.16, 2000) (emphasis added).

       We first address Mr. Syke’s contention that the Board failed to provide him with adequate
due process. Specifically, it appears from the record that Mr. Sykes is alleging that the Board denied
him due process by: (1) failing to adequately describe the nature of the charges against him; and (2)
by considering other, uncharged conduct, in arriving at its decision to dismiss. him.

        There is no question but that Mr. Sykes is entitled to notice and a hearing under the TTA.
See T.C.A. §§ 49-5-512, 513 (1996). The TTA provides that, “When charges are made to the board
of education against a teacher, charging the teacher with offenses which would justify dismissal of
the teacher under the terms of this part, the charges shall be made in writing, specifically stating the
offenses which are charged.” T.C.A. § 49-5-512 (1996). Similarly, the TTA provides that, once a
teacher receives notice of charges, he has the right to a hearing before the school board, at which
time he may present witnesses and evidence in his defense. See T.C.A. § 49-4-513 (1996). In this
regard, the Tennessee Supreme Court has recognized that:

                       While the Tennessee Teachers' Tenure Act may not provide
               tenure teachers the full range of procedural safeguards that are
               mandated for criminal defendants by our state and federal
               constitutions, the Act does make it clear that, at a minimum, notice
               and a hearing are required. It has further been established that a
               tenure teacher is entitled to a "due process" hearing prior to
               deprivation of the significant property interest which a teacher obtains
               upon being granted tenure. See, e. g., Sullivan v. Brown, 544 F.2d
               279, 284 (6th Cir. 1976).

Williams v. Pittard, 604 S.W.2d 845, 849 (Tenn. 1980).


                                                  -7-
        In reviewing the record in this case, we cannot say that Mr. Sykes was denied due process
based upon the manner in which he was notified of the charges against him. The Board, on
November 11, 1997, advised Mr. Sykes that it was charging him with “unprofessional
conduct/conduct unbecoming a member of the teaching profession” and “criminal warrants filed on
October 22, 1997,” specifically: (1) “contributing to the delinquency of a minor” and (2) “possession
of drug paraphernalia.” While counsel for Mr. Sykes argues that these charges were too vague to
afford Mr. Sykes an opportunity to adequately defend himself at the Board hearing, the record
indicates that Mr. Sykes was aware of the fact that the charges related to his housing C.P. and to the
drug paraphernalia found in his home. Specifically, the record of the Board hearing contains the
following exchange:

               Q (Mr. Wheeler):        And when these charges on this School Board
                                       came down and said, refer to contributing to
                                       the delinquency of a minor, you knew that it
                                       had to do with C.P., didn’t you?
               A (Mr. Sykes):          Yes.
               Q:                      That wasn’t a surprise?
               A:                      No.
                                            ***********
               Q:                      So with regard to contributing to the
                                       delinquency of a minor and possession of drug
                                       paraphernalia that was written up and referred
                                       to in these charges in November, you knew
                                       that they were the things that have been
                                       discussed at length here tonight, didn’t you?
               A:                      Yes.

       As to Mr. Sykes’ allegation regarding the introduction of evidence regarding other, uncharged
matters, we agree with the trial court that these matters were irrelevant. The Board should not have
permitted testimony relating to alleged “immoral activities” between Mr. Sykes and Ms. Price, or
regarding Ms. Price’s choice of profession. In spite of this conclusion, we believe that the
presentation of any such evidence was harmless error, in that the Board based its decision to
terminate Mr. Sykes’ employment upon the other, specified charges addressed above. For these
reasons, we hold that Mr. Sykes was provided proper process notice and hearing.

       Since the next three issues Mr. Sykes presents on appeal all concern whether the evidence
presented at the Board hearing was sufficient to terminate Mr. Sykes, we will address them together.




                                                 -8-
       The TTA provides that a tenured teacher may be dismissed from his position for
“unprofessional conduct”. See T.C.A. § 599-5-511 (1996). T.C.A. § 59-5-501, under the term,
“conduct unbecoming a member of the teaching profession,”2 defines such conduct as:
              (3) "Conduct unbecoming to a member of the teaching profession"
              may consist of, but not be limited to, one (1) or more of the
              following:

                         (A) Immorality;
                         (B) Conviction of a felony or a crime involving moral
                 turpitude;
                         (C) Dishonesty, unreliability, continued willful failure or
                 refusal to pay one's just and honest debts;
                         (D) Disregard of the code of ethics of the Tennessee
                 Education Association in such manner as to make one obnoxious as
                 a member of the profession; or
                         (E) Improper use of narcotics or intoxicants. . .

Id. (emphasis added). As we have noted above in boldface, this list is not exhaustive. This Court,
in Baltrip v. Norris, explained that “[u]nprofessional conduct" has been defined as “conduct that
violates the rules or the ethical code of a profession or that is unbecoming a member of a profession
in good standing, or which indicates a teacher's unfitness to teach.” 23 S.W.3d 336, 340 (Tenn. Ct.
App. 2000), perm. to appeal denied (Tenn. 2000)(quoting Morris v. Clarksville-Montgomery
County Consol. Bd. of Educ., 867 S.W.2d 324, 329 (Tenn. Ct. App. 1993)).

        In the case at bar, the trial court found that, “A significant question here is whether or not
there is a rational nexus between Mr. Sykes’ charges, whether convicted or not, and his ability to
teach and influence young people in Smith County. Based upon the record, the question must be
answered in the affirmative.” We agree with the trial court’s assessment of Mr. Sykes’ conduct.

       Regarding the two criminal warrants, counsel for Mr. Sykes argues that, since Mr. Sykes was
never convicted of any offense, evidence of these warrants was insufficient to merit a dismissal by
the Board. While we agree that the warrants, and Mr. Sykes’ subsequent pretrial diversion
agreements, do not constitute “convictions” under T.C.A. § 49-5-501(a)(3)(B), we believe that Mr.
Sykes’ actions, however well-intentioned, could be considered “unprofessional” by the Board.

       The record indicates that Mr. Sykes had, with C.P.’s mother’s permission, taken care of the
minor before, and that C.P. had a close, fatherly relationship with Mr. Sykes. However, when C.P.
showed up at his door this time, Mr. Sykes clearly understood that C.P. was not supposed to be there.




        2
          We note that the TTA u ses the terms “unprofessional conduct” and “conduct unbecoming a m ember of the
teaching profession” interchangeably.

                                                      -9-
         Mr. Sykes testified at the Board hearing that C.P. “never told me she was a runaway, but the
assumption was there.” Mr. Sykes also testified that the night C.P., Ms. Price and Mr. Velosic were
picked up by the police, he arrived home around 9:00 p.m. and no one was there. Although he
testified that, when the three still had not returned around 11:00 p.m., he “started getting worried,”
Mr. Sykes did nothing. When he received a call from the sheriff’s office informing him that C.P.,
Ms. Price and Mr. Velosic “had been picked up and were in custody,” Mr. Sykes “went to sleep.”
It was not until sometime the next morning, when he was handcuffed and brought to the Carthage
Police Station, that Mr. Sykes found out what had happened the night before. Mr. Sykes also
indicated that he felt that he should have reported C.P.’s whereabouts to the proper authorities, but
felt “compassion” for her. Based upon Mr. Sykes’ own testimony on the issue of the contributing
to the delinquency of a minor charge, we believe there was ample, material evidence for the Board
to find that Mr. Sykes’ behavior was “unprofessional.”

         Regarding the drug paraphernalia charges, counsel for Mr. Sykes argues that the Board
“shifted the burden of proof” to Mr. Sykes at the Board hearing when the Board “presumed as a
matter of law” that Mr. Sykes was guilty of the charges. We believe this argument is misplaced. Mr.
Sykes was found guilty of the charge of unprofessional conduct. The Board could certainly find such
unprofessional conduct based upon Mr. Sykes’ own admission that he “knew of drug paraphernalia
in [his] house.” The Board presented testimony at the hearing regarding the Smith County Schools’
commitment to discouraging students from using drugs and alcohol, and it is reasonable to infer that
a teacher whose home is found to contain many drug-related items, and who has knowledge of his
roommates’ drug abuse, but allows those roommates to remain in his home, may be considered unfit
to teach.

        For the foregoing reasons, we affirm the order of the trial court upholding the decision of the
Smith County Board of Education to terminate Mr. Sykes’ employment. This case is remanded to
the trial court for any further proceedings consistent with this opinion. Costs of this appeal are
assessed to the Appellant, Ronnie Sykes, and his sureties.




                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                                 -10-
