                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 May 12, 2014 Session

       TINA WILDER v. UNION COUNTY BOARD OF EDUCATION

                  Appeal from the Chancery Court for Union County
                     No. 6478     Andrew Tillman, Chancellor


                 No. E2013-02459-COA-R3-CV - Filed June 16, 2014


This appeal arises from the dismissal of a tenured teacher. The Union County Board of
Education (“the Board”) dismissed Tina Wilder (“Wilder”) following an incident involving
underage drinking at Wilder’s lake cabin. Wilder, contesting her dismissal, filed a petition
for writ of certiorari in the Chancery Court for Union County (“the Trial Court”). The Trial
Court concluded that the evidence sustained Wilder’s dismissal. Wilder raises several issues
on appeal. We hold, inter alia, that Wilder was afforded due process, that the Trial Court
applied the correct standard of review, and that the evidence supported the Trial Court’s
decision. We affirm the judgment of the Trial Court.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and T HOMAS R. F RIERSON, II, J., joined.

Richard L. Colbert and Courtney L. Wilbert, Nashville, Tennessee, for the appellant, Tina
Wilder.

Janet Strevel Hayes and Chris W. McCarty, Knoxville, Tennessee, for the appellee, Union
County Board of Education.
                                        OPINION

                                       Background

              Wilder, then an experienced Union County teacher, hosted an after-prom party
for a group of young people at her lake cabin on the night of May 12, 2012, or in the early
morning hours of May 13, 2012. Acting on a tip that underage drinking would occur at the
party, law enforcement officers soon arrived and the party abruptly ended. Several
individuals were arrested for underage drinking. Wilder was charged with contributing to
the delinquency of minors and allowing underage consumption of alcohol on her premises.
Wilder eventually pled guilty to the latter charge.

              Dr. James Carter (“Carter”), then the temporary Director of Schools, placed
Wilder on administrative leave in the aftermath of the incident. In July 2012, Carter wrote
Wilder to inform her that her dismissal was now being sought. Wilder had been employed
by the Board since around 1999. Carter outlined the charges against Wilder:

              Please be further advised that pursuant to Tenn. Code Ann. § 49-5-511
       you are charged with unprofessional conduct also known as conduct
       unbecoming to a member of the teaching profession, namely, improper use of
       intoxicants, which justify dismissal, that is, allowing underage adults to
       consume alcohol on your property and for contributing to the delinquency of
       a minor, and disregard of the teacher code of ethics, all of which occurred on
       or about May 12, 2012 and/or May 13, 2012, as described in the attached
       Affidavit of Complaint signed by Deputy J. Sharp.

              In August 2012, Carter notified Wilder that he had presented the charges to the
Board, which voted that the charges warranted Wilder’s dismissal. Because Wilder was
tenured, the Teacher Tenure Act codified at Tenn. Code Ann. § 49-5-501, et seq. applied in
this case. Carter selected attorney Pamela Reeves (“the Hearing Officer”) as an impartial
hearing officer to conduct an evidentiary hearing on the charges. The Hearing Officer
conducted a hearing in the matter in November 2012.

               Deputy Jeff Sharp (“Sharp”), a law enforcement officer who had been on the
scene at the after-prom party, testified at the hearing. Acting on a tip that Wilder would be
hosting an underage drinking party, Sharp parked near Wilder’s cabin to observe. Several
carloads of young people drove toward Wilder’s cabin. Sharp called for backup. No more
than half an hour elapsed between the time the young people arrived and when the officers
moved in. Surveying the scene, Sharp saw Wilder’s vehicle parked near the cabin with the
vehicle’s radio blaring. In the vicinity, a bonfire had been built. As Sharp and the other

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officers arrived, young people fled in all directions. All in all, around 27 young people were
found on the premises. Several individuals were arrested in the melee, including some on
charges of underage consumption. Sharp walked into the cabin, a place he described as a
“[s]mall, small residence,” and found Wilder sitting on the couch by her friend. Sharp stated
that he smelled alcohol on both.

                Sharp testified to what was discovered around and in the cabin, and photos of
the scene were introduced as exhibits. A cooler filled with beer had been placed outside the
cabin. Empty and full bottles of alcoholic beverages were strewn about both inside and
outside the cabin. A garbage can inside was full of discarded alcoholic beverage containers.
All in all, officers found dozens of alcoholic beverages on the premises, including 54 12 oz.
bottles of Platinum Bud Lite. Officers also found six young individuals hiding in a back
bedroom in the cabin. A bag containing car keys that fit vehicles parked outside the cabin
also was discovered.

               Wilder presented a different view of the party in her testimony. According to
Wilder, this was a party with strict rules and the young people had disobeyed her instructions
not to drink. Wilder also stated that she did not know that so many young people would
attend. Shortly after midnight, Wilder’s 15-year-old daughter called and told her that the
individuals were en route to the cabin. As the party got underway, Wilder remained indoors
and watched a movie. Wilder testified that she was not aware that underage drinking was
taking place. However, testifying about why the young people ran when the officers arrived,
Wilder stated: “I knew that there was alcohol, too. So I figured that they were running to try
to save their hind ends.” Wilder denied collecting car keys from anyone at the party.

               Additional testimony was heard. One witness described seeing “a mass
quantity of alcohol” outside the cabin. Carter, the school official, testified that Wilder might
have misled him about the party in a meeting after the incident as Wilder did not tell him
about the bag of car keys or the presence of alcohol inside the cabin. Evidence also was
presented related to Union County’s previous efforts to crack down on underage drinking.

              The Hearing Officer made her findings. Among other things, the Hearing
Officer found that underage drinking had occurred on Wilder’s premises. According to the
Hearing Officer, Wilder had exercised extremely poor judgment in failing to adequately
supervise the young people at the party. The Hearing Officer, however, did not find that
dismissal was an appropriate discipline. Instead, the Hearing Officer found a 30-day
suspension without pay appropriate. The Hearing Officer noted Wilder’s otherwise
exemplary service record as a teacher. The Hearing Officer also found no proof that Wilder
knew about the underage drinking at the party.



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              In December 2012, the new Director of Schools appealed the Hearing Officer’s
decision to the Board. An appeal hearing took place in February 2013. Wilder was
represented by counsel at the hearing. After some questions and the two sides detailing their
case, the Board voted to revise Wilder’s penalty to dismissal. Continuing to pursue her
avenues of appeal under the Teacher Tenure Act, Wilder filed a petition for writ of certiorari
against the Board in the Trial Court.

                The Trial Court heard arguments from both parties in September 2013. In
October 2013, the Trial Court entered its findings of fact and conclusions of law. The Trial
Court sustained the decision to dismiss Wilder for unprofessional conduct and dismissed with
prejudice Wilder’s writ of certiorari. In its oral findings, which were incorporated into its
final order, the Trial Court found:

               Okay, this matter of Wilder versus Union County Board of Education
       is before the Court for review of an administrative determination wherein Ms.
       Wilder was released from her employment for, among other things, allowing
       underage adults to consume alcohol on your property. That was specifically
       addressed in the letter, and she was told that it would amount to unprofessional
       or, in the Board’s eyes, amounted to unprofessional conduct.

                And the Court concludes that that is ultimately the reason that she was
       discharged, and the Court finds that the record supports that by a
       preponderance of the evidence. Among - - and I will not give you an
       exhaustive list of the reasons - - but the Officer testified that when he entered
       the residence, that Ms. Wilder was not, in fact, asleep, she was sitting to the
       left of the door, and she didn’t appear to be asleep or groggy. And in fact, she
       and another individual had the smell, some smell of alcohol about them.

              There was found at the residence a cooler that was her cooler that had
       apparently six to twelve, just looking at the photographs, I reviewed the
       photographic exhibits, it looked to have six to ten beers in there. There were
       I guess approximately twelve six-packs of different types of alcoholic
       beverages all there I think in the vicinity of the cooler, I’m not sure where they
       were all located then. At least in the photographic exhibit there’s a pretty
       good, almost half a pickup load it looks to me like.

             There were six children, or kids I say, six underage individuals in a
       bedroom, they were told to go up there and to hide and not say a word. There
       was a bag of keys taken up, which the Court believes is evidence that the



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       property owner where these were taken up had some indication that there was
       going to be drinking.

               And in fact, the Court does place considerable weight on the fact that
       she did, in fact, plead guilty under oath to the charge of knowingly allowing,
       or to a charge as a property owner of allowing consumption on her premises.
       And part of that charge of the statute is that she knowingly allowed that. So,
       regardless of judicial estoppel and where we go on that, she, in fact, pled guilty
       under oath to that charge.

               Did I mention the pictures of trashcans full of empty beers there in the
       residence, in apparently the kitchen inside the residence there were open
       bottles of vodka and other liquor, looked like rum, I don’t know what all hard
       liquor. And this all is in the context of a school, a school in an area that has
       experienced the problem of underage drinking, and has attempted, before this
       ever happened, to take a stance on and address that problem.

             So, those would be the Court’s findings, the Court concludes that the
       evidence sustains the discharge.

Wilder filed an appeal to this Court.

                                          Discussion

              We restate the issues raised on appeal as follows: 1) whether Wilder was
afforded due process; 2) whether the Trial Court applied the correct standard of review; and,
3) whether the evidence preponderates against the Trial Court’s decision.

             This Court has discussed the standard of review in cases involving tenured
teachers appealing under the Teacher Tenure Act:

               The judicial remedy afforded a tenured teacher is established and
       governed by Tenn. Code Ann. § 49-5-513(g). It constitutes a statutory writ of
       certiorari, to be distinguished from a common law writ. See Enochs v. Nerren,
       949 S.W.2d 686, 688 (Tenn. Ct. App. 1996); see also Cooper v. Williamson
       County Bd. of Educ., 746 S.W.2d 176 (Tenn. 1987). A common law writ of
       certiorari is generally limited to a determination of whether the board acted
       within its jurisdiction, or acted arbitrarily, capriciously, or illegally. See Van
       Hooser v. Warren County Bd. of Educ., 807 S.W.2d 230, 236 (Tenn. 1991)
       (citing Cooper, 746 S.W.2d at 179). That is not the case here for the statutory

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      writ of certiorari afforded a tenured teacher under Tenn. Code Ann. § 49-5-
      513(g) is not limited to a determination of whether the board acted within its
      jurisdiction, or acted arbitrarily, capriciously, or illegally. Van Hooser, 807
      S.W.2d at 236 (citing Cooper, 746 S.W.2d at 179). “[T]he review
      contemplated by Tennessee Code Annotated section 49-5-513 is a de novo
      review.” Windsor v. DeKalb County Bd. of Educ., No. M2002-00954-COA-
      R3-CY, 2004 WL 875263, at *4 (Tenn. Ct. App. April 22, 2004).

              The judicial remedy afforded a teacher under the Act expressly provides
      that the “cause shall stand for trial” in the Chancery Court, Tenn. Code Ann.
      § 49-5-513(g), and the Chancellor shall reduce the Chancellor's findings of
      fact and conclusions of law to writing. Tenn. Code Ann. § 49-5-513(h); see
      Windsor, 2004 WL 875263, at *4. The judicial review of the board's decision
      is limited to the written record of the hearing before the board, and any
      evidence or exhibits submitted at such hearing; however, additional evidence
      or testimony may be admitted “to establish arbitrary or capricious action or
      violation of statutory or constitutional rights by the board.” Tenn. Code Ann.
      § 49-5-513(g).

              Appeal from the Chancellor's decision to this Court “shall be heard on
      the transcript of the record from the chancery court.” Tenn. Code Ann. § 49-5-
      513(I). De novo review in the Chancery Court under Tenn. Code Ann. § 49-5-
      513(g) differs from the de novo review this Court applies under Tenn. R. App.
      P. 13(d). See Enochs, 949 S.W.2d at 688 n. 4; see also Cooper, 746 S.W.2d
      at 179 n. 3. Although the Chancery Court does not attach a presumption of
      correctness to a school board's findings of fact, nor is it confined to deciding
      whether the evidence preponderates in favor of the school board's
      determination, Enochs, 949 S.W.2d at 688 n. 4 (citing Cooper, 746 S.W.2d at
      181-82), we review the chancellor's findings of fact accompanied by a
      presumption of correctness unless the evidence preponderates otherwise.
      Tenn. R. App. P. 13(d); Enochs, 949 S.W.2d at 688 n. 4 (citing Williams v.
      Pittard, 604 S.W.2d 845, 846 (Tenn. 1980); Cooper, 746 S.W.2d at 182 n. 6).

Lee v. Franklin Special Sch. Dist. Bd. of Educ., 237 S.W.3d 322, 328-29 (Tenn. Ct. App.
2007) (footnotes omitted).

              Tenn. Code Ann. § 49-5-511(a)(2) provides that teachers may be dismissed or
suspended for incompetence, inefficiency, neglect of duty, unprofessional conduct, or
insubordination. As relevant to this appeal, “[c]onduct unbecoming to a member of the
teaching profession” includes but is not limited to the following:

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       (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 teacher code of ethics in part 10 of this chapter, in such
       manner as to make one obnoxious as a member of the profession; or
       (E) Improper use of narcotics or intoxicants; . . . .

Tenn. Code Ann. § 49-5-501(3) (2013).

               We first address whether Wilder was afforded due process. Wilder alleges that
her due process rights were violated by certain claimed deficiencies in the proceedings
below. First, Wilder argues that the allowance of an appeal by the director from the decision
of an impartial hearing officer chosen by the director calls into question the fairness of that
procedure. Tenn. Code Ann. § 49-5-512(c) allows either party to appeal the decision of an
impartial hearing officer. We fail to see how it is unfair for a director to appeal the decision
of the impartial hearing officer he or she chose. Such an appeal shows a disagreement by the
director with the hearing officer, which, if anything, shows there was no bias in the director’s
picking of a clearly impartial hearing officer. As the hearing officer must be impartial,
something clearly not in question here, we see nothing unfair or improper in our General
Assembly allowing either party to appeal the decision of the impartial hearing officer.
Wilder’s argument that due process requires that only the teacher be allowed to appeal the
decision of an impartial hearing officer is without merit.

               Wilder also argues that it was inappropriate that the attorney who represented
the director later represented the Board in this matter as this allegedly casts doubt on the
impartiality of the Board. It appears that Wilder raises this issue for the first time on appeal.
Even if Wilder properly raised the issue, it appears from the record that both sides had an
equal opportunity to address the Board. The Board was presented with arguments and
rendered its decision. Though Wilder decries what she describes on appeal as a cursory
approach by the Board in attending to this matter, the Board’s disposition of this matter was
neither arbitrary nor capricious. Also of significance to Wilder’s due process issue is that
what is on appeal in this Court is not the decision of the Board but rather the de novo
decision of the Trial Court.

              Wilder has received several levels of review in this matter, including a de novo
review by the Trial Court and now an appeal in this court. Respectfully, while Wilder
understandably opposes her dismissal, she has had ample opportunity to make her case. We
hold that none of the alleged deficiencies raised on appeal by Wilder rise to the level of a due
process violation.

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               We next address whether the Trial Court applied the correct standard of review.
Under applicable law, the Trial Court was required to conduct a de novo review of Wilder’s
case. According to Wilder, the Trial Court failed to conduct a true de novo review under the
Teacher Tenure Act because it improperly deferred to the Board’s decision. As evidence,
Wilder points to, among other things, the Trial Court’s passing reference at one point in its
findings to “the Board’s eyes.” Wilder also argues that the Trial Court improperly deferred
to the Board by failing to specifically consider whether dismissal was warranted.

               As laid out above, the Trial Court made multiple detailed findings. The Trial
Court’s findings logically and independently support its determination that Wilder should be
dismissed on the basis of unprofessional conduct. The Trial Court’s reference to the Board
was not integral to the Trial Court’s analysis at all. A trial court’s de novo review of a
board’s decision under the Teacher Tenure Act simply means an independent consideration,
not that the outcome necessarily will be different. From our review of the entire record, we
conclude that the Trial Court did, in fact, conduct an independent de novo consideration of
the written record as required. We affirm the Trial Court on this issue.

               The final issue we address is whether the evidence preponderates against the
Trial Court’s decision. On appeal, Wilder contends that “[t]he most that can be said from
this evidence is that Ms. Wilder was fired because, in a fifteen-to-twenty minute span, she
did not realize that uninvited young adults with alcohol were roaming about her property
outside in the dark and require them to leave.” This description of the party, however, is not
supported by the record. The Trial Court made a number of findings of fact, including,
among others, the following: photographic evidence of an “almost half a pickup load” of
alcohol; a bag of keys taken up; and, a garbage can full of alcoholic beverages inside the
residence. The evidence in the record does not preponderate against these findings of the
Trial Court. These facts combine to establish that Wilder knew about the underage drinking
at the after-prom party. Alcohol was abundant in and around the cabin, and someone had the
foresight to collect car keys from the young people. Perhaps the most striking undisputed
fact is Wilder’s guilty plea to knowingly allowing underage persons to drink alcohol on her
premises. Wilder argues on appeal that she only entered the plea on the advice of her lawyer
in a bid to save her job, but that does not alter the fact that she pled guilty under oath to the
offense of allowing underage persons to drink alcohol on her premises. Wilder does not
assert that her plea was coerced or otherwise invalid. The evidence supports the Trial
Court’s finding that Wilder knowingly allowed underage consumption of alcohol at the party
on her property.

               The record shows that Union County has waged a campaign against underage
drinking in response to statistics showing that a high percentage of underage students in that
area have consumed alcohol. Apart from any special awareness campaign, Tennessee law

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prohibits underage drinking. By knowingly hosting underage drinkers, Wilder both
contravened Tennessee law and her school system’s efforts to curb underage drinking.
Wilder’s hosting a party where she knowingly allowed underage drinking on her premises
falls squarely into the category of unprofessional conduct for a school teacher under the
Teacher Tenure Act. We find no error in the Trial Court’s decision that Wilder’s dismissal
was warranted under these facts. We affirm the judgment of the Trial Court in its entirety.

                                       Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Tina Wilder, and her surety, if any.


                                                  _________________________________
                                                  D. MICHAEL SWINEY, JUDGE




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