CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and JOHN W. McCLARTY, J., joined.
On March 16, 2007, Dale P. Lynch, Director of the Hamblen County Department of Education ("the Director"), recommended in a written memorandum that the Board immediately dismiss the Teacher based upon the statutory grounds of "unprofessional conduct and insubordination." See Tenn.Code Ann. § 49-5-511(a)(1) and (2) (2009) ("No teacher shall be dismissed or suspended except ... [for] incompetence, inefficiency, neglect of duty, unprofessional conduct [or] insubordination."). The memorandum included a factual background that related the recommendation to the Teacher's allegedly inappropriate relationship with a minor female student ("the Student"), emails sent over the school's system to a married female teacher, and allegedly inaccurate and misleading information the Teacher supplied to the Director during his investigation of the allegations. In a meeting held March 19, 2007, the Board dismissed the Teacher. Pursuant to the Teacher's request, the Board held an evidentiary hearing on May 9 and 10, 2007, to consider charges of "conduct unbecoming to a member of the teaching profession/unprofessional conduct and insubordination." After hearing evidence, the Board voted unanimously to sustain the dismissal, and the Teacher was given written notification of the Board's decision. The Teacher appealed to the trial court, which, according to the procedure established in Tenn.Code Ann. § 49-5-513, limited its review to the "written record of the hearing before the board," including exhibits. The court sustained the dismissal in a judgment that set forth specific findings of fact and conclusions of law. Those factual findings, paraphrased for the sake of brevity, are helpful to give this controversy context.
The Teacher's son reported that his father was having an inappropriate relationship with the Student, one of the son's female classmates. Upon receiving the report, the Director contacted the Student's parents. The parents made a formal complaint against the Teacher based on the latest report and a questionable history between the Teacher and the Student that dated back to 2005. The Director investigated the complaint. His investigation included three recorded and transcribed interviews with the Teacher.
The Teacher became acquainted with the Student in the fall of 2004 when she was a sophomore in his world geography class. He employed the Student in 2005, following which her parents forced her to quit when reports of a sexual relationship between her and the Teacher were made. The Student's father did not believe the reports and allowed her to resume working for the Teacher. When the allegations started a second time, the parents told the Student she could no longer work for the Teacher and that she was not to have any communication with him. The Teacher was aware of the parents' wishes. Nevertheless, the Teacher later employed the Student under the guise that she was working for his mother. She did clean house for the Teacher's mother, but she also cleaned the Teacher's house, which was situated very near his mother's. During this time, the Teacher left his door
One specific area of the investigation that touched upon both the teacher-student relationship and the employer-employee relationship was the school's "job shadowing" program. The Student participated in the program in February 2005 and listed the Teacher as the employer she was "shadowing." The Teacher denied that he participated in the program in the year 2005 and claimed he would not have missed the opportunity for an easy day's work. However, personnel records indicated that the same day the Student had been out of school in the job shadowing program, February 4, 2005, the Teacher had taken leave from his regular classroom duties.
In this time frame, the Teacher resided in the backroom of his business. It was there that a male classmate of the Student reported seeing the Teacher and the Student hug and kiss on the lips.
The Teacher denied—as did the Student—that the relationship with the Student was sexual. However, four different classmates of the Student plus a teacher testified that the Student had told them that she was having sex with the Teacher.
The Teacher was also asked in the interviews with the Director about emails he had sent over the school computer network to Kelly Bowen, a married and apparently attractive female teacher at the same school where the Teacher worked. The school reserves the right to monitor all activity on its network and determine what is appropriate and what is not. Sexually oriented materials and messages are prohibited, as are obscenity and vulgarity. The Director testified that the emails to Bowen were offensive, defamatory and sexually suggestive. Bowen did not testify. The Teacher did not testify at the formal hearing but admitted in the interviews that he sent the emails. The Teacher denied, however, that the emails contained any offensive or sexually suggestive material.
During the investigation on February 9, 2007, the Director instructed the Teacher not to have any contact with the Student. On February 12, 2007, the Teacher took a phone call from the Student and advised her that she did not "legally" have to give the voice stress test being requested by police investigators.
Notwithstanding the trial court's findings, some of the evidence needs additional perspective. One such area is the emails to Kelly Bowen. The chain of emails started off with an inquiry from the Teacher to Bowen about Sandy, a friend of Bowen, that the Teacher had dated briefly after being introduced by Bowen. Bowen replied to the inquiry by stating that "David [(, my husband,)] and I have had a few issues lately, and [Sandy has] been helping me work through those.... If you are curious about Sandy, she's fine and busy as usual." The Teacher's reply to the comment about "issues" with Bowen's spouse offered, "Let me know if I can lend a helping hand anywhere ... You know me you are the pick of the litter." To the comment about curiosity regarding Sandy, the Teacher responded, "I was just curious. More curious about you but curious nonetheless.... [Sandy] is one hottie (but nowhere in YOUR league of course)." The Teacher then mentioned his recent need for a date and stated:
When Bowen did not reply for a lengthy time, the Teacher sent a short email which included the following: "You know what I am doing right? Its nothing personal. LMK." Bowen replied with puzzlement as to what the Teacher was doing when he sent the email confessing that "[e]ither the blonde is really showing, or I have too many other things cluttering my mind. I thought you wanted to know about Sandy. What do you mean it's not personal?" The Teacher then got a little bolder in his innuendos and started his next email to Bowen by asking, "Does the carpet match the curtains? (Just a blonde joke)." As to the subject of what he was doing when he sent the earlier email, the Teacher stated
When asked about these emails in the interviews, and especially the last interview, the Teacher placed a remarkably innocent spin on them. "M LF," according to the Teacher, means a mother who looks fine. The question about the carpet matching the curtains supposedly had no meaning that the Teacher could remember. As to all the hints and discussion about what the Teacher was doing when he sent one of the emails, he had also reportedly forgotten. The talk about Sandy and "positions" supposedly referred to jobs.
The Director testified live at the hearing concerning his investigations and findings. He testified that the Teacher misled him in his investigation in numerous respects. The Teacher tried to deny knowing that the Student's parents did not want her working for him and why, but finally confessed in the third interview that he had been informed by the Student of her parents' wishes. The Teacher denied any sexual innuendos in the email messages, but the Director saw them as sexually suggestive. The Teacher denied any recall of whether he "job shadowed" the student and claimed that he would not have missed the opportunity for an easy day's work. On this subject, the Teacher was contradicted by the documentary evidence and also by the testimony of the Student. The Student, hard pressed to deny the written form, claimed that she stayed home with her mother's complete knowledge and permission during the daytime hours of job shadowing and completed the assignment during evening hours. The Student's mother, however, testified that the Student was not home during the daytime hours, but was obviously with the Teacher whom the mother had learned took leave the day of job shadowing. Also, the mother testified that in giving permission for her daughter to participate in job shadowing, she thought other students were going to be present and did not know that her daughter was going to have an opportunity to be alone with the Teacher.
The Student's mother also testified of being misled by the Student about working for the Teacher and his mother. The Student told her mother that she was working for the grandmother of a friend. The Student admitted as much at the hearing but
At the time of the hearing, the Student was completely estranged from her parents. She moved out of their home a few days after her eighteenth birthday, and moved into the home of the Teacher's mother. The Student claimed to be paying rent, but always in cash and she had never received a receipt.
As previously noted, given that both the Teacher and the Student denied a sexual relationship, most of the testimony that their relationship was sexual in nature came in through classmates of the Student or teachers at the school who stated, in essence, that the Student told them she was having sex with the Teacher. The first such witness was a female friend of the Student who, after hearing rumors, "asked [the Student] point blank if she had sex with him, and she said yes." The female friend remembered the approximate time and the exact place of their conversation.
It was during the friend's testimony that counsel for the Teacher launched a volley of objections to what he regarded as attempts to impeach the Student with hearsay testimony. Numerous objections were overruled on the advice of acting counsel for the Board who advised that the Tennessee Rules of Evidence do not apply to administrative proceedings and that the Board should treat the objections as continuing and allow the evidence to come into the record for such weight as the Board saw fit to assign to it. One such objection prompted the following exchange:
Counsel for the Teacher was allowed to remain in the hearing room. The Board continued to completion and counsel continued to object, though in somewhat of a less interrupting manner than with the first classmate witness.
The next student witness was a male classmate who testified that the Student told him she "had a steady sexual relationship with [the Teacher]." The one difference in this male classmate's testimony was that he was able to testify of seeing physical contact between the Student and the Teacher that they both denied. The male classmate testified of driving the Student to meet a couple of friends when she asked to stop by the Teacher's place of
The Student's ex-boyfriend testified also. He stated that he terminated his relationship with the Student after she told him she had a sexual relationship with the Teacher.
The Student's "best friend"—as that relationship existed at one point in time— was called as a witness. She testified that the Student told her about escalating feelings for the Teacher that resulted in a sexual relationship. She did not find out any details because she did not want to know.
Ann Huckaby, a teacher for 40 years, testified that she had counseled with the Student. First, the Student denied a sexual relationship. Later, when very apparently distraught over the Teacher's situation, the Student admitted to Huckaby that the relationship was sexual in nature.
Based on the trial court's factual findings, it reached the following legal conclusions which we will repeat verbatim, except for deletion of paragraph numbers and record citations:
The Teacher raises the following issues on appeal:
Our review of constitutional and other such legal issues that arise during administrative proceedings is de novo. See Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 458 (Tenn.1995)(trial court can take proof and determine constitutional issues). Otherwise, judicial review of the administrative termination of a teacher is limited as stated in Ripley v. Anderson County Bd. of Educ., 293 S.W.3d 154, 156 (Tenn.Ct.App.2008).
Id. On the question of whether the school board acted illegally or arbitrarily and capriciously, the trial court may take new evidence and make independent findings. Winkler v. Tipton County Bd. of Educ., 63 S.W.3d 376, 381 (Tenn.Ct.App.2001). It is presumed that the actions of school boards are reasonable, and therefore not arbitrary and capricious, unless there is clear evidence to the contrary. Childs v. Roane County Board of Educ., 929 S.W.2d 364, 365 (Tenn.Ct.App.1996). Even if there is a procedural irregularity, unless it is flagrant or prejudicial, we will not interfere with the actions of the school board. Id. at 367.
We begin with the procedural issues and work our way toward the constitutional issues. The Teacher admits he received a copy of the March 16, 2007, memorandum provided to the Board, but argues that "the notice was insufficient to give [the Teacher] clear and adequate notice of every issue under consideration by the Board." Specifically, the Teacher argues three deficiencies, i.e., failure to identify the student with whom he allegedly had a sexual relationship, failure to identify the witnesses who had been told by the Student that she had a sexual relationship with the Teacher, and failure to identify the allegedly "inaccurate and misleading information" that the Teacher furnished to the Director. All that is required is that the notice be "sufficient in substance and form to fairly apprise the teacher of the charge against him and enable him to prepare his defense in advance of the hearing." Potts v. Gibson, 225 Tenn. 321, 469 S.W.2d 130, 133 (1971).
We agree completely with the trial court's reasoning on this issue, i.e., that the detailed memorandum and the interviews conducted well in advance of the hearing adequately informed the Teacher of the conduct at issue. In the very first interview, the identity of the Student was the first thing mentioned. In another, the parents of the Student were present. As to the student and teacher witnesses, it is clear from the interviews that the Teacher had been questioned by the police in 2005 and knew the identity of some, if not all, of the witnesses. Further, by the time of the last interview, the Teacher knew the substance, if not the source, of the testimony. In fact, the initial memorandum of the Director states that the Student had confided in a number of other students and teachers. It also appears that, by the date of the hearing, the Teacher had free access to the Student who resided with his mother and he would have been able to ask her about statements made to classmates and other teachers. Even before the formal hearing, it is clear the Student and the Teacher were discussing the investigation because the Teacher told the Student that she did not have to undergo a voice stress test. We also note that counsel for the Teacher had apparently tried to interview some if not all of the witness, because he cross-examined them as to why they would not take questions from his investigator. As to the false statements, all that was necessary was to read the transcript of the interviews to see areas fertile for matters raising the specter of a lack of credibility.
In his reply brief, counsel for the Teacher makes the slightly different argument that the Board did not make actual findings and a decision as required by Tenn.Code Ann. § 49-5-512. The Teacher relies on Winkler, 63 S.W.3d at 382. Winkler is different than the present case. The charges brought against the teacher
Next, the Teacher challenges the introduction of hearsay evidence of classmates and teacher Huckaby. The Teacher acknowledges that hearsay is admissible in an administrative hearing if (1) it is the type of material commonly relied upon by reasonably prudent persons in the conduct of their affairs and (2) it is corroborated and not the sole evidence of the act. See Tenn.Code Ann. § 4-5-313(1) (2005); Green v. Neeley, No. M2006-00481-COA-R3-CV, 2007 WL 1731726 at *5 (Tenn. Ct.App. M.S., filed June 15, 2007). We believe that prudent members of a board charged with administering the activities of a school and the relationships between its teachers and students would necessarily rely on reports of students and teachers, especially as to matters where the participants in the challenged conduct have a strong incentive and ability to cover their incriminating tracks. We agree that administrative hearings, no less than trials, involve a search for the truth, but we think this type of information, used advisedly, is a tool that can be utilized in the administrative search for the truth. Further, we agree with the Board that there was corroborating evidence from one student who testified that he saw the Teacher and the Student hugging and kissing at the Teacher's residence in the back of his business.
Another procedural argument that the Teacher makes is that the "threat to remove counsel had a chilling effect on Mr. Crosby's statutory right to be represented by effective counsel at his dismissal hearing." The Teacher gives no particulars about how his representation was adversely affected and furnishes no law for the proposition that a discussion such as occurred at the Board hearing is grounds for reversal of an administrative action. We
The final pure procedural argument made by the Teacher is that the Board made up its mind in its initial discussion and vote to discharge him before the formal hearing, and that nothing done or said in the hearing was going to change the mind of any board member. The Teacher acknowledges, as he must, that according to our Supreme Court, "the mere fact that both investigative and adjudicative functions have been granted to an administrative body ... does not of itself create an unconstitutional risk of bias in an administrative adjudication." Cooper v. Williamson County Bd. of Educ., 803 S.W.2d 200, 202-03 (Tenn.1990). We note that the Teacher had the opportunity to develop and present proof of his assertion to the trial court but did not do so. See Winkler, 63 S.W.3d at 381 (trial court may hear new evidence as to whether the decision of the board was arbitrary, capricious or illegal). Since Teacher's charge that the Board made up its mind before the formal hearing is unsupported speculation, this is not the case for finding an exception. Accordingly, we must presume that the Board fulfilled its duties and hold that the Teacher received a full, complete and impartial hearing. See Cooper, 803 S.W.2d at 203.
We turn now to the various arguments concerning the sufficiency of the proof of unprofessional conduct and insubordination. We believe there was a preponderance of evidence of both, but our approach is a little more direct than that of the trial court. There was compelling proof, albeit largely circumstantial, of a sexual relationship between the Student and the Teacher. It must be understood that we are not, unless required by a higher court, willing to impose a requirement on school boards that they must catch the participants in the act before they can administratively find a teacher guilty of sexual misconduct. There was evidence in this case that the Student was present with the Teacher alone for a long period of time on job shadow day. There was proof that they both tried to shade the facts to cover up their time alone. There was evidence that in the very place where they did their shadowing, they were seen hugging and kissing by one of the Student's classmates. There was evidence that after the parents made the Student quit working for the Teacher, or so they thought, she or the Teacher or both found a way for her to frequent the Teacher's residence and business against the wishes of the parents and without their knowledge. Again, there was a misrepresentation to cover up the true facts. It was the Student that made the representation, but, under the circumstances, the Teacher was complicit in the misrepresentation. Also, we are unwilling to place an innocent characterization on the phone conversation between the Teacher and the Student even after he had been instructed and agreed that he would have no contact with the Student. It was not likely pure innocence or a desire to keep the local police force in check that led him to tell her that she did not have to undergo a voice stress analysis. We believe it is much more likely that he was trying in the phone call as he had in other ways to keep his true relationship with the Student from being discovered. Further, we are not convinced that it is pure circumstance and simply a strong student-teacher bond that led the Student to be estranged from her parents and take up residence at the home of the Teacher's mother.
Other than as we have discussed above, we fully concur in the trial court's findings and hold that the evidence preponderates in favor of a finding that the Teacher was guilty of insubordination and unprofessional conduct. The Teacher's argument that the decision of the Board is arbitrary and capricious is based solely on the proposition that "the Board's termination ... was unsupported by material evidence." It was the Teacher's burden to prove that the Board acted illegally, arbitrarily of capriciously. Warren v. Polk County Bd. of Educ., 613 S.W.2d 222, 225 (Tenn.1981). Since we have rejected those arguments, and it should be fairly obvious from our discussion that we concur in the Board's findings, we likewise reject the argument that its findings and actions were arbitrary and capricious.
The final argument advanced by the Teacher is that the Board took into consideration the Teacher's atheism in violation of his right to freedom of religion and that by firing him for refusing to discontinue his "non-sexual" association with the Student, the Board violated his freedom to associate outside school hours. We have rejected the notion that this was not proven to be a sexual relationship. We think it beyond the realm of reasonable argument that a school can instruct a teacher to discontinue a sexual relationship with a minor student. Moreover, the Teacher offers no authority for the proposition that a school may not interfere with non-sexual association between a student and a teacher based on concerns of parents, even if the concerns are exaggerated.
The claim of religious discrimination is based on testimony concerning a pair of earrings alleged by the Director in his initial memorandum to be "gifts" from the Teacher to the Student that were "contrary to the parents' teaching and upbringing of their child." During the hearing, the Director testified that the parents viewed the earrings as "atheist earrings." Also, the Student's mother testified that her daughter balked at the idea of a family prayer saying, "I'm not giving thanks for a
The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant, Michael Crosby. The case is remanded, pursuant to applicable law, for collection of costs assessed below.