Phillips v. State Bd. of Regents of State University and Community College System of State of Tenn.

• Decision Date: 20 September 1993
• Citation: 863 S.W.2d 45,86 Ed.LawRep. 1085
• Parties: 86 Ed. Law Rep. 1085 Betty J. PHILLIPS, Plaintiff-Appellant, v. The STATE BOARD OF REGENTS OF the STATE UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF the STATE OF TENNESSEE; Shelby State Community College; The State of Tennessee; Thomas J. Garland in his Official Capacity as Chancellor of the State University and Community College System of Tennessee; and Raymond C. Bowen in his Official Capacity as President of Shelby State Community College, Defendants-Appellees.
• Court: Tennessee Supreme Court

Page 45

863 S.W.2d 45

86 Ed. Law Rep. 1085

Betty J. PHILLIPS, Plaintiff-Appellant, v. The STATE BOARD OF REGENTS OF the STATE UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF the STATE OF TENNESSEE; Shelby

State Community College; The State of Tennessee; Thomas J.

Garland in his Official Capacity as Chancellor of the State

University and Community College System of Tennessee; and

Raymond C. Bowen in his Official Capacity as President of

Shelby State Community College, Defendants-Appellees.

Supreme Court of Tennessee,

at Jackson.

Sept. 20, 1993.

William D. Wilson, Jr., Memphis, for plaintiff-appellant.

Charles W. Burson, Atty. Gen. and Reporter, Jane W. Young, Asst. Atty. Gen., Steven A. Hart, Deputy Atty. Gen., Nashville, for defendants-appellees.

OPINION

ANDERSON, Justice.

In this direct appeal, the Chancellor upheld the termination of a tenured faculty member at Shelby State Community College upon the statutory ground of "capricious disregard of accepted standards of professional conduct." ¹ The appellant faculty member raises three issues for our review. The first is whether the charge was established by clear and convincing evidence. The second is whether there was a denial of due process because insufficient notice of the charge was given and because the statutory ground for discharge was too vague to inform the appellant of the nature of the offense. The final issue is whether the appellant's complaints about her supervisor's behavior were protected by the First Amendment, causing her termination to raise a federal constitutional issue.

We conclude that the charge was established by clear and convincing evidence as required by the statute. We have also determined that, as applied in this case, the standard of "capricious disregard of accepted standards of professional conduct" provided fair notice that the conduct charged put the appellant at risk of dismissal; that sufficient notice was given of the specific charges supporting the grounds for dismissal; and that, as a result, there is no due process violation. Finally, we hold that the First Amendment was not violated because the appellant's complaints were not matters of public concern. We, therefore, affirm the Chancellor's judgment.

BACKGROUND

In 1976, the appellant, Betty J. Phillips, was promoted to assistant professor of speech and granted tenure by Shelby State Community College. In 1983, Anastasia Herin, chairperson of the Speech Department, began receiving complaints from students and administrative personnel, as well as from other faculty and staff within the speech department, about Phillips' inappropriate behavior. Herin attempted to mediate the complaints by scheduling meetings between Phillips and the complainers, but eventually she abandoned the practice because Phillips' conduct made the meetings adversarial and unproductive.

Thereafter, Herin continued to receive complaints and to discuss them with Phillips, but the problems continued. Finally, in September of 1985, Herin met with Phillips and discussed eight areas in which Phillips had to improve her conduct or risk termination. A follow-up memo was sent to Phillips summarizing the areas of deficient conduct.

After the September meeting, Herin continued to receive complaints. Finally, Herin recommended that Phillips be dismissed, and as a result, on November 11, 1986, Phillips was notified by letter that because of the ongoing complaints and problems which had not been corrected despite the September 1985 meeting, termination proceedings were being instituted. Attached to the letter was documentation of the deficient behavior patterns, including the names of individuals complaining and a brief description of the complaint. In accordance with Board of Regents' policy, an informal hearing committee was convened to conduct an inquiry. The committee found justification for recommending termination for cause and listed ten reasons for that finding. Subsequently, on November 24, 1986, Phillips was informed by letter from the President of Shelby State that a formal hearing would be called to consider her proposed dismissal. According to the letter, grounds for dismissal included: (1) arbitrary treatment of students; (2) rude and discourteous behavior to peers; (3) rude and discourteous behavior to staff; and (4) insubordination to supervisors. All of the charges referred to State Board of Regents Policy 5:02:03:00, III. 15.e, which provides:

15. Termination for Adequate Cause

A faculty member with tenure or a faculty member on a tenure-track appointment prior to the end of the term appointment may be terminated for adequate cause, which includes the following:

....

e. Capricious disregard of accepted standards of professional conduct. ²

The formal hearing was conducted in early January of 1987, and the committee recommended dismissal, after making the following findings:

1. Lack of compassion and insensitivity to student needs;

2. Poor judgment and inflexibility in administering classroom policies;

3. Lack of professional behavior towards peers, administrators, and staff;

4. Inability to recognize personal weaknesses that affect communication and decisions;

5. Insubordination to supervisors;

6. Continuous increasing patterns of controversy with other professional areas at the college; and

7. Unwillingness to modify behavior after being notified of problem areas and consequences.

A few days later, Phillips was informed by letter of her dismissal for "capricious disregard of accepted standards of professional conduct." In May of 1987, the President of Shelby State affirmed the decision of the formal hearing committee; and on January 29, 1988, the Chancellor of the Board of Regents sustained the dismissal. ³ Phillips then filed her petition for judicial review pursuant to Tenn.Code Ann. § 49-8-304(a) (1990). The administrative record of the formal hearing was filed and additional evidence was introduced at the de novo hearing in the Chancery Court. The Chancellor upheld Phillips' dismissal, finding that there was clear and convincing evidence in the record to support the charge of "capricious disregard of accepted standards of professional conduct," Tenn.Code Ann. § 49-8-303(a)(4) (1990), and that Phillips was afforded due process. Tenn.Code Ann. § 49-8-303(a) (1990).

SUFFICIENCY OF THE EVIDENCE

Phillips argues that the charge of capricious disregard of accepted standards of professional conduct was not established by clear and convincing evidence as required by Tenn.Code Ann. § 49-8-303(a)(4) (1990). We disagree. There was overwhelming proof from students, staff, colleagues, and superiors about Phillips' inappropriate behavior. Phillips either denied the charges or attempted to justify her behavior. The Chancellor accredited the testimony of the defendants' witnesses. Considering the entire record, the evidence clearly and convincingly establishes the charge of "capricious disregard of accepted standards of professional conduct." This issue is without merit.

DUE PROCESS

A. Void for Vagueness Challenge

Phillips argues her rights were violated under the due process clause of the Fourteenth Amendment of the U.S. Constitution and Article 1, § 8 of the Tennessee Constitution. Due process requirements apply to Phillips because of her property interest in her tenured faculty position. See Tenn.Code Ann. § 49-8-303(a) (1990); Williams v. Pittard, 604 S.W.2d 845, 849 (Tenn.1980); Stout v. Whiteaker, 379 F.Supp. 218, 221 (M.D.Tenn.1973).

Phillips first contends that her due process rights were violated because the charge of "capricious disregard of accepted standards of professional conduct" is so vague and general that it did not put her on notice that she could be dismissed for engaging in the conduct with which she was charged.

The "void for vagueness" doctrine developed as an aspect of due process jurisprudence in the context of criminal statutes because it was thought unfair to impose criminal punishment on persons for conduct of which they had no notice. See Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). The idea of fairness is the basis of the doctrine, and its purpose is only to give "fair warning" of prohibited conduct. It is not designed to convert into a constitutional dilemma the practical difficulties inherent in drafting statutes. Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972).

In 1974, the doctrine was extended to civil cases involving the discharge of public employees. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). In that case, the Supreme Court upheld the dismissal of civil service employees based upon a statutory standard which provided "such cause as will promote the efficiency of the service." Id., 416 U.S. at 159, 94 S.Ct. at 1647.

The Arnett court went further and articulated principles which provide guidance in the application of the vagueness doctrine. The court recognized that "there are limitations in the English language with respect to being both specific and manageably brief....," and said that a non-criminal statute is not unconstitutionally vague if the statute is set out in terms such that an ordinary person exercising ordinary common sense can sufficiently understand and comply. Arnett, 416 U.S. at 159, 94 S.Ct. at 1647; see also Big Fork Min. Co. v. Tennessee Water Quality Control Bd., 620 S.W.2d 515, 519 (Tenn.App.1981). Continuing, the Arnett court also said that in using common sense, a public employee can be guided by "longstanding principles of employer-employee relationships, like those developed in the private sector." Arnett, 416 at 160, 94 S.Ct. at 1647.

In addition to determining whether the standard is vague in a general sense, it is also necessary to examine the statute or standard to see whether it is vague as applied to the affected party. See Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); ...