Pamela Lannom v. Board of Education for the Metropolitan Government of Nashville and Davidson County

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
PAMELA LANNOM, )
FILED
) March 6, 2000
Petitioner/Appellant, )
) Appeal No. Cecil Crowson, Jr.
Appellate Court Clerk
) M1999-00137-COA-R3-CV
VS. )
) Davidson Chancery
) No. 98-2619-III(II)
BOARD OF EDUCATION FOR )
THE METROPOLITAN )
GOVERNMENT OF NASHVILLE )
AND DAVIDSON COUNTY, )
)
Respondent/Appellee. )
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE CAROL L. MCCOY, CHANCELLOR
JAMES G. THOMAS
KENDRA E. SAMSON
150 Fourth Avenue North
Nashville, Tennessee 37219
Attorneys for Petitioner/Appellant
FRANCIS H. YOUNG
Metropolitan Attorney
204 Metropolitan Courthouse
Nashville, Tennessee 37201
Attorney for Respondent/Appellee
AFFIRMED AND REMANDED
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
KOCH, J.
COTTRELL, J.
OPINION
The Davidson County Board of Education conducted a termination
hearing for a tenured teacher who had been caught on videotape stealing pills
from a student’s prescription bottle. After the hearing, the teacher was dismissed
from her position. She subsequently filed a Petition for Writ of Certiorari, which
was dismissed after a Chancery Court hearing. We affirm the Chancery Court.
I. A Sting Operation
Pamela Lannom was a tenured special education teacher at Hickman
Elementary School Annex in Davidson County. The school had experienced
eight incidents over two years in which Ritalin was discovered to be missing
from prescription bottles which were held for children at the school. Most of the
incidents occurred when the Ritalin was being stored under lock and key in the
school’s office.
After each incident, the principal contacted the Police Department
and the Director of Security for the school system. Eventually, the Police
Department agreed to install a small video surveillance camera in the school
office, which was trained on the desk of Mrs. Betty Ivy, the school secretary.
Mrs. Ivy’s job included logging in the students’ Ritalin supplies, keeping the
drugs secure, and dispensing them to the appropriate children each day.
An old prescription pill bottle labeled “Methylphenidate” was
placed in an unlocked drawer in the secretary’s desk. Methylphenidate is the
generic name for Ritalin. Twelve baby aspirin, which resemble 5-milligram
Ritalin pills, were placed in the bottle. The secretary counted the pills twice a
day to make sure their number remained constant.
On the afternoon of February 9, 1998, two weeks after the sting
operation began, Mrs. Ivy counted the pills and noticed that some of them were
missing. The surveillance tape was removed and viewed by members of the
Police Department, the Principal, and other school officials. Mrs. Lannom was
identified as the person who reached into the secretary’s desk drawer, popped the
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top off the bottle, poured some of the pills into her hand, replaced the top of the
bottle, put it back into the desk drawer, and slipped the pills into her jacket
pocket, all while carrying on a conversation with Mrs. Ivy.
Two days later, Detective Daniel Postiglione of the Metropolitan
Police Department conducted an interview with Mrs. Lannom. He first asked her
if she had taken the pills. She denied doing so. She was then confronted with
four still pictures from the video, after which she admitted taking the pills, going
to the bathroom to inspect them, and flushing them down the toilet.
Immediately afterwards, Mrs. Lannom met with the principal, the
vice-principal and with Dr. Susan Goss, the Director of Certified Elementary
Personnel. Dr. Goss told her that she had two choices: she could resign, and the
pill incident would never become public; or she could defend her conduct in a
dismissal hearing before the School Board. Mrs. Lannom was given 48 hours so
she could discuss her options with her family and her attorney before making up
her mind. Two days later, Mrs. Lannom’s attorney contacted Ms. Goss and
informed her that Mrs. Lannom was not going to resign.
On March 19, 1998, Superintendent of Schools Dr. Bill Wise sent
a letter to the Board of Education, recommending Mrs. Lannom’s dismissal from
employment on the basis of “conduct unbecoming a member of the teaching
profession consisting of dishonesty and unreliability as set forth in Tenn. Code.
Ann. § 49-5-501(3)(C).” The letter went on:
“This charge is justified by Mrs. Lannom’s denial of, then
subsequent admission to, taking tablets from a child’s
prescription bottle in the secretary’s desk at the Hickman
Elementary School Annex. The taking of the tablets was
videotaped by the Metropolitan Police Department.”
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A copy of this letter was sent to Mrs. Lannom’s attorney, together
with a memorandum provided by the Commissioner of Education advising Mrs.
Lannom of her legal duties, rights and recourse.
II. Proceedings before the Board
The hearing before the Board of Education took place in five weekly
installments which totaled 17 hours. Nineteen witnesses testified in all. The
Board members also viewed the surveillance videotape and listened to an
audiotape of Detective Postiglione’s interview of Mrs. Lannom. One entire
evening was dedicated to Mrs. Lannom’s testimony.
On direct questioning, Mrs. Lannom testified about her nineteen
year career as a special education teacher. She then gave her account of the
events of November 9, 1998. Mrs. Lannom said that she was sitting at Ms. Ivy’s
desk after lunch, and took a phone call from a parent. She needed to jot down
a note, and opened the desk drawer to get a pencil, when she saw the pill bottle.
She shook it, and asked Mrs. Ivy if she knew about the bottle. Mrs. Ivy replied
that she had it under control.
Mrs. Lannom testified that she was somewhat surprised by Mrs.
Ivy’s off-hand response, because keeping pills in an unlocked location was a
violation of the security procedures that had been put in place to prevent further
disappearances of Ritalin. She said that she opened the bottle to have a look at
the pills, and she could see that they weren’t Ritalin. She then covertly shook
some out into her hand, and put them in her pocket so she could take a closer
look at them.
After leaving the office, she checked the pills against a prescription
pill book she kept in her classroom, but couldn’t identify them. She then called
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her husband, who advised her not to get involved in playing detective, and to just
get rid of the pills, which she did. She couldn’t explain why she took the pills
in the first place, but described it as an impulsive and foolish act. She said she
didn’t return the pills to the bottle, because she was unable to do so
surreptitiously, and would have been embarrassed to tell Mrs. Ivy that she had
taken them.
At the conclusion of all testimony, the Board discussed the
evidence. All the Board members agreed that Mrs. Lannom was guilty of
conduct unbecoming a member of the teaching profession, consisting of
dishonesty and unreliability. There was some disagreement as to what the
appropriate punishment should be, with some members favoring dismissal, and
others recommending the lesser penalty of suspension without pay. In the end,
the Board voted 5-3 to terminate Mrs. Lannom’s employment.
III. Proceedings in the Trial Court
On August 27, 1998, Mrs. Lannom filed a Petition for Writ of
Certiorari in the Chancery Court, which, under Tenn. Code. Ann. § 49-5-513,
was her sole avenue of appeal. In her petition, Mrs. Lannom argued that the
proceedings before the Board deprived her of due process, and that the finding
of guilt was against the weight of the evidence. She also argued that the
punishment of dismissal was extreme, and was disproportionate to her admitted
offense of taking four baby aspirin that did not belong to her.
The Chancellor noted that the scope of review in a certiorari action
is narrow. Yokley v. State, 632 S.W.2d 123 (Tenn. Ct. App. 1981). The court’s
function in such a proceeding is not to rule on the intrinsic correctness of the
judgment below. It may not reverse the board if its judgment is supported by
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material evidence, unless the board has exceeded its jurisdiction, or has
otherwise acted unlawfully, arbitrarily or fraudulently.
After reviewing the evidence, the court concluded that Mrs.
Lannom had not been deprived of due process, that the Board’s action was
supported by material facts, that the finding of guilt was not arbitrary or
capricious, and that termination was not a disproportionate punishment for the
offense. The court accordingly dismissed the petition. This appeal followed.
IV. Notice and Due Process
The causes for which a teacher may be dismissed include
“incompetence, inefficiency, neglect of duty, unprofessional conduct and
insubordination.” Tenn. Code. Ann. § 49-5-511. Under that statute, a teacher
who is charged with an offense that might justify dismissal must receive a copy
of the charges in writing, specifically stating the offenses which are charged.
However, as our Supreme Court said in Turk v. Franklin Special School District,
640 S.W.2d 218 (1982)
“. . . the technical nicety required in indictments is not
necessary. The procedure prescribed by the statute is
designed to insure the teacher a full hearing before the
Board upon every issue under consideration by that body.
To accomplish this the first essential is a notice 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.”
640 S.W.2d at 220.
Once a teacher has received a notice of charges, she is entitled to a
hearing where she may plead her case, compel the appearance of witnesses by
subpoena, examine them under oath, and cross-examine the witnesses against
her. Tenn. Code. Ann. § 49-5-512. Mrs. Lannom does not claim that she was
deprived of any of these rights.
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Instead, her due process arguments focus on the difference between
the charging language contained in Dr. Wise’s letter of March 19, 1998 and the
findings of the Board. The letter states that the “charge is justified by Mrs.
Lannom’s denial of, then subsequent admission to, taking tablets from a child’s
prescription bottle in the secretary’s desk at the Hickman Elementary School
Annex.” But Mrs. Lannom argues that she never denied taking the tablets.
She explains Detective Postiglione’s testimony to the contrary by
asserting that he asked her if she took the Ritalin, and that she denied it because
she knew the pills she took were not Ritalin. Her explanation sounds unlikely,
particularly in view of the detective’s testimony as to her change of demeanor
after she was confronted with the photos from the video. In any case, the Board
did not specifically find that she lied to the detective, but focused instead on the
underlying conduct that led him to interview her.
Appellant concedes that she was given sufficient notice that she
would have to defend herself against the charge of taking the tablets. But she
claims that it was inequitable for the Board to impose the ultimate penalty of
termination without proving every charge it chose to level against her, and that
the notice was deficient because it did not warn her of that possibility.
We do not agree. The notice Mrs. Lannom received was sufficient
to apprise her of the charges she would be required to defend, and of the
possibility that she could be dismissed. Taking the tablets was clearly the
primary offense she was charged with, and by far the most serious one. We do
not fault the appellant for trying to elevate the importance of a secondary issue
like whether or not she lied to the detective, in light of the fact that her primary
transgression was captured on videotape. However, we are certain that the
notice Mrs. Lannom and her attorneys received made them fully aware that she
could lose her job for taking the pills.
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V. The Severity of the Punishment
The appellant emphasizes Mrs. Lannom’s previously unblemished
nineteen year career in special education, and argues that in light of that career,
the punishment imposed for a single impulsive and foolish act was excessive,
and was an arbitrary and capricious abuse of the Board’s authority. She seeks
to mitigate her offense by insisting that it is uncontested that she did not steal
Ritalin, and that at worst, she stole four baby aspirin, which were worth less than
a dollar. She also denies that she ever harbored the intention to steal Ritalin, and
insists that she realized that the tablets were not Ritalin before she removed them
from the bottle. This is somewhat at odds with the testimony of Detective
Postiglione, who stated that Mrs. Lannom told him that she didn’t realize the
pills weren’t Ritalin until she inspected them in the bathroom.
The caliber of a teaching career may be taken into account when
determining the penalty for an offense caused by a lapse of judgment. Turk v.
Franklin Special School District, 640 S.W.2d 218 (1982). However, the Board
did not view Mrs. Lannom’s offense as a minor one, nor do we. In the context
of the concern felt in the school about previous disappearances of Ritalin, the
taking of these pills was a highly irresponsible act. Though Mrs. Lannom claims
that she knew the pills were not Ritalin, she admits that she was unable to
determine what they actually were. Thus, for all she knew, she was taking
prescription medications that a student needed. She then compounded her
offense by destroying the evidence. Her conduct may not require dismissal, but
it does not preclude it either.
In the end, the decision was for the school board to make, with the
courts empowered to reverse that decision only if it could be shown to be
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arbitrary or capricious. We do not believe the appellant has made such a
showing.
VI. A Dispute over Discovery
Prior to the final hearing in Chancery Court, Ms. Lannom served six
discovery requests on the Board that would have required it, among other things,
to produce the personnel files of other tenured teachers if they had been subject
to disciplinary proceedings for misconduct, if they had been identified as
substance abusers, or if they had resigned or retired while under suspicion of
having committed thefts on school property. The Board of Education responded
by filing a motion for a protective order in the trial court. After a hearing, the
trial court granted the protective order.
Mrs. Lannom argues on appeal that the trial court’s action was a
violation of the Public Records Act, Tenn. Code. Ann. § 10-7-501, et seq., and
that it prevented her from proving that the penalty imposed on her by the Board
was arbitrary or capricious, because disproportionate when compared to the
penalties imposed against other teachers for similar offenses. She relies on Tenn.
Code. Ann. § 49-5-513(g) which reads,
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.
Without attempting to further delineate the scope that should be
afforded to the final sentence of the above statute, we note that it does not
invalidate the general principle that the writ of certiorari is not designed to afford
a litigant a second hearing to substitute for one whose result was disappointing.
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The writ is designed, rather, to allow the court to review the record for evidence
of some fundamental illegality in the proceedings below. See State v. Johnson,
569 S.W.2d 808 (Tenn. 1978). The grant or denial of the writ is always within
the sound discretion of the court. Yokley v. State, 632 S.W.2d 123 (Tenn. Ct.
App. 1981).
The chancellor listened to arguments on both sides during the
hearing on the motion for protective order, and found each of the discovery
requests to be improper on the grounds or relevance, confidentiality, or privilege.
Because she had not yet read the record, she did not make a conclusive statement
as to whether or not the petitioner had enjoyed full discovery during the hearing
before the Board of Education.
However, the record reveals that the Board gave Mrs. Lannom
ample opportunity for discovery, and that it granted virtually every discovery
request she made, including numerous requests for information under the Public
Records Act. Because the Board could dedicate only one session per week to her
case, her hearing unfolded at a leisurely pace. Mrs. Lannom was able to request
whatever documents she deemed necessary to her defense after each session, and
have the requests responded to before the next hearing date. All the evidence she
deemed relevant was included in the record of the hearing.
Appellant argues that during the Board hearing, she did not request
the personnel files now at issue, because she had no way of anticipating that the
Board would decide to terminate her without conclusive proof that she lied to
Detective Postiglione about taking the pills. But as we have indicated above,
that argument is without merit.
VII.
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The order of the trial court is affirmed. Remand this cause to the
Chancery Court of Davidson County for further proceedings consistent with this
opinion. Tax the costs on appeal to the appellant, Pamela Lannom.
_______________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
____________________________
WILLIAM C. KOCH, JR., JUDGE
____________________________
PATRICIA J. COTTRELL, JUDGE
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