         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


                                       -2-
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.”




                                        -3-
             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


                                       -4-
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




                                       -5-
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.



                                        -6-
             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.


                                        -7-
                      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




                                        -8-
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.

                                         -9-
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.




                                       -10-
            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




                                    -11-
