Escambia Cnty. Bd. of Educ. v. Lambert

255 So.3d 198

ESCAMBIA COUNTY BOARD OF EDUCATION

v.John LAMBERT

2150548

Court of Civil Appeals of Alabama.

September 23, 2016

Certiorari Denied November 11, 2016

Alabama Supreme Court 1160006

Broox G. Garrett, Jr., and Edward T. Hines of Thompson, Garrett & Hines, L.L.P., Brewton, for appellant.

Charles E. Johns, Jr., Brewton; and Sam Heldman of The Gardner Firm, Washington, D.C., Carl Johnson of Bishop, Colvin, Johnson & Kent, LLC, Birmingham, for amicus curiae Alabaman Association of School Boards, in support of the appellant, for appellee.

THOMAS, Judge.

This is the second appeal to this court from the decision of a hearing officer regarding the decision of the Escambia County Board of Education ("the Board") to terminate the employment of John Lambert pursuant to the Students First Act ("the SFA"), Ala. Code 1975, § 16–24C–1 et seq.See Lambert v. Escambia Cty. Bd. of Educ., 199 So.3d 751 (Ala.Civ.App.2013) (" Lambert I").

The facts and early procedural history were set out in our earlier opinion:

"The record indicates the following. On May 11, 2012, a custodian at the school found a firearm in a case located inside a bag that was on top of Lambert's desk in his office, which was located in the band room on the school's campus. Lambert was employed by the Board as the part-time band director at the school at that time. It was undisputed that the band room and Lambert's office had both been locked and that the custodian had unlocked the doors to those rooms with the key the school had issued to her. The custodian contacted school personnel regarding her discovery of the firearm, who, in turn, contacted Scott Hammond, the school's principal. Hammond entered Lambert's office; he looked inside the bag placed on Lambert's desk and saw a case containing a firearm containing a fully loaded ammunition clip and an additional fully loaded ammunition clip. Hammond looked through the other contents of the bag and noticed that, in addition to the firearm and the two ammunition clips, it contained Lambert's checkbook and other personal effects. Lambert was not on campus on May 11, 2012, because he was with a group of band students on an overnight band trip to Atlanta; Lambert and the band students were set to arrive back on the school's campus late on May 12, 2012. Hammond placed the case containing the firearm and ammunition clips inside the pocket of his pants and traveled to his office, where he proceeded to lock the door and to telephone Randall Little, the interim superintendent of the Board at that time.

"Hammond testified that Little told him to bring the firearm and ammunition clips to the Board's central office, which he did. Hammond further testified that Little also requested that Hammond be present on May 12, 2012, to meet the buses returning from the overnight band trip so that he could speak with Lambert regarding the discovery of the firearm and ammunition clips in his office. Hammond testified that on May 12, 2012, he spoke with Lambert regarding the discovery of the firearm and ammunition clips, that Lambert confirmed that the firearm and ammunition clips were his, and that they set up a meeting to discuss the incident for May 14, 2012.

"On May 14, 2012, Lambert met with Hammond at the school's campus to discuss the discovery of his firearm on campus and the potential consequences. At this meeting, Lambert again confirmed that the discovered firearm and ammunition clips were his and that he had inadvertently left them inside his bag inside the locked office, inside the locked band room. He explained that he had forgotten that the firearm and ammunition clips were inside the bag when he brought the bag on the school's campus. Hammond informed Lambert that Board Policy Number 826 entitled ‘Board Employees and Weapons’ states: ‘No employee, with the exception of any law enforcement personnel, will be in possession of an unauthorized weapon on any school premises, including school vehicles, or at any school-planned activity. Violation of this policy will result in suspension or dismissal of the employee.’ He further gave Lambert a copy of Board Policy Number 826 and informed him that his options were to resign or to potentially be suspended or terminated from his employment due to his violation of Board Policy Number 826. Lambert testified that, although he knew that the school was a weapon-free campus, he was unaware of Board Policy Number 826 before May 14, 2012.

"Following his meeting with Hammond, Lambert hand-delivered his resignation on May 14, 2012. However, on May 15, 2012, Lambert rescinded his resignation. Subsequently, Little placed Lambert on administrative leave and mailed him a letter dated May 18, 2012, informing him that he had been placed on administrative leave. On June 1, 2012, Little sent Lambert a letter informing him that his recommendation to the Board was to terminate Lambert's employment and that Lambert had the right to ask for a hearing. See § 16–24C–6(b), Ala. Code 1975. Lambert requested a public hearing before the Board in a letter dated June 11, 2012. On July 23, 2012, the parties conducted a hearing before the Board. At the start of the hearing, the Board summarily denied Lambert's four motions to dismiss and his motion to suppress."

Lambert I, 199 So.3d at 754.

At the hearing before the Board, Lambert presented testimony of several witnesses who indicated that he was of good character and who stated that they would prefer not to see Lambert lose his position as a part-time band director as a result of his inadvertent violation of Board Policy Number 826. Lambert I, 199 So.3d at ––––. In addition, Randall Little, the interim superintendent of the Board at that time, testified at the hearing that " ‘one of the utmost responsibilities of the Escambia County Board of Education ... is to make sure that our campuses are safe and secure for our students and, of course, our personnel.’ " Id. at 754. Little further explained that he had "decided to make a recommendation for termination instead of suspension for these reasons":

" ‘The first reason is that we do not hold all of our students—which unfortunately this board, over the years that I have been employed by this district, has had to make very difficult decisions. We have held our students to be accountable and responsible to our campuses when it comes to weapons. We do have—it is promulgated. All of our campuses and school functions, et cetera, are weapons free, and our students are held accountable.

" ‘Our employees are also—should be held accountable as well, particularly when they bring a loaded weapon on campus. This weapon, when found, was fully loaded. Not only was it fully loaded, it had a second clip that was fully loaded, and it was brought on school campus by ... Lambert and left on school campus by ... Lambert. This created unfortunately a very unsafe environment. Fortunately, in our case, no harm came, but it did create the environment to put people in harm's way on our campus. And, of course, thank goodness that nothing did come in harm's way, but if it had it would definitely be unfortunate—we'd be having a different hearing today.

" ‘And also, as superintendent of education, I am bound by the law, by Administrative Code to take full action and full responsibility for said actions. And I cannot turn and sweep this under the carpet. I must take serious action, even though how unfortunate it may be.’ "

Id. at 755.

Lambert timely sought review of the Board's decision by a hearing officer as provided in Ala. Code 1975, § 16–24C–6(e). Id. The hearing officer affirmed the decision of the Board, albeit after stating that " ‘it is the opinion of this Hearing Office[r] that a lesser penalty than termination should have been imposed. However, the Students First Act of 2011 provide[s] that the Hearing Officer may affirm or reverse the decision of the Board only, no modification is authorized.’ " Lambert I, 199 So.3d at 756. Lambert appealed the hearing officer's decision to this court, which affirmed the hearing officer's decision to affirm the decision of the Board, after concluding that the hearing officer had been required to apply the arbitrary-and-capricious standard of review to the decision of the Board and had satisfied that requirement by affording "deference" to the Board's decision. Id. at ––––.

Lambert sought certiorari review of this court's decision, and the supreme court, in a plurality decision, reversed this court's decision and ordered this court to remand the matter to the hearing officer so that he could apply the arbitrary-and-capricious standard of review to the Board's decision. Ex parte Lambert, 199 So.3d 761, –––– (Ala.2015). Although a majority of the supreme court agreed that the arbitrary-and-capricious standard was the appropriate standard for the hearing officer to apply to his review of the Board's decision,¹ three members of the court opined that the remand to the hearing officer was unnecessary because, as a matter of law, the Board's decision could not be considered arbitrary and capricious. Ex parte Lambert, 199 So.3d at 769–70 (Shaw, J., concurring in part and dissenting in part, joined by Stuart and Bolin, JJ.).

As instructed, this court remanded the matter to the hearing officer. Lambert v. Escambia Cty. Bd. of Educ., 199 So.3d 772 (Ala.Civ.App.2016) (" Lambert II"). On March 11, 2016, the hearing officer entered the following order on remand:

"This matter has been remanded to the Hearing Officer by the Alabama Supreme Court through the Alabama Court of Civil Appeals to ‘ "review the sanction imposed against [John] Lambert under the arbitrary-and-capricious standard of review as that standard of review is articulated in" Ex Parte Lambert, 199 So.3d 761 (Ala.2016).’ [ Lambert II, 199 So.3d at 772.]

"The pertinent facts are set out in the Supreme Court's opinion referenced above. Simply put, Lambert was a tenured teacher—band director at Flomaton High School. On the morning of May 11, 2012, Lambert and

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