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SEE YOU IN COURT! - May 2014

CABE Journal

May 2014

The Nutmeg Board of Education has a practice of naming parents and others to committees to advise the Board on issues ranging from course offerings to the selection of a new mascot for the sports teams. Mr. Superintendent recently got into the act by creating a Technology Advisory Committee to review and make recommendations concerning a proposed new BYOD (“Bring Your Own Device”) policy that would permit students to bring their laptops and iPads to school and connect to the Internet.

Mr. Superintendent posted a notice on the district website seeking volunteers. For a committee of ten, some thirty parents expressed interest. Mr. Superintendent chose the committee members by random selection, but from the very first meeting, he realized that his leaving committee membership to chance was a big mistake.

“This job won’t take long,” new committee member Wally Windbag announced at the first meeting. “What idiot wrote this policy? Letting kids get on the Internet is a terrible idea. We should not waste another minute talking about such stupidity. We should tell the Board to drop the idea, and then we should adjourn. Permanently.”

“Actually, I wrote the draft policy,” responded Mr. Superintendent. “We want to facilitate student learning, and by permitting students to use technology that they are familiar with, we think that we can create a learner-friendly environment.”

Unfortunately, Wally wasn’t buying it, and things went from bad to worse. Not only was Wally unwilling to back off from his position that the policy was a dumb idea, but he made his points in vulgar and antagonistic ways. The meeting ended abruptly, and in the following days virtually every other member of the committee called Mr. Superintendent to implore him to remove Wally from the committee. Mr. Superintendent realized that he had no choice but to do so.

Mr. Superintendent called Wally up the next day to notify him that he was off the committee. Wally was quiet, ominously so, and his response was simple – you do what you have to do, and I will do what I have to do . . . . Mr. Superintendent was soon shocked to find out what Wally meant.

The next day Mr. Board Chairperson forwarded Mr. Superintendent an email that Wally had sent to the entire Board of Education and Town Council:

Did you know? Mr. Superintendent is a vindictive man who appoints only “yes-men” to his committees. Apparently he can’t bear to hear the truth. In fact, he hides the truth. He falsified his résumé and cheated in his courses. How can you let a liar and a cheat be the leader of the school district?

Mr. Superintendent couldn’t believe it. Of course, his résumé was accurate, and he didn’t even know where to begin with the allegation of cheating. He called Mr. Chairperson right away to see what can be done.

“What are you going to do with this guy?” Mr. Superintendent asked. “No offense, but I don’t plan to stay in Nutmeg for the rest of my life, and these baseless allegations could be harmful if the press gets involved and someone Googles me later.”

“Well, gee,” Mr. Chairperson hemmed and hawed. “I mean it really stinks that he is badmouthing you and all, but doesn’t some criticism come with the territory?”

“Are you kidding?” responded Mr. Superintendent. “I want the Board to sue this guy, and I sure hope that the other Board members have more courage than you do.

Should the Board look the other way, or can and should the Board sue Wally? 

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Mr. Chairperson is right about one thing. Public officials pay a price for their service, and criticism of one’s words and deeds comes with the territory. The problem here is that Wally’s comments were more than criticism; they were defamatory.

Defamation is a tort (a civil wrong) that can subject the perpetrator to damages. To establish defamation, however, one must show more than criticism. Saying someone is a lousy school employee or board member is an expression of opinion, and people are free to express their opinion. To be defamatory, a statement must be asserted as a fact; it must be false, and it must harm one’s reputation. Here, Wally called Mr. Superintendent a liar and a cheater, and his allegations that Mr. Superintendent falsified is record and cheated in school were asserted as facts. Therefore, if Mr. Superintendent proved that Wally’s statements are false and that they harmed his reputation, under the normal rules Wally would be liable for defamation.

For superintendents and board members, however, life is not that simple. In the interest of a robust public debate, special rules have evolved in the courts as to public officials and public figures. The same elements of defamation apply – assertion of fact, falsity, and harm to reputation. However, public officials or public figures cannot recover in defamation unless they can also show that the false statement was made with malice or reckless disregard for the truth. Interestingly, our Connecticut Supreme Court ruled in 1992 that the special rules pertaining to public officials apply even to classroom teachers. It is therefore difficult for educators to win such claims.

That said, here Wally appears to be liable for defamation. Unless he can show that he had some reasonable basis for making the false charges against Mr. Superintendent, a court would likely find Wally’s statements about Mr. Superintendent to have been made maliciously or with reckless disregard for the truth.

The claim is a personal one. Mr. Superintendent was the injured party, and he may recover damages for the injury he suffered through Wally’s defamation. A related question, however, is whether the Nutmeg Board of Education can reimburse Mr. Superintendent for his legal expenses in bringing the claim. It has no legal obligation to do so, and there are no Connecticut cases on the subject. Moreover, boards of education are permitted to spend money only for public purposes, not to right private wrongs. However, here the Nutmeg Board of Education would have a legitimate interest in preserving public confidence in the operation of the school district by protecting its superintendent (or another employee) from being defamed. Accordingly, I believe that the Board can assist Mr. Superintendent in bringing such a claim.

Finally, creating committees to assist school officials and/or the board of education can be a good idea, the Wallys of the world notwithstanding. When doing so, however, we must always remember that committees created by public agencies (including by the superintendent and other school officials) are themselves public agencies. Therefore, the provisions of the Freedom of Information Act apply to the work of such committees. Such committees must post their meetings, and the public must be permitted to attend those meetings. Moreover, any records that such committees create in the course of their work (including emails) will be public records, subject to public disclosure upon request unless the record is otherwise exempt from disclosure in accordance with statute.

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