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SEE YOU IN COURT! - December 2016

CABE Journal

December 2016

Authors: Thomas B. Mooney

The last game for the Nutmeg Knights couldn’t come fast enough for veteran Nutmeg Board of Education member Bob Bombast.  A defensive tackle on the legendary 1984 team, Bob bleeds Nutmeg persimmon and gold and attends every game.  But those glory days are long over, and the long-suffering football team of Nutmeg Memorial High School was at the end of one of its worst seasons ever.

Attending last game of the season, Bob Bombast could not believe his eyes.  When the National Anthem was playing, Tom Teacher, one of the teachers who hired for crowd control, took a knee and bowed his head in silent protest of God knows what.  Bob saw red and vowed to see Tom punished for his disrespect. 

At the next meeting of the Nutmeg Board of Education, Bob spoke out.  “I am outraged by what I saw at the last football game this year . . . ,” Bob began.

“We all were,” interrupted fellow Board member Mal Content.  “Another shellacking, this time 45-0 to finish the perfect season without scoring a single point.”

“No, no!” Bob shot back.  “I saw Tom Teacher taking a knee and disrespecting our team, our National Anthem and our country.  Mr. Superintendent, I want this teacher fired, understood?  Gonzo.  Finito.”

Mr. Superintendent groaned and replied, “Bob, we all share your concern, but this is a free country, and I don’t think that I can force a teacher to stand for the National Anthem.  But I will talk to him about being more respectful in the future”

Well, I suggest that you decide who gets fired here – this obnoxious teacher or you, for being such a wimp.”

Nancy Newshound, ace reporter for the Nutmeg Bugle, was in the audience writing down every word.  Smiling to herself, she knew that she could milk this controversy for several articles.  After the meeting, Nancy started interviewing people, beginning with Mr. Superintendent.  He clammed up as usual, saying that he did not comment on “personnel matters.”  Even Bob was reluctant to comment further, and he simply mumbled that he “would be letting the process work. 

Tom Teacher, by contrast, was only too happy to wax poetic about injustice and his free speech right to protest during the playing of the National Anthem.  When Nancy asked him about Bob’s comments at the Board meeting, his face darkened, and he responded that “A fascist like Bob Bombast doesn’t belong on the Board of Education.”

Bob went ballistic the next morning when he read Tom’s statement in Nancy’s article in the Bugle.  First, he called Mr. Superintendent to demand Tom’s immediate termination.  Then, he called his personal attorney, Bill Alot, to have him sue Tom Teacher for $2,000,000 for defamation.

Can Tom Teacher be fired?  And what are the chances that Bob can successfully sue Tom Teacher for defamation for making that nasty remark? 

*        *        *

Before we get to either of those questions, a brief note is warranted about Bob’s failure to understand his role as a board member.  The board of education is a policy-making body that employs and evaluates only one employee – the superintendent.  The superintendent, in turn, is the chief executive officer of the school district, and as CEO the superintendent is responsible for supervision and discipline of employees.  If Tom engaged in misconduct here – whether by his silent protest or though his harsh words about Bob – Mr. Superintendent has the right and responsibility to hold him accountable.  By contrast, Board members, including Bob, should refrain from public calls for a teacher’s termination.  If Mr. Superintendent ever did see fit to initiate termination proceedings, the Board members will sit as judge as provided by the Teacher Tenure Act, and they must be fair and impartial in fulfilling that responsibility.  Bob’s public condemnation of Tom Teacher shows that he certainly cannot be impartial in any such proceedings.

Tom’s engaging in a silent protest when he was on crowd-control duty raises an interesting legal issue.  The general rule is that the First Amendment protects the right of public employees to speak out on matters of public concern unless the disruptive nature of the speech outweighs its importance.  Disruption can occur in various ways, such as interference with close working relationships or undermining public confidence in school district operation.  If and when employees claim that discipline for speaking out on a matter of public concern violates their free speech rights, the courts will balance the importance of the speech against any disruptive effect to determine whether the speech is protected. 

In 2006, the United States Supreme Court announced an important exception to this balancing test to determine the scope of First Amendment rights of public employees.  In Garcetti v. Ceballos, the Court ruled that the First Amendment does not protect speech of public employees that is “pursuant to duty,” i.e. part of their job responsibilities.  Teachers, for example, cannot claim a free speech right to talk about politics in class.

If that were all to the story, Tom Teacher could certainly be held accountable for his silent protest when he was on duty at the football game.  To be sure, Bob’s calls for termination were out of line because immediate termination is warranted only for the most egregious offenses.  But the speech would not be protected, and Tom’s improper protest could result in discipline, perhaps here most appropriately a warning.

Sadly (at least for school officials), the matter is not that simple.  Last year, the Connecticut Supreme Court decided not to adopt the Garcetti rule in considering free speech claims under the Connecticut Constitution.  Trusz v. UBS Realty Investors, LLC (2015).  As a result, employee free speech claims under the state Constitution will be decided under the more general balancing test, even when they arise in the workplace.  Here, the importance (if any) of Tom’s silent protest or his nasty comment about Bob’s being a “fascist” must be balanced against the disruptive effect of these actions to determine whether they are speech protected under the Connecticut Constitution.

Finally, Bob wants to sue Tom for defamation.  He should think again.  One may have a claim for defamation if the other party (1) makes a factual assertion, (2) that is false, and (3) that harms one’s reputation.  Moreover, when the injured party is a public official, the false statement must be made with malice (i.e. with knowledge that it is false) or with reckless disregard for the truth.  Here, Tom’s comment may be cause for discipline, but it is not defamatory.  One would not interpret Tom’s statement to be a factual assertion that Bob is affiliated with a fascist political party.  Rather, the far more reasonable interpretation is that the comment was Tom’s expression of opinion that Bob cares too little about individual rights.  If the comment is not a factual statement, then it cannot be the basis for a claim of defamation.  Period.

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