Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, December 21, 2009

School board member's e-mail to other board members claimed to have violated educator's right to privacy

Source: New Item - Eagle-Tribune [North Andover, MA], October 29, 2009

Haverhill [Massachusetts] School Committee member Kerry Fitzgerald sent an e-mail to other board members suggesting that they “could be sued if they discussed the performance of school employees by name at a public meeting.”

This led to Haverhill Assistant Principal Dawn Caputo filing a lawsuit against Fitzgerald.

According to an October 29, 2009 newspaper report in the Eagle-Tribune [North Andover, MA], Caputo alleges that “Fitzgerald wrote an e-mail and sent it to other Haverhill School Committee members via an Internet/e-mail system, which was available to public inspection, "thereby violating her right to privacy."

Typically the courts have dismissed such lawsuits by applying the doctrine of “qualified immunity” to such communications between and among public administrators and treated such communications as privileged unless the individual is able to prove "publication"* and prove "malice."

Where the courts find that a “qualified privilege” exists, public officers and employees are deemed immune from liability for acts or omissions committed while acting properly in the execution of their official duties. Frequently a public officer or employee will claim a “qualified privilege” if sued for libel or slander.

Courts have held that communications between public officials in connection with disciplinary investigations or the processing of a disciplinary action is protected by a “qualified privilege.”

As a general rule, the qualified privilege arises when a person communicates concerning a subject in which he or she has an interest or duty to a person having a corresponding interest or duty. The “common interest” qualified privilege is typically applied where members of an organization discuss among themselves matters of concern to the organization.

In Grier v. Johnson, 232 A.D.2d 846, the Appellate Division held that qualified privilege arises when a person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest. The court said that the underlying rationale of this “common interest” privilege is that “so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded,” citing Liberman v Gelstein, 80 NY2d 429. For example, in Stukuls v State of New York, 42 NY2d 272, the Court of Appeals upheld the application of the common interest privilege with respect to communications between a college administrator and members of a faculty tenure committee.

However, as the Appellate Division noted in Christenson v. Gutman, 249 A.D.2d 805, if a plaintiff can show that the statement was made with malice by producing evidence of a deliberate intent to ignore or avoid the truth, the privilege will be defeated. In contrast, conclusory allegations of malice, or charges based upon surmise, conjecture or suspicion, will not defeat a claim of qualified privilege. Further, once the privilege is established, the party alleging to have been offended has the burden of demonstrating that the communication was not made in good faith.

* New York State’s Freedom of Information Law [FOIL] is another element to consider. FOIL contemplates all public records, other than those prohibited from disclosure to the public by law, are available to the public, subject to the custodian of such records electing to withhold material that is subject to a “FOIL exception.”

The article reporting on Caputo's lawsuit by Eagle-Tribune reporter Shawn Regan is posted on the Internet at:

Reprinted with permission New York Public Personnel Law Blog

Mitchell H. Rubinstein

Education Law | Permalink


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