Qualified Privilege in Defamation Action Against School District Explained

In the course of a lengthy decision dealing with many issues raised by a defamation/stigma-plus proceeding brought by a school district employee against a school district, the Third Department explained qualified privilege in this context. The plaintiff was a coach whose boyfriend [Broxmeyer] had raped a student at another school.  Plaintiff alleged that defendant Arbes, principal of the high school, “stated at a meeting with several staff members that plaintiff should avoid private one-on-one  conversations with students and should take a leave of absence ‘for the safety of the students.’ “.  The Third Department wrote:

Qualified privilege provides a  complete defense to a claim of slander, and attaches to an otherwise defamatory statement “made to persons who have some common interest in the subject matter” … .  A privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable'”….The  defense does  not apply, however,  “where the motivation for making such statements was spite or ill will (common-law malice) or where the ‘statements [were] made with [a] high degree of awareness of their probable falsity’ … .Arbes made the statement at issue at a meeting where she, plaintiff and three other individuals were present. Plaintiff acknowledges that Keeler, the junior varsity field hockey coach and union president, had a common interest in the subject, as did a union employee who was present.  The third individual may have had the same interest because Keeler averred that the individual was a union representative. Additionally, she was a guidance counselor, and Arbes averred that guidance counselors were being made available to students who may have had difficulty dealing with the situation surrounding  Broxmeyer’s arrest, the police investigation and plaintiff’s suspension and later termination.  As all of the persons present for the meeting had a common interest in the subject matter and the record lacks any evidence of malice, Supreme Court correctly determined that Arbes’ statement at the meeting was not actionable based on the qualified privilege.  Wilcox v Newark Valley Central School District, 515906, 3rd Dept, 6-6-13