Kelley v. Bonney, 14244

CourtSupreme Court of Connecticut
Citation221 Conn. 549,606 A.2d 693
Docket NumberNo. 14244,14244
Parties, 74 Ed. Law Rep. 896 John J. KELLEY v. Winifred BONNEY et al.
Decision Date07 April 1992

Page 693

606 A.2d 693
221 Conn. 549, 74 Ed. Law Rep. 896
Winifred BONNEY et al.
No. 14244.
Supreme Court of Connecticut.
Argued Nov. 7, 1991.
Decided April 7, 1992.

Page 696

[221 Conn. 552] Gilbert Shasha, with whom, on the brief, was Barry J. Ward, New London, for appellant-appellee (plaintiff).

Thomas G. Moukawsher, Groton, for appellees-appellants (named defendant et al.).

John B. Farley, with whom, on the brief, was Thomas J. Hagarty, Jr., Hartford, for appellee (defendant Bruce McDermott).

Richard A. Roberts, Cheshire, with whom was Julie Harris, Wethersfield, for appellee (defendant bd. of educ. of the town of Groton).


CALLAHAN, Justice.

In this appeal, the principal issues involve the propriety of the jury instructions and the scope of the doctrine of absolute privilege in an action by a public school teacher alleging defamation and intentional infliction of emotional distress. The plaintiff, John J. Kelley, formerly a teacher at West Side Junior High School in Groton, initiated this action as a result of statements made about him that allegedly impugned his personal and professional integrity. The plaintiff named as defendants Winifred Bonney, the Groton board of education, Mary Keith, Bruce McDermott, Christian Mitchell, Sherrie Neilson, Wendy Sawyer, Paulann H. Sheets and Lenny Winkler. Keith, McDermott, Sheets and Winkler had been members of the Groton board of education; Mitchell had been a student of the plaintiff; Neilson and Sawyer had been parents of students of the plaintiff; and Bonney had been a neighbor of a student of the plaintiff. The plaintiff alleged that each of the individual defendants had maliciously and negligently published defamatory material and intentionally caused him emotional distress. He further alleged that the Groton board of education had breached a contract with him and had recklessly and negligently caused him emotional distress. After the plaintiff had presented his case, the trial court directed verdicts in favor of McDermott, Mitchell and Sawyer. [221 Conn. 553] At the close of all the evidence, the jury returned verdicts in favor of Keith, Neilson and Winkler. The jury, however, found Bonney and Sheets liable to the plaintiff in the amount of $10,000. The jury also found the Groton board of education liable for breach of contract and for tortious infliction of emotional distress to the plaintiff, and awarded him $3000 against the board. The plaintiff appealed to the Appellate Court, and Sheets and Bonney cross appealed to the Appellate Court. We transferred the appeals to this court in accordance with Practice Book § 4023. We now reverse that part of the judgment of the trial court that imposes liability upon Bonney and Sheets.

The jury could reasonably have found the following facts. In March, 1987, a significant number of the plaintiff's students at West Side Junior High School signed a petition setting forth various allegations of his inappropriate conduct in the classroom. The petition included, inter alia, allegations that the plaintiff verbally abused his students, touched female students against their will and failed to conduct his classes properly. The students' petition was brought to the attention of the Groton board of education, and the Groton superintendent of schools, Joan Stipetic. Stipetic immediately began an investigation into the students' allegations. On April 3,

Page 697

1987, following her investigation, Stipetic informed the plaintiff that she planned to recommend that the Groton board of education pursue termination proceedings against him. On the advice of his attorney, rather than contesting the termination proceedings, the plaintiff chose to retire from his teaching position. Sometime during the following two weeks, an agreement was reached between the school board and the plaintiff that, among other things, required that the plaintiff retire and that he be paid a lump sum of $2500. Because it was agreed that the plaintiff would retire, Stipetic did not disclose the findings of her investigation or the details of the agreement.

[221 Conn. 554] Following the public announcement that the plaintiff would retire, the local newspapers and the public began to demand an explanation for the administration's actions, and also that the allegations made against the plaintiff be more fully investigated. On May 6, 1987, Stipetic and the board's attorney, Richard O'Connor, attended a meeting of the Groton board of education. O'Connor explained to the board members that, because the plaintiff had communicated his intent to retire and, therefore, would no longer be an employee of the Groton board of education, the board would no longer retain jurisdiction over the plaintiff and should not continue to investigate him. Following publication of the fact that no further investigation would be conducted, there was further outcry by some members of the public who sought to have the matter more thoroughly examined. On May 27, 1987, at a meeting of the Groton board of education, Keith moved to place on the agenda the question of whether the matter involving the plaintiff should be referred to the state board of education for investigation. While Keith, McDermott, Sheets and Winkler voted to discuss the possibility of a state investigation, four other board members voted against it, preventing the issue from being placed on the agenda, and effectively defeating the prospect of the Groton board of education referring the matter to the state board. Following the tie vote, Sheets telephoned the state department of education and was told by Mark Stapleton of the office of legal affairs that she, individually, could further pursue this matter by requesting that the state conduct an investigation.

Sheets, Keith, McDermott and Winkler agreed that a request to the state should be made. Accordingly, on May 27, 1987, those four defendants drafted a letter and petition to the state board of education. The May 27, 1987 petition requested that the state board [221 Conn. 555] of education investigate "long standing, numerous parent and student complaints of misconduct concerning [the plaintiff]." The petition stated that the complaints included "allegations of teaching incompetence, and improper overt and covert touching of female students despite being told to stop." The petition also stated that the petitioners believed that the matter had not been properly addressed by the Groton board of education, and they requested that the state board of education conduct a full investigation. Following the submission of the May 27, 1987 petition, commissioner of education Gerald N. Tirozzi notified the petitioners that the state board of education could not act upon the petition unless the petition conformed with the requirements of State Board of Education Regulations § 10-145a-10(b), which provided that such a petition be submitted under oath.

Thereafter, on July 13, 1987, the petitioners submitted a verified petition and complaint to the state board of education. The verified petition and complaint was a more detailed version of the May 27, 1987 petition that had been revised to conform to the regulations. In the verified petition and complaint, Keith, McDermott, Sheets and Winkler requested that the state board of education "investigate the fitness of [the plaintiff] to hold a state teaching certificate and to revoke said certificate if, upon proper determination of the evidence, that revocation is warranted." They further stated that, "[o]n information and belief," there were grounds to revoke the plaintiff's teaching certificate including: (1) the plaintiff "has persistently neglected to perform the duties for which certification was granted"; and (2) the plaintiff is "professionally

Page 698

unfit to perform the duties for which certification was granted." The petitioners asserted as a basis for the request that: (1) the plaintiff conveyed to students the belief that females are mentally and morally inferior [221 Conn. 556] to males; (2) he "sexualized" his classroom presentations causing his students to feel anger, embarrassment and fright; (3) he failed to cover the curriculum material for his courses; (4) he failed to set a good example regarding patience, fairness, compassion, and respect for the rights of others without regard to race, sex, religion or nationality; (5) students were "traumatized" by him; (6) he "repeatedly [verbally] abused" students; (7) he committed rough and hurtful batteries on male students; and (8) he touched female students against their will. The petitioners appended to the verified petition and complaint a number of affidavits signed by students and parents describing specific incidents of misconduct.

Despite the support for the defendants' assertions offered by the affidavits, the jury could reasonably have found that the defendants' statements were untrue, and that the defendants knew they were untrue, or acted with reckless disregard of the truth. In addition to sending the material to the state board of education, Sheets forwarded copies of the petition and complaint to the department of children and youth services (DCYS), the attorney general, and The New London Day newspaper. The jury could also reasonably have found that the plaintiff suffered harm as a result of the publication of the material. The defendants' exoneration therefore depends largely on the validity of their claims of privilege.


We first address the plaintiff's claim that the trial court improperly granted directed verdicts in favor of McDermott, Mitchell and Sawyer at the conclusion of the plaintiff's case-in-chief. The plaintiff asserts that because the publication of allegedly defamatory material by these three defendants was not absolutely privileged,[221 Conn. 557] the trial court's rulings were improper. We conclude that the trial court properly directed...

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