True v. Ladner

• Citation: 513 A.2d 257
• Parties: 34 Ed. Law Rep. 154 Michael TRUE v. Richard S. LADNER, et al.
• Decision Date: 22 July 1986
• Court: Supreme Judicial Court of Maine (US)

Page 257

513 A.2d 257

34 Ed. Law Rep. 154

Michael TRUE v. Richard S. LADNER, et al.

Supreme Judicial Court of Maine.

Argued June 12, 1986.

Decided July 22, 1986.

Zuckerman and Avaunt, Mary B. Devine (orally), Lawrence J. Zuckerman, Gray, for plaintiff.

Norman & Hanson, Peter J. DeTroy, (orally), Jonathan W. Brogan, Portland, for defendants.

Before McKUSICK, C.J., and NICHOLS, ROBERTS and GLASSMAN, JJ.

GLASSMAN, Justice.

In this slander action the defendants, Richard S. Ladner, Superintendent of School Union 30, and Ladner's superior, the Lisbon School Committee, appeal from the judgment of the Superior Court, Androscoggin County, entered on a jury verdict in favor of the plaintiff, Michael True. On appeal, the defendants contend that the trial court erred in ruling that 1) Ladner was not immune from suit pursuant to the personal immunity for discretionary functions under 14 M.R.S.A. § 8111(1)(C) (1980); 2) statements made by Ladner were not absolutely protected as expressions of opinion; and 3) True was not a "public official" and therefore was not required to prove his allegations by clear and convincing evidence. The defendants also challenge the sufficiency of the evidence to support the jury's verdict. For reasons hereinafter set forth, we affirm the judgment.

I. Statement of Facts

From 1975 to 1979 True taught mathematics at Lisbon High School. A newly employed teacher within the Lisbon school system is on probationary status for two years. See 20-A M.R.S.A. § 13201 (Supp.1985-1986). Keith Cunningham, principal of the high school, made written evaluations of True during the probationary period pursuant to a policy of the school system requiring three formal evaluations a year during that period. The evaluations indicated, inter alia, that True explained the subject matter in a clear, explicit and careful manner, that his classroom appeared to be one "in which learning is taking place," and that the students "were very attentive and working very seriously." In addition, two of the evaluations indicated the students were not working up to their capacity, and in one evaluation Cunningham raised a question as to why True employed a particular teaching technique.

At trial Cunningham testified that True's "abilities as a classroom teacher" were "quite satisfactory," and that while True took "some time" to adjust to teaching "lower ability students," he eventually adjusted "relatively well." During the probationary period Cunningham had no concerns that would have led him to oppose True's continued employment as a teacher in the high school, and could not recall superintendent Ladner ever having voiced such a concern.

Carol Bradford, a guidance counselor at Lisbon High School, testified that she had never received "negative feedback about Michael True from any students or parents" and had received as much positive feedback concerning him as she had received concerning "any other good teacher." Pauline Higgins, a teacher at Lisbon High School, testified that True's teaching had inspired her daughter Trudy to concentrate on mathematics in college and to become a mathematics teacher.

Evidence was presented at trial as to True's participation in various activities within the high school and the Lisbon school system. While the standard teaching load consisted of five courses, during each of two years True taught six courses. He taught at least one of these additional courses during a free period. True served as a class adviser; participated in a preventive mental health program; took personal days to visit computer companies to inquire about computers for instructional use; advised the "math team" for four years, during two of which he received additional compensation; personally provided transportation for the math team because the school system did not; and participated in a study of the mathematics curriculum for grades kindergarten through eight, for which he did not receive additional compensation. At the conclusion of this study Ladner sent True a letter praising him for having served "untiringly and professionally" on the committee and predicting significant improvement in the mathematics curriculum as a result of the committee's work. In addition, True served on accreditation teams that evaluated two other school systems within the state.

Superintendent Ladner had never observed True in the classroom and never received "negative references" from anyone concerning True's teaching except for any negative indications that might have been contained in Cunningham's written evaluations. In his position as superintendent Ladner received a copy of each evaluation of a probationary teacher and reviewed it before having it placed in the teacher's personnel file. After True's probationary period Ladner did not review Cunningham's evaluations of True. Ladner testified at trial that he had reservations and concerns about True's teaching in every year that True taught at Lisbon High School, but had taken no action to prevent True's being rehired each year.

True was given a renewal contract for the 1979-80 school year, but resigned in the summer of 1979. In his letter of resignation True cited as the "final impetus" for his decision to resign the school committee's elimination of a position held by another teacher. True characterized the elimination of this position "as an open reprisal for speaking out on issues," and further stated that he could not "justify teaching within a system where academic freedom ... is not acceptable."

In August 1981, True applied for a position as a mathematics teacher at Maranacook High School in School Union 42. David Shapiro, team leader of the mathematics and science department at Maranacook, engaged in a preliminary screening of applicants and then convened a screening committee. The committee interviewed four applicants and reached a consensus that True was the strongest candidate for the position. On September 11, 1981, Shapiro informed his superior, Millard Harrison, Superintendent of School Union 42, of the committee's recommendation. While Harrison as superintendent had sole authority to nominate to the school committee a candidate for the position, ¹ he had in the past generally followed the screening committee's recommendation. Harrison decided to contact Ladner, the superintendent of the Lisbon school system. In the course of the ensuing telephone conversation Ladner told Harrison: 1) True was a good mathematician, but not a good mathematics teacher; 2) True was "more concerned with living up to the terms of his contract rather than going the extra mile"; and 3) Ladner "did not feel [True] turned the students on." Ladner volunteered the name of True's former student, Trudy Higgins, for the position at Maranacook. Immediately after this telephone conversation, Harrison told Shapiro that he would not nominate True for the position.

The jury found by a preponderance of the evidence that Ladner made the statements with knowledge of their falsity or with reckless disregard of their truth or falsity and returned a verdict for True. This appeal ensued.

II. Personal Immunity for Discretionary Functions

The defendants contend that in responding to Harrison's request for an evaluation of True, Ladner was performing a "discretionary function or duty" within the meaning of 14 M.R.S.A. § 8111(l)(C) (1980) and therefore is personally immune from suit. Because we hold that Ladner was not performing a "function or duty" within the meaning of the statute, we do not reach the question whether discretion was involved.

The Maine Tort Claims Act, 14 M.R.S.A. §§ 8101-8118 (1980 & Supp.1985-1986), provides for a general immunity of "all governmental entities" ² from suit. § 8103(1). This immunity explicitly includes:

The performance or failure to exercise or perform a discretionary function or duty, whether or not the discretion be abused and whether or not the statute, charter, ordinance, order, resolution, regulation or resolve under which the discretionary function or duty is performed is valid or invalid.

§ 8103(2)(C) (emphasis added). Section 8111 provides a corresponding personal immunity for employees of governmental entities in specified instances including:

The performance or failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused; and whether or not the statute, charter, ordinance, order, resolution, regulation or resolve under which the discretionary function or duty is performed is valid.

§ 8111(1)(C) (emphasis added).

The necessary implication of these companion sections is that an employee of a governmental entity enjoys a personal immunity from civil liability for his performance of, or failure to perform, a discretionary function or duty only when a "statute, charter, ordinance, order, resolution, regulation or resolve" authorizes the performance of the discretionary function or duty and when the defendant has acted, or has failed to act, pursuant to that authorization. Cf. MacKerron v. Madura, 445 A.2d 680, 682 (Me.1982) (improper to dismiss complaint when it is not discernible "whether the actions alleged were functions or duties of [the employee] and if they were, whether they were discretionary"). This conclusion is reinforced by an examination of the language of sections 8103(2)(A) and 8111(1)(A). These sections provide immunity for governmental entities and employees of such entities, respectively, for undertaking or failing to undertake "any legislative or quasi-legislative act." §§ 8103(2)(A), 8111(1)(A). The two sections characterize a legislative or quasi-legislative act as "including, but not limited to, the adoption or failure to adopt any statute, charter, ordinance, order, regulation, resolution or resolve." Id. Thus the legislative immunity provisions characterize a legislative or quasi-legislative act in terminology identical to that of the discretionary function immunity provisions. We conclude...