LaFlamme v. Essex Junction School District

LaFlamme v. Essex Junction School Dist. (97-493); 170 Vt. 475; 750 A.2d 993

[Opinion Filed 21-Jan-2000]
[Motion for Reargument Denied 2-May-2000]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as  formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the  Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 97-493


Stanley LaFlamme	                         Supreme Court

	                                         On Appeal from
     v.	                                         Chittenden Superior Court

Essex Junction School District and	         April Term, 1999
Essex Junction Prudential Committee	



Linda Levitt, J.


       Edwin L. Hobson, Burlington, for Plaintiff-Appellee.

       Douglas C. Pierson and Thomas M. Higgins of Pierson, Wadhams, Quinn &
  Yates, Burlington, for Defendants-Appellants.


PRESENT: Amestoy, C.J., Dooley, Morse,  Skoglund, JJ., and Allen, C.J. (Ret.),    	
         Specially Assigned


       MORSE, J.  Defendants Essex Junction School District and Essex
  Junction Prudential  Committee (school board) appeal a jury verdict
  awarding plaintiff Stanley LaFlamme damages  for violation of his right to
  procedural due process under 42 U.S.C. § 1983.  Because the  evidence was
  insufficient to support such a claim as a matter of law, we reverse.	

       This controversy arose when the Essex Junction Prudential Committee,
  which functions  as the school board for the Village of Essex Junction,
  publicly "censured" LaFlamme, who had  been elected to the Prudential
  Committee in May 1994.  Conflict and tension between LaFlamme  and other
  committee members plagued his tenure.  For example, members considered
  LaFlamme  difficult to work with and disruptive of committee proceedings. 
  The committee particularly took  umbrage at LaFlamme's participation in a
  May 1995 meeting of  the Village of Essex Junction  Board of Trustees, at
  which the formation of a union high school was discussed.  During the 

 

  meeting, LaFlamme offered opinions that, in the Prudential Committee's
  view, were inaccurate,  offensive, and belied its position.

       In February 1995, the Chair of the Prudential Committee, Leslie
  Mooney, sought advice  concerning the committee's working relationship with
  LaFlamme from the Executive Director of  the Vermont School Board
  Association.  According to Mooney, the committee considered the 
  possibility of censuring LaFlamme because the members had been unsuccessful
  in their several  attempts to discuss with him issues concerning his
  committee membership.

       The committee held a special meeting on May 30, 1995, which LaFlamme
  did not attend.  While in executive session, the members discussed the
  ramifications of censure.  They agreed to  publicly censure LaFlamme during
  the next regularly scheduled meeting, subject to the approval  of the
  committee's legal counsel.

       Following the meeting, Mooney discussed with the committee's counsel
  the logistics for  censuring LaFlamme.  Counsel informed Mooney that the
  committee was not required to  publicly warn LaFlamme of the upcoming
  censure.  She and another member drafted the censure  motion and marked it
  on the agenda as a code of ethics discussion to avoid attracting attention 
  and turning the matter into a "circus."

       On June 12, 1995, the Prudential Committee held a regularly scheduled
  meeting, which  LaFlamme attended.  The committee, again in executive
  session, presented him with the censure  motion.  Its substance read in
  pertinent part:

     After viewing the tape of the Village Trustees meeting of May 23, 
     the consensus of the members present . . . was to protect the 
     public's interest by censuring Stan LaFlamme for violating 
     [Vermont School Boards Association] and [National School Boards 
     Association] Code of Ethics, district policy, and standards of good 
     boardsmanship.  The board has previously attempted to discuss 
     these concerns with Mr. LaFlamme in executive session, but he 
     was unwilling to do so.

     I [James Riley, who read the motion] make a motion that Stan 
     LaFlamme be reprimanded for failing to uphold the following 
     tenets of the codes of ethics:


 

          1.  Attend all regularly scheduled board meetings insofar as 
     possible, and become informed concerning the issues to be 
     discussed at those meetings.  Mr. LaFlamme failed to attend 
     several meetings, has left meetings before adjournment, and has 
     failed to attend executive sessions at which information critical to 
     sound decision-making was presented.  He has indicated to two 
     board members that he does not intend to attend any further 
     executive sessions.
          2.  Abide by board decisions regardless of how individuals 
     voted.  Mr. LaFlamme spoke publicly against the board-approved 
     draft budget.  He also supported the village trustees in opposing 
     the Union High School at their May 23 meeting despite the 
     unanimous vote of the Prudential Committee to support the Union.
          3.  Listen to legal counsel and constructive criticism to 
     protect the board and the school system from liability.  Mr. 
     LaFlamme has made public unsubstantiated allegations which have 
     exposed the district to liability.
          4.  Accept the responsibility to secure facts before arriving 
     at conclusions.  Mr. LaFlamme corroborated the inaccurate data 
     presented at the trustees meeting, and his statements about teacher 
     job security were not factual.
          5.  Board policies BBAA Board member Authority and 
     BBFA Conflict of Interest state in part that "an individual board 
     member, including the Chairman, shall have power only when the 
     board, by vote, has delegated authority to him or her."  Mr. 
     LaFlamme invited the trustees to make their presentation at [t]he 
     Prudential Committee hearing without authorization from the 
     Board.  Under procedure BD-R, board meeting agendas are 
     established by the Chair and the Superintendent.  
          6.  Good boardsmanship requires that each member take on 
     a fair share of the workload, including committee assignments.  
     Mr. LaFlamme has not fulfilled his responsibilities around sub[-
     ]committee work.

  (Emphasis in original.)

       Mooney explained to LaFlamme that, unless he was willing to discuss
  the committee's  concerns, it was prepared to vote on the censure motion
  during the regular meeting.  LaFlamme  responded by noting that the motion
  could not properly be brought during executive session.  At  that point,
  the executive session ended and the Prudential Committee resumed its
  meeting in  public.  

       Committee member James Riley read the motion in its entirety, after
  which LaFlamme  spoke in his own defense.  LaFlamme took issue with many of
  the allegations made in the  motion, 

 

  and challenged in several respects the information upon which the
  allegations rested.  After  hearing LaFlamme, the committee granted the
  motion to censure by a vote of four to one.  

       On July 21, 1995, LaFlamme sued defendants and the members of the
  Prudential  Committee individually.  The superior court dismissed the suit
  against the individuals on the  basis of immunity afforded to municipal
  officers under 24 V.S.A. § 901(a).  While this lawsuit  was pending,
  LaFlamme served on the Prudential Committee a second year before resigning. 
  During that year he made an unsuccessful bid for election to the Village
  Trustees.

       LaFlamme raised three claims: (1) failure to accommodate handicap
  under 9 V.S.A.  § 4502, (2) denial of the right to free speech, and (3)
  denial of the right to procedural due  process.  He withdrew a fourth claim
  alleging defamation.  

       The jury found in favor of defendants on the handicap accommodation
  and free speech  claims, but awarded LaFlamme $75,000 compensatory and
  $25,000 punitive damages for  violation of his right to procedural due
  process.  In essence, the claim upon which the verdict  was rendered, as
  evidenced by the jury instructions, was that the Prudential Committee
  damaged  LaFlamme's reputation so severely "that his opportunity and
  ability to associate with others were  significantly limited and that the
  damage resulted without due process of law."  Defendants  appeal on the
  ground that they were entitled to judgment as a matter of law.

       Before reviewing the merits of the appeal, we explain the concept of
  censure as a method  of discipline.  In Vermont, school boards derive their
  power from statute.  See Cole v. Town of  Hartford School Dist., 131 Vt.
  464, 467, 306 A.2d 101, 103 (1973).  There is no statutory  provision
  expressly vesting school boards with the authority to censure one of its
  members.   School boards may, however:

     approve or disapprove rules and regulations proposed by the 
     principal or superintendent for the conduct and management of 
     public schools in the district[;] . . . take any action, which is 
     required for the sound administration of the school district[;] . . . 
     exercise the general powers given to a legislative branch of a 
     municipality[; and] . . . establish policies and procedures designed 
     to avoid the appearance of board member conflict of interest.  

 

  16 V.S.A. § 563 (1), (2), (15),  (20).  Also, Robert's Rules of Order
  govern the conduct of  school board meetings.  See 16 V.S.A. § 554.  
  Accordingly, the Essex Junction School District  adopted Robert's Rules to
  govern the conduct of all meetings.

       As discussed in Robert's Rules, reprimand is one of several
  disciplinary actions an  organization may undertake.  See Sarah Corbin
  Robert, Robert's Rules of Order Newly Revised  § 60, at 639 ("Punishments
  that a society can impose generally fall under the headings of  reprimand,
  fine . . ., suspension, or expulsion.").  Censure is a form of reprimand,
  defined as  "[t]he formal resolution of a legislative, administrative, or
  other body reprimanding a person,  normally one of its own members, for
  specified conduct."  Black's Law Dictionary 203 (5th ed.  1979).  Per
  Robert's Rules, conduct subject to disciplinary action such as reprimand
  may be  divided into two categories:  (1) offenses committed during a
  meeting and (2) offenses committed  by members outside a meeting.

       Determining whether the Prudential Committee possessed the authority
  to censure  LaFlamme, the trial court ruled:

          You've heard that there was a question as to whether [the 
     Prudential Committee] had the legal right to censure the plaintiff.  
     The court has determined that it did not have the authority to 
     censure the plaintiff for conduct which occurred outside of 
     committee meetings.  It did have the right to censure the plaintiff 
     for words and conduct which occurred during committee meetings. 

  We need not decide whether the court was correct in this ruling.  As
  discussed below, defendants  were entitled to judgment in their favor on
  the due process claim because LaFlamme failed to  establish the requisite
  elements of a procedural due process violation.  

       To maintain a procedural due process action against a governmental
  entity, a plaintiff  must show that he was deprived of interests protected
  by the Fourteenth Amendment.  See Board  of Regents of State Colleges v.
  Roth, 408 U.S. 564, 569 (1972).  "[T]o determine whether due  process
  requirements apply in the first place, we must look . . . to the nature of
  the interest at  stake.  We must look to see if the interest is within the
  Fourteenth Amendment's protection of 

 

  liberty and property."  Id. at 570-71 (citation omitted); accord Brennan v.
  Town of Colchester,  10 Vt. L.W. 83, 84 (1999) (considering as initial step
  nature of claimed interest to determine if it  is within scope of
  Fourteenth Amendment's protection of liberty and property).   

       The "stigma" that may result from a defamatory disciplinary action
  does not by itself  implicate a "liberty" or "property" interest protected
  by the Due Process Clause.  See Paul v.  Davis, 424 U.S. 693, 701-12 (1976)
  (appearance of plaintiff's name and photograph on flyer  captioned "Active
  Shoplifters" and distributed among merchants did not deprive plaintiff of
  any  liberty or property rights); Levinsky v. Diamond, 151 Vt. 178, 196-97,
  559 A.2d 1073, 1085  (1989) ("[M]ore than . . . [stigma] must be shown
  before a cognizable § 1983 claim arises."),  overruled in part on other
  grounds by Muzzy v. State, 155 Vt. 279, 583 A.2d 82 (1990).   Rather, for
  such stigma to invoke the procedural protections of due process under the
  Fourteenth  Amendment, the governmental action must also deprive,
  extinguish, or significantly alter a right  or status previously recognized
  and protected by law.  See Paul, 424 U.S. at 701-12; see also  Siegert v.
  Gilley, 500 U.S. 226, 233-34 (1991) (recognizing "stigma plus" test
  articulated in  Paul); Greenwood v. New York, 163 F.3d 119, 124 (2d. Cir.
  1998) (same).

       Public censure or reprimand does not give rise to a procedural due
  process claim so long  as injury is solely to a plaintiff's reputation. 
  See Siegert, 500 U.S.  at 234.  To illustrate,  compare the formal reprimand
  or discipline of a licensed professional, which may implicate due  process
  because of the property interest in the license to practice the profession. 
  The license to  practice law, for example, is a property interest,
  infringement of which requires due process.   See In re Ellis, 680 N.E.2d 1154, 1160 (Mass. 1997) ("A lawyer has a constitutionally protected 
  property interest in his or her license to practice law, and is entitled to
  due process before  deprivation of that interest.") (citing Mathews v.
  Eldridge, 424 U.S. 319, 333 (1976); In re  Ruffalo, 390 U.S. 544, 550
  (1968)).  

       The same may be said of the license to practice other professions or
  trades, depending on  the legal status of the position or licensure.  See
  Barry v. Barchi, 443 U.S. 55, 64 (1979) (based 

 

  on New York law, horse trainer held property interest in license); Sabow v.
  United States, 93 F.3d 1445, 1456 (9th Cir. 1996) (medical license
  considered property interest); Newman v.  Burgin, 930 F.2d 955, 959 (1st
  Cir. 1991) (state university's decision to publicly censure tenured 
  professor and bar from administrative positions for five-year period
  treated as deprivation of  liberty or property); In re Smith, 10 Vt. L.W.
  96, 99 (1999) (statutory procedures and nurse's  substantial interest in
  maintaining her license - "her livelihood" - afforded nurse due process 
  protections).

       Nowhere in the evidence is it demonstrated how the Prudential
  Committee's public  censure, regardless of its legality, damaged more than
  LaFlamme's reputation and deprived him   of a "liberty" or "property"
  interest.  In response to defendants' appeal, LaFlamme argues that  the
  committee's action affected his performance as a committee member,
  interfered with his  freedoms of speech and association, and prevented his
  successful pursuit of a position as a village  trustee.  The evidence,
  however, does not support the necessary deprivation, extinguishment, or 
  significant alteration of recognized right or status to allow a finding
  that the Prudential  Committee violated  LaFlamme's due process rights.

                            I.  Liberty Interest

       LaFlamme argues that, "where the actions of a governmental authority
  are a deliberate  effort to punish and interfere with the exercise of free
  expression or free association . . . an  action lies [under] 42 U.S.C. §
  1983."  Certainly, an infringement of First Amendment rights  involves
  one's liberty.  Even though "[d]amage to reputation alone . . . does not
  implicate a  liberty interest," when coupled with a deprivation of a First
  Amendment right, it may rise to the  level of a due process violation.  See
  Silano v. Sag Harbor Union Free School Dist. Bd. of  Educ., 42 F.3d 719,
  724 (2d Cir. 1994).  There are two factors in this case, however, that are 
  fatal to LaFlamme's assertions as well as to the verdict in his favor.

       First, with regard to the infringement of his free speech, LaFlamme
  presented that issue  to the jury and lost.  He cannot prevail on a due
  process claim by way of a violation of his right 

 

  to free speech if the jury found that no such violation in fact occurred. 
  Several courts have  similarly dealt with a plaintiff's procedural due
  process claim brought in conjunction with a First  Amendment claim, and,
  for lack of a First Amendment violation in the first instance, have held 
  that the plaintiff did not suffer a denial of due process.  See id. (school
  board's censure of fellow  member for presentation to tenth-grade students
  did not violate First Amendment or procedural  due process); Peloza v.
  Capistrano Unified School Dist., 37 F.3d 517, 522-23 (9th Cir. 1994)  (high
  school biology teacher's free speech and procedural due process claims
  based on school  district's requirement that he teach evolutionism and
  order barring him from discussing his  religious beliefs with students were
  properly dismissed); Townshend v. Hazleroth, 875 F. Supp. 1293, 1300-02
  (E.D. Mich. 1995) (where plaintiff argued that defendants deprived him of  
  liberty interest by retaliating against his exercise of free speech by
  filing ethics complaint and  making defamatory statements, court held that
  plaintiff "failed to provide the court with any  authority that actions of
  defamation constitute a constitutional violation of First Amendment 
  rights"); Meyer v. University of Wash., 719 P.2d 98, 103 (Wash. 1986) (en
  banc) (holding that  tenured professor's due process claim, where, after
  being reprimanded, he argued that "his  liberty interest was affected
  because his reputation was damaged, coupled with a violation of his  . . .
  right to free speech," was properly dismissed in part because his First
  Amendment rights  were not violated).

       Second, particularly with regard to the right of free association, the
  evidence does not  support a finding that the censure deprived LaFlamme of
  this right or otherwise significantly  altered this liberty.  The Supreme
  Court clearly stated in Paul that the "weight of [its] decisions 
  establishes no constitutional doctrine converting every defamation by a
  public official into a  deprivation of liberty."  Paul, 424 U.S.  at 702. 
  Instead, it is only those defamations,  reprimands, or disciplinary acts
  that also effectuate a deprivation, extinguishment, or significant 
  alteration of a liberty or property interest which become actionable under
  the Due Process  Clause.  In reviewing those cases in which the Court has
  found a violation of procedural due  process, the Court noted that liberty
  or property interests had been "deprived," "den[ied],"  "remov[ed]," and 

 

  "distinctly altered or extinguished."  Id. at 708-11.  In other words, we
  believe that more than a  mere interference with one's association with
  others - the core injury wrought by defamation - is  required to support a
  finding of denial of due process.  As we stated in Levinsky, the argument 
  that there need not be actual deprivation in order to find a § 1983
  violation "ignores the language  of the enabling statute, which mandates
  liability for the 'deprivation of any rights, privileges, or  immunities
  secured by the Constitution and laws.'" Levinsky, 151 Vt. at 196, 559 A.2d 
  at 1085  (quoting 42 U.S.C. § 1983).  

       The censure's adverse effect on LaFlamme's associations and ability to
  perform as a  member of the Prudential Committee did not amount to a
  deprivation of his right of free  association.  The committee did not, in
  concert with censure, bar LaFlamme from associating  with others or
  otherwise impose restrictions upon his ability to associate.  The censure
  no doubt  adversely affected his reputation, but, as discussed above, such
  "stigma" is not enough to qualify  as denying or distinctly altering his
  freedom to associate.  Despite LaFlamme's assertion that  "the jury found .
  . . that the censure seriously impaired the exercise of his office," the
  record  does not illustrate a violation of his right to freely associate. 
  Therefore, the evidence simply  does not support a finding of a deprivation
  a liberty interest sufficient to sustain the verdict.

                           II.  Property Interest

       The evidence similarly fails to show that LaFlamme was deprived of a
  property interest.   "Property interests are not created by the
  Constitution, 'they are created and their dimensions are  defined by
  existing rules or understandings that stem from an independent source such
  as state  law . . . .'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
  538 (1985) (quoting Roth,  408 U.S. at 577); accord Burroughs v. West
  Windsor Bd. of School Dirs., 138 Vt. 575, 578,  420 A.2d 861, 863 (1980)
  ("Whether [a] right is a property interest depends upon state law.").   In
  Vermont, for example, the collective-bargaining agreement provides state
  employees with a  property interest in their employment, thus affording due
  process protections if they face the  prospect of discharge.  See In re
  Towle, 164 Vt. 145, 153, 665 A.2d 55, 61 (1995). 

 

       In this case, there exist two possible hooks upon which a property
  interest might hang:  membership in the Prudential Committee and the
  resulting potential afforded to gain future  political office.  Neither,
  however, constitutes a property interest.

       Assuming without deciding that Vermont law vests school board members
  with a  property interest in that membership, LaFlamme's voluntary
  resignation from the position did  not in turn impute to the committee the
  act of depriving him of a property interest.  LaFlamme  retained his
  position on the Prudential Committee for approximately one year following
  the  censure.  The committee did not remove him from office.  As the Court
  noted in Paul, it "has  never held that the mere defamation of an
  individual . . . was sufficient to invoke the guarantees  of procedural due
  process absent an accompanying loss of government employment."  Paul, 424 U.S.  at 706.

       LaFlamme also held no cognizable property interest in the possibility
  of being elected  village trustee.   "A property interest arises when a
  person has a 'legitimate claim of entitlement'  to a governmental benefit,
  rather than a 'unilateral expectation'"  Brennan, 10 Vt. L.W. at 84 
  (quoting Roth, 408 U.S. at 577).  Even if the censure did impair his
  pursuit of this position, such  an effect does not amount to a deprivation
  of a property interest.  LaFlamme's unilateral hope of  becoming a village
  trustee was by no means an entitlement to the position.

       Because the Prudential Committee's public censure did not deny or
  significantly alter a  liberty or property interest, defendants were
  entitled to judgment as a matter of law on the  procedural due process
  claim.

       Reversed.		      


				       FOR THE COURT:
				  


                                       ______________________________________				                                                          
                                       Associate Justice