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
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.),
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
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
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
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[-
(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
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
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.
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
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
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
FOR THE COURT: