# Chiocca v. The Town of Rockland

> District Court, D. Massachusetts · October 3, 2022

URL: https://www.frixlaw.com/law-library/cases/10200636

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** October 3, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

)
ALLAN CHIOCCA, )
)
Plaintiff, )
)
v. ) CIVIL ACTION
) NO. 19-10482-WGY
TOWN OF ROCKLAND, DEIRDRE HALL, )
EDWARD KIMBALL, LARRY RYAN, )
MICHAEL MULLEN, JR., MICHAEL )
O’LOUGHLIN, RICHARD PENNEY, and )
KARA NYMAN, )
)
Defendants. )
)

YOUNG, D.J. October 3, 2022

MEMORANDUM AND ORDER

I. INTRODUCTION
Allan Chiocca (“Chiocca”), former Town administrator for
the Town of Rockland (the “Town”), sued the Town, Deirdre Hall
(“Hall”), Edward Kimball (“Kimball”), and five other current or
former members of the Town Board of Selectmen (the “Board”)
after he and Hall had a sexual encounter and each sustained
employment consequences.
This matter is before the Court on Chiocca’s, the Town’s,
and Hall and Kimball’s cross-motions for summary judgment as to
the following claims: count 24 of Chiocca’s complaint against
the Town for suspension in breach of his employment contract and
the Town Charter; and count 3 of Hall’s counterclaims and count
1 of Kimball’s counterclaim against Chiocca for public
disclosure of private facts. At the motion hearing on March 22,
2022, the parties agreed to proceed on a case-stated basis to
resolve these cross-motions. See Electronic Clerk’s Notes, ECF
No. 277; Order, ECF No. 279. At the case-stated hearing on May

23, 2022, the Court took the matter under advisement.
Electronic Clerk’s Notes, ECF No. 294.
On June 30, 2022, the Town withdrew its consent to proceed
case-stated with respect to Chiocca’s claim for breach of
contract, see Notice Withdrawal Consent Proceed Case Stated
Count 24 (“Notice Withdrawal”), ECF No. 310. Therefore, as to
count 24, this Court will not proceed case-stated and will rule
on the cross-motions for summary judgment on the summary
judgment record only, pursuant to Federal Rule of Civil
Procedure 56(a). With regard to count 3 of Hall’s counterclaims
and count 1 of Kimball’s counterclaim, this Court proceeds on
the case-stated record as to liability only, in accordance with

the parties’ request at hearing. See Order 1-2.
As to count 24 of Chiocca’s complaint, the motions for
summary judgment, ECF Nos. 158 & 171, are hereby ALLOWED in
Chiocca’s favor. The law does not distinguish suspension with
pay from administrative leave, and the Town has failed to
identify a genuine difference between these employment actions;
thus, in placing Chiocca on administrative leave without proper
process, the Town suspended him in violation of the terms of his
employment contract as it operates within the Town Charter.
As to count 3 of Hall’s counterclaims and count 1 of
Kimball’s counterclaim, this Court rules in favor of Chiocca,
concluding that he is not liable under Massachusetts General

Laws chapter 214, section 1B for public disclosure of private
facts. Although Chiocca’s release of an internal investigatory
report ordered by the Board disclosed intimate and sensitive
information, it did not constitute an invasion of Hall’s and
Kimball’s privacy because: (1) the existence of both their
extramarital affair and Chiocca’s sexual contact with Hall was
already in the public domain; (2) both events were of public
interest to voters; (3) both issues were relevant to Chiocca’s
own privacy; and (4) the disclosure was reasonable, given the
serious allegations of sexual harassment and impropriety
levelled against Chiocca.
II. PROCEDURAL HISTORY

On March 13, 2019, Chiocca filed a complaint against Hall,
Kimball, the Town, and five former or current Board members.
Compl., ECF No. 1. He brought thirty-seven counts comprising
employment discrimination claims under Massachusetts General
Laws chapter 151B, id. ¶¶ 320-331, and Title VII of the Civil
Rights Act of 1964, id. ¶¶ 332-334; equal protection claims
under 42 U.S.C. § 1983, id. ¶¶ 335-337, 342-46; procedural and
substantive due process claims under 42 U.S.C. § 1983, id. ¶¶
347-399, 400-406; civil rights conspiracy claims under 42 U.S.C.
§ 1985, id. 407-420; contract claims, id. 421-432; and tort
claims, id. 433-465.
In April 2019, the Defendants moved to dismiss the

complaint pursuant to Federal Rule of Civil Procedure 8. Defs.’
Joint Mot. Dismiss Pursuant Fed. R. Civ. P. 8, ECF No. 27. At a
hearing in July 2019, this Court denied the motion. Electronic
Clerk’s Notes, ECF No. 39.
In August 2019, Hall filed counterclaims against Chiocca.
Claims Counter-Claim Pl. Deirdre Hall Against Counter-Claim Def.
Allan Chiocca, ECF No. 68. She brought six counts, including
sexual harassment under Massachusetts General Laws chapter 214,
section 1C, id. ¶¶ 87-92, at 61-62, and various tort claims, id.
¶¶ 93-111, at 62-64. Kimball also filed one counterclaim
against Chiocca in tort. See Edward Kimball’s Answer Allan
Chiocca’s Compl. & Counterclaim ¶¶ 68-75, at 53, ECF No. 66.

Following the counterclaims, Chiocca crossclaimed against
the Town seeking indemnification. Pl. Allan Chiocca’s Am.
Answer Def. Deirdre Hall’s Counterclaim & Crossclaim ¶¶ 9-10, at
14, ECF No. 85; Pl. Allan Chiocca’s Am. Answer Def. Edward
Kimball’s Counterclaim & Crossclaim ¶¶ 9-10, at 14, ECF No. 86.
The parties then filed six motions for summary judgment.
See Partial Mot. Summ. J. Defs. Town Rockland, Ryan, Michael
Mullen, Jr., Michael O’Loughlin, Richard Penney & Kara Nyman
(“Town & Board’s Mot. Summ. J.”), ECF No. 158; Pl. Allan
Chiocca’s Mot. Partial Summ. J. (“Pl. Chiocca’s Mot. Summ. J.”),
ECF No. 171; Counterclaim Def. Allan Chiocca’s Mot. Summ. J.
Counterclaim Pl. Deirdre Hall’s & Edward Kimball’s Counterclaims

(“Def. Chiocca’s Mot. Summ. J.”), ECF No. 177; Mot. Partial
Summ. J. Liability claims Invasion Privacy Brought Counterclaim
Pls. Hall & Kimball (“Pls. Hall & Kimball’s Mot. Summ. J.”), ECF
No. 189; Def. Deirdre Hall’s Mot. Summ. J., ECF No. 180; Def.
Edward Kimball’s Mot. Summ. J. 1, ECF No. 163.
Four motions are relevant to the matter presently before
the Court. First, the Town and members of the Board
(collectively, the “Town and Board”) moved for partial summary
judgment as to Counts 1-5 and complete summary judgment as to
Counts 7-8, 10-20, 22-26, 29-30, and 35-37 of Chiocca’s
complaint. Town & Board’s Mot. Summ. J. 1-2. The parties fully
briefed the motion. See generally Mem. Law Support Mot. Partial

Summary J. Defs. Town Rockland, Ryan, Michael Mullen, Jr.,
Michael O’Loughlin, Richard Penney & Kara Nyman (“Town & Board’s
Mem. Summ. J.”), ECF No. 159; Pl. Allan Chiocca’s Opp’n Mot.
Partial Summ. J. Defs. Town Rockland, Ryan, Michael Mullen, Jr.,
Michael O’Loughlin, Richard Penney & Kara Nyman (“Chiocca’s
Opp’n Town & Board’s Mot. Summ. J.”), ECF No. 214; Reply Mem.
Support Mot. Partial Summ. J. Defs. Town Rockland, Ryan, Michael
Mullen, Jr., Michael O’Loughlin, Richard Penney & Kara Nyman
(“Town & Board’s Reply”), ECF No. 243.
Second, Chiocca cross-moved for partial summary judgment as
to Count 1 and Count 24 of his complaint. Pl. Chiocca’s Mot.
Summ. J. 1. The parties fully briefed this motion. See

generally Pl. Allan Chiocca’s Mem. Law Support His Mot. Partial
Summ. J. Against Defendant Town Rockland (“Pl. Chiocca’s Mem.
Summ. J.”), ECF No. 172; Def. Town Rockland’s Mem. Law Opp’n
Pl.’s Partial Mot. Summ. J. (“Town’s Opp’n Pl. Chiocca’s Mot.
Summ. J.”), ECF No. 205; Pl. Allan Chiocca’s Reply Support Mot.
Partial Summ. J. Against Def. Town Rockland (“Pl. Chiocca’s
Reply”), ECF No. 242.
Third, Chiocca moved for summary judgment on the entirety
of Hall and Kimball’s counterclaims. Def. Chiocca’s Mot. Summ.
J. The parties fully briefed the motion. See generally
Countercl. Def. Allan Chiocca’s Mem. Law Support His Mot.
Summary Judgment Counterclaim Pl. Deirdre Hall’s Counterclaims &

Counterclaim Pl. Edward Kimball’s Counterclaim (“Def. Chiocca’s
Mem. Summ. J.”), ECF No. 178; Counterclaim Pls. Hall’s &
Kimball’s Consolidated Mem. Law Opp’n Counterclaim Def.
Chiocca’s Mot. Summ. J. All Counterclaims (“Pls. Hall &
Kimball’s Opp’n Def. Chiocca’s Mot. Summ. J.”), ECF No. 226;
Pl./Counterclaim Def. Allan Chiocca’s Reply Mem. Support His
Mot. Summ. J. Def. Deirdre Hall’s & Edward Kimball’s
Counterclaims (“Def. Chiocca’s Reply”), ECF No. 238.
Fourth, Hall and Kimball cross-moved for partial summary
judgment as to their counterclaims for invasion of privacy
against Chiocca -- count 3 of Hall’s counterclaim and count 1 of

Kimball’s counterclaim. Pls. Hall & Kimball’s Mot. Summ. J. 1.
The parties fully briefed the motion. See generally Mem.
Support Mot. Partial Summ. J. Liability Claims Invasion Privacy
Brought Counterclaim Pls. Hall & Kimball (“Pls. Hall & Kimball’s
Mem. Summ. J.”), ECF No. 194; Counterclaim Def. Allan Chiocca’s
Opp’n Counterclaim Pls. Hall & Kimball’s Mot. Summ. J. Their
Invasion Privacy Counterclaims (“Def. Chiocca’s Opp’n Pls. Hall
& Kimball’s Mot. Summ. J.”), ECF No. 220; Counterclaim Pls.
Deirdre Hall’s & Edward Kimball’s Reply Brief Support Their Mot.
Partial Summ. J. Against Counterclaim Def. Allan Chiocca (“Pls.
Hall & Kimball’s Reply”), ECF No. 248.
At a hearing on March 22, 2022, this Court offered the

parties the opportunity to proceed on a case-stated basis to
resolve their cross-motions for summary judgment. See
Electronic Clerk’s Notes, ECF No. 277. The parties agreed to
allow the Court to treat three matters as a case-stated. First,
Chiocca and the Town agreed to proceed case-stated on their
cross-motions, ECF Nos. 171 & 158, as to count 24 of Chiocca’s
complaint: suspension in breach of the Rockland Town Charter or
his employment contract, brought against the Town. Order 1.
Second, Chiocca and Hall agreed to proceed case-stated on their
cross-motions, ECF Nos. 177 & 189, as to liability only in count
3 of Hall’s counterclaims: invasion of privacy in violation of
Massachusetts General Laws chapter 214, section 1B, Mass. Gen.

Laws ch. 214, § 1B, for the public disclosure of private facts,
brought against Chiocca Id. 1-2. Third, Chiocca and Kimball
agreed to proceed case-stated on their cross-motions, ECF Nos.
177 & 189, as to liability only in count 1 of Kimball’s
counterclaim: the public disclosure of private facts. Id. 3.
The Court then tentatively ruled on the remaining motions for
summary judgment. Id. 2-4.
On May 23, 2022, the Court held a case-stated hearing.
Electronic Clerk’s Notes, ECF No. 294. After hearing arguments,
the Court took the matter under advisement. See id. On June
29, 2022, the Court ordered that damages as to count 24 would
not be decided through the case-stated proceedings. Electronic

Clerk’s Notes, ECF No. 309. Subsequently, the Town submitted a
notice of withdrawal of its consent to proceed case-stated as to
count 24. Notice of Withdrawal.
III. CHIOCCA’S CLAIM FOR BREACH OF CONTRACT
In Count 24, Chiocca brings a claim against the Town for
breach of contract. See Compl. ¶¶ 421-424. The Town moved for
summary judgment as to Count 24, Town & Board’s Mot. Summ. J. 1-
2, and Chiocca cross-moved, Pl. Chiocca’s Mot. Summ. J. 1.
Chiocca’s employment contract and the Town Charter require that
the Town provide considerable procedural protections in the
event of Chiocca’s suspension. Here, the dispute centers on
whether, in placing him on “administrative leave,” the Town

“suspended” Chiocca without furnishing these protections.
Massachusetts law does not differentiate between a suspension
with pay and paid administrative leave. The Town, moreover, has
failed to specify any practical or analytical distinction
between these adverse actions. Thus, Chiocca’s placement on
administrative leave constituted a suspension in violation of
his employment contract as it operates within the Town Charter.
Summary judgment is granted in favor of Chiocca as to Count 24.
A. Undisputed Facts1
1. The Contract and the Town Charter

Chiocca commenced his employment as the Town Administrator
in March 2008. Town Rockland’s Responses Pl./Countercl. Def.

1 After the case-stated hearing on May 23, 2022, Chiocca and
the Town, pursuant to the Court’s June 10, 2022 order, submitted
a joint statement of material facts with respect to count 24.
Pl. Chiocca & Def. Town’s Joint Statement Material Facts Count
24 Chiocca’s Compl. (“Joint Statement Facts”), ECF No. 317. The
Town, however, has withdrawn its consent to proceed on a case-
stated basis as to count 24. See Notice Withdrawal 1; Joint
Statement Facts 1 n.1. The Court will therefore rule on count
24 on the summary judgment record -- that is, on the basis of
the undisputed statements of fact provided by each party with
regard to the cross-motions for summary judgment.
Allan Chiocca’s Statement Material Facts Support His Mot.
Partial Summ. J. His Claims (“Town’s Response Chiocca’s
Statement Facts”) ¶ 1, ECF No. 205-1. His contract was renewed
first in 2009 and “several times thereafter.” Id. ¶ 2.
Chiocca’s most recent employment contract (the “Contract”) was

effective from July 1, 2016, through June 30, 2019, “unless
sooner terminated in accordance with the provisions indicated
within the Contract.” Id. ¶ 3. The Contract “sets forth the
terms and conditions of [his] employment with the Town.” Id. ¶
4.
With respect to the Town’s right to suspend Chiocca, the
Contract states:
Employer may suspend the Employee for good cause, with
pay and benefits, at any time during the term of this
agreement, in accordance with Section 2.18(a) of the
Rockland Town Charter (as amended by Chapter 58 of the
Acts of 2005).

Id. ¶ 6 (emphasis added). Section 2.18(a) of the Town Charter,
as amended by Chapter 48 of the Acts of 2005, states in part:
The board of selectmen by affirmative vote of at least
4 members may suspend or remove the town administrator
from office. If the board of selectmen affirmatively
votes to suspend or remove the town’s administrator,
the board shall give at least 60 days’ notice as to
the effective date of his suspension or termination,
or provide 60 days of severance pay, or a combination
of both notice and severance pay equivalent to at
least 60 days. At least 30 days before the proposed
suspension or termination becomes effective the board
of selectmen shall file a preliminary written
resolution with the town clerk setting forth in detail
the specific reason for the proposed suspension or
termination. A copy of the resolution shall be
delivered to the town administrator. The town
administrator may within 10 days of service of the
resolution, reply in writing to the resolution and may
request a public hearing. If the town administrator
so requests, the board of selectmen shall hold a
public hearing not earlier than 20 days nor later than
30 days after the filing of the request. After the
public hearing, if any, otherwise at the expiration of
30 days following the filing of the preliminary
resolution, the selectmen may suspend or terminate the
town administrator from duty.

Id. ¶ 7. These rules were in effect at all relevant times.
Id. ¶¶ 211, 212, 213.
2. Contract Extension Discussions and the Incident
between Chiocca and Hall

As Town Administrator, Chiocca reported to the Board, which
was comprised of five elected members, including Kimball and
Hall. Id. ¶¶ 8, 16, 21. In the spring of 2018, the Board was
reviewing Chiocca’s request for a contract extension and salary
increase. Id. ¶ 27.
The night of May 1-2, 2018, Chiocca and Hall went for
drinks, returned to Town Hall, and engaged in sexual conduct
(the “Incident”). Id. ¶¶ 36, 52-53; Pl. Allan Chiocca’s
Responses Defs.’ Town Rockland, Ryan, Michael Mullen, Jr.,
Michael O’Loughlin, Richard Penney & Kara Nyman Local Rule 56.1
Concise Statement Material Facts & Plaintiff’s Statement
Additional Material Facts (“Chiocca’s Response Town & Board’s
Facts”) ¶¶ 1-2, ECF No. 215; Town Rockland’s Responses
Pl./Countercl. Def. Allan Chiocca’s statement Additional
Material Facts Which There Is No Genuine Issue Tried (“Town’s
Response Chiocca’s Additional Facts”) ¶¶ 2, 8, ECF No. 244. The
parties dispute the circumstances of this encounter: Chiocca
claims “Hall threatened to withhold her vote to extend his
contract unless he permitted her to perform oral sex on him,”

Chiocca’s Response Town & Board’s Facts ¶ 4, while Hall alleges
“Chiocca took advantage of her sexually while she was too
intoxicated to consent,” id. ¶ 5. Following the Incident, Hall
claimed to have no memory of the sexual encounter. Town’s
Response Chiocca’s Statement Facts ¶ 59.
On May 11, 2018, Town Counsel John Clifford (“Attorney
Clifford”), not yet knowing of the events of May 1-2, emailed
the Board “regarding the need to discuss Mr. Chiocca’s
contract.” Id. ¶ 69; Chiocca’s Response Town & Board’s Facts ¶
10. On May 15, 2018, the Board held a regular meeting wherein
it discussed Chiocca’s employment. Town’s Response Chiocca’s
Statement Facts ¶¶ 71, 73.

On May 18, Kimball told Attorney Clifford about the
Incident, and they met with Chiocca to discuss it. Id. ¶¶ 10-
11. Kimball and Clifford “requested that Chiocca refrain from
coming to Town Hall until they learned more about what happened
between” Hall and Chiocca. Town’s Response Chiocca’s Statement
Facts ¶ 95. To that end, Attorney Clifford told Chiocca he
would be placed on paid “administrative leave,” which would
require a vote of the Board. Chiocca’s Response Town & Board’s
Facts ¶ 16. Rather than go on administrative leave, Chiocca
agreed to use vacation time and stay out of the office. Town’s
Response Chiocca’s Statement Facts ¶ 95; Chiocca’s Response Town
& Board’s Facts ¶ 17. By May 23, 2018, Chiocca and the Town had

agreed that he would temporarily leave his employment, while
continuing to be paid, until September 2018. Id. ¶ 20.
That day, however, the media learned of the Incident. Id.
¶ 21.
3. The Independent Investigation and Chiocca’s
Placement on “Administrative Leave”

On May 29, 2018, the Board voted in executive session to
retain Independent Investigator Regina Ryan of Discrimination
and Harassment Solutions Inc. (“Investigator Ryan”) “to conduct
an investigation into the events of May 1-2, 2018.” Town’s
Response Chiocca’s Statement Facts ¶ 101. She was tasked with
investigating: “whether (1) Mr. Chiocca violated the town’s
sexual harassment policy by engaging in nonconsensual sexual
activities with Ms. Hall during the May 1-2 incident and, if so,
what discipline is recommended; and (2) whether Ms. Hall, as a
supervisor of Mr. Chiocca, violated the town’s sexual harassment
policy by requesting sexual favors during the May 1-2 incident
in exchange for actual or promises job benefits.” Id. ¶ 102.
During the May 29 executive session, the Board voted to
place Chiocca on paid “administrative leave.” Id. ¶ 104. This
status change was “effective immediately.” Id. ¶ 107. The Town
“did not file a written resolution with the town clerk
explaining its reasons for” this action. Id. ¶ 106. Chiocca

was notified of his placement on “administrative leave” by a
letter which stated:
a. He was being investigated for “alleged misconduct”,
specifically “inappropriate conduct toward a member of
the Town of Rockland Board of Selectman”
b. He was “ordered to attend an investigative
interview . . . conducted by the Town’s investigator.”
c. He was told “to have a legal representative
accompany [him] to this interview.”
d. He was told “further disciplinary action . . .
including termination” could be taken.

Town’s Response Chiocca’s Statement Facts ¶ 107; Chiocca’s
Response Town & Board’s Facts ¶ 30.
The Town claims it placed Chiocca “on paid administrative
leave pursuant to its then-existing Discriminatory Harassment
Policy.” Chiocca’s Response Town & Board’s Facts ¶ 22. The
Discriminatory Harassment Policy - to which the Town cites -
states that “the investigator may determine it is necessary or
advisable to take interim measures . . . [which] may include:
placing the alleged harasser on administrative leave.” Index
Exhibits, Ex. R, Town of Rockland Employee Handbook (“Def.’s
Alleged Discriminatory Harassment Policy”) 15, ECF No. 161-18.
Chiocca claims this policy submitted by the Town was not
effective on May 29, 2018. Chiocca’s Response Town & Board’s
Facts ¶ 22. The Discriminatory Harassment Policy he claims was
in effect does not reference “administrative leave” as an
interim measure. Declaration Adam J. Shafran, Ex. H, Town
Rockland’s Discriminatory Harassment Policy (“Pl.’s Alleged

Discriminatory Harassment Policy”) 2-6, ECF No. 216-9.
While on “administrative leave,” Chiocca received pay but
was (1) “not permitted to perform any of his job
responsibilities,” Town’s Response Chiocca’s Statement Facts ¶¶
108, 109; (2) “not physically allowed on Town property,”
Chiocca’s Response Town & Board’s Facts ¶ 30; and (3) “required
to return to the Town all Town property in his possession,”
Town’s Response Chiocca’s Statement Facts ¶¶ 110. Selectman
Michael O’Loughlin (“O’Loughlin”) testified that, besides pay,
“there’s . . . no real difference” between administrative leave
and suspension. Id., Ex. 1, Dep. Michael O’Loughlin 238:21-
239:11, ECF No. 205-2. The Contract indicates, however, that a

suspension may be paid. Town’s Response Chiocca’s Statement
Facts ¶ 6 (“Employer may suspend the Employee for good cause,
with pay and benefits, at any time during the term of this
agreement. . . .” (emphasis added)).
4. Investigator Ryan’s Report

The investigation lasted five to six weeks. Id. ¶ 32.
Between June 29, 2018, and July 10, 2018, Hall resigned from the
Board and Investigator Ryan submitted a draft of her written
report (the “Ryan Report”) to Town Counsel John Clifford
(“Attorney Clifford”). Id. ¶¶ 36-38. The Ryan Report found
“by a preponderance of the evidence that” (1) Hall had sexually
harassed Chiocca by seeking “sexual relations in exchange for

her vote on his contract extension,” and (2) Chiocca “did not
violate the Town’s Sexual Harassment Policy in that he did not
engage in any unwelcomed touching of [] Hall.” Town’s Response
Chiocca’s Statement Facts ¶ 149.
On July 10, the Board held a Town Meeting. Id. ¶ 164.
During the executive session, the Board voted to accept the Ryan
Report in full -- though the implication of this action is
disputed -- and publicly to release a two-sentence summary.
Town’s Response Chiocca’s Statement Facts ¶¶ 176-77; Chiocca’s
Response Town & Board’s Facts ¶ 45.
After Investigator Ryan read a statement summarizing the
Ryan Report’s legal conclusion, Attorney Clifford stated that

even though Chiocca “was found to have not violated the Town’s
Discriminatory Harassment Policy,” he “was found to have
violated a number of other [policies]” and that the Board would
hold a meeting on July 17, 2018, “to discuss what, if any
actions, will be taken against” Chiocca. Town’s Response
Chiocca’s Statement Facts ¶¶ 177, 179, 181; Town’s Response
Chiocca’s Additional Facts ¶ 22.
5. Subsequent Employment Actions Against Chiocca

On July 17, 2018, the Board held an executive session to
discuss Chiocca’s employment. Town’s Response Chiocca’s
Statement Facts ¶ 199; Town’s Response Chiocca’s Additional
Facts ¶ 24. During executive session, Attorney Clifford advised
the Board that, “in order for the [B]oard to take any action
under Section 2.18 of the Charter [against Chiocca], . . . Mr.
Chiocca has to receive [sixty] days’ notice of suspension or
termination[,] . . . [and] you have to file a preliminary
resolution with the town clerk and basically give Mr. Chiocca
the opportunity for a hearing.” Town’s Response Chiocca’s
Statement Facts ¶ 200. Attorney Clifford further advised that
administrative leave without pay “is considered a suspension.”
Id. ¶ 200.
The Board took what it called “no action” against Chiocca’s
employment at the July 17 executive session. Id. ¶ 203. Given
his status on administrative leave, however, Chiocca remained

“not permitted to exercise any function or authority as Town
Administrator between May 29, 2018, and November 20, 2018.” Id.
¶ 204.
At the Board meeting on November 20, 2018, the Board
unanimously voted in favor of the following motion:
I move that the Board vote to notify Allan Chiocca of
our intent not to renew his employment agreement,
which expires on June 30, 2019, and that he further be
notified that he is no longer permitted to exercise
any function or exercise any authority as Town
Administrator from this date until the expiration of
his employment agreement on June 30, 2019.

Town’s Response Chiocca’s Statement Facts ¶ 210. Thus, Chiocca
would remain on administrative leave through the Contract term
and his Contract would not be extended. Town’s Response
Chiocca’s Statement Facts ¶¶ 208, 209. The Town neither filed a
written resolution with the town clerk detailing its reasons for
continuing his administrative leave nor sent Chiocca notice
pursuant to section 2.18 of the Town Charter. Id. ¶ 214-15. As
for non-renewal of his employment contract, the parties agree
that neither the Contract nor the Town Charter required (1)
notice to Chiocca or (2) the Board to file a list of reasons.
Chiocca’s Response Town & Board’s Facts ¶¶ 56, 57, 59, 60.
Chiocca and the Town and Board agree that the votes on
November 20 were based in part on: “Chiocca returning to Town
Hall after hours on non-Town related business,” id. ¶ 67;
“Chiocca opening a bottle of alcohol while at Town Hall,” id. ¶
69; and “Chiocca’s poor judgment, including in operating his
vehicle after drinking on the night of May 1, 2018,” id. ¶ 72.
The Town also alleges (and Chiocca disputes) that the votes
on November 20 were based on: “multiple Town employees
expressing discomfort at the prospect of Mr. Chiocca returning
to his position,” id. ¶ 68; “the Board’s belief that Mr. Chiocca
wasn’t able to be an effective leader,” id. ¶ 70; “the public’s
distrust of town government caused by Mr. Chiocca’s actions,”
id. ¶ 71; “reports that Mr. Chiocca had referred to Ms. Hall as
a “dyke,” id. ¶ 73; “reports that Mr. Chiocca had referred to []
Mullen as a “girl,” id. ¶ 74; “Chiocca calling [Town employees]

on May 18, 2018 while he was intoxicated,” id. ¶ 75; “Chiocca
discussing his erectile disfunction with his subordinates,” id.
¶ 76; “Chiocca stating to [] O’Loughlin that he would ‘climb
that mountain’ in reference to having sex with Ms. Hall,” id. ¶
77; and “Chiocca's failure to report that the incident had
occurred,” id. ¶ 78.
In its Position Statement submitted to the Massachusetts
Commission Against Discrimination, the Town justified its
decision “placing Mr. Chiocca on paid administrative leave and
ultimately non-renewing his contract” by citing, inter alia,
“his sexual encounter with Ms. Hall in Town hall, serving
alcohol in Town Hall[,] and driving around town on the

night/early morning hours of May 1-2 after consuming alcohol.”
Town’s Response Chiocca’s Additional Facts ¶ 27.
6. The Second Ryan Investigation

After Hall claimed to regain some memory of the Incident,
the Town asked Investigator Ryan to reopen the investigation.
Town’s Response Chiocca’s Statement Facts ¶ 222. Based on
Investigator Ryan’s hourly timesheets, the supplemental
investigation appears to have begun December 14, 2018, and
concluded June 5, 2019. Declaration Adam J. Shafran, Ex. S,
Discrimination and Harassment Solutions Timesheet, ECF No. 216-
19. The findings in the supplemental report are not materially
different from the initial. See Declaration Adam J. Shafran,

Ex. V, Supplemental Investigation Compl. Against Deirdre Hall &
Allan Chiocca (“Supplemental Report”), ECF No. 216-22.
B. Legal Standard
Summary judgment is required when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue
of material fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Materiality depends on the substantive law, and only factual
disputes that might affect the outcome of the suit can preclude
summary judgment. Id. In reviewing the evidence, this Court

must “draw all reasonable inferences in favor of the nonmoving
party, and it may not make credibility determinations or weigh
the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150 (2000). This Court must also “disregard all
evidence favorable to the moving party that the jury is not
required to believe.” Id. at 151. The moving party bears the
initial burden of demonstrating that “the nonmoving party has
failed to make a sufficient showing on an essential element of
her case with respect to which she has the burden of proof.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
movant does so, then the nonmovant must set forth specific facts
sufficient to establish a genuine issue for trial. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87
(1986).
“The [summary judgment pleading standard is] the same
where, as here, both parties have moved for summary judgment.”
Bienkowski v. Northeastern Univ., 285 F.3d 138, 140 (1st Cir.
2002). The fact that both parties have moved for summary
judgment on the same issues, “neither dilutes nor distorts” the
summary judgment standard of review. See Hartford Fire Ins. Co.
v. CNA Ins. Co., 633 F.3d 50, 53 (1st Cir. 2011). When courts
are considering cross-motions for summary judgment, they must
“consider each motion separately, drawing all inferences in
favor of each non-moving party in turn.” AJC Int'l, Inc. v.

Triple–S Propiedad, 790 F.3d 1, 3 (1st Cir. 2015) (quoting D & H
Therapy Assocs., LLC v. Bos. Mut. Life Ins. Co., 640 F.3d 27, 34
(1st Cir. 2011)). “Cross-motions for summary judgment do not
alter the summary judgment standard, but instead simply ‘require
[the Court] to determine whether either of the parties deserves
judgment as a matter of law on the facts that are not
disputed.’” Wells Real Estate Inv. Tr. II, Inc. v. Chardón/Hato
Rey P’ship, 615 F.3d 45, 51 (1st Cir. 2010) (quoting Adria Int'l
Grp., Inc. v. Ferré Dev., Inc., 241 F.3d 103, 107 (1st Cir.
2001)). The Court must “in each instance [determine] whether
the moving party has met its burden under Rule 56.” Dan
Barclay, Inc. v. Stewart & Stevenson Servs., Inc., 761 F. Supp.

194, 197–98 (D. Mass. 1991) (Caffrey, J.).
C. Analysis
Chiocca alleges that by placing him on paid administrative
leave without providing certain procedural protections, the Town
suspended him in violation of his Contract and the Town Charter.
See Compl. ¶¶ 421-424; Pl. Chiocca’s Mem. Summ. J. 16-18. The
Town argues that paid administrative leave is legally distinct
from a suspension with pay; because Chiocca was not suspended,
the Town says, the procedural requirements of the Contract and
Town Charter do not pertain to him. See Town’s Opp’n Pl.
Chiocca’s Mot. Summ. J. 8.
To establish a breach of contract, Chiocca must show “that

there was a valid contract, that the defendant breached its
duties under its contractual agreement, and that the breach
caused the plaintiff damage.” Guckenberger v. Boston Univ., 957
F. Supp. 306, 316 (D. Mass. 1997) (Saris, J.).
1. Requirements of the Contract and Town Charter
Chiocca’s Contract provides that the Town “may suspend the
Employee for good cause, with pay and benefits,” so long as it
complies with Section 2.18(a) of the Rockland Town Charter. Id.
¶ 6. Section 2.18(a) of the Rockland Town Charter sets forth
detailed procedures -- involving notice and the opportunity to
be heard -- that must be followed prior to suspending an
employee. Id. ¶ 7.

The Town voted (1) on May 29 to place Chiocca on paid
administrative leave, id. ¶ 104, and (2) on November 20 to keep
Chiocca on administrative leave until his Contract expired, id.
¶ 210. While on leave, Chiocca could not perform the duties of
his job, id. ¶¶ 108-09, could not physically enter Town
property, Chiocca’s Response Town & Board’s Facts ¶ 30, and was
required to return Town property he possessed, Town’s Response
Chiocca’s Statement Facts ¶ 110. It is undisputed that the Town
did not follow the procedures in Section 2.18(a) of the Town
Charter for either the May 29 or November 20 vote. Id. ¶¶ 107,
208-209, 214-215.
Thus, if administrative leave is tantamount to a suspension

with pay, the Town breached the terms of the Contract.
2. Administrative Leave Versus Paid Suspension
As to this issue, Chiocca prevails. The Massachusetts
Supreme Judicial Court saw “no legally cognizable difference
between suspension with pay and paid administrative leave” with
respect to the authority to “suspend” a clerk of the court under
Massachusetts law governing Title I courts and judicial
officers. See Campatelli v. Chief Justice, 468 Mass. 455, 457
n.2 (2014). Furthermore, a Massachusetts Superior Court has
held that, “[w]hatever its basis, because [administrative] leave
interrupts the employee’s regular work, it should be regarded as
a ‘suspension’ within the meaning of” Massachusetts civil

service law. Brooks v. Civil Serv. Comm’n, 17 Mass. L. Rep. 568
(2004).
Additionally, another session of this Court, while
analyzing a retaliation claim under the False Claims Act, noted
that courts refer to “suspension” and “paid administrative
leave” interchangeably. See United States ex rel. Herman v.
Coloplast Corp., 295 F. Supp. 3d 37, 39 n.1 (D. Mass. 2018)
(Zobel, J.); see also Robinson v. Town of Marshfield, Civil
Action No. 16-12560-NMG, 2019 U.S. Dist. LEXIS 6051, at *20-21
(D. Mass. Jan. 11, 2019) (Gorton, J.) (referring to a town’s
placement of an officer on administrative leave as a “temporary
suspension”), vacated in part on other grounds, 2020 U.S. App.

LEXIS 4789 (1st Cir. Mass., Feb. 14, 2020).
The Town cites to several decisions “where an individual
was both placed on paid administrative leave and subsequently
suspended,” which it argues “undercuts any conclusion that the
two employment actions are legally indistinct.” Town’s Opp’n
Pl. Chiocca’s Mot. Summ. J. 12-13. These cases, however,
involved an employee’s initial placement on paid administrative
leave and the subsequent imposition of an unpaid suspension; the
case at bar compares paid administrative leave with paid
suspension. See, e.g., Gutwill v. City of Framingham, 995 F.3d
6, 11 (1st Cir. 2021); Slattery v. Town of Framingham, Civil
Action No. 17-cv-11187-IT, 2020 U.S. Dist. LEXIS 209115, at *14

(D. Mass. Nov. 9, 2020) (Talwani, J.); Yourga v. City of
Northampton, 474 F. Supp. 3d 408, 420 (D. Mass. 2020)
(Mastroianni, J.). Moreover, were these decisions not readily
distinguishable, they would nevertheless be unavailing, as they
never concluded that administrative leave was distinct from
suspension; in fact, these decisions in large part analyzed
leave and suspension together. See Gutwill, 995 F.3d at 13;
Slattery, 2020 U.S. Dist. LEXIS 209115, at *18; Yourga, 474 F.
Supp. 3d at 425.
Since caselaw fails to distinguish paid administrative
leave from suspension with pay, the Town proposes its own
distinctions.

First, the Town asserts that administrative leave and
suspension stem from distinct authorities: rather than the
Contract or Town Charter, “the authority to place Chiocca on
paid administrative leave springs from the then-existing
Discriminatory Harassment Policy, which authorizes ‘placing the
alleged harasser on administrative leave’ pending the outcome of
any investigation.” Town & Board’s Mem. Summ. J. 17. As
discussed, see supra section III.A., Chiocca disputes that the
Discriminatory Harassment Policy submitted by the Town was in
effect when he was placed on administrative leave and argues
that the policy actually in place did not provide for
administrative leave. Chiocca’s Response Hall’s & Kimball’s

Facts ¶ 73. This Court, however, need not decide which policy
was in effect, as even under the Town’s alleged policy, its
argument is unavailing.
The Town’s proffered Discriminatory Harassment Policy lists
administrative leave as an “interim measure” that “an
investigator may determine [] is necessary” to take during an
investigation. Def.’s Alleged Discriminatory Harassment Policy
15 (emphasis added). The Board’s May 29 vote to place Chiocca
on administrative leave took place the same day the Board voted
to retain Investigator Ryan. Town’s Response Chiocca’s
Statement Facts ¶¶ 101, 104. By placing Chiocca on leave at the
start of an investigation, this vote plausibly comported with

the Town’s alleged Discriminatory Harassment Policy –- although,
contrary to the policy, it does not appear that Investigator
Ryan was the one to make the determination.
The Board voted again, however, on November 20, to keep
Chiocca on administrative leave for the remainder of his
Contract term. See Town’s Response Chiocca’s Statement Facts ¶
210. By that date, the investigation had been concluded for
more than two months. Town’s Response Chiocca’s Statement Facts
¶ 210. Because the Town’s alleged Discriminatory Harassment
Policy only authorized an investigator to place an accused
person on administrative leave while an investigation was
pending, the authority for the November 20 employment action

could not have derived from the Town’s alleged Discriminatory
Harassment Policy.2
Second, the Town argues that administrative leave and
suspension with pay are functionally distinct. According to the
Town, administrative leave serves to “separate[e] [a] person
from the organization while an investigation is being
conducted,” while suspension is “a form of discipline.” Town’s
Opp’n Pl. Chiocca’s Mot. Summ. J. 9. Accepting this argument as
true, however, simply makes clear that the November 20 vote to
keep Chiocca on “administrative leave” was in fact a vote to
suspend him.
As discussed, the November 20 vote did not occur while the

investigation was being conducted but rather after it

2 Although the Town does not raise this argument in its
briefing, it is worth noting that the Town later asked
Investigator Ryan to reopen the investigation. Id. ¶ 222. Her
hourly timesheets indicate the supplemental investigation ran
from December 14, 2018, to June 5, 2019. Discrimination and
Harassment Solutions Timesheet. The Town, however, has adduced
no evidence (and has not argued) that the November 20 vote
related to this supplemental investigation. Thus, the Court
need not speculate.
terminated. Moreover, it is undisputed that the Board’s
decision to keep Chiocca on administrative leave was based in
part on the fact that Chiocca was present at Town Hall after
hours, consumed alcohol at Town Hall, and exhibited “poor
judgment, including in operating his vehicle after drinking.”

Chiocca’s Response Town & Board’s Facts ¶¶ 67, 69, 72. The Town
further claims (and Chiocca disputes) that the Board’s vote was
also motivated by its belief that Chiocca was a poor leader, had
caused the public to distrust government, routinely used
misogynistic language in the workplace, and had discussed
inappropriate sexual matters with Town employees.3 Id. ¶¶ 68,
70, 71, 73-78. These statements as to the Board’s motivations
demonstrate that Chiocca’s placement on administrative leave was
disciplinary. Rather than a neutral procedural mechanism to
separate him from the Town Hall, the record indicates that the
November 20 vote was punitive. Thus, in making these statements
of fact, the Town has undermined its own argument.4

3 Furthermore, its Massachusetts Commission Against
Discrimination Position Statement, the Town justified placing
Chiocca on administrative leave by citing “his sexual encounter
with Ms. Hall in Town hall, serving alcohol in Town Hall and
driving around town on the night/early morning hours of May 1-2
after consuming alcohol.” Town’s Response Chiocca’s Additional
Facts ¶ 27.

4 Presumably, the Town made these statements of fact in
order to counter various employment discrimination and
retaliation claims. But the Town cannot have it both ways.
These facts -- at least those which are undisputed –- are within
In sum, the Town can identify no tangible difference
between administrative leave and a suspension with pay. Thus,
Chiocca was suspended with pay in breach of his Contract as it
operates within the Town Charter.
IV. HALL AND KIMBALL’S COUNTERCLAIMS FOR INVASION OF PRIVACY

Hall and Kimball bring counterclaims against Chiocca for
public disclosure of private facts under Massachusetts General
Laws chapter 214, section 1B (count 3 of Hall’s counterclaims
and count 1 of Kimball’s). Chiocca moved for summary judgment
on both claims, Def. Chiocca’s Mot. Summ. J. 1, and Hall and
Kimball cross-moved for summary judgment, Pls. Hall & Kimball’s
Mot. Summ. J. 1.
This Court concludes that although Chiocca disclosed facts
regarding deeply intimate events, this information was already
part of the public discourse, was of key interest to voters, and
involved Chiocca personally. Moreover, the disclosure, albeit
substantial, was reasonable and was intended to clear Chiocca’s

name after the allegations raised by Kimball and Hall.
Accordingly, this Court rules in favor of Chiocca on count 1 of
Kimball’s and count 3 of Hall’s counterclaims.
A. Findings of Fact5

the scope of the record for the cross-motions for summary
judgment.
5 On June 10, 2022, this Court issued an order requesting
that the parties provide joint statements of material facts for
The public disclosure of private facts claim centers around
Chiocca’s release of the Ryan Report. The Ryan Report contains
details and sensitive information regarding Hall and Chiocca’s
sexual encounter (the Incident) as well as an extramarital
affair Hall had with Kimball -- the Chairman of the Board at the

time.
1. Hall and Kimball’s Affair
Hall and Kimball, both members of the Board, “carried on a
physical and emotional affair” beginning in March 2018 and
ending in April 2018, although each of them was married.
Countercl. Pls. Hall & Kimball’s Resps. Countercl. Def.
Chiocca’s Statement Material Facts Supp. Mot. Partial Summ. J.
Claims & Supp. Mot. Summ. J. Def. Hall’s & Kimball’s Countercls.
(“Hall & Kimball’s Response Chiocca’s Statement Facts”) ¶¶ 14,
15, ECF No. 224. On May 1, 2018, the day of the Incident,
Kimball’s wife learned of the affair. Id. ¶ 34. As a
consequence, Kimball stayed home with his wife and Hall ran the

the counts proceeding case-stated, in light of the many
statements of additional fact submitted by the parties and their
largely duplicative and argumentative contents. See June 10,
2022 Order, ECF No. 306. The parties have failed to provide
such a submission for Hall and Kimball’s Invasion of Privacy
Claim. Accordingly, this Court utilizes the most relevant
portions of both the facts submitted By Chiocca, Hall, and
Kimball in their cross-motions for summary judgment and those
submitted in response to this Court’s case-stated proceedings.
This Court finds that the facts which follow are either
undisputed or supported by reasonable inferences. See Moitoso
v. FMR LLC, 451 F. Supp. 3d 189, 199 (D. Mass. 2020).
Board meeting that evening in Kimball’s place. Id. ¶¶ 32, 33,
34. Kimball’s wife texted Hall later that evening: “I know what
happened. You make me sick.” Id. ¶ 34.
2. The Incident
After the meeting, Hall and Chiocca went to the Rockland

Bar & Grill for drinks, a common practice for the Board; no one
else joined them. Id. ¶ 36. There, Hall disclosed to Chiocca
that she was intimately involved with Kimball, id. ¶ 42, and
expressed concern that news of the affair would become public,
id. ¶ 40; Pl./Countercl. Def. Chiocca’s Resp. Defs./Countercl.
Pls. Hall & Kimball’s Statement Material Undisputed (“Chiocca’s
Response Hall’s & Kimball’s Facts”) ¶ 21, ECF No. 221.
Throughout the evening, Hall drank four to five glasses of wine,
which Chiocca paid for, whereas Chiocca did not drink much and
remained sober throughout the evening. Hall & Kimball’s
Response Chiocca’s Statement Facts ¶¶ 20, 45.
The Incident took place later that evening, when Chiocca

drove Hall to Town Hall, id. ¶ 45; Chiocca’s Response Hall’s &
Kimball’s Facts ¶ 27; went to his office with her, Chiocca’s
Response Hall’s & Kimball’s Facts ¶ 34; opened a bottle of wine
and poured them each a glass, Hall & Kimball’s Response
Chiocca’s Statement Facts ¶¶ 50, 51; and stayed in his office
with Hall for two hours, id. 52. At some point that evening,
Hall performed oral sex on Chiocca in his office. Id.;
Chiocca’s Response Hall’s & Kimball’s Facts ¶ 41.6
3. Events Following the Incident
In the days that followed the Incident, Chiocca did not
report any sexual misconduct by Hall. Pl./Countercl. Def.

Chiocca’s Resps/ Def./Countercl. Pls. Hall & Kimball’s Statement
Additional Material Facts Opp’n Countercl. Def.’s Mot. Summ. J.
(“Chiocca’s Response Hall’s & Kimball’s Additional Facts”) ¶ 61,
ECF No. 237. On May 11, Attorney Clifford emailed the Board
regarding Chiocca’s contract extension. Id. ¶ 69. In the
email, Attorney Clifford indicated “that before the Board
decided on whether to grant the contract extension, they should
have a candid discussion with” Chiocca about “recent issues.”
Id. ¶¶ 69-70.
One May 17, Hall discussed the Incident with Kimball, but
she said she had limited memory of the evening, although she
believed something “inappropriate” might have happened. Id. ¶

86. Also on May 17, Kimball retrieved the security camera
footage from Town Hall of the Incident and reviewed the tapes.

6 The circumstances of Chiocca and Hall’s sexual contact,
including the extent of Hall’s intoxication, the use of force or
intimidation by either individual, and their subjective
intentions and motivations are vigorously disputed by the
parties. This Court need not and does not make any factual
findings with regard to these issues to resolve the claims
before it on the case-stated record.
Id. ¶ 88. That evening, Kimball and Hall went for a walk and
discussed the Incident; Hall still said she had limited memory.
Id. ¶ 89. Kimball testified that he told Hall not to speak with
Chiocca until Kimball did. Id. ¶ 91.
On May 18, Kimball, Chiocca, and Attorney Clifford met, and

Chiocca admitted to receiving oral sex from Hall. Id. ¶ 94. At
the meeting, Chiocca said he wanted it “all to go away” and
agreed to use vacation time to stay out of the office. Id. ¶
95; Chiocca’s Response Hall’s & Kimball’s Facts ¶ 48. The
parties agreed to keep the matters discussed in confidence.
Chiocca’s Response Hall’s & Kimball’s Facts ¶ 52. According to
Attorney Clifford, that same evening Chiocca called him and
“bragged” about “climaxing.” Chiocca’s Response Hall’s &
Kimball’s Additional Facts ¶ 74. Chiocca also called three
female Town employees that evening and informed them of the
allegations that may surface. Chiocca’s Response Hall’s &
Kimball’s Facts ¶¶ 53, 55.

4. Public Knowledge of the Incident
Hall, who was then a candidate for Massachusetts State
Representative, testified that after May 18, 2018, she had a
sense that chatter began on social media and “a lot of people
knew a lot of stuff.” Hall & Kimball’s Response Chiocca’s
Statement Facts ¶ 97. Hall therefore spoke with an advisor on
May 23 about whether she should pull out of the State
Representative race. Id. ¶ 98. On May 23, 2018, Fox News,
Channel 25 ran a story about the Incident. Id. ¶ 100; Chiocca’s
Response Hall’s & Kimball’s Additional Facts ¶ 83.
On May 29, 2018, the Board (excluding Hall but including
Kimball) voted to retain Investigator Ryan “to conduct an

investigation into” the Incident and determine whether Hall or
Chiocca violated the sexual harassment policy. Hall & Kimball’s
Response Chiocca’s Statement Facts ¶¶ 101-02. In the May 29
meeting, the Board (excluding Hall but including Kimball) also
voted to place Chiocca on paid “administrative leave”; Attorney
Clifford announced the vote and the investigation on live
television. Id. ¶¶ 104, 108, 109, 110, 111, 114-15.
Following these events, media coverage of the Incident
ensued. Id. ¶ 117. On May 30 Hall withdrew her candidacy for
State Representative and announced the withdrawal on Facebook.
Id. ¶ 116. On June 5, at a publicly televised Board meeting,
Hall stated:

I recently reported an incident of inappropriate
behavior by the Town Administrator, and since the
weeks that those allegations have emerged it has been
very challenging for me and my family. False rumors
and gossip have spread, particularly on social media,
about me, about the devotion to my spouse, my husband
Chris, and our children and our town. Indeed, I no
longer feel that my children, my son, is comfortable
taking the bus, and I feel that my kids often times
are not safe or comfortable participating in some
community activities. And this is a deeply
disappointing consequence of my decision to stand up
for myself in a situation where I believe I was
treated improperly.

Id. ¶¶ 121, 122.
On June 13, 2018, Hall filed suit against the Town, members
of the Board, Chiocca, and other Town employees, seeking to
enjoin the release of surveillance tapes -- which showed Chiocca
and Hall in Town Hall on May 1-2. Id. ¶¶ 128, 130. Kimball
filed an affidavit in support. Id. ¶ 129. Hall eventually
withdrew her suit, but it did garner media coverage. Id. ¶¶
132, 133.
5. Public Knowledge of the Hall & Kimball’s Affair
In mid-June, Kimball informed the other Board members of
his affair with Hall. Id. ¶ 134. According to Kimball, Larry
Ryan, a member of the Board of Selectmen (“Selectman Ryan”), was
“going around town telling everyone that it was okay for Ed
Kimball to [have sex with] Deirdre Hall but not Allan Chiocca.”
Id. ¶¶ 130, 136.
On June 15, someone posted in a Town of Rockland Facebook
group: “Word on the Rockland streets is that the Town
Administrator Allan Chiocca wasn’t the only one having sex with
Selectmen Deirdre Hall. Selectman Edward Kimball was sleeping
with her too!” Id. ¶ 130 ¶ 135. Moreover, in the month of
June, two right wing blog articles referenced Kimball’s affair

with Hall in lewd terms. Id. ¶¶ 17, 18.
At the June 19 Board meeting, Kimball announced he had “no
intention of leaving of the Board of Selectmen.” Hall &
Kimball’s Response Chiocca’s Statement Facts ¶¶ 138, 139.
Kimball then called the investigation into Chiocca’s impropriety
a “sham,” and demanded it be turned over to law enforcement. Id.

¶¶ 140, 143. During this same meeting, Selectman Ryan
complained that Kimball had, “[p]rior to this night,” lied about
his affair, and indicated that Kimball should resign from the
Board. Id. ¶ 144; Id. ¶ 13. Kimball refused and challenged the
voters to recall him. Defs./Countercl. Pls. Edward Kimball &
Deirdre Hall’s Responses Pl./Countercl. Def. Allan Chiocca’s
Additional Statement Material Undisputed Facts (“Hall’s &
Kimball’s Response Chiocca’s Additional Facts”) ¶14, ECF No.
246. These events received media coverage. Hall & Kimball’s
Response Chiocca’s Statement Facts ¶ 145.
On June 21, 2018, Casey Sherman (“Sherman”), a public
relations professional retained by Chiocca through Attorney

Shafran, posted a statement referring to “Kimball’s close
relationship with Hall.” Chiocca’s Response Hall’s & Kimball’s
Facts ¶¶ 13, 63. Sherman worked with lawyers to communicate
statements sharing Chiocca’s perspective about the Incident to
media outlets that were covering the Incident. Pl./Countercl.
Def. Chiocca’s Resp. Def./Countercl. Pl. Hall’s & Kimball’s
Second Statement Additional Material Facts ¶ 10, ECF No. 293.
Sherman testified at deposition that the goal was to challenge
Hall’s account of events accusing Chiocca of inappropriate
behavior and to expose Hall and Kimball’s close relationship.
Id. ¶¶ 13-14.
6. The Ryan Report

On June 29, 2018, Attorney Clifford emailed a draft
confidentiality agreement to attorneys representing Hall,
Chiocca, and Kimball. Id. ¶ 65. Kimball refused to sign.
Hall’s & Kimball’s Response Chiocca’s Additional Facts ¶ 16.
On July 6, 2018, Attorney Clifford emailed Adam Shafran
(“Attorney Shafran”), Chiocca’s attorney, a copy of the Ryan
Report with redacted portions and a watermark on each page
reading: “Confidential Personnel Record to Adam Shafran, Esq.
representing Allan Chiocca, not to be released or distributed
without the permission of the Rockland Board of Selectmen.”
Hall & Kimball’s Response Chiocca’s Statement Facts ¶ 147;
Chiocca’s Response Hall’s & Kimball’s Facts ¶ 68. The email

from Attorney Clifford contained a disclaimer that the Ryan
Report “is a confidential personnel record and improper release
or disclosure of that document may result in an unwarranted
invasion of privacy of persons named in the document. It may
not be released or distributed without the written permission of
the Rockland Board of Selectmen.” Affidavit Neerja Sharman
Opp’n Pl./Countercl. Def. Allan Chiocca’s Mot. Summ. J., Ex. 34,
July 6, 2018 Email from Attorney Clifford to Attorney Shafran 3,
ECF No. 225-34.
As to private details about Kimball and Hall and their
families, the Ryan Report contains, inter alia, the following:
 Kimball’s wife had forbidden Kimball from communicating
with Hall.
 Hall professed her love for Kimball, felt “restricted by
her marriage[,] and no longer wanted to be monogamous.”
 Kimball did not attend the May 1, 2018 Board meeting
because his wife “was feeling vulnerable and betrayed.”
 The night of the Incident, Hall texted her husband, “Be
ready for me. Cause I am going to want you,” and “love you.
It’s gonna be a tough ride the next couple of weeks ttyl.”
 Hall relays the conversation in which she confessed to her
husband that she had an intimate relationship with Kimball
and describes her husband’s reaction. Hall did not want
anyone to know what happened, as “she thought she would be
perceived as a ‘whore and a drunk.’”

Chiocca’s Response Hall’s & Kimball’s Additional Facts ¶ 116;
Decl. Samantha Halem Supp. Pl./Countercl. Def. Chiocca’s
Statement Material Facts Supp. Mot. Partial Summ. J. & Mot.
Summ. J. Countercls., Ex. W., First Investigative Report Regina
Ryan Discrimination & Harassment Solutions (“Ryan Report”), LLC,
ECF No. 175-23. The Ryan Report also describes the timeline of
the Incident -- although no graphic description of the sexual
acts that ensued on that evening is included. See generally
Ryan Report. It further includes information regarding the days
following the Incident and interactions between Hall and Chiocca
-- including the fact that at several moments Hall attempted to
attend events where Chiocca would be present and several times
Chiocca cancelled his appearances at these events so as to avoid
Hall. Id. Attorney Clifford emailed the Ryan Report to the
parties with portions redacted. Hall & Kimball’s Response
Chiocca’s Statement Facts ¶ 150.
After Investigator Ryan completed the draft Report, “[t]he

Board moved the July 10, 2018 Town Meeting to the high school
auditorium in response to significant public interest in the
results of the investigation.” Hall & Kimball’s Response
Chiocca’s Statement Facts ¶ 165 (emphasis added). Hall was not
present; that same day she had been involuntarily committed to a
hospital and placed on suicide watch. Chiocca’s Response Hall’s
& Kimball’s Facts ¶ 101. Counsel was there in her place. Hall
& Kimball’s Response Chiocca’s Statement Facts ¶ 167. During
open session, Kimball was voted out as Chairman, id. ¶ 168, and
a member of the audience yelled a comment at Kimball criticizing
him for cheating on his wife, id. ¶ 187.
During executive session, Attorney Clifford stated that

Kimball “lied” to his fellow Board members about his affair and
“misled all parties involved.” Id. ¶ 174. With regard to the
Ryan Report, Hall’s attorney asked the Board to “consider
limiting the information released to the public” due to the
consequences the details would have on her family. Id. ¶ 176;
Chiocca’s Response Hall’s & Kimball’s Facts ¶ 73. The Board
voted to “accept” the Ryan Report but “to release to the public
only a two-sentence summary portion of the Ryan Report’s
findings.” Hall & Kimball’s Response Chiocca’s Statement Facts
¶¶ 175, 177. At the open session broadcast on live television,
Investigator Ryan read the statement:
I do not substantiate Ms. Hall’s allegation, that if
she engaged in sexual activities with Mr. Chiocca on
May 1st and 2nd, 2018, it was non-consensual as she
was incapable of consenting due to the level of her
intoxication. I substantiate Mr. Chiocca’s allegation
that on May 1st and 2nd, 2018, Ms. Hall used her
position as a member of the Board of Selectmen, who
was actively reviewing, and would soon be voting on
his request for contract extension and salary
increase, to pressure him into engaging in sexual
activities with her.

Id. ¶ 179.
Attorney Clifford then announced Hall was resigning from
the Board. Id. ¶ 180. After Board members issued statements
regarding the Ryan Report’s findings, the Board voted to release
to the public the video surveillance tapes of Town Hall the
night the Incident. Id. ¶ 185. After the July 10 Board
meeting, Clifford emailed counsel in this case that the Ryan
Report was a “confidential personnel record, not subject to
disclosure under G. L. c. 4, § 7(26)(c).” Chiocca’s Response
Hall’s & Kimball’s Facts ¶ 81. Later, at 10:06 p.m., Attorney
Shafran emailed Boston 25 News a statement disclosing details of
the Ryan Report, including the phrase “an intense physical and
emotional affair [between Hall and Kimball].” Chiocca’s
Response Hall’s & Kimball’s Facts ¶ 82.
On July 11, 2018, Sherman, the public relations
professional retained by Chiocca, released the Ryan Report to
certain media outlets. Hall & Kimball’s Response Chiocca’s
Statement Facts ¶ 193. The version released was the version
Attorney Shafran received from Attorney Clifford which had

certain portions redacted. Id. ¶ 194. Clifford’s email stated
that the redactions covered, “medical information, explicit
sexual information, children’s names, and some other non-
material information. . . .” Id. ¶ 197. Chiocca did not
receive “permission” from the Board to release the Ryan Report,
nor did the Town provide Chiocca with a copy of the Ryan Report
without the watermark on confidentiality. Chiocca’s Response
Hall’s & Kimball’s Additional Facts ¶ 119. Some individuals
from Rockland testified that they were not aware of Hall and
Kimball’s affair until after Chiocca released the Ryan Report to
media outlets. Chiocca’s Response Hall’s & Kimball’s Additional
Facts ¶ 132.

7. Events After Release of the Ryan Report
On July 11, O’Loughlin, another Board member, posted on
Facebook that Kimball “(who accused the other members . . . of a
cover up) refused to allow” an “open session discussion”
regarding “the investigation results” and “lied” to the Board
“about the nature of his relationship with [Hall].” Hall &
Kimball’s Response Chiocca’s Statement Facts ¶ 188. O’Loughlin
testified that as of June 19, 2018 “he was taking the position
publicly that Mr. Kimball should be removed as Board chair” for
“violat[ing] the trust of other members of the [B]oard.” Id. ¶¶
190, 191.
On July 12, 2018, Jack Sullivan from CommonWealth magazine

asked Attorney Shafran for a copy of the Ryan Report after
learning Shafran sent the Ryan Report to the Patriot Ledger.
Chiocca’s Response Hall’s & Kimball’s Additional Facts ¶ 128.
For about one year, Hall and Kimball’s affair received
negative media coverage, especially on blogs and social media,
and many articles used the language from the Ryan Report about
“an intense physical and emotional affair.” Chiocca’s Response
Hall’s & Kimball’s Facts ¶¶ 90, 91. In his testimony, Kimball
“noted the range of publication and spread of information due to
the release of the Ryan Report, emphasizing the difference
between” small town coverage and state and national news
coverage. Chiocca’s Response Hall’s & Kimball’s Facts ¶ 106.

Kimball testified that he has lost several contracts, including
a substantial one involving Boston Logan Airport, because of the
release of the Ryan Report. Chiocca’s Response Hall’s &
Kimball’s Facts ¶¶ 107, 108.
Later on, Hall began recalling more details from the
evening the Incident, Investigator Ryan reopened the
investigation and produced a Supplemental Report. Id. ¶¶ 205,
218, 222. Its findings are not materially different from those
of the first report. See generally Supplemental Report. In
June 2019, someone petitioned the Town to release the
Supplemental Report, and the Town denied the petition. Hall’s &
Kimball’s Response Chiocca’s Additional Facts ¶¶ 22, 23. The

person appealed to the Public Records Division for the
Commonwealth of Massachusetts, which initially found that under
the Massachusetts Public Records Act, the Town would be
compelled to disclose the Supplemental Report; however, due to
the present civil action, the Supervisor of Records issued a
reconsideration opinion stating that the Division would not
enforce the order pending the resolution of this litigation.
Id. ¶¶ 24, 25.
B. Legal Standard
“Case stated hearings provide an efficacious procedural
alternative to cross motions for summary judgment.” Moitoso v.
FMR LLC, 451 F. Supp. 3d 189, 198 (D. Mass. 2020). “In a case

stated, the parties waive trial and present the case to the
court on the undisputed facts in the pre-trial record.”
Sánchez-Rodríguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 10-11
(1st Cir. 2012) (internal quotation marks omitted). Although
the case stated procedural device entitles the court to “engage
in a certain amount of factfinding,” id., “case stated hearings
usually involve but a modicum [thereof] -– nothing more than the
drawing of reasonable inferences,” Moitoso v. FMR LLC, 451 F.
Supp. 3d 189, 199 (D. Mass. 2020). Unlike at summary judgment,
“the Court is relieved of drawing all inferences against each
moving party, instead drawing such inferences as are reasonable
to resolve the case.” Bunch v. W.R. Grace & Co., 532 F. Supp.

2d 283, 287 (D. Mass. 2008).
C. Rulings of Law
Hall and Kimball assert that Chiocca invaded their privacy
in violation of Massachusetts General Laws chapter 214, section
1B (“chapter 214”), Mass. Gen. Laws ch. 214, § 1B, through the
public disclosure of private facts. Hall’s Counterclaims ¶¶ 96-
98, at 62-63; Kimball’s Counterclaim ¶¶ 68-75. Hall and Kimball
argue that the disclosure was both serious and substantial, and
was unreasonable, meeting both prongs of chapter 214’s
requirements. Pls. Hall & Kimball’s Mem. Summ. J. 16.
Section 1B of Massachusetts General Laws chapter 214
provides that “[a] person shall have a right against

unreasonable, substantial or serious interference with his
privacy.” Mass. Gen. Laws ch. 214 § 1B. Generally, an action
of this nature is anchored in a public disclosure of private
facts, as it is here. Ayash v. Dana–Farber Cancer Inst., 443
Mass. 367, 382 n. 16 (2005), cert. denied sub. nom. Globe
Newspaper Co. v. Ayash, 546 U.S. 927 (2005). “Despite the
disjunctive ‘or,’ the phrase ‘unreasonable, substantial or
serious’ is inclusive, as § 1B ‘obviously was not intended to
prohibit serious or substantial interferences which are
reasonable or justified.’” Ayash, 443 Mass. at 382 (quoting
Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 409
Mass. 514, 517–518 (1991)).

Hall and Kimball assert that issues relating to “a person’s
sex life” are indisputably serious, as confirmed by the fact
that the Board maintained the utmost confidentiality in its
investigation of the alleged sexual harassment and by the fact
that it prevented the report from being considered a public
record. Id. 17. They also asserted that Chiocca’s disclosure
was substantial, as it was “intense and widespread” -- Chiocca
used a public relations agent widely to disseminate the Report
to the media; major news outlets across Massachusetts
broadcasted the personal details of the report, and the story
was picked up by several blogs and other forms of media. Id.
17-18. They allege that, as a consequence, Kimball lost

business opportunities and was ultimately forced to resign from
the Board, and Hall was hospitalized, forced to resign from the
Board, pushed to end her campaign for State Representative, and
made to “flee Massachusetts.” Id. As to unreasonableness, Hall
and Kimball argue that their interest in privacy far outweighed
any possible legitimate interest Chiocca had in disclosure. Id.
19. They claim Chiocca could easily have released the
conclusion of the report “which found the accusation against him
to be unsubstantiated,” without publicizing the sexual affairs
of Hall and Kimball or humiliating Hall and Kimball. Id. 20.
Chiocca opposes on four bases. First, the facts contained
in the report were already well known in the community (were

being posted about online) and by Board members, and were being
actively discussed at public Board meetings. Def. Chiocca’s
Opp’n Pls. Hall & Kimball’s Mot. Summ. J. 13. Second, Chiocca
counters that the disclosure is fully justified because the
information was of “legitimate public concern.” Id. 14. The
fact that both of these individuals were public officials and
had accused Chiocca of sexual misconduct made the disclosures of
key importance for informing the public and clearing Chiocca of
the false allegations. Id. 15. Third, Chiocca asserts the
report was a public record under Massachusetts General laws
chapter 4, section 7(26) (“section 7(26)”). Id. 17. Fourth,
Chiocca argues that release of the information is covered by the

litigation privilege. Id. 19-20.
To these arguments Hall and Kimball riposte: (1) details of
Hall and Kimball’s involvement were never public even if the
affair was; (2) the Report was never a public record under
exception (c) of section 7(26); (3) the entirety of the Report
was not of legitimate public concern -- the intimate
relationship was not relevant to the Board’s investigation of
Chiocca; and (4) the release of the report is not covered by the
litigation privilege because Chiocca had not commenced or
contemplated litigation at the time he released the report.
Pls. Hall & Kimball’s Reply 11-19.
The Court considers whether (1) the elements of invasion of

privacy are met; and (2) the disclosure of the record was
further protected by Massachusetts law under section 7(26) or by
the litigation privilege.
1. Elements of Invasion of Privacy
Two elements are required to prove an invasion of privacy:
“[t]o sustain a claim for invasion of privacy, the invasion must
be both unreasonable and substantial or serious.” Polay v.
McMahon, 468 Mass. 379, 382 (2014) (quoting Nelson v. Salem
State College, 446 Mass. 525, 536 (2006)). In other words,
“[i]n order for a plaintiff to succeed on an invasion of privacy
claim, he must prove not only that the defendant unreasonably,
substantially and seriously interfered with his privacy by

disclosing facts of highly personal or intimate nature, but also
that it had no legitimate reason for doing so.” Martinez v. New
England Med. Ctr. Hosps., Inc., 307 F.Supp.2d 257, 267 (D. Mass.
2004) (Tauro, J.) (citing Schlesinger v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 409 Mass. 514, 518 (Mass. 1991)).
“Generally, whether an intrusion qualifies as unreasonable, as
well as either substantial or serious, presents a question of
fact.” Polay, 468 Mass. at 383.
This Court concludes that while Chiocca’s invasion into
Hall and Kimball’s privacy was serious in terms of subject
matter, it was not substantial given preexisting public

knowledge of these facts, Chiocca’s First Amendment rights to
disclose issues of public interest, and Chiocca’s interest in
disclosing personal facts about himself. Furthermore, Chiocca’s
disclosure was not unreasonable given his interest in providing
the public with key exculpatory information.
a. Serious and Substantial
“To fall under the protection of the statute, the disclosed
facts must be of a ‘highly personal or intimate nature.’”
Taylor v. Swartwout, 445 F.Supp.2d 98, 103 (D. Mass. 2006)
(Gorton, J.)(quoting Bratt v. Int'l Bus. Machs. Corp., 392 Mass.
508, 518, (1984)). A highly salacious report regarding sexual
encounters and affairs is indubitably of a highly personal or

intimate nature. “Indeed, commentators and courts have almost
universally recognized one’s sexual affairs as falling squarely
within the sphere of private life.” Bonome v. Kaysen, 032767,
2004 WL 1194731, at *4 (Mass. Super. Mar. 3, 2004) (citing
Peckham v. Boston Herald, Inc., 48 Mass. App. Ct. 282, 282-88
(1999)); Prosser, Privacy, 48 Cal. L. Rev. 383, 422-23 (1960);
Restatement (Second) Torts § 652D, comment b (“Sexual relations,
for example, are normally entirely private matters”)).
Here, the information disclosed concerned both Hall and
Kimball’s affair and Chiocca and Hall’s sexual encounter, as
well as many personal conversations between the parties and

their spouses, which fall squarely within the highly personal
and intimate category -- for example, Hall telling her husband
“I am going to want you,” and Hall expressing she no longer
wanted to be monogamous, see Ryan Report ¶ 32. Furthermore, the
Ryan Report included extensive discussions of individual’s fears
and motivations -- Kimball’s wife feeling vulnerable and
betrayed and Hall fearing she would be portrayed as a “whore and
a drunk,” for instance. Id. ¶ 77. Therefore, disclosure of the
Ryan Report meets these elements of substantiality and
seriousness. It may, however, be exempted by one of the
exceptions for this prong of chapter 214.
The right to privacy is bounded by at least three concepts:

individuals do not have a privacy right over (1) issues already
in the public domain; (2) issues of public concern; and (3)
issues regarding one’s own private information.
First, “there can be no invasion of privacy where the
facts, though highly personal, are already in the public
domain,” Taylor, 445 F. Supp. 2d at 103. Where issues are
“already [] the focus of a high degree of public scrutiny and
interest,” further disclosure of details, even of information
and documents that would normally not be open to public
inspection, may be acceptable. Ayash, 443 Mass. at 384. Courts
have warned that caution ought be exercised in cases where the
issues in question are of a “personal or intimate nature.” Id.

Nevertheless, an individual does not have a protected privacy
interest if “he has never attempted to keep that fact private.”
Rodrigues v. EG Sys., Inc., 639 F. Supp. 2d 131, 134 (D. Mass.
2009) (O’Toole, J.).
Here both the fact that Hall and Kimball were having an
extramarital affair and the fact that the Incident took place
were in the public sphere before Chiocca’s disclosure of the
Ryan Report -- both Hall and Kimball took steps to inform the
Board about the affair, their spouses were aware, and many
details were either intentionally exposed to the public or were
actively being discussed in the public sphere. As to Hall and
Kimball’s affair:

 In mid-June, 2018, Kimball informed the other Board members
about his affair with Hall. Hall & Kimball’s Response
Chiocca’s Statement Facts ¶ 134.
 On June 15, 2018, someone posted about the affair in a
Facebook group about the affair. Id. ¶¶ 130, 135.
 In the month of June two right wing blogs reported about
the affair. Id. ¶¶ 17, 18.
 One June 19, 2018, at a televised Board meeting, Attorney
Ryan complained that Kimball had lied about his affair with
Hall. Id. 133.
 On July 10, 2018, at another televised Board meeting,
Attorney Clifford stated that Kimball had mislead the Board
with respect to the affair with Hall. Id. ¶ 174.

As to Chiocca and Hall’s sexual encounter:
 On May 23, 2018, Fox News Channel 25 ran a story about the
Incident. Id. ¶ 100.
 On May 29, 2018, the Board voted on Public Broadcast to
place Chiocca on administrative leave. Id. ¶¶ 104, 108-11.
 On June 5, 2018, Hall accused Chiocca of inappropriate
behavior during a televised Board meeting. Id. ¶ 121-22.
 On June 13, 2018, Hall tried to enjoin the tapes of Town
Hall video surveillance from release which drew additional
media attention to the Incident. Id. ¶¶ 132-33.
 On July 10, during a live television broadcast the Board
disclosed the findings of the report -- that Hall’s claim
of non-consensual sexual contact was not substantiated by
the evidence. Id. ¶ 179.

Chiocca did disclose several details to the public that
went beyond the mere existence of an extramarital affair between
Kimball and Hall or the occurrence of sexual contact between him
and Hall. These details include personal information about
family reactions to affairs, conversations regarding the
affairs, the timeline of the Incident, and the aftermath of the
Incident. Although these details provided some additional color
as to each of these events, these particulars did not confirm
any additional events that were not largely in the public
knowledge already.
Second, the constitutional reach of the First Amendment
cannot be circumscribed by this state statutory right. Peckham,
48 Mass. App. Ct. at 286. “[T]he right to control publication
of one’s private affairs is tempered by the constitutionally
protected right of others to publish matters of legitimate
public concern.” Bonome v. Kaysen, 032767, 2004 WL 1194731, at
*3 (Mass. Super. Mar. 3, 2004) (internal quotation marks
omitted).

Chiocca is correct in arguing that the public had an
interest in knowing about Kimball and Hall’s affair given that
they were both public officials, they both were Chiocca’s
supervisors, and they both had a hand in accusing Chiocca of
inappropriate behavior. In fact, Hall and Kimball discussed the
events of May 1 shortly after they took place. Chiocca’s
Response Hall’s & Kimball’s Additional Facts ¶ 86. Kimball was
present during the May 18 meeting where Chiocca admitted that
Hall and he had engaged in sexual contact. Id. ¶ 94.
Furthermore, Kimball took part in the Board votes relevant to
Chiocca before disclosing his involvement with Hall. Hall &
Kimball’s Response Chiocca’s Statement Facts ¶¶ 104, 108, 109,

110, 111, 114-15. It was of key public interest not only that
an affair took place, but also that Hall and Kimball had an
“intense” emotional connection. The degree of Kimball’s loyalty
to Hall and willingness to bend the rules of his role to Hall’s
benefit are of central importance -- both for holding Kimball
accountable as a public servant and for Chiocca’s attempt to
exculpate himself. Both Kimball and Hall’s positions are
elected seats and these individual’s fidelity to their roles and
respect for their public offices are impacted by the Ryan
Report.
Furthermore, the Ryan Report’s discussion of the Incident
was also of key public interest. First, although Investigator

Ryan announced her findings at a public board meeting, the
details of the Ryan Report were relevant to reinstituting public
trust in Chiocca and restoring his reputation. Second, given
that the Incident was actively in the news and involved
accusations of impropriety that could have reached the level of
criminal liability, the details of the Report were of legitimate
interest to voters.
Third, one has the right to govern the flow of information
about oneself. Bonome v. Casey, 2004 WL 1194731, at *4. For
example, in Bonome v. Kasey the Superior Court of Massachusetts
dealt with the disclosure of personal and graphic details of
sexual encounters between two individuals in a book; defendant’s

book changed plaintiff’s name and occupation, but was largely
autobiographical making its subjects’ identities obvious. 2004
WL 1194731, at *2. The fact that the plaintiff and defendant
had been engaging in an extramarital affair was well known by
plaintiff’s friends, family, and colleagues; the aspects and
details of the affair, however, were private -- for example, the
plaintiff detailed one sexual encounter, which she believed was
coercive and had “exceeded the bounds of consensual sexual
relations.” Id. The plaintiff suffered severe humiliation and
loss of reputation as consequence of the book. Id. The Court
concluded that while the invasion was serious it was
counteracted by defendant’s right to govern information about

herself:
Because the First Amendment protects Kaysen's ability
to contribute her own personal experiences to the
public discourse on important and legitimate issues of
public concern, disclosing Bonome's involvement in
those experiences is a necessary incident thereto.

Id. at *6.
Here, with the exception of facts regarding Hall’s and
Kimball’s affair, Chiocca disclosed issues mostly having to do
with the events of May 1 and its aftermath. See generally Ryan
Report. The only disclosures regarding Hall and Kimball were
relatively minor: (1) the first was the characterization of
their relationship as “an ‘intense physical’ and emotional
affair”; and (2) the second was the reaction of Hall and
Kimball’s spouses. Ryan Report ¶¶ 22, 46-51. As to the
remainder of the facts, almost all of them regard the Incident,
Hall and Chiocca’s relationship, and Hall’s behavior after the
Incident. See generally Ryan Report. All of these facts are
not only highly relevant to Chiocca, but intimately involve
Chiocca and his own privacy.
In sum, Chiocca’s disclosure of the Ryan Report possesses
elements of a serious and substantial invasion of privacy: it
regards highly intimate information and discloses details
concerning family reactions to affairs, personal fears, and the
Incident. Nevertheless, there are several countervailing

factors that appear to exempt Chiocca’s disclosure from meeting
this requirement of chapter 214.
First, much of the affair and the Incident was already
being discussed by the public -- including the fact that Hall
and Kimball were having a relationship, the fact that Chiocca
and Hall engaged in sexual contact, and the fact that an
investigation was ongoing.
Second, the public had an interest in knowing the details
of Kimball and Hall’s affair as well as the Incident. Given the
seriousness of the allegations leveled by Hall against Chiocca,
and Kimball’s deep involvement in the early stages of Chiocca’s
disciplining and investigation, these issues were relevant to

the voters.
Third, Chiocca’s own personal involvement in the events of
the Incident provided him with an interest in disclosing his own
private information.
These factors counsel in favor of this Court’s ruling that
Chiocca’s invasion of Hall and Kimball’s privacy was not
substantial. Nevertheless, the Court considers the
unreasonableness of Chiocca’s disclosures.
b. Unreasonable
The second element of the chapter 214 test is the
unreasonableness of the disclosure. “In determining whether a

defendant committed an unreasonable intrusion, we balance the
extent to which the defendant violated the plaintiff’s privacy
interests against any legitimate purpose the defendant may have
had for the intrusion. Polay, 468 Mass. at 383. For example,
in Bonome the Court took into account the fact that defendant
had changed plaintiff’s name and balanced the intensity of the
disclosures against the author’s expressive interest in
publishing a work of literature. Bonome, 2004 WL 1194731, at
*7. The First Circuit has held that an intrusion into one’s
privacy is not unreasonable if it serves a legitimate business
purpose. Squeri v. Mount Ida Coll., 954 F.3d 56, 69 (1st Cir.
2020).

Chiocca here stresses his interest in protecting his own
reputation and informing the public about Hall and Kimball’s
affair. Furthermore, he also asserts an interest in remedying
his reputation after Hall’s accusations. Hall and Kimball
counter that these interests were already sufficiently served by
Investigator Ryan’s public announcement absolving Chiocca.
With regard to his disclosure of the of the affair between
Hall and Kimball, Chiocca’s and the public’s interest in
disclosure likely outweighs Hall and Kimball’s interest in
privacy. The depth and degree of Hall and Kimball’s affair was
important to clearing Chiocca’s name and apprising the public of

issues concerning the legitimacy of the actions taken against
Chiocca.
Disclosing the fact that Hall and Kimball had an “intense
emotional and physical affair” was necessary to paint a picture
of how far Kimball’s judgment may have been corrupted and how
that (1) could affect his role as Selectman and (2) could have
affected Kimball’s involvement in Chiocca’s investigation for,
and possible report of, sexual harassment.
In this regard, Hall and Kimball also took issue with
Chiocca’s disclosure of personal conversations between Hall and
her husband about her affair with Kimball. These conversations,
however, also served a purpose, as they tended to exhibit Hall’s

lucidity after the events of May 1, and therefore provided
additional exculpatory evidence for Chiocca.
Some of the information disclosed was unreasonable to an
extent -- at one point the report mentions private details about
Hall’s son medical appointments, that Mr. Hall called in sick
for work because his wife got home extremely late, and that Mrs.
Kimball felt vulnerable and betrayed. See Ryan Report ¶ IV.17.
These disclosures were not, however, so severe as to constitute
a violation of either Hall or Kimball’s privacy rights.
Chiocca’s disclosure of the events taking place on the
night of the Incident, May 1, and thereafter is even more
reasonable. The events tend to show that Chiocca was resistant

to Hall’s advances on the night of the incident. They also
demonstrate, at the very least, that in the day following the
Incident, Chiocca attempted to create space between himself and
Hall, whereas Hall sought out opportunities to see Chiocca. See
Ryan Report Conclusions. While Hall claims that the Report
disclosed graphic details of the sexual encounter, the original
report that was disclosed is largely devoid of any mention of
sex. It briefly mentions the existence of a sexual encounter
but does not go into any further detail. See Ryan Report ¶ VI.
Any details of the sexual encounter were redacted in the copy
provided to Chiocca and later disclosed to the media.
Finally, much of the harm that Hall and Kimball allege

resulted from Chiocca’s disclosure actually predated it.
Chiocca released the Report on July 11, Chiocca’s Statement
Facts ¶ 193, but Hall was forced to withdraw from the race on
May 30, Hall & Kimball’s Response Chiocca’s Statement Facts ¶
116, she was involuntarily committed for a suicide watch on July
10, Chiocca’s Response Hall’s & Kimball’s Facts ¶ 101, and
Kimball was voted out at the July 10 meeting, id. ¶ 187. While
it is likely that the Report worsened their public image, this
is not sufficient to counterbalance Chiocca’s interest in
disclosure.
Therefore, Chiocca’s disclosure of the Ryan Report was
neither a substantial nor an unreasonable invasion into Hall’s

and Kimball’s privacy.
2. Other Defenses Raised by Chiocca
Beyond the defenses of public disclosure and public
interest in the Ryan Report, Chiocca raises two other defenses:
(1) he claims the report was a public record under section
7(26); and (2) he argues that the disclosure is covered by the
litigation privilege. Chiocca need not establish either of
these defenses to prevail, given that he has not committed a
public disclosure of private facts violation. This Court,
however, briefly considers each defense.
a. Section 7(26)
Chiocca argues that that Ryan Report is a public record

pursuant to Massachusetts General Laws chapter 41, section 23B
(“section 23B”) and that it does not fall under the limited
exceptions enumerated by Massachusetts General Laws chapter 4,
section 7(26)(c) (“section 7(26)(c)”). Def. Chiocca’s Opp’n
Pls. Hall & Kimball’s Mot. Summ. J. 16-17. Hall and Kimball
rebut that the Ryan Report is not a public record as it falls
under the section 7(26)(c) exemption. Pls. Hall & Kimball’s
Reply 11-19. This Court need not reach this issue, as it can
conclude Chiocca is not liable for invasion of privacy
regardless whether the Ryan Report is deemed to be a public
record. See Ayash, 443 Mass. at 384. This Court concludes,
however, that the Ryan Report is a public record.

Section 23B establishes that “[t]he selectmen of any town
may make an investigation into the conduct and operation of any
town department. Upon completion of such investigation a report
shall be submitted to the town clerk and such report shall be
printed in the annual town report.” Under Section 7(26) a
public record is defined as any “documentary material[] . . .
made or received by any officer or employee” of the state
government. Mass. Gen. Laws ch. 4, § 7(26). Thus the Ryan
Report is by default a public record unless it falls under one
of the exemptions enumerated by the act. The parties agree that
the most relevant exemption is section 7(26)(c), which protects:
personnel and medical files or information and any other
materials or data relating to a specifically named
individual, the disclosure of which may constitute an
unwarranted invasion of personal privacy; provided,
however, that this subclause shall not apply to records
related to a law enforcement misconduct investigation.

Mass. Gen. Laws ch. 4, § 7(26)(c). This exemption clause “was
amended in 1977 to modify the word ‘privacy’ by adding before it
the word ‘unwarranted.’ This amendment ‘in essence broadened the
range of information that might be available as public
records.’” Georgiou v. Comm'r Of Dep't Of Indus. Accidents, 67
Mass. App. Ct. 428, 432 (2006) (quoting Torres v. Attorney Gen.,
391 Mass. 1, 7 (1984)). The Supreme Judicial Court of
Massachusetts, in People for the Ethical Treatment of Animals,
Inc. v. Department of Agricultural Resources laid out the

following test with regards to section 7(26)(c):
Exemption (c) requires a balancing test: where the public
interest in obtaining the requested information
substantially outweighs the seriousness of any invasion of
privacy, the private interest in preventing disclosure must
yield. On one side of the scale, we have looked to three
factors to assess the weight of the privacy interest at
stake: (1) whether disclosure would result in personal
embarrassment to an individual of normal sensibilities; (2)
whether the materials sought contain intimate details of a
highly personal nature; and (3) whether the same
information is available from other sources. We have also
said that “other case-specific relevant factors” may
influence the calculus. On the other side of the scale, we
have said that the public has a recognized interest in
knowing whether public servants are carrying out their
duties in a law-abiding and efficient manner.
477 Mass. 280, 291–92 (internal citations omitted). The
disclosure here could result in personal embarrassment to an
individual of reasonable sensibilities and was of a highly
personal nature, but the information was largely unavailable
from other sources, and was highly relevant to determining
whether civil servants were carrying out their duties according
to the applicable rules and regulations.
Another factor also weighs in favor of concluding that the
Ryan Report is a public record. Kimball and Hall are both
elected public officials. See Bos. Globe Media Partners, LLC v.
Dep't of Pub. Health, 482 Mass. 427, 442 (2019); PETA, 477 Mass.
at 293-294, (“[E]xemption [c] balancing test . . . should
account for the different privacy interests . . . held by a
public employee versus a private one.”); cf. National Archives &

Records Admin. v. Favish, 541 U.S. 157, 166 (2004) (“[W]here the
subject of the documents ‘is a private citizen,’ ‘the privacy
interest . . . is at its apex.’” (quoting U.S. Dep't of Just. v.
Reps. Comm. For Freedom of Press, 489 U.S. 749, 780 (1989)).
Therefore, for reasons similar to those outlined above, see
supra Section IV.B.1.a., the Ryan Report meets the requirements
of a public record.7
b. Litigation Privilege
Finally, Chiocca claims that “[written or oral
communications made by a party, witness, or attorney prior to .
. . a judicial proceeding involving said party, witness, or
attorney are absolutely privileged even if uttered maliciously

or in bad faith.” Def. Chiocca’s Opp’n Pls. Hall & Kimball’s

7 This conclusion comports with the Public Records Division
for the Commonwealth of Massachusetts which initially found that
under the Public Records Act, the Town would be compelled to
disclose the Supplemental Ryan Report, although it later
reconsidered this issue in light of the present pending
litigation. Hall’s & Kimball’s Response Chiocca’s Additional
Facts ¶¶ 22-25.
Mot. Summ. J. 19 (quoting Rich v. Rich, 2011 Mass. Super. LEXIS
148, *21-24 (2011) (quotations omitted).
“The litigation privilege protects statements made in the
institution or conduct of litigation or in conferences and other
communications preliminary to litigation.” Riverdale Mills

Corp. v. Cavatorta N. Am., Inc., 189 F. Supp. 3d 317, 321 (D.
Mass. 2016) (Hillman, J.) (internal quotation marks omitted).
Nevertheless, “the privilege may not be exploited as an
opportunity to defame with impunity, and it does not protect
unnecessary or unreasonable publication to parties outside the
litigation . . . .” Id. (internal quotation marks omitted).
While this disclosure was not unnecessary, unreasonable, or
defamatory, it is not protected by the litigation privilege.
Chiocca was not pursuing legal action at the time of the release
of the Ryan Report, nor has he adduced any evidence to show that
his release of the document was done in preparation for
litigation. To deem this release covered by the litigation

privilege would improperly stretch the temporal scope of the
doctrine. Therefore, this Court concludes that the litigation
privilege does not apply to the Ryan Report. Nevertheless,
Chiocca does not need the benefit of this defense, given that he
has not improperly invaded Hall or Kimball’s privacy.
I. CONCLUSION
At the close of this case, judgment will enter for Chiocca
on count 24 of his complaint, count 3 of Hall’s counterclaims,
and count 1 of Kimball’s counterclaim.
SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
JUDGE
of the
UNITED STATES8

8 This is how my predecessor, Peleg Sprague (D. Mass. 1841-
1865), would sign official documents. Now that I’m a Senior
District Judge I adopt this format in honor of all the judicial
colleagues, state and federal, with whom I have had the
privilege to serve over the past 44 years.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10200636. Public record. Not legal advice.