The opinion
[This opinion has been published in Ohio Official Reports at 85 Ohio St.3d 465.]
EAST CANTON EDUCATION ASSOCIATION ET AL., APPELLANTS, v. MCINTOSH,
APPELLEE; OSNABURG LOCAL SCHOOL DISTRICT BOARD OF EDUCATION ET
AL., APPELLANTS.
THE STATE EX REL. MCINTOSH, APPELLEE, v. OSNABURG LOCAL SCHOOL
DISTRICT BOARD OF EDUCATION ET AL., APPELLANTS.
[Cite as E. Canton Edn. Assn. v. McIntosh, 1999-Ohio-282.]
Schools—Teachers—Attainment of continuing service status by an eligible teacher
is not dependent upon a written contract of employment between teacher
and board of education—R.C. 3319.08 and 3319.11(B), construed—Torts—
Defamation—Public school principal is not a public official for purposes of
defamation law.
1. The attainment of continuing service status by an eligible teacher is not
dependent upon a written contract of employment between the teacher and
a board of education. If, after a teacher attains continuing service status, the
board adopts a motion or resolution to employ the teacher under a
continuing contract of employment, the teacher will be considered to be
employed and serving under a continuing contract of employment. (R.C.
3319.08 and 3319.11[B], construed.)
2. A public school principal is not a public official for purposes of defamation
law.
(Nos. 97-2039 and 98-834—Submitted January 12, 1999—Decided May 19,
1999.)
APPEAL from the Court of Appeals for Stark County, No. 96-CA-0293.
APPEAL from the Court of Appeals for Stark County, Nos. 97-CA-50, 97-CA-56
and 97-CA-60.
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SUPREME COURT OF OHIO
{¶ 1} These appeals arise from complex, convoluted, and questionable
procedures. Nevertheless, the precise procedural details of each case are largely
irrelevant. We accepted jurisdiction and consolidated the cases to consider (1)
whether appellee John R. McIntosh had attained continuing service status as a
teacher with the Marlington Local School Board of Education (“Marlington”), and
(2) whether the Fifth Appellate District correctly concluded in its decisions that
McIntosh was neither a public official nor a public figure for purposes of his
defamation claims.1 The supporting facts and procedural postures of the cases
relevant to a proper determination of these issues are as follows.
{¶ 2} Beginning in 1966, McIntosh was hired by Marlington as a seventh
grade social studies teacher under a limited contract of employment. From the
1971-1972 through the 1975-1976 school years, McIntosh was assigned guidance
counselor duties, and he also performed some teaching functions in the district. On
April 8, 1975, Marlington voted to grant McIntosh a continuing contract of
employment. McIntosh does not recall if a written contract was ever entered into.
In June 1975, McIntosh accepted an administrative position as an assistant principal
with Marlington. From the 1975-1976 through the 1980-1981 school years,
McIntosh was employed by Marlington as an assistant principal, and, from the
1981-1982 through the 1986-1987 school years, he served as a principal in the
district.
{¶ 3} Following his employment with Marlington, McIntosh was hired by
appellant Osnaburg Local School Board of Education (“Osnaburg” or “board”).
From the 1987-1988 through the 1989-1990 school years, McIntosh was employed
by Osnaburg as the East Canton High School assistant principal, and, from the
1. The appellants in these consolidated cases have set forth additional issues for our consideration.
However, our holdings today are specifically confined to the issues considered, and we make no
comment regarding the merits of any other issues addressed by the courts below or raised by the
parties on appeal in this court.
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January Term, 1999
1990-1991 through the 1994-1995 school years, he served as the high school
principal.
{¶ 4} In February 1995, McIntosh met with Osnaburg to discuss his
employment status for the coming school year. The board informed him that it
intended not to renew his administrative contract, which was set to expire on July
31, 1995. The board proposed to McIntosh that he resign his position as principal
and that he could become an employee of the Stark County Department of
Education. McIntosh refused to resign. He advised the board that he was a tenured
teacher and that he was entitled to reemployment within the district.
{¶ 5} In March 1995, Osnaburg notified McIntosh of its intention not to
reemploy him. Students became aware of the board’s intentions, and some began
wearing “Keep Mac” ribbons. The media also became involved. On March 9,
1995, appellant Dr. George McGuire, the school superintendent, in the presence of
two police officers, ordered McIntosh to vacate the school building, and he was
placed on home assignment. McGuire warned McIntosh that if he returned to the
school, he would be considered a trespasser and that appropriate action would be
taken against him. Numerous students showed further support for McIntosh by not
reporting to school, by leaving school during school hours, and by making signs.
Some students held demonstrations outside the school building.
{¶ 6} In a letter dated March 10, 1995, McGuire informed McIntosh that he
(McGuire) was going to recommend to the board that McIntosh’s
“teaching/administrative contract(s) with the District be suspended and/or
terminated” for, among other things, “gross inefficiency,” “immorality,” “willful
and persistent violations of reasonable regulations of the Board of Education,”
“ineffectiveness in maintaining appropriate student discipline,” “student safety,”
and “condoning and/or promoting student unrest.” McIntosh was also advised that
he could appear before the board on March 13, 1995 “to show cause why your
contract(s) should not be suspended and/or terminated.”
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SUPREME COURT OF OHIO
{¶ 7} Additionally, on March 10, 1995, appellant Sharon E. Griffith met
with members of appellant East Canton Education Association (“ECEA”). Griffith
was president of ECEA. According to Griffith, ECEA members voted at the March
10 meeting “to issue a public statement addressing McIntosh’s actions.” The
“public statement” was written by appellant Mary Jo Slick, a labor relations
consultant for appellant Ohio Education Association (“OEA”), and it was read by
Griffith at the March 13, 1995 board meeting.2
2. The statement written by Slick and read by Griffith at the March 13, 1995 board meeting
provides:
“My name is Sharon Griffith and I am President of the East Canton Educators’ [sic]
Association. I am here tonight specifically authorized by our membership to address you on their
behalf and to express their views on the recent events in our district. In fact, the vote of our teachers
was overwhelming—only 4 no votes from the entire staff.
“It is with great sadness that the staff here tonight felt it necessary to take the unusual step
of publicly entering this debate. Let there be no doubt, the ECEA supports the recommendation of
the Superintendent and urges this Board to do the same.
“This issue never was, and should not have become, one that was personalized around one
individual. Mr. McIntosh IS NOT the issue here tonight. Rather, the issue is whether or not
representative democracy is alive and well in this district or shall we be governed hereafter by mob
rule.
“The people here tonight DO NOT represent the East Canton community. They can only
represent themselves. While they are certainly entitled to their opinions, they are elected by no one
and accountable to no one. On the other hand, this Board was elected by the entire community and
is accountable at the ballot box. That is the democratic process that has made this country great and
protected the silent majority from small vocal self-interest groups such as those here tonight.
“The proper function of any school board is to develop a philosophy of education that will
guide the district and then to hire the very best Superintendent to lead the school team. As in any
team undertaking, there can only be one leader—one quarterback. Otherwise, what you have is
chaos. This Board has selected its leader—Dr. McGuire.
“Who in this room tonight is trained, experienced and authorized by law to evaluate John
McIntosh? Only Dr. McGuire. Who in this room tonight knows ALL the facts and circumstances
surrounding the performance of this principal, not just what he has chosen to share? Dr. McGuire
and the Board. On what basis could the group of people here tonight possibly substitute their
judgment for that of the Superintendent and the Board? If the Board surrenders to making personnel
decisions to those who show up and yell the loudest, they and this community can plan on this type
of disruptive spectacle at every Board meeting. And worst of all, what type of lessons are we
teaching our children about respect for authority and process?
“As I said a minute ago, this issue should never have been personalized. However, Mr.
McIntosh has chosen to do so. When discussing the Board’s charge that he had problems with
disciplining students, he was quoted in the newspaper as blaming ‘weak teachers.’ I have personally
reviewed every evaluation of each high school teacher. There is not one criticism of any of the
teachers, by Mr. McIntosh or any other evaluator, regarding student discipline.
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January Term, 1999
{¶ 8} At the March 13 meeting, the board voted to suspend McIntosh and
not to reemploy him at the expiration of his administrative contract. Thereafter, the
board held another meeting and, ultimately, did not renew McIntosh’s
administrative contract. The board concluded that he did not have a right to
employment as a teacher in the school district. Events surrounding McIntosh’s
nonrenewal received considerable media attention.
{¶ 9} On March 17, 1995, McIntosh filed a complaint in the Stark County
Court of Common Pleas (case No. 1995-CV-475), naming, as defendants,
Osnaburg, the individual members of the board, and McGuire. McIntosh sought a
declaratory judgment, a writ of mandamus, an injunction, and monetary damages.
McIntosh alleged that he was a tenured teacher, that he should be afforded all rights
and privileges pertaining to that status, and that he was entitled to continuing
service status as a teacher with Osnaburg. McIntosh also advanced, among other
claims, allegations of defamation. Specifically, McIntosh alleged that the charge
“For Mr. McIntosh to attempt to blame our high school staff for his alleged inadequacies
is unconscionable. The major job of a principal should be to properly and fairly evaluate teachers.
If the staff in this district was ‘weak in discipline’, it was Mr. McIntosh’s job to evaluate, record and
deal with the problem. He either failed to do so, or was less than honest when he made his statement
to the press. How could this Board or community ever expect our staff to work for Mr. McIntosh as
their supervisor or even with him as a fellow teacher after such a self-serving attack?
“There are laws in this State that provide Mr. McIntosh or any school employee with certain
due process rights. The Association supports such a procedure. If, in fact, he has truly been treated
unfairly or illegally, why then did Mr. McIntosh not use the proper process? It is just plain wrong
for one person to exploit students and to allow a community to be torn apart with the circus-like
atmosphere that has existed in this district.
“Tonight it is this Board of Education that will be the teacher. By your actions and
decisions what shall you teach us? Shall this community, staff and students learn from you that
protest signs, name-calling, manipulation of the media and students, and angry crowds shall define
the decision-making process for the Osnaburg Local School District.
“Rather, the professional staff of the East Canton School District hopes that the lesson we
learn from you tonight is that in a civilized society, the silent majority, representative democracy,
accountability, and the proper process are important. We owe our children no less. Please support
the process—please allow this Superintendent to do the job for which you hired him.” (Emphasis
sic.)
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SUPREME COURT OF OHIO
of immorality and other statements made by McGuire and ratified by the board and
its members were false and actionable.
{¶ 10} On December 22, 1995, ECEA filed a declaratory judgment action
in the trial court (case No. 1995-CV-2208-1), seeking a determination that
McIntosh had not attained continuing service status with Marlington. ECEA also
requested, in the alternative, that if the court should find that McIntosh had attained
tenure status with Marlington, then he should not be allowed to displace or cause
the layoff of any member of ECEA in the Osnaburg school district. By amended
complaint, the board was also made a party defendant in the case.
{¶ 11} On February 9, 1996, McIntosh responded to ECEA’s declaratory
judgment action. He filed an answer and a counterclaim against ECEA and a third-
party complaint against Slick, Griffith, and OEA. McIntosh’s third-party complaint
against Slick and Griffith was brought against them in both their individual and
representative capacities. In his counterclaim and third-party complaint, McIntosh
advanced various causes of action, including claims for defamation. His
defamation claims were predicated on passages contained in the statement prepared
by Slick and read by Giffith at the March 13, 1995 board meeting.
{¶ 12} On August 22, 1996, Judge James S. Gwin, the trial judge assigned
to case No. 1995-CV-2208-1, granted summary judgment in favor of ECEA, Slick,
Griffith, and OEA, regarding all actions brought by McIntosh in his counterclaim
and third-party complaint. With respect to McIntosh’s defamation claims, Judge
Gwin held that Slick and Griffith were not personally liable to McIntosh for any
actions taken by them on behalf of the associations they represented, that McIntosh
was a public figure, and that the statement prepared by Slick and read by Griffith
at the March 13, 1995 board meeting did not contain defamatory language.
{¶ 13} On appeal, a panel of judges from the Ninth Appellate District sitting
by assignment in the Fifth District Court of Appeals (case No. 96-CA-293) reversed
the judgment of the trial court in part and affirmed it in part, and remanded the
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January Term, 1999
cause for further proceedings. The court held, inter alia, that McIntosh was neither
a public official nor a public figure and that genuine issues of material fact existed
as to whether certain passages contained in the statement read by Griffith at the
March 13, 1995 board meeting were defamatory.
{¶ 14} ECEA’s declaratory judgment action, case No. 1995-CV-2208-1,
had been consolidated with McIntosh’s complaint, case No. 1995-CV-475. (ECEA
became a party in case No. 1995-CV-475 upon the consolidation of the cases.)
Subsequently, on January 23, 1997, Judge John F. Boggins, the trial judge assigned
to case No. 1995-CV-475, decided all the claims remaining in both cases and issued
two judgment entries. In one entry, Judge Boggins concluded that McIntosh had
attained continuing service status as a teacher with Marlington and that he was
entitled to employment as a teacher in the Osnaburg school district. With respect
to McIntosh’s other claims, including the claims for defamation, Judge Boggins, in
the other entry, granted summary judgment in favor of the board, its members, and
McGuire.
{¶ 15} On appeal, a panel of judges from the Seventh Appellate District
sitting by assignment in the Fifth District Court of Appeals (case Nos. 97-CA-50,
97-CA-56 and 97-CA-60) affirmed the judgment of the trial court in part, modified
it in part, reversed it in part, and remanded the cause for further proceedings. The
court held that McIntosh had attained continuing service status with Marlington,
that his tenure rights transferred from Marlington to Osnaburg, and that McIntosh
was entitled to employment as a teacher in the Osnaburg school district. The court
also determined, among other things, that the trial court erred in dismissing
McIntosh’s defamation claims against the board, its members, and McGuire.
{¶ 16} Each cause is now before this court upon the allowance of a
discretionary appeal.
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SUPREME COURT OF OHIO
Green, Haines, Sgambati, Murphy & Macala Co., L.P.A., and Ronald G.
Macala, for appellants East Canton Education Association, Ohio Education
Association, Mary Jo Slick, and Sharon Griffith in case Nos. 97-2039 and 98-834.
Brian L. Zimmerman; Allen Schulman & Associates Co., L.P.A., Allen
Schulman, Jr., and Christopher J. Van Blargan, for appellee McIntosh in case Nos.
97-2039 and 98-834.
Michael J. Spetrino; Means, Bichimer, Burkholder & Baker Co., L.P.A.,
and Richard W. Ross, for appellants Osnaburg Local School Board of Education,
and members of the board David D. Haubert, Phil A. Bushey, Francis Aquino,
Betsy Ketchum, Reed C. Varian, and George McGuire, Superintendent of
Osnaburg Local School District, in case Nos. 97-2039 and 98-834.
__________________
DOUGLAS, J.
I
{¶ 17} ECEA, McIntosh, and the board filed stipulations with the trial court
in case No. 1995-CV-2208-1. In paragraph five they agreed that “[a]t its regular
meeting of April 8, 1975, the Marlington Local School District Board of Education
voted to grant Defendant McIntosh a continuing contract of employment.” In
paragraph six they stated further that “[a]lthough the Marlington Local School
District Board of Education took such action at its April 8, 1975 meeting, Defendant
McIntosh has no recollection that a continuing contract of employment was ever
physically issued to, or executed by him.”
{¶ 18} ECEA correctly states that if McIntosh had attained continuing
contract status as a teacher with Marlington in 1975, then he would be “entitled to
a continuing contract [as a teacher] upon the non-renewal of his subsequent
administrative employment” with Osnaburg. This conclusion is supported by R.C.
3319.11(B), which provides that “[t]eachers eligible for continuing service status
in any * * * school district shall be those teachers qualified as described in division
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January Term, 1999
(B)(1) or (2) of section 3319.08 of the Revised Code, who within the last five years
have taught for at least three years in the district, and those teachers who having
attained continuing contract status elsewhere, have served two years in the district
* * *.” (Emphasis added.) Moreover, in State ex rel. Kelley v. Clearcreek Local
School Dist. Bd. of Edn. (1990), 52 Ohio St.3d 93, 556 N.E.2d 173, this court held
that “[a] certified teacher who has attained continuing service status in one school
district, and who has served at least two years as an administrator in a second school
district, is entitled to a continuing service contract as a teacher in the second school
district if the administrative contract is not renewed.” Id. at syllabus.
{¶ 19} ECEA contends, however, that Osnaburg was justified in not
reemploying McIntosh as a teacher in the district because McIntosh failed to
establish that he actually attained continuing service status with Marlington. ECEA
points out that the record does not contain a written continuing contract of
employment between McIntosh and Marlington. Therefore, according to ECEA,
in order to establish that he is entitled to continuing service status as a teacher with
Osnaburg, McIntosh was required to comply with R.C. 3319.08, which he failed to
do.
{¶ 20} R.C. 3319.08 states that “[t]he board of education of each * * *
school district * * * shall enter into written contracts for the employment and
reemployment of all teachers.” (Emphasis added.) However, entitlement to
continuing service status as a teacher is not dependent upon a written contract of
employment between the teacher and the board. R.C. 3319.08 also provides that
“[i]f the board adopts a motion or resolution to employ a teacher under a limited or
continuing contract and the teacher accepts such employment, the failure of such
parties to execute a written contract shall not void such employment contract.”
(Emphasis added.) See, also, State ex rel. Smith v. Etheridge (1992), 65 Ohio St.3d
501, 505, 605 N.E.2d 59, 62 (“Ordinarily, R.C. 3319.08 will validate a contract
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SUPREME COURT OF OHIO
where the board does not put such contract in writing but the employee performs
his or her duties as though a written contract were present.”).
{¶ 21} Specifically, ECEA points to the language “the teacher accepts such
employment” in R.C. 3319.08, and asserts that, in the absence of a written contract
between the teacher and the board, the teacher claiming continuing service status
must present affirmative evidence that he or she had in fact accepted a continuing
contract offer of employment. In this regard, ECEA claims that McIntosh “has not,
and cannot, establish such acceptance.” ECEA states that “[t]here is no evidence
in the record that [McIntosh] ever responded to the continuing contract offer; and,
he did not commence performance pursuant to that offer of a continuing contract.
Rather, [McIntosh] expressly accepted the [Marlington] Board’s subsequent offer
of a limited (one-year) administrative contract of re-employment for the 1975-1976
school year and executed a written contract evidencing that acceptance. Plainly,
the parties’ express and written agreement that [McIntosh] would be employed
pursuant to a limited administrative contract for the 1975-1976 school year
precludes a contemporaneous finding that [McIntosh] was employed during that
year under a continuing teaching contract.”
{¶ 22} We disagree. ECEA misinterprets the statute. In order to accept
ECEA’s interpretation of R.C. 3319.08, we would have to add language to the
statute that simply does not exist. By its very terms, R.C. 3319.08 does not contain
language that places an affirmative duty on the teacher to establish that he or she
had in fact accepted a continuing contract of employment. Rather, R.C. 3319.08,
when read in conjunction with R.C. 3319.11(B)(1), supports a finding that the
attainment of continuing service status by an eligible teacher is not dependent upon
a written contract of employment between the teacher and a board of education. If,
after a teacher attains continuing service status, the board adopts a motion or
resolution to employ the teacher under a continuing contract of employment, the
teacher will be considered to be employed and serving under a continuing contract
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January Term, 1999
of employment. In fact, the only qualifying condition precedent found in R.C.
3319.11(B)(1) is if the board, by a three-fourths vote, refuses to reemploy the
teacher. Here, the board voted to grant McIntosh a continuing contract. In such a
case, the teacher will have attained continuing contract status. Thus, we agree with
the conclusions reached by the trial court and the panel of judges from the Seventh
Appellate District sitting by assignment in the Fifth Appellate District that
McIntosh had attained continuing service status as a teacher with Marlington in
1975.
{¶ 23} We also reject ECEA’s assertion that McIntosh’s acceptance of the
administrative contract, subsequent to Marlington’s vote to offer him a continuing
contract of employment, served as a rejection of that offer, thereby waiving his
continuing contract status. R.C. 3319.02(C)3 expressly allows a teacher to accept
an administrative position without jeopardizing his or her continuing service status
as a teacher. See, also, Kelley, supra. Therefore, McIntosh did not waive his
continuing teaching status upon subsequently accepting the administrative position
with Marlington.
II
{¶ 24} In case No. 96-CA-293, a panel of judges from the Ninth Appellate
District sitting for the Fifth District Court of Appeals thoroughly reviewed relevant
decisions from this court and the United States Supreme Court and concluded that
McIntosh was neither a public official nor a public figure for purposes of his
defamation claims. This ruling regarding McIntosh’s status was, also, subsequently
adopted by the panel of judges from the Seventh Appellate District sitting for the
Fifth Appellate District in case Nos. 97-CA-50, 97-CA-56 and 97-CA-60, “[s]o as
3. R.C. 3319.02(C) states, “When a teacher with continuing service status becomes an assistant
superintendent, principal, assistant principal, or other administrator with the district or service center
with which the teacher holds continuing service status, the teacher retains such status in the teacher’s
nonadministrative position as provided in sections 3319.08 and 3319.09 of the Revised Code.”
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to assure a consistent application of law within the context of the separate
defamation claims.”
{¶ 25} In New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct.
710, 11 L.Ed.2d 686, the United States Supreme Court held that the constitutional
protections afforded by the First and Fourteenth Amendments prohibit a public
official from recovering damages for alleged defamatory statements relating to his
or her conduct unless the official can establish that the statement was made with
actual malice. The court declined, however, to determine “how far down into the
lower ranks of government employees the ‘public official’ designation would
extend for purposes of [the actual malice] rule, or otherwise to specify categories
of persons who would or would not be included.” Id., 376 U.S. at 283, 84 S.Ct. at
727, 11 L.Ed.2d at 708, fn. 23. However, guidance was provided later in Rosenblatt
v. Baer (1966), 383 U.S. 75, 85, 86 S.Ct. 669, 676, 15 L.Ed.2d 597, 605, where the
court determined that “the ‘public official’ designation applies at the very least to
those among the hierarchy of government employees who have, or appear to the
public to have, substantial responsibility for or control over the conduct of
governmental affairs.” The court in Rosenblatt also observed that the New York
Times rule is specifically applicable “[w]here a position in government has such
apparent importance that the public has an independent interest in the qualifications
and performance of the person who holds it, beyond the general public interest in
the qualifications and performance of all government employees.” Rosenblatt, 383
U.S. at 86, 86 S.Ct. at 676, 15 L.Ed.2d at 606. And “[t]he employee’s position must
be one which would invite public scrutiny and discussion of the person holding it,
entirely apart from the scrutiny and discussion occasioned by the particular charges
in controversy.” Id. at 87, 86 S.Ct. at 676, 15 L.Ed.2d at 606, fn. 13.
{¶ 26} This court has not considered the issue whether a public high school
principal is a public official for purposes of defamation law. We have, however, in
accordance with the Rosenblatt guidelines, considered the status of a high school
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January Term, 1999
superintendent and a high school teacher/wrestling coach. In Scott v. The News-
Herald (1986), 25 Ohio St.3d 243, 25 OBR 302, 496 N.E.2d 699, paragraph two of
the syllabus, we held that a public school superintendent is a public official. In
Milkovich v. The News-Herald (1984), 15 Ohio St.3d 292, 15 OBR 424, 473 N.E.2d
1191, reversed in part on other grounds by Scott, supra, we determined that an
individual is not a public official for purposes of applying the New York Times rule
in a defamation action by virtue of his employment as a public high school teacher
and head wrestling coach.
{¶ 27} Courts in other jurisdictions are divided whether public school
principals should be accorded public official status. Annotation, Who is “Public
Official” for Purposes of Defamation Action (1996), 44 A.L.R.5d 193, 318-323,
Section 30. However, we believe that the better view is that principals are not
public officials for purposes of defamation law. See, e.g., McCutcheon v. Moran
(1981), 99 Ill.App.3d 421, 424, 54 Ill.Dec. 913, 425 N.E.2d 1130, 1133 (“The
relationship a public school teacher or principal has with the conduct of government
is far too remote, in our minds, to justify exposing these individuals to a qualified
privileged assault upon his or her reputation.”); and Ellerbee v. Mills (1992), 262
Ga. 516, 517, 422 S.E.2d 539, 540 (“[U]nder normal circumstances, a principal
simply does not have the relationship with government to warrant ‘public official’
status under New York Times. Principals, in general, are removed from the general
conduct of government, and are not policymakers at the level intended by the New
York Times designation of public official.”).
{¶ 28} Accordingly, we hold that a public school principal is not a public
official for purposes of defamation law. We affirm the findings of the Fifth
Appellate District in this regard.
{¶ 29} We also agree with the Fifth Appellate District that, under the
circumstances here, McIntosh is not a “public figure” as defined by Gertz v. Robert
Welch, Inc. (1974), 418 U.S. 323, 345, 94 S.Ct. 2997, 3009, 41 L.Ed.2d 789, 808.
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Specifically, the Fifth District Court of Appeals, in case No. 96-CA-293, aptly
observed and held:
“As a high school principal, McIntosh did not assume a role of special
prominence in the affairs of society. He did not occupy a position of such
persuasive power and influence that he can be deemed a public figure for all
purposes as required by Gertz. Nor did he thrust himself to the forefront of the
public controversy that may have developed concerning his termination.
According to the record before us, McIntosh left the high school on March 9, 1995,
when ordered to do so by the Superintendent and armed police officers. There is
no evidence linking McIntosh to the actions of the students and parents who
protested his termination. Nor is there any evidence that McIntosh sought out the
media to trumpet his cause. Accordingly, the trial court erred in finding that
McIntosh was a public figure and requiring that he be held to the New York Times
standard of proving actual malice.”
{¶ 30} For the foregoing reasons, we affirm the judgments of the Fifth
Appellate District with respect to case Nos. 97-2039 and 98-834. The causes are
remanded to the Stark County Court of Common Pleas for further proceedings not
inconsistent with this opinion.
Judgments affirmed
and causes remanded.
RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
COOK, J., concurs in part and dissents in part.
MOYER, C.J., dissents.
LUNDBERG STRATTON, J., dissents.
__________________
COOK, J., concurring in part and dissenting in part.
{¶ 31} I agree with the majority that McIntosh’s status as high school
principal did not make him a public official for defamation purposes. I do not
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January Term, 1999
believe, however, that either R.C. 3319.08 or 3319.11(B)(1) supports the majority’s
conclusion that a teacher eligible for continuing contract status can be presumed to
have attained that status just by virtue of having been offered it by a school board.
Instead, the statutes require that the teacher without a written contract offer proof
of continuing contract status plus acceptance through continued employment with
the district.
{¶ 32} R.C. 3319.08 pertains to all teaching contracts. It states the general
rule that boards of education “shall enter into written contracts for the employment
and reemployment of all teachers.” (Emphasis added.) It provides only one
exception to this rule: “If a board adopts a motion or resolution to employ a teacher
under a limited or continuing contract and the teacher accepts such employment,
the failure of such parties to execute a written contract shall not void such
employment contract.” (Emphasis added.) Any party seeking to enforce an
unwritten contract under this exception, then, must demonstrate that (1) the board
adopted the resolution, and (2) the teacher accepted it. Failure to demonstrate these
elements will render the unwritten contract void.
{¶ 33} The majority concludes that R.C. 3319.08 places no affirmative duty
on McIntosh to establish acceptance of the contract. It states that such a
requirement would “add language to the statute that simply does not exist.” But in
State ex rel. Smith v. Etheridge (1992), 65 Ohio St.3d 501, 505, 605 N.E.2d 59, 62,
this court recognized that R.C. 3319.08 will validate an unwritten contract where
the employee can show acceptance by “perform[ing] his or her duties as though a
written contract were present.” Thus, this court has previously acknowledged that
evidence of acceptance is required. To read the statute otherwise is to disregard the
statutory phrase “and the teacher accepts such employment.”
{¶ 34} The majority also relies on R.C. 3319.11(B)(1) in concluding that a
continuing contract presumptively exists here. This statute provides that “[u]pon
the recommendation of the superintendent that a teacher eligible for continuing
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service status be reemployed, a continuing contract shall be entered into between
the board and the teacher unless the board * * * rejects the recommendation
* * *.” The majority reads this to say that a contract automatically exists if the
board does not reject the recommendation. But to interpret the statute this way
presumes that teachers do not decline offers and move on to other employment.
Instead, R.C. 3319.11(B)(1) must be read as providing for a second step after a
recommendation, i.e., that a contract shall be entered into—a step whereby the
board and the teacher become parties to a written contract, as required by R.C.
3319.08. Moreover, R.C. 3319.11(B)(1) details exceptions where existence of an
unwritten contract will be presumed, and none of those exceptions applies here.
{¶ 35} Reading R.C. 3319.08 and 3319.11(B)(1) together, these statutes
require a written contract between the board and the teacher unless one of the few
specific exceptions applies. There was no written contract between McIntosh and
the Marlington board, and none of the R.C. 3319.11(B)(1) exceptions applies.
Therefore, the only statutorily permissible means of establishing this contract is by
demonstrating board approval and acceptance by the teacher, pursuant to R.C.
3319.08. It is undisputed that Marlington approved McIntosh for a continuing
contract. McIntosh, as the party seeking to enforce the unwritten contract, must
then present some evidence of his acceptance of it in accordance with R.C. 3319.08.
The evidence shows that McIntosh accepted and began performing an
administrative contract with the Marlington district immediately after the
Marlington board approved his continuing teaching contract. Thus, McIntosh has
not demonstrated acceptance of the teaching contract and, therefore, has not
established his tenured teacher status through his Marlington employment.
{¶ 36} Accordingly, I respectfully dissent from the majority opinion and
judgment on this issue.
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January Term, 1999
MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing opinion
except to the extent that it concludes that John McIntosh was not a public official
for purposes of defamation law.
__________________
MOYER, C.J., dissenting.
{¶ 37} The majority has, in my view, made two erroneous findings: it has
found John McIntosh to be entitled to continuing contract status as a teacher and it
has found him to be a private figure for purposes of constitutional defamation law.
{¶ 38} It should also be observed that the majority has failed to address
significant issues presented in these appeals, thereby depriving the courts, on
remand, of guidance needed to reach a final resolution of this case. Those issues
include (1) whether, assuming McIntosh should be deemed a tenured teacher, he
should also be deemed a member of the bargaining unit governed by the collective
bargaining agreement existing between the Osnaburg Local Board of Education and
the East Canton Education Association; (2) whether McIntosh failed to establish,
prima facie, the elements of the torts upon which he bases his claims; (3) whether
the appellants established the elements of common-law immunity defenses
warranting entry of summary judgments in their favor; and (4) whether appellants’
speech is protected by Section 11, Article I of the Ohio Constitution, independently
of the protection provided by the First Amendment to the Constitution of the United
States.
{¶ 39} I write separately to express my view on the first of the omitted
issues and to express my opinion regarding the issues decided by the majority.
I
Continuing Contract Status
{¶ 40} I do not disagree with the law stated by the majority in the first
paragraph of the syllabus. However, adoption of the syllabus does not mandate the
conclusion that John McIntosh should be deemed entitled to tenure as a teacher in
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the Osnaburg Local School District. McIntosh simply never obtained continuing
contract status as a teacher in the Marlington Local School District. Therefore,
continuing contract status could not remain with him when be became employed in
the Osnaburg school district.
{¶ 41} Where parties have jointly stipulated to facts, the sole function of the
court is to apply the law to the facts placed before it. Cunningham v. J.A. Myers
Co. (1964), 176 Ohio St. 410, 27 O.O.2d 379, 200 N.E.2d 305. In the case at bar,
the parties have stipulated that McIntosh taught under limited (not continuing)
teaching contracts through the 1971-1972 school year and that he thereafter served
primarily as a guidance counselor under additional limited teaching contracts.
Thus, it follows from the express stipulations of the parties that, when the
Marlington school board authorized issuance of a continuing contract for the 1975-
1976 school year to McIntosh, that authorization was for McIntosh’s first
continuing teacher’s contract, with duties to begin in the fall of 1975 and continuing
through the spring of 1976.
{¶ 42} In June 1975, however, the Marlington school board offered
McIntosh a one-year administrative contract to serve as an assistant principal in the
Marlington system for the 1975-1976 school year. McIntosh chose to accept the
school board’s offer of an administrative contract and served as an assistant
principal, rather than a teacher, during the 1975-1976 school year. By choosing to
serve as an administrator, McIntosh abandoned any rights he may otherwise have
had to insist on the execution of a written continuing teacher’s contract for the
1975-1976 school year, or the right to teach that year. One cannot accept
employment to simultaneously be both a full-time teacher and a full-time
administrator.
{¶ 43} The school board’s action in June offering to hire McIntosh as an
administrator thus did not occur “after [McIntosh] attain[ed] continuing service
status.” The first paragraph of the syllabus does not apply to the facts of this case
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January Term, 1999
because McIntosh never accepted the offer of a continuing teacher’s contract and
never obtained that status. The syllabus describes consequences that follow after a
teacher has attained continuing service status by both having been offered, and
having accepted, a continuing contract.
{¶ 44} R.C. 3319.11 indeed creates presumptions that a teacher has
accepted employment actually offered, or statutorily required to be offered, by a
board of education “unless [the teacher] notifies the board in writing to the contrary
on or before the first day of June” preceding the school year to be covered in the
contract. R.C. 3319.11(B)(1), (C)(2), (C)(3), (D), and (E). I would hold that any
such statutory presumption of acceptance is overcome where, as here, an employee
offered both a contract to teach and a contract to serve as an administrator for the
same school year chooses to accept the administrator position before having
undertaken any teaching activities pursuant to the offered teaching contract. Even
though it might otherwise be presumed that acceptance of the school board’s offer
to employ McIntosh as a teacher for the 1975-1976 school year occurred on June
1, 1975, that presumption is clearly rebutted by the stipulations of the parties as to
McIntosh’s subsequent actions in failing to undertake tenured teaching
responsibilities pursuant to the offered teaching contract in favor of undertaking
untenured administrative duties.
II
Bargaining Unit Membership
{¶ 45} In failing to address the parties’ conflicting arguments as to whether
McIntosh is subject to the collective bargaining unit governing teachers at East
Canton High School, the majority has presumably left undisturbed the decisions of
the appellate courts that he is not a part of the East Canton Education Association
bargaining unit. Assuming, as does the majority, that McIntosh is entitled to be
recognized as a tenured teacher, I cannot accept the premise that he is not included
within that bargaining unit, which is defined as “all certificated personnel employed
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by the District [excluding] * * * casual substitutes who work less than (60) days in
the same position, and those management, confidential and supervisory employees
excluded under 4117 ORC.”
{¶ 46} If McIntosh is deemed to be a tenured teacher, he falls within this
definition. His right, if any, to legally opt out of membership in the union does not
affect his inclusion in the bargaining unit. The conclusions of the appellate court
to the contrary are clear error and should be recognized by the majority as such.
III
Constitutional Issues
{¶ 47} Since New York Times v. Sullivan, the law has recognized “a federal
rule that prohibits a public official from recovering damages for a defamatory
falsehood relating to his official conduct unless he proves that the statement was
made with ‘actual malice’ — that is, with knowledge that it was false or with
reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan
(1964), 376 U.S. 254, 279-280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 706. Since
1974, the New York Times “actual malice” requirement has applied to plaintiffs
found to be public figures as well as public officials. Gertz v. Robert Welch, Inc.
(1974), 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789.
{¶ 48} The majority concludes that John McIntosh was neither a public
official nor a public figure as to the controversy surrounding the appellant school
board’s efforts to terminate him from his position as principal of East Canton High
School, a school of approximately three hundred twenty students in a comparatively
small community. The legal consequence of such a conclusion is that McIntosh may
recover damages if, on remand, he is able to prove that false and defamatory
statements concerning him were made by the defendant school administrators and
union representatives and that the making of those false statements resulted from mere
negligence rather than actual malice, i.e., knowledge that the statements were false or
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January Term, 1999
with reckless disregard as to whether they were false or not. New York Times v.
Sullivan, supra.
{¶ 49} A review of the record and the law causes me to conclude, as did both
trial courts in this consolidated case, that John McIntosh was both a public official and
a public figure for purposes of his defamation claims and that his failure to proffer
proof that appellants acted with actual malice entitles the appellants to summary
judgments in their favor as to those claims.
A
Private Figure/Public Official Status
{¶ 50} I do not concur in paragraph two of the syllabus. In adopting the
sweeping rule that “[a] public school principal is not a public official for purposes
of defamation law,” the majority has diminished the likelihood of open, free, and
vigorous public debate concerning the operation of public schools and has
contradicted this court’s prior recognition that “ ‘debate on public issues should be
uninhibited, robust, and wide-open.’ ” Seven Hills v. Aryan Nations (1996), 76
Ohio St.3d 304, 306, 667 N.E.2d 942, 946, quoting New York Times Co. v. Sullivan,
376 U.S. at 270, 84 S.Ct. at 721, 11 L.Ed.2d at 701. I am not unmindful of the
reality that school administrators as well as school board members are, at times,
subjected to harsh and unfair criticism. However, I believe that vigorous debate is
indispensable to achieving the goal of improvement of the public schools and
ultimately to the vitality of our democratic system.
{¶ 51} Public officials include “at the very least * * * those among the
hierarchy of government employees who have, or appear to the public to have,
substantial responsibility for or control over the conduct of governmental affairs.”
Rosenblatt v. Baer (1966), 383 U.S. 75, 85, 86 S.Ct. 669, 676, 15 L.Ed.2d 597, 605.
In determining whether any particular government employee is a public official for
purposes of a New York Times analysis, the test is whether that employee holds a
“position in government [that] has such apparent importance that the public has an
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independent interest in the qualifications and performance of the person who holds it,
beyond the general public interest in the qualifications and performance of all
government employees.” Rosenblatt at 86, 86 S.Ct. at 676, 15 L.Ed.2d at 606.
Following a comprehensive review of cases, Professor Smolla has concluded that
“there are relatively few examples of government-related defamation plaintiffs who
are held not to be public officials subject to the New York Times standard * * * usually
[those who] have a peripheral or transient connection to governmental activity, or are
extremely low in the organizational hierarchy.” (Emphasis sic.) Smolla, Law of
Defamation (1998) 2-89 to 2-90, at Section 2.25[1].
{¶ 52} The naming of a public school principal, particularly a high school
principal, is an event widely published and discussed in many communities, as is the
conduct of such individuals once they undertake the duties of their position. This is
particularly true in small communities the size of East Canton, where only one high
school serves the entire community. Principals in such communities are perceived to
have significant influence over the schools they administer and are frequently deemed
by the members of the community to be largely responsible for the educational quality
of those schools. In light of the generally held perception that high school principals
exercise both responsibility and control over their schools, and because the provision
of public education is a governmental function, I believe that many, if not all, public
school principals will be found to meet the Rosenblatt test. I further believe that the
facts demonstrated by the record before us clearly justify the conclusion that McIntosh
should be deemed a public official for purposes of resolving the defamation claims
made by him, which clearly were related to McIntosh’s continuation in his public
position.
{¶ 53} In Scott v. The News-Herald (1986), 25 Ohio St.3d 243, 25 OBR 302,
496 N.E.2d 699, this court held, as syllabus law, that a school superintendent is a
public official for purposes of defamation law. I cannot, nor does the majority attempt
to, distinguish a school superintendent from a high school principal for purposes of
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January Term, 1999
determining public official status. Both are school administrators. Both are
responsible for implementing the policies adopted by a local school board. Both are
expected to serve as public role models for students. Both exercise supervisory
authority over those who have more direct contact with the children of the community.
Many of these individuals assume active roles in the life of their greater communities.
As did the superintendent in Scott, high school principal McIntosh held a position in
the community of East Canton in which “[p]ublic scrutiny of [his] official conduct, as
well as those aspects of his private life which relate to his suitability for his position,
was an inconvenience which he no doubt endured.” Scott, 25 Ohio St.3d at 256-257,
25 OBR at 313, 496 N.E.2d at 711 (Douglas, J., concurring). Both school
superintendents and principals hold positions which invite public scrutiny and
discussion concerning them, based solely on the basis of the positions they hold. Cf.
Rosenblatt, 383 U.S. at 86-87, 86 S.Ct. at 676, 15 L.Ed.2d at 606, fn. 13.
{¶ 54} In observing that we have previously rejected the contention that a high
school wrestling coach was a public official, the majority fails to acknowledge that
the Milkovich classification of a high school wrestling coach as a private figure was
subsequently effectively overruled in Scott. (“ ‘To say that Milkovich [the wrestling
coach] nevertheless was not a public figure for purposes of discussion about the
controversy is simply nonsense.’ * * * Accordingly, we overrule Milkovich in its
restrictive view of public officials and hold a public school superintendent is a public
official for purposes of defamation law.” [Emphasis added.]) Scott, 25 Ohio St.3d at
247-248, 25 OBR at 306, 496 N.E.2d at 704, quoting Justice Brennan, dissenting,
Lorain Journal Co. v. Milkovich [1985], 474 U.S. 953, 964, 106 S.Ct. 322, 330, 88
L.Ed.2d 305, 313-314.
{¶ 55} The majority cites as “the better view” two cases in which courts in
other jurisdictions have refused to find public school principals to be public officials
for purposes of defamation law. I cannot agree, nor have the courts that ruled to the
contrary in the following cases agreed: Johnson v. Robbinsdale Indep. School Dist.
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No. 281 (D.Minn.1993), 827 F.Supp. 1439; Kapiloff v. Dunn (1975), 27 Md.App. 514,
343 A.2d 251; Palmer v. Bennington School Dist. (1992), 159 Vt. 31, 615 A.2d 498
(elementary school principal); State v. Defley (La.1981), 395 So.2d 759, 761.
{¶ 56} The facts of a specific case might warrant a finding that a particular
public school principal is not required to meet the New York Times actual-malice
standard in a defamation action even though he or she is deemed to be a public
official. This might occur where, for example, the claimed defamatory statement
concerning the principal related to purely personal conduct unrelated to either the
principal’s performance in, or fitness for, his or her position. See New York Times
v. Sullivan, 376 U.S. at 283, 84 S.Ct. at 727-728, 11 L.Ed.2d at 708, fn. 23; Smolla,
supra, at 2-100, Section 2.27[2]. Such a result would properly be grounded, however,
not on a conclusion that the principal was not a public official, but rather on a failure
of the defendant to demonstrate the second prong of the New York Times test, i.e., that
the alleged defamatory statement “related to” the official conduct of the public
official.
{¶ 57} I would not hold to a general rule that all public school principals
necessarily should be deemed public officials, although I believe that in most cases
they will qualify as such. I believe instead that, ultimately, the determination of
public official status should be determined on the basis of the particular facts
surrounding the alleged defamation. For the same reason, this court should not
adopt a broad general rule of syllabus law precluding a finding of public official
status as to all public school principals irrespective of the circumstances from which
the alleged defamation arises.
B
Private Figure/Public Figure Status
{¶ 58} Assuming, arguendo, that John McIntosh is not a public official by
virtue of holding the position of principal of East Canton High School, his conduct
and the circumstances of the dispute in which he was engaged clearly justify the
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January Term, 1999
alternate conclusion that he had become a limited public figure at the time the alleged
defamations occurred.
{¶ 59} Public figures “enjoy significantly greater access to the channels of
effective communication” and hence have a more realistic opportunity to counteract
false statements than private individuals normally enjoy. Gertz, 418 U.S. at 344,
94 S.Ct. at 3009, 41 L.Ed.2d at 808. Any person, regardless of his or her status as
a government employee, may become a limited public figure (as opposed to persons
who are public figures for all purposes by virtue of their having obtained great
power or influence) as to public issues or controversies into which he or she injects
himself. Limited public figures are persons who have invited attention and
comment by “thrust[ing] themselves to the forefront of particular public
controversies in order to influence the resolution of the issues involved.” Gertz,
418 U.S. at 345, 94 S.Ct. at 3009, 41 L.Ed.2d at 808.
{¶ 60} McIntosh brought legal claims of defamation against two groups of
defendants. In State ex rel. McIntosh v. Osnaburg Local School Dist. Bd. of Edn.,
McIntosh claimed that the superintendent of the local school district, the school board,
and the individual members of the school board had defamed him in a written notice
delivered to him on March 10, 1995 by the superintendent. The notice stated that his
termination was being contemplated based on McIntosh’s alleged acts of, inter alia,
immorality, child endangerment, promoting student unrest, and causing a student
boycott of classes. In ECEA v. McIntosh, McIntosh asserted that representatives of
the school district’s teachers’ union had defamed him in statements issued to the
public on March 13, following a school board discussion of his proposed termination.
This discussion occurred in a closed executive session, despite McIntosh’s urgings
that the meeting be held in public.
{¶ 61} McIntosh had earlier, in February, been told by the school board,
meeting in executive session, that the board was unanimous in its determination
that he should be terminated as principal. He was at that time asked to submit his
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resignation, which he refused to do. Appellants convincingly argue that McIntosh
knew that his position could be salvaged only if the greater community demanded
it.
{¶ 62} The majority accepts McIntosh’s characterization of himself as a
private figure as to the controversy that erupted thereafter when his proposed firing
became publicly known. It reaches this conclusion despite the fact that McIntosh
repeatedly met with members of the press, provided them with comments
concerning the public debate surrounding his termination, and allowed a reporter
and photographer access to his home, where his photograph was taken, and the
photograph published in a March 11 article. McIntosh not only was actively
involved in the controversy—described in a newspaper editorial as one that had
“consumed the community”—but also his personal future was at its very center.
{¶ 63} The majority accepts the premise that McIntosh remained a private
figure, even though he shared the contents of the allegedly defamatory termination
notice with a news reporter after receiving it. The majority affords McIntosh the
protection provided by private figure status despite the fact that McIntosh spoke
with members of the press one day after the meeting at which the allegedly
defamatory statement was read by the union’s representative, and McIntosh was
quoted as saying, “I think I have a responsibility to speak out, share my views and
get things rectified.”
{¶ 64} McIntosh clearly attempted to influence the resolution of the public
controversy that revolved around him. He acknowledged that shortly after he was told
of the board’s decision not to renew his contract, it became “public knowledge” that
his job as principal was in jeopardy. He not only had access to media channels of
communication but effectively utilized them by affirmatively cooperating with the
press. Rather than seeking to protect his privacy regarding his firing, he instructed his
attorney to request that the school board’s discussions concerning his termination
occur in open, rather than executive, session. His attorney accordingly requested the
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January Term, 1999
school board, in writing, that “all matters relating to the employment status of Mr.
John Richard McIntosh with the Osnaburg Local School District be held in a public
hearing.”
{¶ 65} Having himself participated in the public arena in an attempt to save
his job, he must “accept the heat of the fire as part of the price of entering the kitchen.”
Smolla, supra, at 2-22, Section 2.06. Whether he was linked to the actions of students
and parents who supported him by participating in civil demonstrations, including
student boycotts and ribbon campaigns, is simply not determinative.
{¶ 66} The facts surrounding the events at issue in this case cannot logically
support the conclusion that McIntosh was a private figure for purposes of a Gertz First
Amendment analysis. He is a limited public figure as a matter of law. Because
McIntosh did not demonstrate that the appellants acted with actual malice in making
the alleged defamatory statements, appellants are entitled to reinstatement of the
summary judgments awarded them by the trial courts.
{¶ 67} I therefore dissent to the second paragraph of the syllabus, and to the
judgment.
LUNDBERG STRATTON, J., concurs in the foregoing opinion.
__________________
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LUNDBERG STRATTON, J., dissenting.
{¶ 68} I join in Justice Cook’s separate opinion and Chief Justice Moyer’s
dissent, which conclude that R.C. 3319.08 and 3319.11(B) require that the teacher
without a written contract offer proof of continuing contract status and proof of
acceptance through continued employment with the district. I also join in Chief
Justice Moyer’s dissent that a public school principal should be found to be a public
official for purposes of defamation law.
{¶ 69} However, I write separately to address several issues raised
regarding the written statement prepared by the representatives of the East Canton
Education Association (“ECEA”). For the reasons that follow, I would find, as the
trial court did, that the statements were qualified or conditionally privileged
communications under the Ohio and federal Constitutions. Further, as such, I
would find that Griffith and Slick, as representatives of ECEA, were acting within
the scope of their employment and therefore are not individually liable for damages,
and the privileged communication did not constitute intentional interference with
the employment contract.
Privileged Communication
{¶ 70} Section 11, Article I of the Ohio Constitution provides, “Every
citizen may freely speak, write, and publish his sentiments on all subjects, being
responsible for the abuse of the right; and no law shall be passed to restrain or
abridge the liberty of speech, or of the press.” This case presents the court with the
task of balancing the free speech rights of Griffith and Slick with the protections
afforded McIntosh against defamation.
{¶ 71} Slick and Griffith asserted the defense of privilege. “A privileged
communication is one which, except for the occasion on which or the circumstances
under which it is made, would be defamatory, and actionable. The defense of
privilege is a matter of public policy in furtherance of the right of free speech.”
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January Term, 1999
Costanzo v. Gaul (1980), 62 Ohio St.2d 106, 108, 16 O.O.3d 134, 135, 403 N.E.2d
979, 981-982.
{¶ 72} Further, “[t]he essential elements of a conditionally privileged
communication” are (1) “good faith,” (2) “an interest to be upheld,” (3) “a statement
limited in its scope to this purpose,” (4) “a proper occasion,” and (5) “publication
in a proper manner and to proper parties only.” Hahn v. Kotten (1975), 43 Ohio
St.2d 237, 246, 72 O.O.2d 134, 139, 331 N.E.2d 713, 719, quoting 33 American
Jurisprudence (1941) 124-125, Libel and Slander, Section 126. McIntosh appears
to dispute only whether the publication was made to proper parties. McIntosh notes
that Slick and Griffith published their statement not only to the school board, but
also to hundreds of citizens and numerous news reporters who attended the public
meeting. The ECEA presented their statement only to the employer board of
education. However, McIntosh requested this public forum and insisted that the
media had a legitimate interest in the proceedings, so he cannot be heard to
complain of the consequences.
{¶ 73} I would find that the ECEA representative, Slick, made this
statement in good faith and with a common interest to be upheld, i.e., the
consequences to ECEA from McIntosh’s employment dispute and from McIntosh’s
failure to adhere to the process bargained for by the union in contract disputes.
Further, the statement was limited in its scope to this purpose. I would also find
that the forum, called by McIntosh, was a proper occasion, and the publication was
in a proper manner and to proper parties only.
{¶ 74} Accordingly, I believe that the statement made on behalf of the
teacher employees of the board of education was a qualified or conditionally
privileged communication under the Ohio and federal Constitutions. As such, in
the absence of ill motive or malice, the privileged statements are protected. See 50
American Jurisprudence 2d (1995) 694-695, Libel and Slander, Section 365.
Therefore, I would find that the appellate court erred in concluding that a question
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of material fact remained as to whether ECEA’s statement was protected by
qualified privilege such that McIntosh was required to establish actual malice in his
defamation claims. Because McIntosh failed to prove actual malice, I would find
that the trial court’s summary judgment should have been upheld.
Acting Within the Scope of Employment
{¶ 75} Further, I would find that the ECEA representatives were acting
within the scope of their employment and therefore are not individually liable for
damages. R.C. 1745.02 provides, “A money judgment against [an] unincorporated
association shall be enforced only against the association as an entity and shall not
be enforceable against the property of an individual member of such association.”
(Emphasis added.) The ECEA is an unincorporated association. Therefore, the
court of appeals acknowledged that a judgment rendered against ECEA is against
ECEA alone. However, the court of appeals found that the record provided
conflicting testimony as to whether Griffith and Slick were acting within the scope
of their employment when they prepared and delivered a statement that McIntosh
claims was beyond that which was authorized by the members. I disagree.
{¶ 76} “An act of an agent is the act of the principal within the course of the
employment when the act can fairly and reasonably be deemed to be an ordinary
and natural incident or attribute of the service to be rendered, or a natural, direct,
and logical result of it.” Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d
271, 278, 74 O.O.2d 427, 431, 344 N.E.2d 334, 339, citing Tarlecka v. Morgan
(1932), 125 Ohio St. 319, 181 N.E. 450.
{¶ 77} The ECEA, as the sole voice of those it represents, see In re SERB v.
Worthington Classified Assn. (June 7, 1996), SERB No. 96-009, unreported,
authorized Griffith and Slick to make a “neutral” statement supporting the process
of “nonrenewing a principal’s contract.” In my view, the statements made by Slick
on behalf of the ECEA were just that, supportive of the process employed by the
school board. As such, I would find that Griffith and Slick were acting within the
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scope of their employment and they cannot therefore be held individually liable in
a defamation action.
No Intentional Interference with Contract
{¶ 78} Finally, I would find that the privileged communication did not
constitute intentional interference with the employment contract. “In order to
recover for a claim of intentional interference with a contract, one must prove (1)
the existence of a contract, (2) the wrongdoer’s knowledge of the contract, (3) the
wrongdoer’s intentional procurement of the contract’s breach, (4) the lack of
justification, and (5) resulting damages.” Kenty v. Transamerica Premium Ins. Co.
(1995), 72 Ohio St.3d 415, 650 N.E.2d 863, paragraph two of the syllabus.
{¶ 79} Because I would find that the communication made by the
representatives on behalf of ECEA was privileged, the justification prong of Kenty
is not established. Therefore, I would find that because Griffith and Slick were
privileged in making the statement to the board of education, this constitutes
justification sufficient to foreclose a tortious-interference claim by McIntosh.
{¶ 80} In addition, to the extent that McIntosh argues that the statement to
the board of education tortiously interfered with his contract to teach, I would find
no interference because, as noted earlier, I join in Justice Cook’s dissent finding
that McIntosh has not demonstrated acceptance of the teaching contract, and,
therefore, has not established his teacher tenure status through his Marlington
employment.
{¶ 81} Accordingly, I join Chief Justice Moyer’s dissent from the majority
opinion that a public school principal is not a public official for purposes of
defamation law; I also join in Justice Cook’s separate opinion and Chief Justice
Moyer’s dissent on the contract status issue; and I dissent separately and would
reverse the portions of the judgment that held that summary judgment on the issue
of personal liability for Griffith and Slick was improper, and that the trial court
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SUPREME COURT OF OHIO
erred in granting summary judgment as to all claims of tortious interference with
contract.
MOYER, C.J., concurs in the foregoing opinion.
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