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Statements Made During Executive Session Are Privileged In Defamation Cases

In the case of Janiszewski v. Belmont Career Ctr., 2017-Ohio-855, an Ohio appellate court considered the following issue: Whether statements made during a school board’s executive session are privileged in a defamation case.

To be fair, the appellate court considered a lot of other issues in Janiszewski. Seriously – there was a lot going on in this case. However, the privilege issue is significant for school officials as there “is no directive from the Ohio Supreme Court decisively indicating [whether] statements by the superintendent to the board during a meeting receive an absolute privilege.” Janiszewski at ¶ 87. So the issue of whether statements made during a school board’s executive session are privileged in a defamation case appears to be a matter of first impression.

So what is a privilege for defamation purposes? Privilege is a defense to defamation claims and it comes in two forms: (1) absolute and (2) qualified. An absolute privilege provides complete protection from liability for defamation and applies only in very limited areas. A qualified privilege also protects from liability for defamation but may be defeated by evidence of malice on the part of the defendant.

Here, the plaintiff alleged that the superintendent implied that “she is a thief and is lazy” during executive sessions of the school board. Janiszewski at ¶ 78. The Ohio appellate court found that a qualified privilege applied to these statements. Specifically, the Ohio appellate court found that the “alleged comments concerned personnel, school property, and the basis for a lawsuit by a former teacher against the superintendent and board. These types of communications are expected between the superintendent and the board during executive meetings. The only evidence concerning these statements demonstrates they were properly limited in scope, were made on the proper occasion, and were supplied to the proper parties.” Janiszewski at ¶ 89.

The fact that the alleged statements were (1) limited in scope – i.e., concerned personnel, school property, and the basis for a lawsuit; (2) were made on the proper occasion – i.e., during executive session; and (3) were supplied to the proper parties – i.e., the school board were all elements that weighed in favor of finding that a qualified privilege applied to the alleged defamatory statements.

To read this case, please click here.

On December 6, 2017, the Ohio Supreme Court unanimously declined to accept the employee’s appeal so the decisions of both the trial and appeal court remain unchanged.

Authors: Matthew John Markling and Patrick Vrobel.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.


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