Opinion letter to the Honorable Robert H. Branom

Answer by Letter (Bartlett) September 14, 1970 Honorable Robert H. Branom State Representative District No. 35 2151 69th Street Hilladale, Missouri Dear Representative Branom: OPINION LETTER NO. 30 F l LED so This letter ia in response to your request for a ruling on the following: Is the immunity clause of, Chapter 168, Sec- tion 168.115. Missouri Revised Statutes, 1959, the Teacher Tenure Law constitutional; and, if eo, what is ita scope' Section 168.129, RSMo 1969, contains the following immunity provisions: "Board aeaber exempt trom civil liabilit~ re- su1E1ns troa charsea italnsE teacher.-- o member or a board or ~ucation or duly desig- nated administrative officer of a board of education shall be liable in a civil action baaed on a statement of charges against a school teacher. tt It is our understanding that your inquiry is whether such stat- ute violates the provisions ot Section 40(28) of Article III of the Constitution ot M1saour1. Such section provides as follows : ttTbe general assembly shall not pass any local or special law: • • • Honorable Robert H. Branom "(28) granting to any corporation, association or individual any special or exclusive rights, privilege or immunity, ••• " "· •• 'It is well established in this state that a law is not a special law it it apply to all alike or a given class, provided the classification thus made is not arbitrary or without reasonable basis.' ••• "ABC Liguida- tors, Inc. v. Kansas City, 322 S.W.~d 87 , 885 (Mo. 1959) In Marshall v. Kansas Cit~, 355 s.W.2d 877, 88~ (Mo. 1962) the Missouri Supreme Court sta ed: "· •• As a general rule, it is not what a law includes that makes it unconstitutional as a special law, but what it excludes, and a law is not special in the constitutional sense it it applies alike to all or a given class pro- vided the classification thus made is not arbitrary or without a reasonable basis •••• " We believe that Section 168.129 is not a local or special law tor the following reasons: (1) the classification is not arbitrary or without a reasonable basis and (2) the statute applies equally to everyone in the described class, and does not exclude anyone who should be included within the class. Por the· above given rea- eons, it is our view that this section would not violated Article III, Section 40(28) or the Missouri Constitution. Por many years school boards in Missouri have had a qualified privilege to make statements about teachers which would otherwise be defamatory. In Pinley v. Steele, 159 Mo. 299, 60 s.w. 108 (1900), the defendants, members of the local school board, had written a letter to the county school commissioner accusing pla1nt1tt, Mrs. Pinley, a school teacher, or being "totally unfit to teach our school and being very tyrannical and abusive and indecent •••• " The board went on to accuse her or whipping the children unmerci- fully, pulling their ears and otherwise mistreating the children. Mrs. Pinley sued the defendants tor $10,000 damages in an action tor defamation. The Missouri Supreme Court stated: "The publication in question was with respect to plaintiff as school teacher, and is, upon ita race, clearly defamatory, and, it false, -2- Honorable Robert H. Branam actionable per se, unless absolutely or quali- fiedly privileged. Absolutely privileged pub- lications are legislative and judicial pro- ceedings and naval and military affairs, while a qualified privilege 'extends to all communi- cations made bona fide upon any subject-matter in which the party communicating has an interest, or 1n reference to which he owes a duty to a person having a corresponding interest or duty, and to oases where the duty is not a legal one, but where it is or a moral or social character or imperfect obligation.' •• ·" ~· at 109. The court went on to discuss the limitations or a qualified privilege, saying that: "· •• the 'party defamed may recover, not- withstanding the privilege, if he can prove that the words used were not used in good faith, but that the party availed htmselt of the occasion willfully and knowingly for the purpose or defaming the plaintiff.' ••• • • • " ..• a communication, to be privileged, must be made on a proper occasion, trom a proper motive, and must be baaed upon reasonable or probable cause. When so made in good faith, the law does not imply malice from the com- munication itaelt, as in the ordinary case ot libel. Actual malice must be proved before there can be a recovery, and in the absence of such proof a nonsuit should be granted • • • • " ~· at 109. In Pinley there was no statute conferring immunity on the board. Nevertheless, the court held that the teacher could not recover be- cause the board had a qualified privilege to make the statements it did. The decision in Finley was relied upon by the Missouri Supreme Court in Williams v. Kansas City Transit, Inc., 339 S.W.2d 792 (Mo. 1960). In this case plalntlrt, an employee or defendant, was dis- charged. Plaintiff in due course requested trom defendant a service letter. Defendant was under a statutory obligation to furnish plain- tift such a letter stating truthfully the reasons tor discharge. Arter the letter was delivered to plaintiff, plaintiff sued defen- dant tor libel. -3- Honorable Robert H. Branom The Missouri Supreme Court held that, since defendant was under a atatutory obligation to deliver the letter to plaintiff upon re- queat, defendant enjoyed a qualified privilege that would protect him from a libel action unless actual malice were ahown. Again, this qualified privilege was not provided by statute. In both Finle~ and Williams, the party charged with defamation made the queatione statements rn the course or fulfilling an ob- ligation placed upon it by statute. In both cases the court held that in such a situation there was a privilege to make statements which, it untrue, would be defamatory unless the statements were not made in good faith. The situation about which you inquire is similar to both Finley and Williams 1n that a school board is given the power by Section 168.114 to terminate an indefinite contract with a teacher tor cer- tain enumerated causes. Section 168.126 gives a board the power to terminate a probationary teacher's contract. In both inatances, the board is required to communicate its charges to the teacher. Even without Section 168.129, a echool board would be protected by a qualified privilege in carrying out its statutory duty under these eectiona. See Finley, supra, and Williams, supra. Therefore, we conclude that Section 168.129 is a codir!aat!on or a qualified privi- lege already exiating in Missouri. It is our view that the immunity provision of the Teacher Ten- ure Law, Section 168.129, RSMo 1969, is not a special law within the meaning or Section 40(28) of Article III or the Constitution or Missouri. No member or a board or education or a duly desig- nated administrative officer or a board of education shall be liable in a civil action baaed on a statement of charges against a school teacher so long as the statement or chargee is within the statutory authority conferred on the board and the charges are made in good faith, without actual malice. Yours very truly, JOHN C. DANFORTH Attorney General -4-