Legal Alerts Jun 21, 2018

“Protected Activity” Rejected by California Appellate Court Under Anti-SLAPP Statute

School District Officials’ and Board Members’ Actions at Issue

How and where public officials share information is critical to whether the dissemination is “protected activity” under California’s anti-Strategic Lawsuit Against Public Participation statute, an appellate court has found. The opinion, handed down June 13, stems from a lawsuit claiming public school officials took retaliatory actions against a former board member by disseminating confidential medical information and making claims of improper activity against her.
Former Lucerne Valley Unified School District Board Member Dawn Turnbull filed the lawsuit after she accused Superintendent Suzette Davis of misappropriating school district funds. In her lawsuit, Turnbull alleged that Davis, along with two other Board members and a school “volunteer,” retaliated against her for her accusations against Davis by obtaining and disclosing Turnbull’s confidential medical information and generating and making false reports of improper activity. Turnbull claimed invasion of privacy, interference with her constitutional and civil rights and civil conspiracy to violate her rights of privacy and free speech.
The defendants, including the District, filed an anti-SLAPP motion seeking to dismiss Turnbull’s suit. They claimed their activity was “protected activity” under the statute. They asserted her medical record related to her “off-work” note in which her doctor justified her time away from work, and was a matter of public interest regarding her absences from Board meetings. Further, they asserted that the reports of improper activity concerned statements and deliberations at Board meetings, and were thus protected. Turnbull replied that none of the defendants’ actions were undertaken in their official capacities and were not related to matters of public interest.
The trial court found the defendants failed to prove their activities were “protected activities” and denied the motion. The defendants appealed. In a decision issued on June 14, Division Two of the Fourth District Court of Appeal affirmed the trial court’s denial of the anti-SLAPP motion and found in Turnbull’s favor. (Dawn D. Turnbull v. Lucerne Valley Unified School District, et al.)
The anti-SLAPP statute is designed to encourage participation in matters of public significance by providing a defendant a means to quickly obtain dismissal of a suit brought to chill that person’s participation in those processes of public interest — “protected activity,” such as free speech or the right to petition the government. The courts have long held that government entities and officials may invoke the statute’s protections. The critical question is whether the plaintiff’s cause of action is based on the defendant’s protected activity of free speech or petition.
Here, although the defendants’ actions arose in the context of District and  Board business conduct, Turnbull’s alleged causes of action were not themselves “protected activity.” Thus, the disclosure of her confidential medical record — the act of one of the defendants giving that information to another, who then published it on social media — was not speech or “protected activity.” The court further found that the defendants’ alleged retaliatory acts were not conducted in a place “open to the public or a public forum,” and thus, were not “protected activity.”

The decision suggests that the acts of public officials related to or arising from the business of a public agency will not necessarily be shielded from a claim of unlawful conduct by the anti-SLAPP statute if not carried out in the public forum. Although the court did not explicitly rule that such actions must take place in an open and public meeting to trigger the anti-SLAPP protections, doing so, arguably, would lend credibility to the “protected” nature of the activity or speech.
If you have any questions about this opinion or how it may impact your agency, please contact the author of this Legal Alert listed to the right in the firm’s Government Policy & Public Integrity practice group, or your BB&K attorney.
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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