Filed 1/11/21 Burgess v. Coronado Unified School Dist. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RANDALL BURGESS, D076417
Plaintiff and Appellant,
(Super. Ct. No. 37-2018-00046135-
v. CU-DF-CTL)
CORONADO UNIFIED SCHOOL
ORDER MODIFYING OPINION
DISTRICT,
AND DENYING REHEARING
Defendant and Respondent.
NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the disposition paragraph on page 18 of the opinion
filed December 24, 2020, be modified as follows:
The order granting the District’s anti-SLAPP motion is
affirmed. The District is entitled to recover its appellate
costs, including any attorney’s fees properly recoverable
under the anti-SLAPP statute. (See Code Civ. Proc.,
§ 425.16, subd. (c)(1); Dowling v. Zimmerman (2001) 85
Cal.App.4th 1400, 1426.)
Appellant’s petition for rehearing is denied.
There is no change in judgment.
O’ROURKE, Acting P. J.
Copies to: All parties
Filed 12/24/20 Burgess v. Coronado Unified School Dist. CA4/1 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RANDALL BURGESS, D076417
Plaintiff and Appellant,
v.
(Super. Ct. No. 37-2018-00046135-
CORONADO UNIFIED SCHOOL
CU-DF-CTL)
DISTRICT,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Gregory W. Pollack, Judge. Affirmed.
herronlaw and Matthew V. Herron for Plaintiff and Appellant.
Winet Patrick Gayer Creighton & Hanes, Randall L. Winet and David
A. Veljovich for Defendant and Respondent.
High school teacher and coach Randall Burgess was placed on
administrative leave following a student’s allegations of molestation.
Responding to local media inquiries, the superintendent of the Coronado
Unified School District (District) issued a press release stating that after “the
allegations became known, the District followed policy and protocol by taking
immediate action to protect the safety and security of District students and
staff.” Burgess sued the District for libel, claiming its press release implied
he was credibly accused of child molestation. The trial court granted the
District’s special motion to strike under Code of Civil Procedure section
425.16 (the anti-SLAPP statute), concluding Burgess could not establish a
probability of prevailing on his libel claim. In the court’s view, the District’s
five-sentence press release contained no false statements of fact and was,
moreover, absolutely privileged under the official duty privilege in Civil Code
section 47, subdivision (a).1 Burgess appeals, challenging both aspects of the
court’s ruling. For our purposes, we need only focus on one. Because we
agree that the official duty privilege under section 47, subdivision (a) applies,
Burgess could not establish a probability of prevailing on his libel claim even
if the press release could be construed as defamatory. Accordingly, we affirm
the order granting the District’s anti-SLAPP motion.
FACTUAL AND PROCEDURAL BACKGROUND
Burgess, a long-time teacher and water polo coach at Coronado High
School, was placed on paid administrative leave in April 2017 after a student
claimed that Burgess had molested him several years before when he was a
middle schooler. Without revealing the reason for his placement on leave,
Burgess filed a petition for writ of administrative mandate against the
District in June seeking reinstatement (Burgess v. Coronado Unified School
District (Super. Ct. San Diego County, 2017, No. 37-2017-00022539-CU-WM-
CTL)).
A month later, having become aware of Burgess’s writ petition, a
reporter for the San Diego Reader contacted District superintendent Karl
1 Unless otherwise indicated, further statutory references are to the Civil
Code.
2
Mueller for comment, noting Burgess had alleged “that he is now banned
from entering the school as well as the pool where he coached” and asking to
know what prompted those restrictions. Mueller responded that he could not
discuss personnel matters. The Reader published a story in September,
relying on court filings to reveal the molestation claim as well as the
District’s response. This prompted three other news outlets to contact
Mueller for comment. Mueller then responded by issuing the following press
release on September 20, 2017:
“The collective focus and priority of the Coronado Unified
School District is teaching and learning while nurturing a
safe and supportive environment for those within our
shared community. Allegations have been made against a
Coronado Unified School District staff member. The
District takes such claims very seriously. When the
allegations became known, the District followed policy and
protocol by taking immediate action to protect the safety
and security of District students and staff. [¶]
“As this is a personnel related issue, the District has no
further comment.”
In October 2017, Judge Sturgeon denied Burgess’s request for writ
relief, finding he had not been suspended but rather placed on administrative
leave. Burgess appealed. In the meantime, he was reinstated in November
after the alleged victim did not bring a claim within the six-month filing
window (Gov. Code, § 945.6). Reinstatement ultimately rendered his appeal
moot. (Burgess v. Coronado Unified School District (Oct. 1, 2018, D072976)
[nonpub. opn.].)
3
In September 2018, Burgess sued the District for libel per se based on
the press release issued by Mueller a year before.2 Alleging the District had
implied he “was guilty of, or at least credibly charged with, being a child
molester and therefore needed to be removed from the classroom to protect
students,” Burgess claimed the release exposed him to “hatred, contempt, and
ridicule,” injuring his professional reputation.
The District filed a special motion to strike under the anti-SLAPP
statute (Code Civ. Proc, § 425.16). It was undisputed the libel action arose
from the District’s protected speech. With the burden shifted, the District
asserted that Burgess could not establish a probability of prevailing on the
merits. According to the District, the press release did not contain any false
or defamatory statements of fact. It also relied on Morrow v. Los Angeles
Unified School District (2007) 149 Cal.App.4th 1424 (Morrow) to assert that
the statements in the release were absolutely privileged under section 47,
subdivision (a).
Burgess opposed the District’s motion. Because the press release was
made by a mere “local school employee” and contravened District
confidentiality policy, he claimed the official duty privilege under section 47,
subdivision (a) did not apply. Moreover, he argued that the press release
would reasonably be construed in context to suggest he was credibly accused
of molestation. Any notion that he was placed on leave for student safety was
undermined by the reinstatement letter, which suggested the District was
motivated instead by litigation tactics in reinstating him once the filing
deadline expired.
2 “A statement is libelous ‘per se’ when on its face the words of the
statement are of such a character as to be actionable without a showing of
special damage.” (Slaughter v. Friedman (1982) 32 Cal.3d 149, 153
(Slaughter).)
4
Judge Pollack heard argument on the motion in June 2019. At the
start of the hearing, he indicated his tentative decision was to grant the
motion. With the parties in agreement that the libel action arose out of the
District’s protected speech, the burden shifted to Burgess to establish the
minimal merit of his claim. Judge Pollack concluded that Burgess did not
carry his burden. The press release spoke merely of allegations, not fact, and
actions taken by the District in response. Once Burgess publicly denied
wrongdoing, the press release was “pretty much what [the court] would
expect the school district to do.” Although Burgess challenged language
suggesting “that there’s something against which there needs protection,”
such language merely tracked the serious allegations of wrongdoing that had
emerged. As a separate basis, the court agreed with the District that the
official duty privilege applied based on Morrow, supra, 149 Cal.App.4th 1424.
Both sides presented arguments. Burgess’s counsel maintained there
was a factual question precluding application of the official duty privilege.
Until the District issued its press release, it consistently expressed that it
could not comment on personnel matters. Thus, it remained unclear whether
Mueller was acting in accordance with his official duties in issuing the press
release. The court disagreed—the press release did not comment on a
personnel matter or even mention Burgess by name. All it conveyed was that
the District took immediate action on learning of an allegation and would not
comment further because it was a personnel matter. This was “entirely
appropriate” in the court’s view. Turning to the elements of libel, Burgess
argued that any suggestion the District took action to protect students was
5
false, given its explanation for his reinstatement.3 The court disagreed; the
same letter reinstating Burgess was cautious and continued to recommend
that he not be alone with a student.
Confirming its tentative, the trial court granted the anti-SLAPP motion
on two separate grounds. First, the press release contained no false
statements of fact: “Nowhere within the statement is there a suggestion that
Coronado actually determined that Burgess had committed the underlying
misconduct, only that the allegations were so serious that immediate pre-
investigation action was required.” Second, it was absolutely privileged
under section 47 subdivision (a).4
DISCUSSION
Challenging the anti-SLAPP ruling, Burgess contends he met his
burden to establish a probability of prevailing on his libel claim. Examining
the press release under the totality of circumstances, he argues the public
would have reasonably inferred that he had been placed on leave based on
credible concerns for student and staff safety. To show falsity, Burgess relies
on deposition testimony by superintendent Mueller describing him as a
3 The reinstatement letter indicated that the alleged victim failed to file
suit within the filing deadline. Relying on this statement, Burgess argued he
had been “removed so they could have a litigation defense that said, you
know, if this kid files a lawsuit, we’ve already kicked him out.” Burgess
renews this contention on appeal, suggesting the grounds for his
reinstatement suggest he was placed on leave “as a litigation tactic” to a
potential negligent supervision claim.
4 The court clarified in its written order that it confined its analysis to
the sole cause of action alleged in the complaint, for libel per se based on the
press release. Other potential claims resting on inadequate investigation or
false reports to the Commission of Teacher Credentialing had not been
asserted, nor had Burgess sought to amend his complaint before the anti-
SLAPP motion was filed.
6
“great teacher” and seeming to doubt whether he posed a threat to student
safety. Burgess further relies on the reinstatement letter, claiming the basis
for his reinstatement suggests his placement on leave was a mere “litigation
tactic.” To the extent competing inferences could be drawn, Burgess claims
the trial court erred by crediting his employer’s non-defamatory
interpretation, “since the court’s task in an anti-SLAPP motion is to view the
evidence in the light most favorable to the plaintiff.” In general, Burgess
faults the court for “hair-splitting” and construing the press release “in a
narrow and technical sense,” and argues that, although the trial court found
otherwise, Hawran v. Hixson (2012) 209 Cal.App.4th 256 is closely on point.
Under the circumstances of this case, we need not definitively
determine whether the challenged statements were defamatory because we
are compelled to affirm the anti-SLAPP ruling on the alternative ground
relied on by the trial court. As held in Morrow, supra, 149 Cal.App.4th 1424
on analogous facts, the official duty privilege under section 47, subdivision (a)
absolutely shields superintendent Mueller’s press release from serving as a
basis for tort liability. Because Burgess could not establish a probability of
prevailing on his libel claim, the court properly granted the District’s motion.
1. Anti-SLAPP Overview
Enacted in 1992, the anti-SLAPP statute seeks to protect defendants
from meritless lawsuits that chill their exercise of constitutional rights to
speech and petition. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th
871, 883–884 (Wilson); Code Civ. Proc., § 425.16, subd. (a).) It does so by
authorizing defendants to file a special motion to strike any claims “arising
from any act of that person in furtherance of the person’s right of petition or
free speech under the United States or California Constitution in connection
with a public issue . . . , unless the court determines that the plaintiff has
7
established that there is a probability that the plaintiff will prevail on the
claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) By creating a summary-
judgment-like procedure at the outset of the case, the anti-SLAPP statute
provides for early dismissal of actions deemed to be “strategic lawsuits
against public participation,” or SLAPP suits. (See Baral v. Schnitt (2016)
1 Cal.5th 376, 384 (Baral); Navellier v. Sletten (2002) 29 Cal.4th 82, 85
(Navellier).)
A defendant filing an anti-SLAPP motion bears the initial burden to
establish that the challenged claim arises from the defendant’s protected
activity. (Wilson, supra, 7 Cal.5th at p. 884; Baral, supra, 1 Cal.5th at
p. 396.) This requires a prima facie showing that activity underlying a
plaintiff’s causes of action is statutorily protected. (Wilson, at pp. 887−888.)
If the defendant makes the required showing, the burden then shifts to the
plaintiff to demonstrate that the claim has minimal merit. (Wilson, at
p. 884.) “The court, without resolving evidentiary conflicts, must determine
whether the plaintiff’s showing, if accepted by the trier of fact, would be
sufficient to sustain a favorable judgment.” (Baral, at p. 396.) If the plaintiff
cannot make that showing, the court will strike the claim. (Ibid.; Wilson, at
p. 884.)
The parties agree that Burgess’s sole cause of action for libel per se
arises from the District’s protected activity. (See Code Civ. Proc., § 425.16,
subd. (e)(2) [anti-SLAPP statute applies to “any written or oral statement or
writing made in connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official proceeding
authorized by law”].) The dispute instead centers on the second prong of the
anti-SLAPP analysis—whether Burgess met his burden to establish the
minimal merit of his claim. We independently review the trial court’s ruling
8
that he did not. (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1067; Morrow, supra, 149 Cal.App.4th at p. 1436.)
2. Official Duty Privilege
Unchanged since its enactment in 1872, section 47, subdivision (a)
designates as privileged any publication made “[i]n the proper discharge of an
official duty.” This statutory privilege derives from and must be construed in
accordance with common law principles. (Saroyan v. Burkett (1962) 57
Cal.2d 706, 710 (Saroyan).) Its purpose “is to insure efficiency in government
by encouraging policy-making officials to exercise their best judgment in the
performance of their duties free from fear of general tort liability.” (Sanborn
v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 413 (Sanborn).) “Stated another
way, the purpose of the official immunity accorded government officers is to
avoid the ‘chilling effect’ which the fear of damage suits would have on the
energetic performance of the public’s business.” (Kilgore v. Younger (1982) 30
Cal.3d 770, 782 (Kilgore); see Slaughter, supra 32 Cal.3d at p. 156 [“no
absolute immunity attaches to a state officer who is acting in a private
capacity”].) When the privilege applies, “it is not qualified but absolute.”
(Kilgore, at p. 778.) “Unlike qualified privileges, it is not negated by malice
or other personal motivation of the publisher.” (Ibid.) It precludes all
manner of tort claims, except malicious prosecution. (See ibid.)
The trial court relied on Morrow, supra, 149 Cal.App.4th 1424 to
conclude Burgess could not overcome the official duty privilege. In that case,
following a series of disturbances at a Los Angeles high school, a prominent
newspaper interviewed the superintendent of the Los Angeles Unified School
District and reported that the high school’s principal would be replaced “amid
criticism by city and school district officials over his handling of a spate of
student brawls that many say have been fueled by racial tensions.” (Morrow,
9
supra, 149 Cal.App.4th at pp. 1429−1430.) The principal sued the school
district for defamation, challenging statements by the superintendent to the
press implying that leadership lapses had “ ‘accelerated’ a decision to replace
him.” (Id. at p. 1430.) The trial court granted the district’s anti-SLAPP
motion, and the appellate court affirmed, finding the press statements
absolutely privileged under section 47, subdivision (a). (Morrow, at pp. 1440‒
1441.)
As Morrow explained, despite early cases that “refused to apply the
privilege to officials below cabinet rank,” more recent authorities supported
its application to someone at the level of school superintendent. (Morrow,
supra, 149 Cal.App.4th at pp. 1441‒1442.) The privilege applied because the
superintendent “was publicly explaining the district’s response to a matter of
widespread concern, which was one of his official duties.” (Id. at p. 1443.)
That the superintendent later regretted his decision to replace the principal
did not preclude its application, as the privilege aimed to shield those acting
in good faith from “ ‘ “the constant dread of retaliation” ’ ” for honest
mistakes. (Ibid.)
We are faced with nearly identical facts. Burgess sued the District for
libel based on its publication of a press release following allegations of child
molestation directed at a longtime coach. The press release provided the
District’s response to a matter of widespread public concern. As suggested by
Morrow, it “cannot be deemed ministerial or unrelated to a legitimate
policymaking function,” and therefore the official duty privilege applies.
(Morrow, supra, 149 Cal.App.4th at pp. 1442−1443.)
Seeking to overcome this result, Burgess argues Morrow was wrongly
decided or distinguishable. First, he contends the official duty privilege does
not apply to actions by lower-ranked government officials. Next, he claims
10
the press release was a mere ministerial act to which the privilege cannot
apply. Finally, he claims issuance of the press release violated District policy
governing confidentiality and was therefore unprivileged conduct. We
address each argument in turn, rejecting them all.
a. The privilege extends to subordinate-rank officers.
Construing the official duty privilege in accordance with common law
principles, as we must (Saroyan, supra, 57 Cal.2d at p. 710), Morrow properly
applied it to statements made by a school superintendent.
Barr v. Matteo (1959) 360 U.S. 564 is instructive. An acting director of
a federal agency issued a press release implying his subordinates were the
ones responsible for high-profile misdeeds. When they sued for defamation,
the acting director claimed his issuance of the press release was absolutely
privileged. The Supreme Court agreed. The privilege enables government
officials “to exercise their duties unembarrassed by the fear of damage suits”
which might otherwise “appreciably inhibit the fearless, vigorous, and
effective administration of policies of government.” (Id. at p. 571.) Given the
complexity and scope of government functions necessitating delegation, the
privilege could not “properly be restricted to executive officers of cabinet
rank.” (Id. at pp. 572−573.) “The privilege is not a badge or emolument of
exalted office, but an expression of policy designed to aid in the effective
functioning of government.” (Ibid.) Government functions do not “become
less important simply because they are exercised by officers of lower rank in
the executive hierarchy.” (Id. at p. 573.)
The California Supreme Court has yet to address whether the official
duty privilege applies to lower-ranking government officials. In 1962 it
applied the privilege to the state Superintendent of Banks, noting his similar
rank to a federal cabinet-level official. (Saroyan, supra, 57 Cal.2d at
11
pp. 710−711.) But in doing so, Saroyan did not cite Barr or have occasion to
consider whether the privilege might also apply to lower-ranking officials.5
A decade after Saroyan, our high court observed that state courts had
extended the official duty privilege “only to high-ranking state and federal
officials,” whereas Barr extended the privilege further. (Sanborn, supra, 18
Cal.3d at pp. 412−413.) It did not need to resolve that tension, however, as
the city clerk “was not exercising policy-making functions when he defamed
plaintiff.” (Id. at p. 413.) Sanborn also underscored that the central aim
behind the privilege was “to insure efficiency in government by encouraging
policy-making officials to exercise their best judgment in the performance of
their duties free from fear of tort liability.” (Ibid.) These salutary goals
would seem to apply equally to subordinate officers, as Barr explained. The
Supreme Court next considered the privilege in Kilgore, supra, 30 Cal.3d 770,
applying it to statements by the Attorney General. Although the court again
had no occasion to reach the issue, its reliance on Barr and expressed concern
with “discourag[ing] public officials from providing for the extensive and
robust dissemination of information so necessary in a democratic society”
suggest broader application of the privilege beyond cabinet-level officials.
(Id. at pp. 781−782.)
A series of appellate decisions have developed the official duty privilege
further and lead us to the inescapable conclusion that it extends to lower-
ranking government officials, like superintendent Mueller. Royer v.
5 Burgess urges us to follow two appellate decisions decided soon after
Saroyan, which declined to apply the privilege to lower-ranking officials.
(Frisk v. Merrihew (1974) 42 Cal.App.3d 319, 323 [school superintendent and
school board secretary]; White v. State of California (1971) 17 Cal.App.3d 621,
628 [Department of Justice bureau].) But neither of these cases addressed
Barr, and more recent California authorities lead us to reject their approach.
12
Steinberg (1979) 90 Cal.App.3d 490 applied the privilege to school board
trustees sued for libel based on statements made in a motion they passed as
board members. (Id. at pp. 500−501.) Citing Barr and the policy objectives
articulated in Sanborn, the Royer court explained that the free exercise of
governmental decision-making required applying the privilege “not only to
‘high-level’ state executive officers, but to all state and local officials who
engage in the policy-making process.” (Royer, at p. 501.) Copp v. Paxton
(1996) 45 Cal.App.4th 829 (Copp) arrived at the same conclusion. In Copp, a
self-proclaimed earthquake expert who criticized schools’ use of “duck and
cover” for emergency preparedness sued a county emergency services
coordinator for defamation after he sent his staff a memorandum counseling
them to “ ‘strenuously rebut’ ” the expert’s advice. (Id. at pp. 834−835.)
Relying on Barr and Royer, the Copp court explained that earthquake safety
“is of vital public concern,” particularly “as it relates to schools,” and county
officials “should be encouraged to engage in frank and open communication
on important public issues in order to function effectively in the offices
entrusted to them.” (Id. at pp. 841−843.)
Beyond these authorities, courts have applied the official duty privilege
to public statements by city and county attorneys. (Tutor-Saliba Corp. v.
Herrera (2006) 136 Cal.App.4th 604, 615 (Tutor-Saliba) [public comments by
a city attorney justifying litigation initiated on the city’s behalf]; Ingram v.
Filippo (1999) 74 Cal.App.4th 1280, 1283 [county district attorney’s press
release charging school board with minor violations of the Ralph M. Brown
Act (Gov. Code, § 54950 et seq.)].) The privilege was also applied to press
statements by the Director of the California Department of Corrections and
Rehabilitation (CDCR). (Maranatha Corrections, LLC v. Dept. of Corrections
& Rehabilitation (2008) 158 Cal.App.4th 1075, 1088−1089 (Maranatha).)
13
In short, Morrow is no outlier, and we decline Burgess’s invitation to
reject it. As Barr suggests, it is not an officer’s title but rather the relation
between the conduct at issue and the officer’s lawful duties that dictates
whether the privilege applies. (Barr, supra, 360 U.S. at pp. 573−574.)
Following Morrow’s reasoned approach, we conclude the official duty
privilege can apply to statements made by a school superintendent.
b. Issuance of the press release was not a ministerial action.
Burgess next contends that the privilege does not apply because
Mueller was performing a ministerial role in issuing the press release. The
official duty privilege extends to acts by a qualifying government official “in
the exercise of an executive function.” (Saroyan, supra, 57 Cal.2d at p. 710.)
We focus on whether the official’s conduct “was an appropriate exercise of the
discretion which an officer of that rank must possess if the public service is to
function effectively.” (Barr, supra, 360 U.S. at p. 575.) The privilege is
construed broadly, “to encompass all discretionary acts essential to the
proper exercise of an executive function.” (Copp, supra, 45 Cal.App.4th at
p. 844.)
The official duty privilege has long been applied to press releases
issued by government officials explaining or justifying their policy decisions.
“It would be an unduly restrictive view of the scope of the duties of a policy-
making executive official to hold that a public statement of agency policy in
respect to matters of wide public interest and concern is not action in the line
of duty.” (Barr, supra, 360 U.S. at p. 575 [privilege applied to press release
by acting agency director announcing a personnel decision].) “ ‘Because a
public official's duty includes the duty to keep the public informed of his or
her management of the public business, press releases, press conferences and
other public statements by such officials are covered by the ‘official duty’
privilege . . . .’ ” (Maranatha, supra, 158 Cal.App.4th at p. 1089 [privilege
14
applied to press release by CDCR director “in defense of a policy decision she
made” to terminate a private contractor for misappropriating funds].)
Morrow held that a school superintendent’s statements to the press
commenting on a principal’s leadership could not “be deemed ministerial or
unrelated to a legitimate policymaking function.” (Morrow, supra, 149
Cal.App.4th at pp. 1442−1443.) Rather, the statements publicly explained
the school district’s response to a matter of widespread concern, consistent
with the superintendent’s official duties. (Id. at p. 1443.) So too here.
Mueller’s decision to respond to multiple press inquiries about child
molestation allegations against a longtime high school coach plainly fell
within the scope of his duties as school superintendent. As shown by the
number of press inquiries prompted by the initial Reader article, the
allegations and the District’s response plainly involved an issue of
widespread concern. It would construe a superintendent’s role too narrowly
to deem the press release “ministerial.”6 This case is similar to Morrow,
Barr, and Marantha, where lower-ranking officials issued press releases to
6 Burgess’s authorities are distinguishable. In Neary v. Regents of
University of California (1986) 185 Cal.App.3d 1136, it was unclear whether
a university vice chancellor was acting in a policymaking role when he
responded to a public records request by releasing an internal veterinary
report on cattle deaths at a ranch. (Id. at pp. 1142−1143.) In Sanborn,
supra, 18 Cal.3d 406, a city clerk may have had discretion to speak to the
press but was not acting in a policymaking role when he told local press that
an attorney had done “ ‘a real con job’ ” in persuading him to release attached
funds without a court order. (Id. at pp. 410, 413.) McQuirk v. Donnelly (9th
Cir. 1999) 189 F.3d 793 is further afield, involving negative comments by a
sheriff made to the prospective employer of a former employee. “Not
surprisingly, the court concluded that answering requests for employment
references is part of the ministerial, or operational, duties of any employer,
and certainly did not relate to the policy-making, law enforcement functions
of a county sheriff.” (Tutor-Saliba, supra, 136 Cal.App.4th at p. 616.)
15
explain or defend a policy decision implicating a matter of public concern.
Simply put, Mueller’s press statement was central (and not tangential) to his
executive role as District superintendent.7
c. Any claim that the press release violated the District’s
confidentiality policies lacks minimal merit.
Application of the official duty privilege requires “the proper discharge
of an official duty.” (§ 47, subd. (a), italics added; see Hale Co. v. Lea (1923)
191 Cal. 202, 207 [state laboratory director exceeded his statutory authority
in warning out-of-state official about adulterated walnuts].) Burgess
attempts to distinguish Morrow on factual grounds, arguing that District
policy prohibited Mueller from issuing the press release. But examining the
policies he cites against the challenged press release, Burgess fails to show
how the release violated those policies. (See, e.g., Kilgore, supra, 30 Cal.3d at
pp. 780−781 [general demurrer properly sustained where complaint did not
allege that the Attorney General’s report naming mob suspects derived from
or illegally disseminated confidential information].)
In his opposition papers, Burgess attached copies of two confidentiality
policies that he cites on appeal. Administrative Regulation 4112.6 governs
the appropriate handling of “Personnel Files” and requires the
superintendent to “maintain the confidentiality of any personnel records
which, if inappropriately disclosed, would constitute an unwarranted
invasion of the employee’s policy.” Board Policy 4119.23 proscribes
“Unauthorized Release of Confidential/Privileged Information.” “Staff shall
maintain the confidentiality of information acquired in the course of their
7 Burgess suggests there was no extant reason to warn the community by
issuing the press release given his placement on leave months before. But
with his reinstatement occurring only two months later and investigations
ongoing, there remained an extant basis to respond.
16
employment. Confidential/privileged information shall be released only to
the extent authorized by law.” Tracking the statutory definition for
confidential information found in Government Code section 1098, subdivision
(b), Board Policy 4119.23 defines as confidential “information that is not a
public record subject to disclosure under the Public Records Act [(Gov. Code,
§ 6250 et seq.)], information that by law may not be disclosed, or information
that may have a material financial effect on the employee.”
Nothing in the press release violated these policies. The release merely
conveyed the District’s concern for student and staff safety, mentioned that
allegations were made against a staff member that the District took “very
seriously,” and indicated that the District responded by following “policy and
protocol by taking immediate action to protect” students and staff. The press
release went no further, indicating that the matter concerned a personnel
issue.
As the trial court found and the District argues, nothing in this
boilerplate statement disclosed information from Burgess’s personnel records
or otherwise divulged confidential material. All that was conveyed was that
the District took action consistent with its policies, without so much as
describing what action the District took. By the time the statement was
issued, more sensitive information was already in the public domain by
virtue of Burgess’s writ petition, which documented his history coaching at
the high school, challenged his “illegal suspension,” and protested the
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District’s threats of discipline “for texting students” and its admonition “that
he could not be present at the pool for any reason.”8
In short, Burgess had the burden to establish the minimal merit of his
libel claim. Nothing in his opposition papers sufficed to overcome the official
duty privilege under section 47, subdivision (a). Instead, as Morrow found on
similar facts, the privilege shields Mueller from tort liability for issuing a
press release in his capacity as superintendent in response to media inquiries
on a matter of widespread concern.
DISPOSITION
The order granting the District’s anti-SLAPP motion is affirmed. The
District is entitled to recover its costs, including statutory attorney’s fees, on
appeal. (See Code Civ. Proc., § 425.16, subd. (c)(1); Dowling v. Zimmerman
(2001) 85 Cal.App.4th 1400, 1426.)
DATO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
AARON, J.
8 Burgess makes much of the fact that the District previously declined to
comment in response to press inquiries. This overlooks that once the first
article was published and requests for comment flowed in, it was within
Mueller’s purview and discretion as superintendent to respond in the manner
he did to a matter of increasing concern. (See Morrow, supra, 149
Cal.App.4th at pp. 1442−1443.)
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