In a recent unpublished case, Stanton v Anchor Bay School District, the Michigan Court of Appeals affirmed the trial court’s determination that Anchor Bay School District and its superintendent, Leonard Woodside, were absolutely immune from intentional tort claims.  The court also allowed the case against Sherry Kenward (Director of Student Services at the District’s high school) to move forward. 

Plaintiff John Stanton was the building principal at the District’s high school.  During the 2015‑2016 school year, Stanton and the school security guard confiscated a “wooden penis” from a student.  The two allegedly joked about the item until 2017, when the security guard took a job elsewhere and Stanton gave her the object as a parting gift – upon which he had inscribed a sexual pun.  Thereafter, Kenward received an anonymous tip about Stanton’s gift and investigated the matter.  After meeting with Kenward, Woodside, and various other District personnel, Stanton resigned his employment.  Stanton then applied for and received a position at a nearby school district, but he was forced to resign when the school district received a telephone call from an individual with the District, notifying the school district of the above incident.  Stanton subsequently filed a legal action against the District, Woodside, and Kenward, alleging various intentional tort claims related to the investigation and the call to the nearby school district.

The Government Tort Liability Act (GTLA) grants absolute immunity to government entities and their highest‑ranking appointed executive officials (e.g., a school district superintendent).  Consequently, the District and Woodside were entitled to immunity and were dismissed from the case at the trial court stage.  Instead, the appellate court focused on whether Kenward was entitled to governmental immunity as a lower‑ranking government official.  The court explained that, for intentional tort cases involving claims of governmental immunity, the Ross test is employed.  The Ross test requires analysis of whether the employee acted within the scope of her authority, acted in good faith and without malice, and whether such actions were discretionary.  In this case, only the good faith/malice element was at issue. 

Kenward argued that she was entitled to a presumption of good faith consistent with MCL 380.1230b, a statute within the Revised School Code that requires former employers to disclose to subsequent employers any unprofessional conduct in which the employee engaged.  Notably, the statute grants a presumption of good faith to the employer (and its employees) when disclosing unprofessional conduct unless certain exceptions apply, such as misleading or false disclosures.  Here, Kenward asserted that she was compelled to disclose Stanton’s unprofessional conduct on behalf of the District, that she made true statements, and that any disclosures to Stanton’s new employer were in fact true.   She argued that she was entitled to a presumption of good faith under MCL 380.1230b and, consequently, was shielded by governmental immunity under the Ross test as a matter of law.

The court disagreed.  It reasoned, first, that the evidence showed Kenward’s investigation may have included falsified reports, which raised a genuine question as to whether she acted maliciously.  Furthermore, the court noted that Kenward may have been responsible for contacting Stanton’s new employer, unsolicited, to disclose his unprofessional conduct after the District had already contacted the new employer once.  The court held that a number of crucial factual issues remained in dispute and, therefore, remanded the case to the trial court to proceed with Stanton’s case against Kenward.

The decision is accessible here.