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4th Cir.: High defamation standard applies to school board employee

Rebecca M. Lightle//June 19, 2018

4th Cir.: High defamation standard applies to school board employee

Rebecca M. Lightle//June 19, 2018

Based on her responsibilities as set forth in the Virginia Code, a school board’s Director of Budget & Finance was a “public official” who had to show actual malice to prove that a TV news station defamed her. She failed to do so.


Appellant Angela Horne filled out an online application to be the Director of Budget & Finance for the Prince George County School Board. Where the application asked whether she previously had been convicted of a felony, she answered “Yes” and, as requested on the application, provided a short paragraph explaining her prior conviction for conspiracy to possess with the intent to distribute methamphetamine.

Superintendent Bobby Browder conducted a series of interviews with Horne, representing to her that her previous conviction was not a hindrance to being hired. Horne was in fact hired for the position and began in September 2014. On February 10, 2015, however, she was terminated because her prior felony conviction was a disqualifying factor under Virginia law, which prohibits a school system from hiring a convicted felon for any position.

The next day, Wayne Covil, a senior reporter at Appellee WTVR, received a five-minute phone call from a familiar, confidential source who relayed that a felon had been hired and then fired from the school board office in Prince George County. Covil then interviewed Browder, whom Covil had worked with for years on dozens of stories for WTVR. Browder told Covil that he could not discuss personnel matters, but he conveyed that after applicants are hired, a background check is completed that can take up to eight weeks, and that prior convictions are sometimes discovered after the employee has begun working. They reviewed Browder’s copy of the Virginia School Law Deskbook – a book of school system policies and rules that includes a copy of the Virginia Code. Pointing to the relevant statute in the Deskbook, Browder stated that it was a Class 1 misdemeanor to provide false information on a school application. Covil believed Browder implied that the felon at issue had lied on her job application by failing to disclose her prior felony.

WTVR’s News Director, Sheryl Barnhouse, told Covil “we need to pursue” the story and to find out the name of the felon. Covil tried unsuccessfully to confirm the felon’s identity using the internet. He came to believe that Horne may be the felon and tried to call her, but he did not reach her.

On February 13, 2015, in its lead story for the 5:30 PM newscast, WTVR ran Covil’s news story: “Source: Convicted felon worked at school board office in Central Va.” A print version of the story was also posted online. Covil held a copy of the Virginia School Law Deskbook that includes the law regarding the school system’s hiring policy and shifted to a segment of the recorded interview with Browder explaining that the background check occurs after the applicant is given a job offer and that the background check can reveal disqualifying information, including a felony conviction.

The news story ended by stating that it is a Class 1 misdemeanor to misrepresent one’s criminal past in a school application while displaying the text of the relevant Code provision. It did not identify Horne by name or position or provide details of her prior conviction.

Horne sued the school system, Browder, and WTVR, asserting that the news story defamed her. She also moved to compel WTVR to disclose the confidential source that provided the initial tip for the story; the district court denied it.

After the close of evidence at trial, the district court granted WTVR’s motion for a directed verdict. Horne has appealed.

Public official

Horne is a public official, and the “actual malice” standard thus applies to this defamation claim.

Given her title and job description, Horne had apparent substantial responsibility over the school system’s finances. The title “Director of Budget & Finance” implies substantial control over the school system’s budget and finances and, indeed, this position appears to be the top financial position in a school system with a nearly $60 million budget. The Director of Budget & Finance job description includes the overarching job goal “[t]o manage the financial, budgetary, and purchasing affairs of the School Division in a prudent and effective manner.” The position also requires the employee to “be comfortable presenting to the school board”; “negotiate with health and dental insurance providers”; “oversee Sick Bank Committee”; “plan, direct, and coordinate the preparation of the School Division’s annual budget”; “make expenditure projections for budget preparation”; “coordinate projections with budget”; and “manage grants functions and approve reimbursement requests in state grant system.”

In addition, the Virginia Code contains an entire chapter on “Public School Funds,” indicating the importance of the budget to both the government and the public. Serving as the Director of Budget & Finance, thus, created the appearance that Horne’s governmental responsibilities were significant and necessarily involved discretion regarding several tasks as she managed the school system’s financial affairs. This would invite public scrutiny and discussion of the person holding it and provide independent interest in the qualifications and performance of the person in that position.

It is unnecessary for each task that the Director of Budget & Finance must complete to invite public scrutiny, and it is sufficient under these facts that the position itself invites scrutiny, regardless of whether Horne completed each anticipated task in her brief four months in the job.

Consequently, Horne is a “public official” because she has apparent substantial responsibility and control over the school system budget and finances.

Actual malice

The district court did not err in concluding that Horne presented insufficient evidence that WTVR made the defamatory statements with “actual malice.”

Horne asserts that WTVR published the news story with “actual malice” by publishing it with reckless disregard for the truth. She argues: (1) that WTVR failed to properly investigate whether the felon lied on her job application, and, (2) alternatively, that WTVR intentionally ignored a better story — that the superintendent knew of her felony and hired her in violation of state law — in order to avoid having to redo the completed story implying she lied. Neither argument is convincing.

WTVR had a history of working with Browder and receiving accurate information from him on dozens of stories over several years, weighing in favor of his veracity and giving credence to Covil’s testimony that he believed Browder implied that Horne lied on her application, and that he believed Browder was telling the truth. Covil also testified that the confidential source who provided the initial tip for this story was a trusted source. Thus, with no reason to doubt the accuracy of the sources used, WTVR’s failure to investigate every potential lead did not amount to reckless conduct.

Horne’s assertion regarding the “better story” hinges on the claim that the email from the anonymous source caused WTVR to entertain doubts as to the truth of the story that the felon lied on her application, and doubts as to Browder’s credibility, either of which she claims is sufficient for finding actual malice. But within the context of the story’s creation from trusted sources, the email does not provide obvious reasons to doubt the veracity of the informant or the accuracy of his reports; it can be read as supporting the narrative of a felon being hired after lying on the application.

Horne also argues that WTVR either should have investigated further or had doubts about the truth of the story. But without evidence to the contrary, common sense counsels that WTVR did not purposely avoid researching the “better story” to simply avoid re-doing their already completed story.

In sum, Horne has not submitted evidence indicating that WTVR acted with reckless disregard for the truth, or evidence that WTVR entertained any doubts as to the veracity of the story or Browder’s credibility. No reasonable jury could find, by clear and convincing evidence, that WTVR made the defamatory statements with “actual malice.”

Confidential source

The district court also did not err in denying Horne’s pre-trial motion to compel WTVR to disclose the identity of its confidential source.

Horne asserts that the district court should have compelled WTVR to reveal the confidential source that provided Covil the initial tip that a felon was hired and then fired by the school system. She contends that revealing the identity of the confidential source may provide evidence of “actual malice” in that the source may have known that Horne did not lie on her job application or the source may be untrustworthy. However, there is no evidence that disclosure of the source would reveal this information. Thus, Horne did not provide a sufficiently compelling interest in the identity of the source to overcome the competing First Amendment concerns.


Horne v. WTVR LLC, Case No. 17-1483, June 18, 2018. 4th Cir. (Floyd), from EDVA at Richmond (Gibney). Richard F. Hawkins III for Appellant; Conrad M. Shumadine for Appelee. VLW No. 018-2-129, 21 pp.

VLW 018-2-129

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