Tort: School board members denied immunity in defamation suit

Where two school board officials included allegedly defamatory information about a third party in documents regarding disciplinary proceedings against another board member, the officials were not entitled to immunity against the third party’s claims for defamation and defamation per se.

Background

Judith Brooks-Buck and Tyron Riddick contend that the circuit court erred by overruling their demurrers to Deborah Wahlstrom’s amended complaint.

Legislative immunity

Brooks-Buck and Riddick contend that disciplining a school board member is a legislative act. As the allegedly defamatory statements at issue were made in the documents that initiated internal disciplinary proceedings against Dawn Marie Brittingham, another school board member, Brooks-Buck and Riddick claim that they are immune from Wahlstrom’s defamation and defamation per se claims.

This court has not addressed whether the act of disciplining a local legislator for misconduct constitutes a legislative act that falls within the scope of common law legislative immunity. The United States Court of Appeals for the Fourth Circuit, however, has held that it is a “core” legislative act.

This reasoning is compelling. Although disciplinary proceedings do not directly encompass the creation of legislation, they are integral to the legislative process. As noted by the Fourth Circuit, disciplinary proceedings preserve the institutional integrity of local legislative bodies and help maintain order during local legislative proceedings. Accordingly, this court holds that a local legislative body engages in a legislative act when it disciplines one of its members.

Despite this, the allegations of Wahlstrom’s amended complaint are sufficient to overcome Brooks-Buck’s and Riddick’s assertions of common law legislative immunity at the demurrer stage of these proceedings. Although Brooks-Buck and Riddick may have been immune from defamation claims based on their statements about Brittingham (at least to the extent that those statements pertained to the pending disciplinary proceedings), it is unclear whether that immunity extends to their statements about Wahlstrom.

Significantly, the narrative authored by Brooks-Buck and attached to the notice issued by Riddick made allegedly defamatory statements about Wahlstrom, a private citizen who was a third party to the disciplinary proceedings. At this point in the litigation, Brooks-Buck and Riddick have not presented any evidence to establish whether their statements about Wahlstrom were integral to the disciplinary proceedings against Brittingham.

Viewing the allegations of the amended complaint in the light most favorable to Wahlstrom, including the allegations detailing the contentious history between the parties, a reasonable jurist could determine that the statements about Wahlstrom in Brooks-Buck’s narrative were gratuitous and nonessential to the disciplinary proceedings. Therefore, the circuit court did not err by overruling Brooks-Buck’s and Riddick’s demurrers to the extent that they asserted common law legislative immunity from Wahlstrom’s defamation and defamation per se claims.

Sovereign immunity

Brooks-Buck and Riddick contend that they made the statements at issue while acting in their official capacities as school board members. Consequently, Brooks-Buck and Riddick claim that they are entitled to sovereign immunity from Wahlstrom’s defamation and defamation per se claims.

A school board itself is immune from tort liability, “whether the claims involve simple negligence, gross negligence, or even intentional torts.” School board members are entitled to the same degree of immunity when they are sued in their official capacities. The same degree of immunity does not extend to school board members who are sued in their individual capacities.

When sued in their individual capacities, school board members are not immune from gross negligence claims. They are also not immune from intentional tort claims. In the present case, Wahlstrom asserted intentional tort claims against Brooks-Buck and Riddick in their individual capacities. Accordingly, the circuit court did not err by overruling Brooks-Buck’s and Riddick’s demurrers on this ground.

Code § 8.01-223.2

Brooks-Buck and Riddick finally claim that they are immune from Wahlstrom’s defamation and defamation per se claims under Code § 8.01-223.2, which provides statutory immunity to individuals who make statements to governing bodies. The immunity granted by Code § 8.01-223.2, however, does not “apply to any statements that the declarant knew or should have known were false or were made with reckless disregard for whether they were false.”

Assuming that the statements at issue fall within the scope of Code § 8.01-223.2, the allegations of the amended complaint, when viewed in the light most favorable to Wahlstrom, imply that Brooks-Buck and Riddick either: (1) knew that the statements at issue were false or (2) recklessly disregarded the falsity of the statements at issue.

Affirmed and remanded.

Brooks-Buck v. Wahlstrom, Record No. 250246, Oct. 16, 2025 (McCullough). From the Circuit Court of the City of Suffolk. VLW 025-6-025. 12 pp.