Appeals court rejects administrator's emotional distress claim against fraternity

MAINE — A federal appeals court ruled the head of a publiccollege’s judicial affairs office is a public official, and thereforecannot win his lawsuit against a fraternity that he claimed intentionally causedhim emotional distress.

The 1st U.S. Circuit Court of Appeals affirmed a district court ruling thatDavid Fiacco’s position — as director of the Office of CommunityStandards, Rights and Responsibilities at the University of Maine at Orono– makes him a public official. And because the statements fraternitymembers anonymously disseminated alleging Fiacco had a history with drunkendriving and domestic violence were substantially true, the administrator cannotrecover damages from Sigma Alpha Epsilon, the court ruled.

Private individuals can win an emotional distress claim even if theyconcede that the statements in question were true.

Fiacco sued the national organization of Sigma Alpha Epsilon in September2005, alleging the fraternity was responsible for intentionally inflictingemotional distress on him in 2002.

After Fiacco’s office began investigating the campus chapter of thefraternity for misconduct that year, a group of the fraternity brothers hired aprivate investigator to uncover evidence of bias Fiacco might hold againstfraternities. Instead, the investigator found records detailing Fiacco’scriminal history. He was convicted in Colorado for Driving While AbilityImpaired, and a former girlfriend had secured a restraining order againsthim.

Members of the fraternity made copies of the information, sealing them withan unsigned memo that read: “Enclosed please find newspaper articles andcourt documents detailing Mr. Fiacco’s previous legal difficulties: DWI,Sexual harassment, and Domestic Violence. Is this honestly the best qualifiedcandidate the University of Maine could find for the Office of JudicialAffairs?

They mailed the packages to an alumnus in Colorado, who then sent them– sans return addresses — to the university president, severaldeans, the University of Maine System Board of Trustees and two localnewspapers.

Fiacco argued that as a result of the fraternity’s actions, he becamedepressed, while his concentration and work performance suffered. Additionally,Fiacco said he experienced bouts of insomnia and nightmares for which heobtained psychological counseling.

But the Supreme Court has held that people acting as public officials orpublic figures have a greater burden of proof in claims of intentionalinfliction of emotional distress than the average person.

In addition to the usual requirements for proving such a claim, publicofficials and public figures can recover damages only if they can prove thosewho caused them emotional distress published a statement they knew was false, orwere reckless in verifying the statement’s accuracy. This standard isknown as “actual malice” and is the same burden public officialsmust meet to recover libel damages.

As the Director of the Office of Community Standards, Fiacco qualifies as a”public official,” the appeals court ruled. His policymaking rolegave him a strong influence over issues of public importance, and his positiongave him special access to the media to rebut allegations against him. He alsoassumed the risk of diminished privacy when he took on the publicposition.

The three-judge panel also rejected Fiacco’s claim that thefraternity falsely characterized his legal troubles.

Though he was convicted of Driving While Ability Impaired, not DrivingWhile Intoxicated, the gist of the statement is true, the appeals court said.The statement alleging he had difficulties with sexual harassment and domesticviolence also were not false, the court ruled, because his former girlfriendacquired a restraining order under the Colorado Domestic Abuse Act, whichindicated the court found Fiacco had committed an act of violence or threatenedto do so.

Bernard Kubetz, Fiacco’s attorney, said he would not appeal the June13 ruling to the Supreme Court, though he was disappointed by the court’sclassification of his client as a public official.

“David Fiacco does not occupy, in my opinion, a position of suchpower and influence as to drape him with the characterization of a publicofficial in the First Amendment sense,” he said. “He is a mid-leveladministrator amongst a lot of other mid-level administrators at a publicuniversity.”

Kubetz also expressed discontent with what he believed to be thefraternity’s abuse of the First Amendment.

“Strictly applying First Amendment principles, a national fraternitywith a great deal of power was able to get away with what I would consider to bean effort to blackmail him,” Kubetz said. “A group of the membersgot together and crafted an anonymous memo they weren’t brave enough tosign, and to further hide their efforts, sent it to a brother in Colorado sothey could remain secret in their activities. And in my view, justice has notbeen served by the court’s ruling, but the district court has ruled, andthe appeals court, and that’s all the farther we’re going togo.”

The University of Maine at Orono’s chapter of Sigma Alpha Epsilon islisted as inactive since 2005 on the university’s Web site. Though thenational organization’s Web site says the chapter is active, no oneanswered calls to a phone number listed on the page.

Peter Culley, who represented the national fraternity in the lawsuit, saidhe was happy with the outcome.

“The court found that everything that was published was truthful, andif it’s truthful, there’s no basis for a claim,” hesaid.