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Hoefer v. Board of Education of Enlarged City School District of Middletown

United States District Court, S.D. New York

June 6, 2017

FRANCIS E. HOEFER, Plaintiff,
v.
BOARD OF EDUCATION OF THE ENLARGED CITY SCHOOL DISTRICT OF MIDDLETOWN, DR. KENNETH EASTWOOD, WILLIAM GEIGER, JOHN DOE 1, JOHN DOE 2, Defendants.

          OPINION AND ORDER

          EDGARDO RAMOS, U.S.D.J.

         Plaintiff Francis E. Hoefer (“Hoefer”) commenced this action on April 16, 2010 against the Board of Education of the Enlarged City School District of Middletown (the “Middletown Board”), Dr. Kenneth Eastwood (“Eastwood”), William Geiger (“Geiger”) (together the “Defendants”), claiming violations of the First and Fourth Amendments.[1] Doc. 1 (“Compl.”). Before this Court is Eastwood's motion for summary judgment to dismiss Hoefer's First Amendment claim.[2]

         For the following reasons, Eastwood's motion is DENIED.

         I. Background

         A. Factual Background[3]

         i. The Parties

         At all times relevant to the Complaint, Hoefer was a resident of the City of Oswego, and an elected member of the City School District of the City of Oswego Board of Education (the “Oswego Board”). Eastwood's 56.1 Stmt. at ¶ 14; Miller Aff. Ex. D (“Hoefer Dep. Tr.”) 8:5-9; 12:19-25. He was first elected to the Oswego Board in 2000, but was subsequently removed from that office in 2004 for various acts of alleged misconduct, namely, disclosing sensitive and/or confidential information on his personal website, including personal comments about Eastwood, who was, at the time, the Superintendent of Schools for the Oswego City School District (“Oswego District”). Eastwood's 56.1 Stmt. at ¶¶ 2-4; Miller Aff. Ex. B at 2. Hoefer appealed his removal to the Commissioner of Education, naming Eastwood as one of the respondents. Eastwood's 56.1 Stmt. at ¶ 5. The appeal was denied. Id. In 2008, he was re-elected to the Oswego Board. Hoefer Dep. Tr. 12:19-25.

         Since 2004, and at all times relevant to the Complaint, Eastwood has been the Superintendent of Schools for the Enlarged City School District of Middletown (“Middletown District”). Eastwood's 56.1 Stmt. at ¶ 1.

         ii. The March 4, 2010 Middletown Board Meeting

         On March 4, 2010 at 7:30 p.m., the Middletown Board held a regular meeting at Middletown High School (the “Board Meeting”). Id. at ¶ 6. Geiger, the Middletown Board President, presided over the meeting. Id. at ¶ 8. Hoefer arrived at the high school shortly before the meeting began. Id. at ¶ 7. He had been invited to the meeting by Nicholas Mauro (“Mauro”), a member of the Middletown Board. Pl.'s 56.1 Counterstmt. at ¶ 1. Mauro had informed Hoefer that Eastwood was involved in an effort to remove another Board member, Roy Paul (“Paul”), and had asked Hoefer to speak in support of Paul, by relating his own experience of being removed from the Oswego Board. Pl.'s 56.1 Counterstmt. at ¶¶ 2-3; Hoefer Dep. Tr. at 52:22-54:3, 59:21-60:18; 57:22-58:4, 66:5-8.

         At approximately thirty minutes after the Board Meeting began, Geiger opened the floor for public comments, noting that this portion of the meeting was reserved for “community members who live here and choose to address the Board of Education.”[4] Eastwood's 56.1 Stmt. at ¶¶ 9-10; see also Pl.'s 56.1 Counterstmt. at ¶¶ 7-8. After Geiger's announcement, Hoefer approached the microphone near the front of the auditorium, at which time Eastwood passed Geiger a note. Pl.'s 56.1 Counterstmt. at ¶¶ 11-12; Miller Aff. Ex F. Hoefer began reading from a prepared statement (the “Prepared Statement”), identifying himself by name and stating that he was a member of the Oswego Board. Eastwood's 56.1 Stmt. at ¶ 12; Pl.'s 56.1 Counterstmt. at ¶ 15. Geiger inquired whether Hoefer lived or worked in Middletown, and Hoefer responded that he was a “member of New York State” and reiterated that he was from Oswego. Eastwood's 56.1 Stmt. at ¶¶ 13-14; see also Pl.'s 56.1 Counterstmt. at ¶¶ 16-18. Geiger repeated that the public comment portion of the meeting was reserved for Middletown residents. Eastwood's 56.1 Stmt. at ¶ 15.

         Mauro then interjected, and a heated exchange between Mauro and Geiger ensued. Eastwood's 56.1 Stmt. at ¶ 16. Mauro insisted that the Middletown Board was not permitted to discriminate between residents and non-residents, to which Geiger responded that Mauro was out of order. Pl.'s 56.1 Counterstmt. at ¶¶ 19-20; Miller Aff. Ex F. During this exchange, Hoefer attempted to read the introduction of his Prepared Statement again. Eastwood's 56.1 Stmt. at ¶ 17; Pl.'s 56.1 Counterstmt. at ¶ 21. Geiger advised Hoefer that his time to speak was up and instructed Ken Haverlan, Middletown District's Head of Security at the time, to remove Hoefer from the microphone. Eastwood's 56.1 Stmt. at ¶ 18; Pl.'s 56.1 Counterstmt. at ¶ 22. A video recording of the meeting shows that Hoefer stopped reading his Prepared Statement only when Mauro resumed speaking loudly into the microphone. Miller Aff. Ex F. Hoefer was only able to read the introduction of his Prepared Statement during the Board Meeting. Pl.'s 56.1 Counterstmt. at ¶ 29; Miller Aff. Ex F.

         During the kerfuffle, Geiger made a motion to go out of session, which was approved by a majority of the Board, and a recess was taken at approximately 8:02 p.m. for 26 minutes. Eastwood's 56.1 Stmt. at ¶¶ 20-21; Pl.'s 56.1 Counterstmt. at ¶¶ 24-25; Miller Aff. Ex. F. At the time the recess was taken, Hoefer was still standing in front of the microphone. Eastwood's 56.1 Stmt. at ¶ 22. Hoefer was subsequently arrested. Eastwood's 56.1 Stmt. at ¶ 23.

         After Hoefer's removal, the public comment portion of the meeting continued. Pl.'s 56.1 Counterstmt. at ¶ 38; see Sussman Decl. Ex. 3 at 2-3. A second public comment portion was also held at the end of the meeting. Pl.'s 56.1 Counterstmt. at ¶ 39; see Sussman Decl. Ex. 2 at 2, Ex. 3 at 7-8. During the second public comment portion, several speakers were allowed to speak positively about Eastwood. Pl.'s 56.1 Counterstmt. at ¶ 40; see Sussman Decl. Ex. 3 at 7-8.

         iii. Publication of the March 4 Statement and Defamation Suit

         Two days after the Board Meeting, Hoefer published the Prepared Statement on his website blog, which was highly critical of Eastwood. Eastwood's 56.1 Stmt. at ¶ 25; Pl.'s 56.1 Counterstmt. at ¶¶ 41-42; Miller Aff. Ex. G. Thereafter, Eastwood commenced a defamation action in New York State Supreme Court against Hoefer, alleging that four separate statements in his published Prepared Statement constituted defamation. Pl.'s 56.1 Counterstmt. at ¶¶ 43-44; see Eastwood v. Hoefer, 136 A.D.3d 655, 655-56 (2d Dep't. 2016). Allegations regarding three of the challenged statements proceeded to trial, and the jury found for Eastwood on all three statements. Pl.'s 56.1 Counterstmt. at ¶¶ 44-45; see Eastwood 136 A.D.3d at 656. However, on September 9, 2013, the New York State Supreme Court overturned the verdict as to two statements, upholding the verdict only as to Hoefer's assertion that Eastwood “use[d] his position to acquire enhanced grades for his daughter.” Pl.'s 56.1 Counterstmt. at ¶ 46; see Eastwood 136 A.D.3d at 655-56. On February 3, 2016, the Appellate Division, Second Department affirmed the New York State Supreme Court's order. Pl.'s 56.1 Counterstmt. at ¶ 47; see Eastwood 136 A.D.3d at 656-57.

         B. Procedural Background

         Hoefer filed this instant action on April 16, 2010. Doc. 1. On March 23, 2012, the Defendants moved for partial summary judgment only with respect to Hoefer's false arrest claim against Eastwood, which the Court granted on January 9, 2013. Docs. 11, 21. They did ...


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