Rock County Courthouse

A Rock County judge Friday denied a motion to dismiss a defamation lawsuit filed against former Milton School Board member Brian Kvapil by former Milton School District administrator Jerry Schuetz.

Schuetz’s lawyers—Caitlin Madden and Aaron Halsted of Hawks Quindel, Madison—claim Kvapil in February 2019 shared false information about Schuetz “either knowing that the statements were false, or with a reckless disregard for their truthfulness.”

Many questions were raised on Friday, but Judge Derrick Grubb said it would be premature to decide them at the motion-to-dismiss phase.

“There is no argument in opposition that these statements, as alleged in the complaint, are incapable of defamatory meaning,” he said. “That is, in essence, conceded by Mr. Kvapil.

“Much of the argument here today and in the submissions was with regard to whether or not the statements (Kvapil) made are true or false.”

For the purposes of review, Grubb said he had to look at the statements alleged in the complaint and accept they are true.

“I’m not here making any finding whether or not they’re true or false,” he said.

The statements may turn out to be true or substantially true, he said, “but we’re at a motion to dismiss here. We don’t have deposition testimony. We don’t have evidence other than this complaint. ‘The Lubinsky report’ (findings of an investigation done by attorney Lori Lubinsky of Axley Brynelson on behalf of the school board), augmentation by Mr. Kvapil and some employee recommendation forms from (now-retired Business Services Director Mary Ellen) Ms. Van Valin. So I have to give the benefit of the doubt at this point to Mr. Schuetz.”

Kvapil’s lawyer—Thomas Cabush of Kasdorf, Lewis & Swietlik in Milwaukee—argued that the defamation lawsuit “must be dismissed” because Schuetz’s allegations don’t meet the standards for defamation.

“The alleged statements were substantially true, the statements were opinions on matters of public concern, and the statements were protected by a privilege,” Cabush argued.

Grubb said, “I understand Mr. Cabush’s argument. This is a motion to dismiss stage. He’s arguing this is a first amendment case at this point.”

Although Grubb said he was not making such a finding on Friday, he added, “That doesn’t mean that it isn’t.”

The statements listed in the lawsuit include:

• A Feb. 8, 2019, Facebook post in which Kvapil said the district’s procedure to award employee stipends was “a gross violation of the public’s trust” and a “possible violation” of district policy and state statutes.

• A Facebook comment the same day: “You should be more outraged at the people who illegally took the money. That’s stealing.”

• A Feb. 10, 2019, Facebook post that called the stipends “unauthorized payments.”

• A statement at a Feb. 11, 2019, board meeting: “We have people that right now it looks—appears—that they do not know how to handle money and actually can steal from the district.”

• A statement augmenting a report by a third-party lawyer hired to investigate the stipends’ legality, in which Kvapil said Schuetz “does not have the training or qualifications to effectively do the business manager’s job.”

The statements were made after Kvapil released documents to local media when he learned that three stipends totaling $30,500 were awarded to Schuetz, then-superintendent Tim Schigur and an IT staff member without school board approval.

In the lawsuit, Schuetz’s lawyers say the former administrator “was constructively discharged from his position with the district” and lost job opportunities because of the stipend investigation and Kvapil’s statements.

In the motion to dismiss, Kvapil’s lawyer says Schuetz voluntarily left the district.

“The defendant did not intentionally interfere with the plaintiff’s contract with the school district,” the motion reads.

“The school district took no adverse action against the plaintiff. The plaintiff voluntarily resigned his position. The defendant’s statements were a matter of public concern (and) cannot serve as the basis for an intentional interference with contract claim.”

The lawsuit seeks damages for the emotional distress Schuetz endured, but Kvapil’s lawyer argues that his client’s conduct was “not extreme or outrageous” or meant to cause harm.

“The defendant reasonably believed the stipends paid by the administrators to themselves was not in the budget and were not approved by the school board,” Cabush argues. “The defendant’s statements were intended to inform the public and cannot form the basis for an intentional infliction of emotional distress claim.”

Questions remain:

  • Was Kvapil speaking as a school board member or a private citizen?
  • Was Schuetz considered a public figure?
  • Are the statements true? Are they protected under the 1st Amendment? Are they of legitimate public interest?
  • What was the intent of Kvapil’s remarks? Was the intent to inflict emotional distress?
  • Did the comments interfere with Schuetz’s contractual relationship with the school district?

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