*This is an unreported opinion, and it may not be cited in any paper

*This is an unreported opinion, and it may not be cited in any paper, brief, motion,

or other document filed in this Court or any other Maryland Court as either

precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-

104.

Circuit Court for Harford County

Case No. 12-C-17-001388

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1413

September Term, 2017

______________________________________

ANNE MARIE L. CULLEN

BOARD OF EDUCATION OF HARFORD

COUTY, ET AL.

______________________________________

Wright,

Nazarian,

Arthur,

JJ.

______________________________________

Opinion by Wright, J.

______________________________________

Filed: October 23, 2018

— Unreported Opinion —

Appellant, Anne Marie Cullen, appeals the Circuit Court for Harford County’s

grant of appellees’, Board of Education of Harford County (“BOE”) and Charlie Taibi,

motion to dismiss appellant’s defamation claim. Cullen appeals to this Court and

presents the following questions for our review, which we reworded for clarity:

1. Whether the circuit court erred in finding that the appellees possessed one or more

privileges from appellant’s defamation claim?

2. Whether the circuit erred in granting appellees’ motion to dismiss?

For the reasons to follow, we answer both questions in the negative and affirm the

judgment of the circuit court.

I. BACKGROUND

Cullen was a school bus driver for BAMC Student Transportation, LLC

(“BAMC”). BAMC contracted with Harford County Public Schools (“HCPS”) to

provide school bus transportation services. Under Maryland law, all school bus drivers

are required to obtain training and certification from the BOE before transporting

The original questions presented were:

1.Was the trial court correct in determining that the Appellees possessed an

absolute privilege from Appellant’s defamation claim?

2.Was the trial court correct in determining that Appellees’

communications with Appellant’s employer were subject to the common

interest privilege?

3.Did the lower court err as a matter of law in dismissing this case?

students. See COMAR 13A.06.07.06

and 13A.06.07.09

(detailing the certification and

pre-service requirements for school bus drivers). As BOE’s Supervisor of

COMAR 13A.06.07.06. School Vehicle Driver Trainee and School Vehicle

Driver Qualifications.

A. School Vehicle Driver Trainee Qualifications. Before a school vehicle driver

trainee transports a student in a school vehicle the trainee shall:

(1) Meet all licensing requirements of the Motor Vehicle Administration,

including commercial driver’s license requirements with appropriate

endorsements;

(2) Have not more than two current points on the individual’s driving record

and a satisfactory past driving record as determined by the supervisor of

transportation;

(3) Complete the preservice instruction required under regulation .09A of this

chapter;

(4) Have no evidence of a criminal history which would be a disqualifying

condition under regulation .07C of this chapter or an action under Regulation .07D

of this chapter, either of which in the opinion of the supervisor of transportation

makes the individual unfit for employment;

(5) Be 21 years old or older;

(6) Satisfactorily pass the appropriate medical examination for school vehicle

drivers under COMAR 11.19.05.01; and

(7) Receive a negative controlled substances test result required under

Regulation .10 of this chapter.

B. School Vehicle Driver Qualifications. A school vehicle driver shall:

(1) Do one of the following:

(a) Meet the requirements in § A of this regulation; or

(b) Complete the in-service instruction required under Regulation .09B of this

chapter;

(2) Demonstrate the capacity to make appropriate decisions, especially in

emergency situations; and

(3) Properly wear a seat belt when the school vehicle is in operation.

C. School Vehicle Driver Evaluations.

(1) A qualified school vehicle driver instructor certified under Regulation .05 of

this chapter, a supervisor of transportation, or an assistant supervisor of

transportation shall evaluate each driver at least once every 2 years.

(2) For regular school vehicle drivers, the evaluator shall:

(a) Ride with the school vehicle driver on a regularly scheduled route to or

from school; or

(b) Conduct an external observation, if an external observation is approved by

the supervisor of transportation.

(3) For substitute school vehicle drivers, an evaluator may conduct an evaluation

over a sample route for a minimum of 30 minutes and incorporate all the

elements of a regular school vehicle driver evaluation, except for student and

driver interaction.

COMAR 13A.06.07.09. Instructional Content Requirements.

A. Preservice Instruction for School Vehicle Drivers.

(1) A trainee shall satisfactorily complete a minimum of 8 hours of classroom

instruction in the core units of the school bus driver instructional program

developed by the Department, including:

(a) First aid;

(b) Railroad grade crossing safety; and

(2) All or a portion of the classroom instruction required under § A(1) of this

regulation may be waived by the supervisor of transportation if the trainee is

currently certified by a local school system.

(3) A trainee shall receive a minimum of 9 hours behind-the-wheel instruction,

except if the trainee is:

(a) A current holder of a commercial driver’s license with a passenger and

school bus endorsement for 3 years, and has received a minimum of 3 hours of

behind-the-wheel instruction; or

(b) Currently certified as a school vehicle driver by a local school system, and

has received a minimum of 3 hours of behind-the-wheel instruction.

(4) Class size shall be conducive to individualized instruction.

B. In-Service Instruction for School Vehicle Drivers.

(1) At least 6 hours of in-service instruction shall be provided annually.

(2) Five hours shall have an emphasis on safety procedures, strategies, and

laws.

(3) In-service instruction topics:

(a) Shall be selected from the core or advanced units of the school vehicle

driver instruction program developed by the Department; and

(b) May include other topics contained in the National Safety Council’s

Defensive Driving Course, controlled substances and alcohol

regulations, or personnel and student safety issues.

(4) One hour of the 6 hours of in-service instruction may be on-the-bus

observation, instruction, or both.

(5) In-service instruction in the following topics shall be given at least once

every 3 years:

(a) First aid; and

(b) Bridge and railroad grade crossing.

(6) Class size shall be limited to 35 students except as provided in § B(7) of

this regulation. If the number of students exceeds 35, the session does not

meet the State instructional requirements.

(7) A maximum of two large-group safety meetings of more than 35 students,

not to exceed 2 hours each, may be provided each year.

(8) At least 2 of the 6 hours per year of in-service instruction shall be

conducted in classes of not more than 35 students.

C. School Vehicle Driver Recertification.

(1) A school vehicle driver who has been deleted from a school system’s driver

roster for 1 year or less may be recertified as a school vehicle driver if the

individual satisfactorily completes refresher training that includes a minimum

of 3 hours of classroom instruction and 3 hours of behind-the-wheel

instruction, unless the supervisor of transportation determines less refresher

training is necessary.

(2) An explanation to support the decision to require less than the minimum

refresher training shall be placed in the school vehicle driver’s personnel file.

(3) If a school vehicle driver has been deleted from the school system’s driver

roster for more than 1 year, the school vehicle driver shall complete all school

vehicle trainee qualifications as required under Regulation .06A of this chapter.

D. School Vehicle Attendant Instruction.

(1) Preservice Instruction. Before riding in the capacity of a school vehicle

attendant on a school vehicle with students on board, a school vehicle attendant

shall complete a minimum of 4 hours of preservice instruction that includes:

(a) 1 hour of instruction in first aid; and

(b) 1 hours of instruction appropriate to the duties of the school vehicle attendant.

Transportation, Taibi was responsible for ensuring compliance with school bus driver

certification.

On September 13, 2016, Taibi issued a decertification letter via email to Cullen,

which disqualified her from operating as an HCPS school bus driver. Taibi also sent the

email to BAMC (Cullen’s employer) and Matt Bedsaul (HCPS’ Supervisor of

Transportation). The letter states in pertinent part:

Your inappropriate interaction with school administrators and failure to

comply with their requests in specific areas where improvement was

needed has prompted action . . . . After reviewing all relevant information,

I am disqualifying you as a school bus driver . . . . Your actions are a

serious breach of not only appropriate conduct, but also personal safety and

security in every aspect of the education and operations practices of HCPS.

At issue here is Taibi’s sending of the letter to third parties, and his inclusion of

details outlining Cullen’s decertification. Cullen appealed the decertification decision,

and on September 30, 2016, the BOE’s Assistant Superintendent heard the appeal. The

(2) In-Service Instruction. A school vehicle attendant annually shall complete 2

hours of in-service instruction in topics that include equipment, student

management, and first aid.

E. Instructional Records. A local school system shall maintain attendance

records, electronic or printed format, of all preservice and in-service

instructional sessions which include the following information, as appropriate:

(1) Name of the trainee, driver, or attendant;

(2) Name of the instructor;

(3) Dates of instruction;

(4) Number of hours of classroom instruction and topics of instruction; and

(5) Number of hours of behind-the-wheel instruction.

Assistant Superintendent reduced the decertification to a suspension but requested that

Cullen complete re-training and mentorship before she was eligible to reapply for HCPS

certification.

On June 5, 2017, Cullen filed a complaint against Taibi and the BOE, alleging a

single claim of defamation stemming from the emailed decertification letter. Cullen

alleged that: (1) the letter contained false statements regarding her performance; (2) that

those statements were published to third parties (BAMC and Bedsaul); (3) that appellees

were legally at fault in making the statements; and (4) as a result, she suffered damages in

the form of lost employment opportunities, lost wages, and mental anguish.

On June 26, 2017, the BOE and Taibi answered the complaint, responding that

Cun’s defamation claim failed as a matter of law because one or more privileges applied

to the letter. They emphasized that Maryland law required HCPS to ensure that drivers

were properly trained and that they obtained its certification. Pursuant to COMAR

13A.06.07.04,

the certification of drivers is the responsibility of an appointed Supervisor

The conditions for reinstatement included eleven hours of classroom instruction,

ten hours behind the wheel retraining, mentoring by assigned driver for two weeks, and

providing a written statement that training was met. Cullen would then be eligible for a

reassignment with the approval of Taibi.

COMAR 13A.06.07.04. Local Supervisor of Transportation.

A local school system shall designate an individual to be responsible for the

administration of the student transportation program. The supervisor of

transportation designated shall have sufficient time to perform all the duties

of the position as detailed in this chapter and established by the policies of a

local board of education.

of Transportation, in this case Taibi. Appellees argue that the absolute privilege applies,

or, in the alternative, that the common interest privilege applies.

On July 7, 2017, Cullen responded to the motion by refuting the existence of either

an absolute or common interest privilege and, alternatively, arguing that if the common

interest privilege applied, it was abused in this case.

On August 10, 2017, the circuit court issued a detailed memorandum opinion

granting appellees’ motion to dismiss. The court explained that an absolute privilege

applied to the statements in Taibi’s decertification letter because the statements were

made in the context of an “administrative proceeding.” Additionally, the court found that

a common interest was present between BOE and BAMC, so the qualified common

interest privilege applied as well. As the court found that both privileges asserted by

appellees applied to the communications in Taibi’s letter, the court granted appellees’

motion to dismiss.

Additional facts will be added as they become relevant to our analysis.

II. STANDARD OF REVIEW

We review appeals from an order to dismiss for failure to state a claim de novo.

Clark v. Prince George’s Cty., 211 Md. App. 548, 557 (2013). “In reviewing the grant of

a motion to dismiss, we must determine whether the complaint, on its face, discloses a

legally sufficient cause of action. An appellate court should presume the truth of all well-

pleaded facts in the complaint, along with any reasonable inferences derived therefrom.”

Fioretti v. Maryland State Bd. of Dental Exam’rs, 351 Md. 66, 72 (1998). Dismissal for

failure to state a claim is only appropriate when well-plead facts and inferences drawn

from them, if later proven to be true, still would not afford the plaintiff relief. Morris v.

Osmose Wood Preserving, 340 Md. 519, 531 (1995).

III. DISCUSSION

We conclude that the appellees sufficiently established both privileges, that

appellees cannot prove abuse of the privilege, and therefore, the circuit court did not err

in dismissing the defamation claim.

To establish a prima facie case of defamation, a plaintiff must demonstrate four

elements: “(1) that the defendant made a defamatory statement to a third person, (2) that

the statement was false, (3) that the defendant was legally at fault in making the

statement, and (4) that the plaintiff thereby suffered harm.” Indep. Newspapers, Inc. v.

Brodie, 407 Md. 415, 441 (2009). A defamatory statement is one “which tends to expose

a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the

community from having a good opinion of, or associating with, that person.” Batson v.

Shiflett, 325 Md. 684, 722-23 (1992). A false statement is regarded as “one that is not

substantially correct.” Id. at 726. A plaintiff bears the burden of proving falsity, and the

ultimate determination of whether defamation is present in a publication is a legal

question for the court. Hosmane v. Seley-Radtke, 227 Md. App. 11, 21 (2016).

Cullen alleges one count of defamation in her claim. Appellees assert two

privileges in defense against the claim. A defendant who asserts a privilege, when not

abused, may avert a claim of defamation. Piscatelli v. Van Smith, 424 Md. 294, 306-07

(2012).

A. Privilege

As discussed, appellees assert that an absolute privilege and a common interest

privilege, insulate them from any liability stemming from the decertification letter.

Piscatelli, 424 Md. at 306-07. The determination that a privilege is applicable is a legal

question for the court to decide. Id. at 307. Even if a privilege is found to apply, the

plaintiff may still endeavor to prove it was abused, which is a question for the jury. Id.

1. Absolute Privilege

An absolute privilege provides total immunity from liability for a claim of

defamation. Offen v. Brenner, 402 Md. 191, 199 (2007). For an absolute privilege to

apply to alleged defamatory communications, the communications must occur in a

legislative, judicial, or administrative proceeding. Reichardt v. Flynn, 374 Md. 361, 369,

400 (2003). The privilege only applies in “some” administrative proceedings. Id.

Cullen argues that an absolute privilege does not apply in this case. She alleges

that the defamatory statement (the decertification letter) was issued in an email and falls

outside of what qualifies as a proceeding. Appellees counter that an absolute privilege

applies because the letter was part of an administrative proceeding.

Cullen relies on Gersh v. Ambrose, 291 Md. 188 (1981), in response to Appellees’

assertion of its absolute privilege defense. She argues that an absolute privilege only

applies in the context of an “actual hearing,” and that here, the alleged defamatory

statements were emailed to third parties outside the scope of a hearing. Cullen contends

that the decertification letter was a “non-judicial correspondence” and therefore falls

outside of its extension of the privilege. Appellees dispute Cullen’s contextual argument

that an absolute privilege requires an “actual hearing,” saying Cullen’s focus is misplaced

and unsupported by the cases cited in her brief.

We begin our analysis of this issue by examining Gersh and Reichardt in turn, as

the parties correctly identify Gersh and Reichardt as instructive for the purpose of

establishing an absolute privilege.

In Gersh, the Court of Appeals considered whether a Baltimore Assistant State’s

Attorney’s allegedly defamatory statements about one of the Baltimore City’s

Community Relations Commission members, made during a public hearing, were

protected by an absolute privilege. Gersh, 291 Md. at 188. The State’s Attorney based

his claim of an absolute privilege on the fact that he was a testifying witness at a

commission hearing. Id. at 189. The Court explained that the purpose of an absolute

privilege was to protect testifying witnesses from potential harassment or intimidation in

a judicial proceeding and prevent their exposure to potential lawsuits. Id. at 192. The

Court noted that the commission did not qualify as a judicial body and therefore the

attorney’s testimony was not in the context of a judicial proceeding. Id. at 196. It further

stated that in some cases the privilege has been extended to administrative proceedings

but required certain procedural safeguards. Id. at 193. The Court developed a two factor

analysis for identifying when a party who makes a defamatory statement in an

administrative proceeding may be shielded by an absolute privilege. Id. at 197. The

Court held that statements made during an administrative proceeding were protected

depending on: “(1) the nature of the public function of the proceeding and (2) the

adequacy of procedural safeguards which will minimize the occurrence of defamatory

statements.” Id. at 197. The Court’s application of this test sought to balance the public

interest being advanced in the proceeding, by permitting the free expression of ideas

during testimony, against the risk that it might leave a defamed individual without

judicial remedy. Id. at 196. The Court applied the first factor and determined that the

nature of commission’s hearing did not constitute a significant public interest because the

hearing was nothing more than a typical open public meeting. Id. In applying the second

factor, the Court held that because this type of hearing did not allow for the traditional

procedural aspects associated with a trial it lacked the necessary safeguards to prevent the

risk of harm to the allegedly defamed individual.

Id. at 196. The Court ultimately

decided that failure of both prongs of the test demonstrated that “[t]he public benefit to be

derived from testimony at [c]ommission hearings of this type is not sufficiently

compelling to outweigh the possible damage to individual reputations to warrant absolute

witness immunity.” Id.

In Reichardt, the Court of Appeals considered whether an absolute privilege

applied to the statements of students and their parents, made to public school officials

regarding a teacher’s alleged inappropriate sexual misconduct. Reichardt, 374 Md. at

364-65. The Court explained that precedential extension of an absolute privilege had

been applied to statements made in judicial proceedings, some administrative

The Court in Gersh looked at the hearing for similarities to trial court

proceedings: adversarial in nature, sworn witness testimony, availability of cross-

examination, presence of legal counsel, and a reviewable opinion. Gersh, 291 Md. at

196.

proceedings, documents prepared for judicial proceedings, and citizen complaints against

law enforcement officers. Id. at 367-71. The Court applied the Gersh test and concluded

that the first factor was met because ensuring the safe reporting of complaints, made by

parents and children about a teacher, to school officials, represented a significant public

function regarding their safety. Id. at 373. The Court determined that the second factor

was established by the availability of “two levels of administrative appeals and judicial

review,” which ensured adequate procedural safeguards were in place. Id. at 377.

Cullen’s next contention is that the context in which the decertification letter was

distributed to third parties does not constitute a “proceeding” under the Gersh factors

because it was an email and sent to third parties. We find this argument unpersuasive.

Applying the Gersh two-factor test, we conclude that the decertification letter was in fact

a part of a proceeding to ensure the safe reporting of complaints, made by parents and

children about a school bus driver regarding safety and accordingly, that an absolute

privilege exists.

The letter was the first and necessary step in the process of

decertification, established by Maryland law, and is an administrative proceeding that is

concerned with ensuring the safety of the HCPS transportation system. COMAR

13A.06.07.07.D provides:

Disqualification for Unsafe Actions. Misfeasance, incompetence,

insubordination, or any act of omission that adversely affects transportation

or safety may be ground for disqualification and termination by the

supervisor of transportation.

It is beyond objection that a paramount responsibility of a school bus driver is

child safety. Middletown v. Campbell, 69 Ohio App.3d 411, 416 (12

Dist.1990) (A

school bus driver is in the best position to prevent harm to a child by using the care

society expects.).

In Reichardt, the Court emphasized, “there is really nothing more important to the

core of the well-being of our community, our State and our nation . . . than the public

school system.” Reichardt, 374 Md. at 373.

The authority of the BOE under COMAR 13A.06.07.03 as to the safe operation of

its school transporting system is as follows:

B. A local school system is responsible for the safe operation of its student

transportation system and shall conform to the regulations promulgated by

the U.S. Department of Transportation and the Maryland State Board of

Education, and the procedures and guidelines established by the

Department.

C. A school system may adopt policies and procedures that do not conflict

with existing Federal and State statute, rules, regulations, policies, and

procedures.

D. Local policies and procedures may exceed the minimum requirements

established in this chapter.

As noted above, Taibi was designated as the local Supervisor of Transportation by

the BOE. This designation was pursuant to COMAR 13A.06.07.04 to be responsible for

the administration of the student transportation program.

Taibi, at the time pertinent to this action, was responsible for disqualifying drivers

who are under contract with the BOE. COMAR 13A.06.07.07A provides:

A. A school vehicle driver who does not meet the qualifications of the

evaluation under Regulation .06 of this chapter may be disqualified from

driving a school vehicle at the discretion of the supervisor of transportation,

unless the supervisor of transportation determines that retraining,

instruction, or both, are satisfactorily completed.

Disqualification was well within the purview of Taibi on behalf of the BOE. And in

accordance with this authority, Taibi disqualified Cullen under COMAR 13A.06.07.07D.

It is evident the disqualification of Cullen involved the proper administration of

the public school transportation system. The reasoning set forth in Taibi’s letter notifying

Cullen that she was disqualified was well within Taibi’s authority as the Supervisor of

Transportation.

Furthermore, Reichert is instructive in determining whether an absolute privilege

applied where Taibi’s letter decertifying Cullen qualified as an administrative

proceeding. Citing Gersh, the Court held that the privilege applies where the adequacy of

procedural safeguards minimize the occurrence of defamatory statements. Id. at 376. In

the instant case, Cullen had the ability to appeal the disqualification and the factual basis

for it pursuant to COMAR 13A.06.07.21, which states:

A school vehicle driver or attendant who has exhausted the local school

system appeal process, may appeal to the State Board of Education under

COMAR 13A.01.05.

This administrative proceeding qualifies as an important public function in light of

its direct effect on public school children’s safety. The decertification process operates as

a safety mechanism to ensure that complaints leveled against a school bus driver are

communicated through the appropriate channels. The decertification of Cullen stemmed

from complaints of parents and school administrators which, as explained in Reichardt,

warrants a degree of protection both for those registering the complaint and those

investigating its merits. Second, the administrative proceeding involved in the

decertification process, unlike the hearing in Gersh, included an appeals process. Similar

to Reichardt, Cullen had two levels of appeals in which she could dispute the

decertification. As discussed, Cullen successfully reduced her total decertification

through appeal, and she thus demonstrated that procedural safeguards were in place.

Appellees decertified Cullen after investigations of the complaints against her were

substantiated and the email was published in accordance with Maryland law. The fact

that the decertification was communicated by email does not remove it from the context

of an administrative hearing. In this case, the public function of the safe transportation of

school children and the safeguards offered by the appeals process certainly outweigh any

concerns raised by Cullen.

2. Common Interest Privilege

A common interest privilege applies when two parties share a mutual interest and

the publication of statements advances or protects their mutual interest. Gohari v.

Darvish, 363 Md. 42, 57-58 (2001). “The common interest privilege is one of the four

qualified or conditional privileges to defamation that ‘is conditioned upon the absence of

malice and is forfeited if it is abused.’” Shirley v. Heckman, 214 Md. App. 34, 42-43

(2013) (quoting Piscatelli, 424 Md. at 307). Whether the common interest privilege

applies is a legal question, placing the burden of proof to substantiate the privilege on the

defendant. Piscatelli, 424 Md. at 307. If the court determines the existence of a

conditional privilege, the burden then shifts to the plaintiff to demonstrate it was abused.

Id. at 307-08.

A. Application of the Privilege

Cullen relies on several cases in support of her argument that a common interest

privilege is inapplicable to the facts of this case. Appellees respond that the common

interest privilege is not limited to the categories outlined by Cullen.

The first case Cullen cites is Shirley, involving the alleged defamation of a youth

football league coach against a football league and its president. Shirley, 214 Md. App.

at 37. In that case, we provided scenarios where the common interest privilege had been

successfully applied, which included: statements published in self-defense or the defense

of another; statements among those in a “common enterprise” providing pertinent

information through “internal communications;” statements shared by “identifiable

groups” where members “cooperate in a single endeavor;” and situations where those

sharing a “common interest in a particular subject matter correctly or reasonably to

believe facts exist which another sharing such common interest are entitled to know.” Id.

at 43 (citations omitted).

Cullen also cites Happy 40, Inc. v. Miller, 63 Md. App. 24 (1985), and Gohari, in

a vain attempt to distinguish this case from those where the common interest privilege

has been found to apply. In Happy 40, the alleged defamatory communication provided

to its employees was an employer’s explanation of why a former employee was fired. Id.

at 28. There, the Court acknowledged the lower court’s finding that an employer was

protected under a common interest privilege to explain to employees why another

employee was fired. Id. at 35-36. This determination was based on the premise that

providing a rationale for termination of an employee would prevent the decision from

seeming arbitrary and further the interests of all parties involved. Id.

In Gohari, the Court reviewed whether a franchisee’s alleged defamatory

statements made by the franchisee to its franchisor, regarding a former employee’s

application for its own franchise, was protected by a common interest privilege. Gohari,

363 Md. at 42. The Court determined that the nature of the communication between the

franchisee and franchisor was in furtherance of a business relationship for the success of

their overall operation and was protected under by a common interest privilege. Id. at 59-

60.

Cullen first attempts to argue that the common interest privilege does not apply by

contending that the purpose of the privilege identified in Shirley was to “allow members

of a group to safely ‘make internal communications.’” Cullen next contends that Happy

40 and Gohari create a common purpose requirement, that in order for the common

interest privilege to apply, the relationship between the parties must be a “direct business

groups or group affiliation.” She maintains that the relationship between the BOE and

BMAC does not fall into this category because BMAC is a private company that is

unaffiliated with the BOE, a public entity. Cullen suggests that because of the

private/public designations, the appellees’ relationship with BMAC is required to fall into

one of four categories (“franchisor/franchisee, employer/employee, parent/subsidiary, or

inter-corporate relationships”) and those relationships are not present.

Cullen is correct that a common interest is necessary to ensure safe internal

communications between group members and business affiliates; but falters when she

then goes on to suggest that the BOE and BMAC are not entitled to such designation

because their respective private/public ownership prevents them from having a mutual

interest. We do not agree. In Shirley, we stated that “[t]here is no rigid definition of

common interest . . . it covers speakers and recipients within a readily definable business

or organizational relationship.” Shirley, 213 Md. at 43. Appellees rightly contend that in

Gohari, the Court acknowledged that a conditional privilege is broad and may apply to an

infinite variety of factual circumstances. Gohari, 363 Md. at 56-57. In this case it is not

necessary to reach outside of the already established common interest boundaries.

BAMC contracts with BOE to provide it with school bus drivers. Under Maryland

law, BOE is required to certify BAMC drivers, and Taibi oversees the certification

process. Taibi’s decertification of Cullen, a BOE driver, would directly affect both

BOE’s contract with BAMC and BAMC’s overall business. There is a clearly

identifiable shared interest between two entities that have undertaken a contractual

relationship, which is synonymous with the scenario described in Shirley, 214 Md. App.

at 43, (explaining that an “identifiable group” who shares a common endeavor falls under

the common interest privilege). Additionally, like the employer in Happy 40, the BOE

would want to assure BAMC that Cullen’s decertification was not arbitrary, thus Taibi’s

explanation of the circumstances leading to Cullen’s decertification further deserves

protection by the common interest privilege. Accordingly, we agree with appellees that

the statements made in the decertification letter are protected by a common interest

privilege.

B. Abuse

Cullen alternatively argues that if the common interest privilege does apply, it was

abused. She contends that in order to prove that the appellees abused the privilege, she is

not required to prove malice on the part of the appellees. This argument is without merit.

In Happy 40, we explained that a finding of publication with malice or

“knowledge of falsity or reckless disregard for the truth,” predicates abuse of the

common interest privilege. Happy 40, 63 Md. App. at 32 (quoting Marchesi v.

Franchino, 283 Md. 131, 139 (1978)). We ultimately held that the employer was

protected under a common interest privilege when one employee gave the reason to other

employees why another employee was fired. Id. at 35-36. In Gohari, the Court

determined that because the former employee (alleging defamation and abuse of the

common interest privilege) had not met their burden of proving malice on the part of the

franchisee and therefore, abuse of the privilege could not be established. Gohari, 363

Md. at 76.

Cullen argues that in Gohari, the Court acknowledged that the question of whether

a privilege was abused is a factual question to be submitted to the jury. Cullen suggests

that here a jury could find abuse of privilege, and therefore, she is prevented from having

to prove malice on the part of the appellees. In response, the appellees argue that because

Cullen admits that there was no malice on the part of appellees, she could not prove an

abuse of privilege.

In Piscatelli, the Court held that after a conditional privilege has been established,

the plaintiff then bears the burden of proving abuse of the privilege. Piscatelli, 424 Md.

at 307. In order to prove abuse of the privilege, a proper showing of malice is required.

See Piscatelli, 424 Md. at 307; Gohari, 363 Md. at 64; Happy 40, 62 Md. App. at 32

(explaining that an abuse of a privilege is conditioned upon the plaintiff’s successful

demonstration that a communication was knowingly false or in reckless disregard for the

truth). Cullen concedes that there was no malice in the letter drafted by Taibi and sent to

BAMC.

In arguing that malice does not need to be proved, Cullen concedes the absence

of malice. Therefore, she cannot claim that the common interest privilege was abused.

At both the circuit court and here, Cullen readily admits that appellees acted

without malice by sharing the decertification letter with BAMC. Regardless, Cullen

claims that the common interest was forfeited by sharing the reason why she was

decertified with BAMC. According to Cullen, appellees should have only informed

BAMC that she was decertified – without providing them any rationale for why such a

decision was made. Again, Cullen provides no case law to support her argument. As

noted by the circuit court, “this argument is implausible” as “disclosing the

disqualification is meaningless in terms of understanding BAMC’s contractual

obligations to the BOE without also knowing the reasons for disqualification.”

Moreover, by knowing the reasons for disqualification, BAMC was able to prepare an

appeal of the initial decision, on Cullen’s behalf, which ultimately allowed her to apply

for reinstatement after meeting certain conditions to “promote safe transportation of

students – a common interest shared by the BOE and BAMC.”

In paragraph 3 of her complaint, Cullen alleges:

3. Mr. Taibi is the Supervisor of Transportation for the Board, was

employed in Harford County, Maryland, during the operative period of this

complaint, and continues to be employed in Harford Coujnty, Maryland.

During the operative period of the complaint, Mr. Taibi was employed by

the Board, and committed his tortious act or omission, which caused Ms.

Cullen damages, while acting within the scope of his said employment. At

all pertinent times, Mr. Taibi acted without malice and gross negligence.

(Emphasis added).

Accordingly, the circuit court was correct in its determination that the

communications between the BOE and BAMC were privileged because of the common

interest in promoting safe transportation of HCPS students. The Court of Appeals has

stated “[w]hile malice is usually a question for the fact-finder, it need not be submitted to

the fact-finder when the plaintiff fails to allege or prove facts that would support a

finding of malice.” Piscatelli, 424 Md. at 308 (citing Chesapeake Publ’g Corp. v.

Willams, 339 Md. 285, 302 (1995)). Cullen’s concession that she cannot prove malice

eliminates the need to submit the question to a jury because it would be impossible for

her to prove its existence without contradicting her own admission.

Conclusion

After reviewing all of the facts of this case and inferences drawn from them,

Cullen has not demonstrated that, if they were proven true, she would be entitled to relief.

Appellees are shielded by both an absolute and common interest privilege which prevents

Cullen from advancing her claim of defamation.

For the foregoing reasons, we affirm the judgment of the circuit court.

JUDGMENTS OF THE CIRCUIT COURT

FOR HARFORD COUNTY AFFIRMED;

COSTS TO BE PAID BY APPELLANT.