Non-Disparagement Clause Upheld

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  • June 21, 2022

Non-Disparagement Clause Upheld

Taylor Sterzuk

Summary

Pulver Crawford Munroe LLP recently represented a Municipal Police Board (the “Board) in an arbitration decision which determined that a non-disparaging comments clause in a Settlement Agreement between the Board, a Police Association (the “Union”), and a Former Police Constable (FPC), was enforceable 17 years after the Agreement was originally signed.

The Arbitrator determined that FPC was obliged to continue acting according to the 2005 Settlement Agreement and pay damages to the Board as a result of his breach.

Background

In 2005, FPC was a member of the Union. In September of 2005, FPC’s employment was terminated and a Settlement Agreement was reached between the Board, Union, and FPC.

FPC was reinstated and the Agreement included provisions for two payments of $30,000 to be made to FPC, under the condition that FPC make no disparaging comments about the Board, Department, or its officers or employees. If FPC were to breach the non-disparagement clause, one payment of $30,000 would be forfeited. At the arbitration on May 17, 2022, a witness who was privy to the settlement discussions testified that the purpose of the non-disparagement clause was to ensure FPC understood and agreed not to speak ill of the Department or its officers or employees at any time in consideration of receiving the funds.

Disparaging comments made on the defendant’s social media account

FPC’s public and private social media accounts, including comments on a local newspaper’s website, were monitored. The majority of the comments found were from FPC’s personal Facebook account and were public comments that anyone with a Facebook account could view or access. The disparaging comments began on Facebook in October 2019.

A witness testified that they had been concerned about the comments made by FPC about the Department, as well as FPC’s posts regarding an unsolved homicide investigation (the “Investigation”), as they believed FPC’s comments undermined public confidence in the Department’s handling of the Investigation.

As a result of the comments being made by FPC on social media, the Department’s legal counsel sent a cease-and-desist letter to FPC.

Disparagement persists despite being warned

On May 13, 2020, FPC made a post stating they were in the process of writing a memoir about their time as a police officer. The post led the Board to file a Management Grievance in the fall of 2021. FPC continued to make critical and disparaging posts about the Department after being notified of the Grievance and after being served with notice of the hearing.

The Board had stated that it was prepared to recognize that FPC could have forgotten about the Settlement Agreement by 2019, as it had been 14 years since signing. However, FPC continued to make negative posts about the Department, even after receiving the cease-and-desist letter in December 2019 and being reminded of the terms of the Agreement. Thus, the Board submitted that the non-disparagement clause had been breached.

Breach of settlement agreement established

To assess whether FPC was in fact the individual responsible for the Facebook posts, the arbitrator considered the details provided in the posts. The arbitrator came to the conclusion that the author of the posts possessed knowledge not known to the public. Further, the arbitrator noted that the author of the posts continued even after FPC had been notified of the hearing. They found that if FPC was not the individual making the posts, it would be reasonable to conclude that FPC would contact the Arbitrator, Counsel, or Union to make it clear that someone was posting on Facebook under their name.  These facts convinced the arbitrator, on a balance of probabilities, that the Facebook posts were made by FPC.

After analyzing the definition of “disparaging” and FPC’s online posts, the arbitrator found that FPC had portrayed their experiences and former and current members of the Department in a negative light. The arbitrator was persuaded that the comments made by FPC, if believed, would undermine public confidence in the Department and lower its reputation. Furthermore, the arbitrator found that in 2005, FPC had agreed not to express or publish, either orally or in writing, any such opinions that were critical or uncomplimentary of the Board or its directors, officers, agents, or employees “at any time hereafter.” This language was taken as evidence that the non-disparagement clause was still binding, even 17 years after the Settlement Agreement had been executed.

In the Settlement Agreement, FPC agreed to forfeit the second of the two payments of $30,000 if they breached the non-disparagement clause. The arbitrator ordered FPC to cease and desist from posting or publishing negative or derogatory comments about the Board, Department, members, officers, and employees, and pay the sum of $30,000 to the Board.  The arbitrator also retained jurisdiction to consider further penalties in the event that FPC continued to act in breach of the Settlement Agreement.