March 12, 2019

Claiming absolute privilege or qualified privilege as a defense in litigation involving alleged defamatory statements


The relevant facts in this action were not in dispute. Monroe County terminated Plaintiff from his position and on the same day the Monroe County Executive issued statements to the press that were published in local newspapers. Contending that three of the statements made by the County Executive were defamatory, Plaintiff sued Monroe County, among other named defendants [herein after collectively "Defendants"]. 

Defendants moved for summary judgment dismissing the Plaintiff's cause of action for alleged defamation, claiming an absolute or, in the alternative, a qualified privilege. Supreme Court denied Defendant's motion and the court's ruling was appealed. 

Citing Clark v McGee, 49 NY2d 613, the Appellate Division said that Defendants' statements to which Plaintiff objected "were absolutely privileged" noting that if an absolute privilege defense prevails it affords complete immunity from liability for alleged defamation to "an official [who] is a principal executive of State or local government ... with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties."

Courts typically apply a two-prong test in order to determine if an absolute privilege defense is available to the official based on [1] the status of the individual alleged to have utter the defamatory statement and [2] the subject matter of the statement in terms of it being consistent with the speaker's public duties. In some cases the forum in which the statement was uttered may be a consideration as well.

In this instance the Appellate Division conclude that absolute privilege applied because the speaker was the Monroe County Executive and her statements with respect to Plaintiff's termination concerned matters involving her official duties.*

In alternative, had a defense of absolute privilege not been available to Defendants, the Defendants might have advanced a claim that qualified privilege applied with respect to the County Executive's statements to the press as its defense.**

The qualified privilege defense, explained the Appellate Division "is available when a statement [not within the ambit of absolute privilege] is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his [or her] own affairs, in a matter where his [or her] interest is concerned."

Were a qualified privilege defense relied upon in this action, Defendant initially would have had to demonstrate that the County Executive made the  statements object to by Plaintiff  in her role as the Monroe County Executive in the course of discharging her duties and responsibility in order to keep the public informed regarding a sensitive issue that had obtained extensive media attention.

Once this was done, the burden of going forward would have been shifted to Plaintiff, who would have then been required to demonstrate a triable issue of fact existed as to whether the statements of the County Executive were motivated solely by malice.

Another area that may result in litigation is one in which Employee A alleges that he or she was defamed in an internal communications between administrators, or between another employee, Employee B, and an administrator concerning Employee A. 

Murphy v Herfort, 428 NY2d 117, is an example of litigation resulting from statements contained in communications between administrators; Missek-Falkoff v Keller, 153 AD2d 841, is an example of a case where Employee 1 sued another employee, Employee 2, because of the contents of a memorandum from Employee 2 to a superior concerning a “problem” with Employee 1.


As alternatives to claiming absolute immunity or qualified immunity, a public officer or employee involved in a judicial or quasi-judicial proceeding or in an administrative hearing may advance a claim of use immunity or transaction immunity as a defense, while from time to time a governmental entity may cite the Doctrine of Governmental Function Immunity*** as a defense, founded on the principle of the separation of powers and which is intended to ensure that public servants are free to exercise their decision-making authority [see Marbury v Madison, 5 U.S. 137;  Valdez v City of New York, 18 NY3d 69]

* The court further opined that because the investigation and the underlying actions of Plaintiff became a matter of public attention and controversy, the form of communication, e.g., statements to the press, was warranted, citing Kilcoin v Wolansky, 75 AD2d 1, affd 52 NY2d 995.

** In Tulloch v Coughlin, 50 F.3d 114, the US Circuit Court of Appeals, Second Circuit, considered the differences between absolute immunity and qualified immunity.

*** Although New York State has waived Sovereign Immunity as a defense on behalf of itself and its municipal subdivisions, the common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions. 

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_00747.htm

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