Claims of absolute privilege and qualified privilege as a defense in lawsuits alleging defamation

Claims of absolute privilege and qualified privilege as a defense in lawsuits alleging defamation

Stega v New York Downtown Hosp., 2018 NY Slip Op 04687, Court of Appeals

Immunity as a defense in lawsuits alleging the plaintiff was defamed by the respondent are well established. In Liberman v Gelstein, 80 NY2d 429, the Court of Appeals noted that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether. The court explained that free speech or the discharge of governmental responsibility "sometimes outweighs the individual's underlying right to a good reputation, the individual's right may have to yield to a privilege granted the speaker barring recovery of damages for the defamatory statements."

Absolute privilege entirely immunizes an individual from liability in a defamation action, regardless of the declarant's motives and is generally reserved for communications made by "individuals participating in a public function, such as judicial, legislative, or executive proceedings."

In contrast, a qualified or conditional privilege may protect a defendant being sued for defamation in situations where "it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his [or her] interest is concerned."

However, statements made with "spite or ill will" or reckless disregard of whether they were false or not are not protected by this form of conditional privilege if the plaintiff meets his or her burden of proof by showing malice on the part of the defendant in making the statement.

In the words of the Stega court, "Whether allegedly defamatory statements are subject to an absolute or a qualified privilege 'depend[s] on the occasion and the position or status of the speaker' [and] a complex assessment that must take into account the specific character of the proceeding in which the communication is made [and as a matter of policy] the courts confine absolute privilege to a very few situations."

Those limits were the subject of the primary dispute before the Court of Appeals in this action.

Supreme Court had granted the defendants' motion to dismiss certain aspects of plaintiff's complaint but had permitted the plaintiff's defamation claim against certain defendants to survive, reasoning that the statements at issue were not shielded by an absolute privilege, because the investigation in which they had been made "had none of the indicia of a quasi-judicial proceeding, and in particular lacked safeguards such as an adversarial procedure or a determination subject to review."

Supreme Court also commented that plaintiff was not a "participant[] in the investigation, which was not an adversarial process; nor could [she] challenge the statements made about [her]. That it was an official governmental investigation conducted by a regulatory agency does not by itself make it a quasi-judicial function."

As to whether the statements were instead subject to a qualified or conditional privilege, Supreme Court declared that issue "premature on a motion to dismiss."

Defendants appealed the Supreme Court's ruling. The Appellate Division reversed the lower court's determination but granted plaintiff's leave to appeal, "certifying the question whether its order was properly made."

The Court of Appeals observed that its decision in Rosenberg v Metlife, Inc. (8 NY3d 359, does not shield statements made in an administrative proceeding that allegedly defame a person who has no recourse to challenge the accusations. In the words of the court, "The absolute privilege against defamation applied to communications in certain administrative proceedings is not a license to destroy a person's character by means of false, defamatory statements."

The Appellate Division was reversed, with costs, the defendants' CPLR §3211 motion seeking to dismiss the claim as against them, denied, and the certified question "answered in the negative."

It appears that the matter will be remanded to Supreme Court to consider whether defendants' statements are protected by a "qualified or conditional privilege."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04687.htm

Removing a school official for an alleged unauthorized disclosure of confidential information

Removing a school official for an alleged unauthorized disclosure of confidential information

Decisions of the Commissioner of Education, Decision of the Commissioner No. 17,422

This appeal to the Commissioner, among other issues, concerned allegations that confidential information was disclosed and that the alleged wrongdoers should be removed from office.

With respect to the application to the Commissioner seeking the removal of a board member from the School Board "for impermissibly disclosing confidential notes," the Commissioner observed that a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

Further, explained the Commissioner, "[t]o be considered willful, the board member’s actions must have been intentional and with a wrongful purpose" and   in an appeal or removal application to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

School board members, as public officers, take an oath of office to uphold the law and faithfully discharge their duties and, among other things, are responsible for educational standards, budget matters, management issues, and health and safety. In carrying out their duties, school board members individually "have a fiduciary obligation to act constructively to achieve the best possible governance of the school district.

The Commissioner said that General Municipal Law §805-a(1)(b) specifically provides that no municipal officer or employee, including a school board member, shall “disclose confidential information acquired by him [or her] in the course of his [or her] official duties or use such information to further his [or her] personal interests” and within the public school system, the term “confidential,” means “[i]nformation that is meant to be kept secret.”

As to defining the meaning of the word "confidential," it is the "sole province of the Commissioner of Education to define the meaning of the word 'confidential' within the public school system and ensure its uniform application in this context."* Further, said the Commissioner, "[i]t is well-settled that a board member’s disclosure of confidential information which violates General Municipal Law §805-a(1)(b) may constitute grounds for a board member’s removal from office pursuant to Education Law §306.

Jessica Lovinsky and Phee Simpson [Petitioners] in this appeal claim that a board member disclosed “unredacted” notes to a newspaper reporter and buttress their claim with an email from the reporter to counsel for Simpson in which the reporter states that she is “writing an article on the Poughkeepsie district’s graduation investigation and subsequent appeal,” and that, in the article, she planned to “cit[e] records that relate[d] to Phee Simpson. The email also purported to include three attachments that Petitioners have attached, contending that they are copies of these three attachments.

The School District's answer to Petitioners' appeal to the Commissioner denied Petitioners' contentions. 

The Commissioner ruled that Petitioners failed to meet their burden of proving that the School Board, as a body, or any individual school board member was responsible for disclosing the documents in question to the reporter or to anyone else. 

The Commissioner explained that the first element of a claimed disclosure of confidential information is disclosure, and a petitioner must prove that the alleged actor or actors did, in fact, disclosed allegedly confidential information. Here, however, said the Commissioner,  "Petitioners have wholly failed to meet this showing, providing no facts or assertions suggesting that any respondent provided the [newspaper reporter] with the allegedly confidential information."

Accordingly, the Commissioner dismissed Petitioners' application seeking the removal of the board member.

* N.B. In 2005 State Education Department Counsel and Deputy Commissioner for Legal Affairs notified school officials, including school board members, and school attorneys of the Commissioner's decision in Application of Nett and Raby (45 Ed Dept Rep 259, Decision No. 15,315)] that the Commissioner’s views with respect to the term "confidential" differed from the interpretation of the term “confidential” offered by New York State’s Committee on Open Government.

The Commissioner's decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17422

Employee exercising a right to obtain his or her own attorney to prosecute a grievance divests the employee organization's attorney of standing in the matter with respect to the grievant

Employee exercising a right to obtain his or her own attorney to prosecute a grievance divests the employee organization's attorney of standing in the matter with respect to the grievant

Matter of City of Syracuse (Lee), 2018 NY Slip Op 05077, Appellate Division, Fourth Department

This decision explores a number of unusual circumstances and events impacting on efforts to confirm an arbitration award, including:

1. a policy negotiated by the employer and the employee organization permitting an aggrieved member, in lieu of the employee organization, to submit certain issues to arbitration;

2. a Supreme Court's authority to, sua sponte, vacate its prior order and judgment confirming an arbitration award  and directing further arbitration; and

3. the lack of Supreme Court having "personal jurisdiction" of the grievant with respect to the employer's efforts to confirm an arbitration award in its favor.

A dispute between the City and the Syracuse Police Benevolent Association [SPBA]  concerning the General Municipal Law §207-c benefits received by Katherine Lee [Lee], a former City police officer who was injured in the line of duty. Although Lee was directed to return to work she refused and her §207-c benefits were discontinued. Lee  challenged the directive given to her pursuant to the "General Municipal Law §207-c Policy" [Policy] negotiated by the City and SPBA.

The Policy negotiated by the City and SPBA provided that an officer "shall not be required to return to work and shall continue to receive his or her prior benefits during the review process but, '[i]n the event that the Chief's determination is sustained, the Officer must reimburse the City for the value of benefits received during the pendancy [sic] of the review process.'" Lee demanded the City's action discontinuing her §207-c benefits be submitted to arbitration.*

Arbitrator Michael S. Lewandowski ruled that SPBA "failed to prove that the City acted arbitrarily [or] capriciously or that the City's determination was affected by an error of law when it determined to discontinue [Lee's] 207-c benefits." Subsequently a second arbitration was held concerning the interpretation of the   "value of benefits" subject to reimbursement to the City under the Policy, and Arbitrator Thomas N. Rinaldo ruled in the City's favor, holding that "wages are included in the 'value of benefits' for purposes of reimbursement under the Policy." In response to the City's request that Arbitrator Lewandowski to direct Lee to reimburse the City in the amount of $71,436.44, Lewandowski responded that the City was "free to seek reimbursement of wages . . . by whatever means it finds available to it." Lewandowski also declined the City's request to make a supplemental award providing for such reimbursement.

Although Supreme Court denied the City's motion to resettle the prior order and judgment, if concluded that it had inherent authority to vacate the order and judgment in the interest of justice, and it held the order and judgment in abeyance pending a decision by Lewandowski on the amount that the City is entitled to recoup from Lee.

The Appellate Division found that Supreme Court erred in denying Lee's cross motion to dismiss the City's petition as Lee had established that Supreme Court failed to acquire personal jurisdiction over her in the proceeding to confirm the arbitration award by Lewandowski because the City never properly served her.

Nor,  said the Appellate Division, did Supreme Court acquire personal jurisdiction over Lee by the unauthorized appearance of the Union's attorney "on behalf of Katherine Lee" in the course of the proceedings, explaining that "there is no evidence that Lee expressly or implicitly authorized the Union's attorney to represent her at any stage of the proceedings."

In concluding that the appearance of the Union's attorney did not confer jurisdiction over Lee, the Appellate Division acknowledges the general rule that "an employee has no individual right to enforce a contract between the employee's employer and union." 

However, noted the court, there are exceptions to that rule, and one of those exceptions applies in the circumstances herein inasmuch as "the contract provides otherwise." Specifically, the Policy explicitly provides Union members with the rights "to compel a review of the Chief's determination" and to have counsel or another representative "at any stage of the procedure."

In the words of the Appellate Division, "Lee availed herself of those rights from the outset of the arbitration and, to the extent that the Union's attorney acted on Lee's behalf during that part of the proceeding that was before arbitrator Rinaldo, that attorney was not the 'representative of . . . [Lee's] choosing' contemplated by the Policy. In any event, while the Union represented all of its members with respect to the proper interpretation of the 'value of benefits" to be reimbursed under the Policy, it was Lee alone who would be affected by, and thus entitled to litigate, the amount to be reimbursed to the City."

As to Supreme Court's "sua sponte vacating its prior order and judgment, which confirmed the arbitration award by Lewandowski, and directing further arbitration," the Appellate Division vacated "the second ordering paragraph of the order on appeal."

Although Supreme Court had authority to "vacate its own judgment for sufficient reason and in the interests of substantial justice," the Appellate Division observed that such authority "is not unlimited" and a court's "inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect." Further, noted the Appellate Division, in vacating the order and judgment the Supreme Court "exceeded the narrow bounds within which courts are authorized to alter [arbitration] awards" as set out in CPLR 7511 (b) or (c) for vacating or modifying an arbitration award", which provisions apply to the arbitrator's failure to award the City a specific dollar amount for the value of benefits received by Lee, "and the court had no power to disturb the award apart from the grounds set forth in those subdivisions."

The court, Justice Nemoyer dissenting, dismissed the City's Article 75 petition seeking confirmation of the arbitration award in favor of the City "for lack of personal jurisdiction" over the grievant.

* Under the Policy, "[a]ny Officer . . . shall have a right to a representative of his or her choosing, and at his or her own cost, at any stage of this procedure, and shall be given a reasonable opportunity to . . . obtain a representative and/or counsel." Lee exercised that right and retained an attorney to represent her in the arbitration conducted before arbitrator.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05077.htm

Removing a school official for an alleged unauthorized disclosure of confidential information

Removing a school official for an alleged unauthorized disclosure of confidential information

Decisions of the Commissioner of Education, Decision of the Commissioner No. 17,422

This appeal to the Commissioner, among other issues, concerned allegations that confidential information was disclosed and that the alleged wrongdoers should be removed from office.

With respect to the application to the Commissioner seeking the removal of a board member from the School Board "for impermissibly disclosing confidential notes," the Commissioner observed that a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

Further, explained the Commissioner, "[t]o be considered willful, the board member’s actions must have been intentional and with a wrongful purpose" and   in an appeal or removal application to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

School board members, as public officers, take an oath of office to uphold the law and faithfully discharge their duties and, among other things, are responsible for educational standards, budget matters, management issues, and health and safety. In carrying out their duties, school board members individually "have a fiduciary obligation to act constructively to achieve the best possible governance of the school district.

The Commissioner said that General Municipal Law §805-a(1)(b) specifically provides that no municipal officer or employee, including a school board member, shall “disclose confidential information acquired by him [or her] in the course of his [or her] official duties or use such information to further his [or her] personal interests” and within the public school system, the term “confidential,” means “[i]nformation that is meant to be kept secret.”

As to defining the meaning of the word "confidential," it is the "sole province of the Commissioner of Education to define the meaning of the word 'confidential' within the public school system and ensure its uniform application in this context."* Further, said the Commissioner, "[i]t is well-settled that a board member’s disclosure of confidential information which violates General Municipal Law §805-a(1)(b) may constitute grounds for a board member’s removal from office pursuant to Education Law §306.

Jessica Lovinsky and Phee Simpson [Petitioners] in this appeal claim that a board member disclosed “unredacted” notes to a newspaper reporter and buttress their claim with an email from the reporter to counsel for Simpson in which the reporter states that she is “writing an article on the Poughkeepsie district’s graduation investigation and subsequent appeal,” and that, in the article, she planned to “cit[e] records that relate[d] to Phee Simpson. The email also purported to include three attachments that Petitioners have attached, contending that they are copies of these three attachments.

The School District's answer to Petitioners' appeal to the Commissioner denied Petitioners' contentions. 

The Commissioner ruled that Petitioners failed to meet their burden of proving that the School Board, as a body, or any individual school board member was responsible for disclosing the documents in question to the reporter or to anyone else. 

The Commissioner explained that the first element of a claimed disclosure of confidential information is disclosure, and a petitioner must prove that the alleged actor or actors did, in fact, disclosed allegedly confidential information. Here, however, said the Commissioner,  "Petitioners have wholly failed to meet this showing, providing no facts or assertions suggesting that any respondent provided the [newspaper reporter] with the allegedly confidential information."

Accordingly, the Commissioner dismissed Petitioners' application seeking the removal of the board member.

* N.B. In 2005 State Education Department Counsel and Deputy Commissioner for Legal Affairs notified school officials, including school board members, and school attorneys of the Commissioner's decision in Application of Nett and Raby (45 Ed Dept Rep 259, Decision No. 15,315)] that the Commissioner’s views with respect to the term "confidential" differed from the interpretation of the term “confidential” offered by New York State’s Committee on Open Government.

The Commissioner's decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17422

Delegating the authority to make a final disciplinary decision and the determination of the penalty to be imposed to another

Delegating the authority to make a final disciplinary decision and the determination of the penalty to be imposed to another

Matter of Stukes v City of White Plains, 2018 NY Slip Op 05474, Appellate Division, Second Department

The Executive Director of the Commission [Director] initiated disciplinary charges against his subordinate, an Assistant Director [Assistant] alleging that Assistant had violated policies prohibiting workplace violence following the Assistant's having had an altercation with Director at the workplace. After a hearing before a hearing officer, the hearing officer found Assistant guilty of  "13 of the factual specifications alleged in the charges" served on Assistant and recommended termination of Assistant from his employment with the Commission.

Director disqualified himself from reviewing the hearing officer's recommendations and making a final determination in consideration of the fact that he had preferred the charges against Assistant and designated the Chair of the Commission [Chair] to act in his stead. The Chair adopted the findings of the hearing officer and imposed the recommended penalty of termination of Assistant's employment.

Subsequently Assistant initiated a CPLR Article 78 proceeding seeking to annul the Chair's determination, contending that Chair "was not a duly qualified individual to whom [Director] could properly delegate the power to review the hearing officer's recommendations and make a final determination." Supreme Court found the delegation of the authority to make the challenged decisions  from Director to Chair to be proper, granted the City of White Plain's motion to dismiss Assistant's petition and dismissed the proceeding. Assistant appealed.

The Appellate Division commenced its review of Assistant's appeal by observing that "Civil Service Law §75(2) provides that where, as here, an officer having the power to remove an employee who is the subject of disciplinary proceedings designates someone else to conduct a hearing, the matter shall be referred back to that officer or body for review and decision."

However, said the Appellate Division, although as a general rule the authority to make the final determination as to the charged employee's status may not be delegated, "courts have recognized that the statutory command must yield to an employee's right to a fair and impartial hearing when such an official is personally involved in the proceedings by preferring the charges at issue and testifying at the hearing, or otherwise involving himself or herself extensively in the proceedings."

In the words of the court, "In such circumstances, such an official acts improperly when he or she also renders the final determination." Citing Matter of McComb v Reasoner, 29 AD3d 795, the Appellate Division noted that the Court of Appeals has interpreted Civil Service Law §72(2)  to "require[ ] that the power to discipline be delegated, if necessary, within the governmental department's chain of command" and that the Court of Appeals has further interpreted Civil Service Law §72(2) to:

1. require that the power to discipline be delegated, if necessary, within the governmental department's chain of command (see Matter of Gomez v Stout, 13 NY3d 182); and

2. whether a particular delegation will fall within the affected department's chain of command, and, hence, is permissible appears to turn upon whether the body or official to whom review power is delegated possesses either supervisory authority over the employee at issue or administrative responsibility over the affected department and its personnel" (see Matter of Zlotnick v City of Saratoga Springs, 122 AD3d 1210).

Giving Assistant "the benefit of every favorable inference," the Appellate Division concluded that Supreme Court's determination that the Chair's position with the Commission was within the affected department's chain of command and, thus, the delegation of authority from Director to the Chair was proper.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05474.htm

Making false statements concerning the employee's performance of his or her duties

Making false statements concerning the employee's performance of his or her duties

NYC Office of Administrative Trials and Hearings, OATH Index No. 1147/18

NYC Office of Administrative Trials and Hearings, OATH Index No. 1244/18

In OATH No. 1147/18 a New York City Emergency Medical Technician was served with disciplinary charges alleging that he had failed to prepare a patient care report after observing an injured individual and with making false statements about the incident.

The EMT contended that he was not required to write a report because the person refused treatment and did not show signs of injury.

OATH Administrative Law Judge Astrid B. Gloade found that the patient’s injuries were visible and that the EMT’s statement to the contrary was false.

Judge Gloade also found that the EMT's failure to complete a patient care report and document that the patient's refusal of medical treatment violated the Department’s rules.

The ALJ recommended that the EMT be suspended without pay for 40 days, which recommendation was adopted by the Appointing Authority.

In the second case, OATH Index No. 1244/18, New York City Office of Administrative Trials and Hearings Administrative Law Judge KEVIN F. CASEY found a New York City correction officer guilty of charges that he used excessive force and sexually assaulted an inmate, submitted a false report and lied to investigators about his conduct.

The correction officer contended that he was not guilty of the charges and argued that the alleged victim lied to pursue a civil suit.

Judge Casey credited the complainant's claim that correction officer repeatedly kicked him in the ankles, groped him, and used sexually suggestive and demeaning language towards him.

The ALJ found that correction officer falsely denied that he used force in his report and investigatory interview in an effort to conceal his misconduct and recommended imposing a penalty of a 60-day’ suspension without pay, with credit for time served.

The Appointing Authority adopted Judge Casey’s findings of fact, but she imposed the penalty of termination of employment.

The decision involving the EMT is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1147.pdf

The decision involving the correction officer is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1244.pdf