Alfino v. Department of Health and Rehabilitative Services, 95-0623

• Decision Date: 17 May 1996
• Docket Number: No. 95-0623,95-0623
• Citation: 676 So.2d 447
• Parties: 21 Fla. L. Weekly D1178 John R. ALFINO, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, etc., et al., Appellee.
• Court: Florida District Court of Appeals

Page 447

676 So.2d 447

21 Fla. L. Weekly D1178

John R. ALFINO, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, etc., et al., Appellee.

No. 95-0623.

District Court of Appeal of Florida Fifth District.

May 17, 1996.

Rehearings Denied July 17, 1996.

John R. Alfino, Howey-in-the-Hills, pro se.

Robert A. Butterworth, Attorney General, and Laura Rush, Assistant Attorney General, Tallahassee, and Belle B. Turner, Assistant Attorney General, Daytona Beach, for Appellees.

ANTOON, Judge.

John R. Alfino appeals the trial court's final order dismissing with prejudice his defamation suit against the Department of Health and Rehabilitative Services (HRS), and two of its employees, Ester Tibbs and Robert Froeman. We affirm.

Mr. Alfino's complaint explains that he was employed by HRS as a Child Protective Investigator from March 1989 until August 1992. During that same time Ester Tibbs and Robert Froeman were also employed by HRS. Ms. Tibbs was the Deputy District Administrator for HRS, and Mr. Froeman was an Operational Program Administrator. The complaint alleges that "with knowledge of falsity, reckless disregard for the truth, and negligence, defendants caused to be published and widely distributed statements which were false and defamatory." The complaint continues that "in committing the acts alleged ... [Tibbs and Froeman] were at all times acting under the color of office, but were also acting contrary to the duties of their respective offices." The statements to which the complaint refers were attached as exhibits to the complaint and included:

(1) A letter written by Ms. Tibbs, on HRS letterhead, to the union representing Mr. Alfino regarding a grievance proceeding initiated by Mr. Alfino. The letter contained the statement that "... it is alleged that [Alfino] engaged in criminal conduct which could have resulted in criminal felony charges ...";

(2) Two HRS Performance Appraisals which were signed by Mr. Froeman as "reviewer"; and,

(3) Two interoffice memoranda on HRS letterhead signed by HRS employee, Thomas R. McKay, which contain written reprimands concerning Mr. Alfino's alleged falsification of records and negligent use of the "unit sign-out log".

Upon review of motions to dismiss filed by the defendants, the trial court dismissed Mr. Alfino's complaint, ruling that the defendants were entitled to immunity from suit because the alleged defamatory statements were made in connection with the performance of their duties as government employees.

On appeal, Mr. Alfino contends that the trial court erred in two respects. First, he argues that HRS and its employees are not entitled to immunity from suit for defamatory communications made in the scope of the employee's duties. Second, he argues that the trial court erred in ruling on the defendant's dismissal motions before discovery was completed. We conclude that both arguments lack merit.

In McNayr v. Kelly, 184 So.2d 428 (Fla.1966), our supreme court ruled that executive officials of the government possess an absolute privilege from liability with regard to defamatory statements made in connection with the performance of their duties. This principle was based upon the rationale that high-ranking government officials should be able to perform the duties of office unfettered by the fear of lawsuits. It was not immediately clear just how far down the chain of command this privilege extended, but in City of Miami v. Wardlow, 403 So.2d 414 (Fla.1981), the court adopted the view set forth in Cripe v. Board of Regents, 358 So.2d 244, 245 (Fla. 1st DCA), cert. denied, 365 So.2d 710 (Fla.1978), that the controlling factor in deciding whether a public employee is absolutely immune from actions for defamation is whether the communication was made within the scope of the officer's duties. Accordingly, in order for our courts to determine whether immunity applies in any given lawsuit, it is necessary to determine whether the alleged defamatory communication was made within the scope of the government employee's employment.

Conduct is within the scope of one's employment if it is the type of conduct which the employee is hired to perform, the conduct occurs substantially within the time and space limits authorized or required by the work to be performed, and the conduct is activated at least in part by a purpose to serve the employer. Craft v. John Sirounis and Sons, Inc., 575 So.2d 795 (Fla. 4th DCA 1991). Applying these standards to the allegations set forth in Mr. Alfino's complaint, it was obvious to the trial court that the privilege applied to the defendants in this case. In this regard, the exhibits attached to the complaint enabled the trial court to ascertain the context in which the communications were made, to whom the communications were made, and why the communications were made. By Mr. Alfino's own allegations, the defamatory statements were made by the defendants within the scope of their government employment.

There was also no error in the trial court's decision to dismiss Mr. Alfino's complaint prior to the conclusion of discovery. The purpose of filing a motion to dismiss is to ask the trial court to determine whether a complaint fails to state a cause of action. In making this determination the trial court is permitted only to consider the allegations set forth in the complaint. Odham v. Foremost Dairies, Inc., 128 So.2d 586 (Fla.1961). Thus, it is not relevant whether discovery has been completed at the time the motion is heard.

AFFIRMED.

HARRIS, J., concurs.

W. SHARP, J., concurs specially, with opinion.

W. SHARP, Judge, concurring specially.

This court, as an intermediate court of appeal, is bound by the Florida Supreme Court's opinion in City of Miami v. Wardlow, 403 So.2d 414 (Fla.1981). ¹ However, I suggest that it may be time to re-examine that precedent. Most state courts in this country do not grant absolute immunity in defamation cases to mid-level and lower ranking employees of state government agencies for statements made during the course of and in the scope of their employment. See Prosser and Keeton on Torts at 821 (5th ed. 1984). In doing so, Florida is out of step not only with the Restatement (Second) of Torts § 591 and 598A, but also with the basic purpose for which the English common law fashioned the concept of "absolute immunity."

Absolute immunity was confined to very few situations. These included legislative and judicial proceedings and executive communications by certain executive officers. In England, this category of officers was and still is limited to the highest ranking officials only. ² In the United States, absolute immunity is generally accorded to superior officers of the executive department and branches of the federal government, and the highest ranking officers of state government. ³

The rationale for absolute immunity is that, on balance, it is necessary to ensure the efficiency of government by protecting policy-forming executive officials in the execution of their duties. ⁴ But this is a drastic rule of law. It permits no remedy to a person who is injured by a statement made and published by such an official, even though the statement is false, and the publisher of the statement knew it was false at the time it was made, and made it with the intent to injure or damage the reputation of the person about whom the statement was made. As Prosser notes, absolute immunity affords a golden opportunity for unscrupulous politicians to abuse their positions and inflict outrageous injury on helpless innocents, for the worst kind of motives. "It can scarcely be said that our governments, state or federal, have always been so free of scoundrels as to inspire confidence in such a rule." Prosser at 823. And with the recent growth in the number of employees of both state and federal government agencies, the granting of absolute immunity to all such employees who make statements in the course of their employment, has expanded this privilege and denial of remedies to those injured, exponentially.

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