Burns v. Rice
| Decision Date | 22 June 2004 |
| Docket Number | No. 03AP-717.,03AP-717. |
| Citation | 813 NE 2d 25,157 Ohio App.3d 620 |
| Parties | BURNS et al., Appellants, v. RICE et al., Appellees. |
| Court | Ohio Court of Appeals |
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Cooper & Elliott, LLC, Rex H. Elliott, Charles H. Cooper Jr. and Aaron D. Epstein, Columbus, for appellants.
Porter, Wright, Morris & Arthur, LLP, Kathleen M. Trafford, Bradd N. Siegel and Constance M. Greaney, Columbus, for appellee Thomas W. Rice Sr.
Richard C. Pfeiffer, Jr., City Attorney, and Glenn B. Redick, Assistant City Attorney, for appellee city of Columbus.
Carlile, Patchen & Murphy, LLP, Michael H. Igoe, H. Ritchey Hollenbaugh and Scott A. Fenton, Columbus, for appellees David Sturtz, D. James Dean, and Thomas Fischer.
Squire, Sanders & Dempsey, LLP, John R. Gall and Philomena M. Dane, Columbus, for appellee Gregory S. Lashutka.
{¶ 1} Plaintiffs-appellants, Walter J. Burns and Kathleen F. Burns, appeal from a judgment of the Franklin County Court of Common Pleas in favor of defendants-appellees, Thomas W. Rice Sr., the city of Columbus (the "city"), Gregory S. Lashutka, David Sturtz, D. James Dean, and Thomas Fischer (the last four defendants being collectively referred to as the "individual defendants") on plaintiffs' claims against defendants for defamation and conspiracy to commit defamation. Because the trial court did not err in entering judgment for defendants, we affirm.
{¶ 2} Plaintiffs' defamation and conspiracy claims arise out of statements contained in a Mayoral Investigative Report (the "Report") released on June 30, 1997, that published the results of an in-depth mayoral investigation into serious allegations that Columbus Police Department ("CPD") Chief James Jackson and other command and civilian employees of the CPD engaged in official misconduct and impropriety in the operation and management of the CPD. The subjects of the investigation included plaintiff Walter Burns, who was a CPD Commander, and plaintiff Kathleen Burns, who is Walter Burns's wife and Chief Jackson's personal secretary.
{¶ 3} On October 10, 1996, defendant Lashutka, the city's former mayor ("Mayor"), authorized the mayoral investigation ("investigation") pursuant to Section 63 of the Columbus City Charter, which grants power to the Mayor to investigate the conduct of city employees, subpoena witnesses and place them under oath, and cause witnesses to be punished for contempt. Section 63 further provides that persons the Mayor appoints to conduct the investigation have the same powers granted to the Mayor under Section 63 of the city charter. The Mayor directed that the scope of the investigation encompass allegations of police misconduct and mismanagement raised against CPD officers and employees concerning four subject areas: (1) an allegedly illegal gambling operation that a retired CPD sergeant, murdered in March 1995, purportedly ran, (2) prostitution enterprises, particularly a purported prostitution ring Anthony Menucci allegedly conducted, (3) favoritism in the bestowing of benefits to or by CPD employees, and (4) other acts of misfeasance, malfeasance or nonfeasance that arose during the investigation.
{¶ 4} The Mayor appointed defendant Rice, who had served as the City's Safety Director since February 1995, to formally examine the allegations of misconduct and mismanagement. Defendant Rice delegated to defendant Sturtz, the city's Assistant Director of Public Safety, the duty to handle the investigation and to supervise the other members of the investigative team. Among the other team members were defendant Dean, who was then CPD's Commander of Internal Affairs Bureau, and defendant Fischer, a CPD lieutenant. Defendants Sturtz and Dean had supervised previous internal investigations into allegations of misconduct concerning Commander Burns's possible association with illegal gambling and his handling of an investigation of Anthony Menucci.
{¶ 5} The results of the mayoral investigation were compiled into an April 4, 1997 draft report that the investigative team prepared and submitted to defendant Rice for review. Under Rice's direction, the draft report was revised and restructured to correspond to the four subject areas the Mayor designated for investigation.
{¶ 6} The finalized Report, dated June 30, 1997, contains a summary of information and events that led up to the mayoral investigation and presents an in-depth discussion of the allegations examined in the investigation. Specifically, the Report identifies 15 CPD employees whose conduct caused concern, together with the allegations raised against them; approximately 15 allegations pertain to Commander Burns and four allegations relate to Kathleen Burns. The Report discusses how the allegations arose and were investigated, what evidence was reviewed, the investigative team's conclusions regarding the allegations, and recommendations the investigative team made to the Mayor addressing various management issues and concerns noted in the Report. The Report concludes with 340 endnotes that cross-reference statements in the Report to specific testimony, witness statements, and documentary evidence contained in a voluminous appendix to the Report. The finalized Report was transmitted to the Mayor, who reviewed and released the Report to the public on June 30, 1997, without revision.
{¶ 7} On October 30, 1997, plaintiffs filed a complaint and, on January 6, 1998, filed an amended complaint against the city of Columbus, the Mayor, and the individual defendants. Plaintiffs alleged that the individual defendants were liable for defamation, conspiracy to defame, violations of the Ohio Constitution, intentional infliction of emotional distress in connection with the publication of the Report, negligence, and abuse of power. Plaintiffs alleged that the city negligently supervised the individual defendants in the investigation of plaintiffs and the publication of the Report, and that the city was vicariously liable, as the employer of the individual defendants, for their alleged misconduct. Finally, plaintiffs sought a declaratory judgment as to the constitutionality of Section 63 of the Columbus City Charter, the authority on which the Mayor commenced the investigation that ultimately resulted in the Report's publication.
{¶ 8} Utilizing Civ.R. 12(B)(6), each of the defendants moved to dismiss plaintiffs' claims. In a May 13, 1999 decision, journalized in a June 8, 1999 judgment entry, the trial court granted in part and denied in part the defendants' motions.
{¶ 9} With regard to the individual defendants, the court dismissed plaintiffs' claims for abuse of power, intentional infliction of emotional distress, and violations of the Ohio Constitution. The trial court declined to dismiss plaintiffs' claims for defamation and conspiracy to defame, concluding that plaintiffs had alleged sufficient facts that, if later proven to be true, conceivably could establish such claims. The court, however, noted that the viability of plaintiffs' claims was subject to the possibility that the individual defendants could present a properly supported motion for summary judgment that pointed to facts and evidence proving their entitlement to a "good faith" or "qualified immunity" defense to plaintiffs' defamation and conspiracy claims. See, generally, R.C. 2744.03(A)(6)(b) ().
{¶ 10} The trial court further noted the city had asserted a defense of governmental immunity under R.C. Chapter 2744. See R.C. 2744.02(A) (). The court found that, although the city's claim of immunity was not subject to any of the exceptions listed in R.C. 2744.02(B), it "may" be subject to an exception in R.C. 2744.09(B). Under that statutory exception, a political subdivision employer is not entitled to R.C. Chapter 2744 immunity where one of its employees commences a civil action relative to matters arising out of the employment relationship between the employee and the political subdivision. R.C. 2744.09(B). The trial court ruled that the city thus conceivably could be found vicariously liable, as the employer of the individual defendants, in the event plaintiffs introduced sufficient evidence that the individual defendants were liable for defamation and conspiracy to defame.
{¶ 11} As a final matter, the trial court denied plaintiffs' request that Section 63 of the Columbus City Charter be declared unconstitutional.
{¶ 12} After the parties' extensive discovery, the trial court granted summary judgment on plaintiffs' remaining claims. Notwithstanding the findings in its May 13, 1999 decision, the trial court granted summary judgment to the city on the ground that the city is entitled to immunity under R.C. Chapter 2744. In granting summary judgment, the court agreed with the city that intentional acts between an employer and employee fall outside an employment relationship. Consequently, the court concluded that the employment-relationship exception to immunity in R.C. 2744.09(B) does not apply, and that the city is immune from liability pursuant to R.C. 2744.02(A).
{¶ 13} Similarly, in decisions filed January 26, 2001, and June 4, 2003, the trial court granted the Mayor and the individual defendants summary judgment on the claims not resolved through their motions to dismiss. Specifically, the trial court found that the Mayor was not individually liable because plaintiffs presented no evidence that the Mayor wrote or published the Report. The court further ruled that the Mayor could not be held liable for the acts of the...
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