City of Miami v. Wardlow

• Decision Date: 30 July 1981
• Docket Number: No. 57440,57440
• Citation: 403 So.2d 414
• Parties: The CITY OF MIAMI, Robert Murphy, and Garland Watkins, Petitioners, v. Charles H. WARDLOW, Jr., Respondent.
• Court: Florida Supreme Court

Page 414

403 So.2d 414

The CITY OF MIAMI, Robert Murphy, and Garland Watkins, Petitioners, v. Charles H. WARDLOW, Jr., Respondent.

No. 57440.

Supreme Court of Florida.

July 30, 1981.

Rehearing Denied Oct. 2, 1981.

George F. Knox, Jr., City Atty., and Mikele S. Carter, Asst. City Atty., Miami, for petitioners.

James F. Gilbride and Lewis N. Brown of Gilbride & Heller, Miami, for respondent.

BOYD, Justice.

This cause is before the Court on petition for certiorari to review the decision in Wardlow v. City of Miami, 372 So.2d 976 (Fla. 3d DCA 1979). Because the decision is in conflict with Cripe v. Board of Regents, 358 So.2d 244 (Fla. 1st DCA), cert. denied, 365 So.2d 710 (Fla.1978), we have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972).

Respondent Charles Wardlow, a former City of Miami police officer, brought this action against the City of Miami, its chief of police Garland Watkins, and police internal security officer Robert Murphy. The complaint was in seven counts and sought both damages and injunctive relief. The only portion of the complaint with which we are concerned is that count which asserted that Lieutenant Murphy had slandered Wardlow in a telephone conversation with a captain of the City of Key West police department.

The Key West police captain initiated the call in order to inquire about the background of Wardlow, who had applied for employment with the Key West police department. In response to the inquiry, Murphy explained that Wardlow had resigned from his job with the City of Miami while under investigation on an accusation of bigamy. Murphy also told the officer that Wardlow had once passed a worthless check.

The trial court granted Murphy's motion for summary judgment as to the count in question on the ground that his comments were absolutely privileged. Wardlow appealed this ruling and the district court of appeal held that Murphy's privilege was not absolute but qualified. The appellate court remanded for a determination of whether there was actual malice.

The district court acknowledged that Murphy "had the right and duty to communicate an evaluation of a former police officer (with appellee's department) to an inquiring official from another police department." Wardlow v. City of Miami, 372 So.2d at 979. Nevertheless, the court concluded that Murphy's duties were "not sufficiently exalted to warrant absolute immunity." Id. at 978. Thus the district court's decision suggests, and respondent argues, that the absolute privilege of communication is limited to persons serving in a high executive capacity, regardless of whether the giving of the evaluation is within the scope of the defendant's duties. We disagree with this interpretation of the law.

It has long been clear that a high-ranking officer of the executive branch of the national government, in explaining to the public the reasons for a decision or policy, enjoys absolute immunity from suit for libel. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). This Court has held that the chief executive officer of a chartered county government, in reporting to his legislative overseers, is absolutely privileged to freely explain a decision or policy, and is thus immune from suit based on defamatory statements contained in his report. McNayr v. Kelly, 184 So.2d 428 (Fla.1966).

In both of these decisions, the facts were that the defendants were in high-ranking, political positions within the governmental entity in question. Also, the statements attacked as defamatory were to some extent of a public nature. The courts held the statements privileged because in each instance reporting upon or explaining the reasons for actions or policies was within the scope of the officer's executive function. The issue now is whether the absolute privilege that protects such public statements by executive officials also extends to non-public statements by officers of the executive branch of government under circumstances such as we have here, or whether the qualified privilege that would attach to such comments if made by a private person applies. See Leonard v. Wilson, 150 Fla. 503, 8 So.2d 12 (1942); Putnal v. Inman, 76 Fla. 553, 80 So. 316 (1918); Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906); Axelrod v. Califano, 357 So.2d 1048 (Fla. 1st DCA 1978); Belcher v. Schilling, 349 So.2d 185 (Fla. 3d DCA 1977), cert. denied, 358 So.2d 128 (Fla.1978).

In Cripe v. Board of Regents, 358 So.2d 244 (Fla. 1st DCA 1978), the associate director of the Division of Planning and Analysis of the University of Florida was sued for comments made in evaluating an employee's job performance. The court acknowledged that there was "uncertainty as to how far down the ladder absolute privilege extends." Id. at 245. However, the court perceived a trend in the direction of emphasis upon the nature of the officer's duties rather than the...