Clark v. McGee

• Decision Date: 27 March 1980
• Citation: 49 N.Y.2d 613,427 N.Y.S.2d 740,404 N.E.2d 1283
• Parties: , 404 N.E.2d 1283 Karlene CLARK, Appellant, v. Dorlan McGEE, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 740

427 N.Y.S.2d 740

49 N.Y.2d 613, 404 N.E.2d 1283

Karlene CLARK, Appellant, v. Dorlan McGEE, Respondent.

Court of Appeals of New York.

March 27, 1980.

Lois McS. Webb and J. Byron O'Connell, Plattsburgh, for appellant

Richard B. Meyer, Saranac Lake, for respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

We are called upon to determine whether a town supervisor is absolutely immune from liability for allegedly defamatory statements made concerning a town employee during the course of an interview with a representative of a local radio station. For the reasons discussed below, we conclude that, in the circumstance here presented, no absolute privilege attaches to such statements.

This is an action seeking to recover damages for allegedly defamatory statements made by defendant, who had assumed the office of Town Supervisor of the Town of Peru in January, 1978. Plaintiff was the town clerk, and had also served as secretary to the previous town board. At the first meeting of the town board in 1978, plaintiff was not reappointed to the position of secretary, although she of course retained her elective position as town clerk. Instead, defendant's wife was appointed secretary to the town board. At the next meeting of the board, a resolution proposed by defendant was adopted fixing the salary of the secretary at $3,000 a year. It is alleged that during that meeting defendant made several comments suggesting that plaintiff had been involved in a scheme to improperly and illegally raise the secretary's salary from $3,000 to $3,500 in the fall of 1977. The next morning, defendant was contacted by a local radio station reporter, and in discussing the increase in the secretary's salary in 1977, defendant is alleged to have declared: "The work is done in Mrs. Clark's (the plaintiff) hand, and I would assume that the changes were made by her as they are in her hand. She also gave me a payroll book which listed her name by the position of secretary, with the figure of $3,500, which she was aware to my knowledge, was aware that the figure was only $3,000." Plaintiff subsequently commenced this action, alleging that this statement was false and defamatory and was made with actual malice in that defendant was aware that the statement was false. ¹

In his answer, defendant denied most of the allegations of the complaint. In addition, defendant pleaded an assortment of defenses and affirmative defenses, including the absolute immunity at issue on this appeal, a qualified privilege supported by the absence of actual malice, and the truth of the allegedly defamatory statement. Plaintiff then moved to dismiss all defenses, and defendant cross-moved for summary judgment on the basis of "each and every defense" pleaded in the answer. Special Term dismissed the claim of absolute privilege and all other pleaded defenses except those of qualified privilege and truth, and denied defendant's cross motion for summary judgment on the ground that there existed questions of fact concerning the applicability of the remaining two defenses in this case. ² On appeal by defendant the Appellate Division reversed and granted summary judgment to defendant, concluding that defendant was entitled to an absolute immunity. Plaintiff now appeals as of right to this court, pursuant to CPLR 5601 (subd. (a), par. (ii)). There must be a reversal, because no absolute privilege attached to defendant's statements.

Initially, we note that the absolute privilege which defendant claims is that complete immunity from liability for defamation which is afforded "an official (who) is a principal executive of State or local government or is entrusted by law with administrative or executive policy-making responsibilities of considerable dimension" (Stukuls v. State of New York, 42 N.Y.2d 272, 278, 397 N.Y.S.2d 740, 744, 366 N.E.2d 829, 833), with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties (see Sheridan v. Crisona, 14 N.Y.2d 108, 113, 249 N.Y.S.2d 161, 198 N.E.2d 359; Lombardo v. Stoke, 18 N.Y.2d 394, 276 N.Y.S.2d 97, 222 N.E.2d 721). This privilege is similar to that traditionally associated with legislative and judicial proceedings (see Stukuls v. State of New York, 42 N.Y.2d, at pp. 275-276, 397 N.Y.S.2d 740, 366 N.E.2d 829, supra; Toker v. Pollak, 44 N.Y.2d 211, 405 N.Y.S.2d 1, 376 N.E.2d 163; Prosser, Torts (4th ed.), § 114) in that it is premised upon "considerations of public policy and to secure the unembarrassed and efficient administration of justice and public affairs" (Hemmens v. Nelson, 138 N.Y. 517, 523, 34 N.E. 342, 344). It serves to ensure that public officials will be free to speak their minds openly and bluntly as is required for the proper performance of their duties, without subjecting themselves to the possibility of vexatious and burdensome lawsuits. Absent such protection, an official might hesitate to engage in that frank and sometimes sharp debate which is so necessary for the development of public policy and the sound management of public affairs. This privilege is of particular importance today, in light of the growing movement towards open government (see, e. g., Public Officers Law, art. 6 (Freedom of Information Law); Public Officers Law, art. 7 (Open Meetings Law)). In the same vein, the privilege is intended to protect important public servants from "suits which would consume time and energies which would otherwise be devoted to governmental service" (Barr v. Matteo, 360 U.S. 564, 571, 79 S.Ct. 1335, 1339, 3 L.Ed.2d 1434). In sum, "(t)he privilege exists to protect those who bear the greatest burdens of government or those to whose official functioning it is essential that they be insulated from the harassment and financial hazards that may accompany suits for damages by the victims of even malicious libels or slanders" (Stukuls v. State of New York, 42 N.Y.2d, at p. 278, 397 N.Y.S.2d, at p. 744, 366 N.E.2d, at p. 833, supra ).

While the absolute privilege is thus a creature of strong public policies (see Cheatum v. Wehle, 5 N.Y.2d 585, 186 N.Y.S.2d 606, 159 N.E.2d 166), there do exist powerful countervailing considerations which preclude broad application or expansion of this privilege. Public office does not carry with it a license to defame at will, for even the highest officers exist to serve the public, not to denigrate its members. Although the needs of effective government mandate that certain important officials be absolutely privileged with respect to statements made in the course of and concerning their public responsibilities, it is yet true that "a balance must be struck between this objective and the right of an individual to defend himself against attacks upon his character" (Toker v. Pollak, 44 N.Y.2d, at pp. 222-223, 405 N.Y.S.2d, at p. 7, 376 N.E.2d, at p. 169, supra ). For these reasons, the privilege is not to be extended liberally, and instead must be carefully confined to that type of situation in which the protection provided by the privilege will serve a necessary societal function (see Toker v. Pollak, 44 N.Y.2d 211, 405 N.Y.S.2d 1, 376 N.E.2d 163, supra; Stukuls v. State of New York, 42 N.Y.2d 272, 397 N.Y.S.2d 740, 366 N.E.2d 829, supra; Cheatum v. Wehle, 5 N.Y.2d 585, 186 N.Y.S.2d 606, 159 N.E.2d 166, supra ). Thus, even a public official who is otherwise entitled to immunity "may still be sued if the subject of the communication is unrelated to any matters within his competence * * * or if the form of the communication e. g., a public statement is totally unwarranted" (Lombardo v. Stoke, 18 N.Y.2d 394, 401, 276 N.Y.S.2d 97, 102, 222 N.E.2d 721, 724, supra ).

Applying these principles to the instant case, the first question is whether a town supervisor may ever be entitled to this type of privilege. As is noted above, the nonjudicial, nonlegislative absolute privilege involved in this dispute extends only to high officials of the executive branch of State and local government (compare Stukuls v. State of New York, 42 N.Y.2d 272, 397 N.Y.S.2d 740, 366 N.E.2d 829, supra, with Sheridan v. Crisona, 14 N.Y.2d 108, 249 N.Y.S.2d 97, 222 N.E.2d 721, supra ). Although this court has not previously had...