Dugas v. City of Harahan, La.

• Decision Date: 27 November 1992
• Docket Number: No. 92-3013,92-3013
• Citation: 978 F.2d 193
• Parties: Susan DUGAS, Plaintiff, Gary M. Bougere, Plaintiff-Appellee, v. The CITY OF HARAHAN, LOUISIANA, et al., Defendants, Carlo F. Ferrara, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 193

978 F.2d 193

Susan DUGAS, Plaintiff Gary M. Bougere, Plaintiff-Appellee, v. The CITY OF HARAHAN, LOUISIANA, et al., Defendants Carlo F. Ferrara, Defendant-Appellant.

No. 92-3013

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Nov. 27, 1992.

Rehearing and Rehearing En Banc

Denied Jan. 4, 1993.

John J. Molaison, Jr., W.J. LeBlanc, Jr., Molaison & LeBlanc, Gretna, La., for appellant.

Regel Louis Bisso, Hulse, Nelson & Wanek, Bonnie Lynn Zakotnik, Montero & Roberts, New Orleans, La., for appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before HIGGINBOTHAM, SMITH, DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

BACKGROUND

On January 1, 1987, Bougere was sworn into the office of mayor of the City of Harahan in Louisiana. He resigned from office approximately one year later due to In a letter dated January 10, 1989, the Board contacted the City of Harahan, as a past employer of Bougere, seeking information concerning Bougere's character and fitness. ² At that time, Ferrara was the mayor of Harahan. The letter was partly composed of a questionnaire which asked the city to check "yes" or "no" boxes in response to relevant questions pertaining to Bougere's character and fitness, contained therein.

                a political dispute involving his recall.   Bougere and his wife subsequently moved to Florida.   On or about January 5, 1989, Bougere applied to the Florida Board of Bar Examiners for admission to the Florida Bar.   As a condition of admission, Bougere executed an "Authorization and Release" form, authorizing the Board to investigate Bougere's character and fitness. 1
                

In his City Hall office, Ferrara complied with the Board's request and checked the relevant boxes, drafted a letter on City of Harahan stationary discussing his contacts with and opinions of Bougere, and signed the questionnaire as Mayor of the City of Harahan. On January 19, 1989, Ferrara returned both documents by mail to the Board. Ferrara further discussed his contacts with and opinions of Bougere on May 24, 1989 when the Board sent an investigator to Louisiana to interview Ferrara. The Board held an evidentiary hearing on Bougere's application and ultimately approved his admission to the Florida Bar.

Bougere, and his wife Dugas, filed the instant action on January 12, 1990, in the United States District Court for the Eastern District of Louisiana, alleging Ferrara's response to the Board's letter and statements to the investigator were defamatory, resulting in various injuries to Bougere. ³ The record reflects that Bougere's sole basis for his action is Ferrara's contacts with the Board. Ferrara unsuccessfully argued to the district court that his communications with the Board were absolutely privileged due to both his status as a mayor and as a participant in the Board's investigation of Bougere's character and fitness. At the conclusion of a four day trial, the jury returned a verdict in favor of Bougere and against Ferrara, awarding $75,000 in actual damages and an additional $25,000 in punitive damages. The district court entered judgment on the verdict.

Ferrara appeals, arguing his communications with the Board were absolutely privileged, that Bougere failed to prove Ferrara's statements were false and made with actual malice, and that Bougere failed to prove that he suffered any damages as a result of the alleged defamatory statements.

A. Privilege Based on Speaker's Status as a Public Official

The Florida Supreme Court has held that defamatory publications by executive The controlling issue in deciding whether an executive employee is immune from defamation actions is whether the communication was within the scope of the official's duties. Skoblow, 483 So.2d at 811. Whether the communication was made within the scope of the official's duties is a question of law for the court to determine. See Barr, 360 U.S. 564, 79 S.Ct. 1335. Florida courts give a broad definition to the term "scope of duties" and its synonyms. Mueller v. Florida Bar, 390 So.2d 449, 451 (Fla. 4th Dist.Ct.App.1980).

                officials of government are absolutely privileged if they are made in connection with the performance of their official duties and responsibilities.  McNayr v. Kelly, 184 So.2d 428, 433 (Fla.1966).   The privilege attaches to communications by public officials no matter how false, malicious, or badly motivated the communication may be.  Id. at 430.   The alleged defamer's good faith or regard for the truth, therefore, is irrelevant.   See Barr v. Matteo, 360 U.S. 564, 575, 79 S.Ct. 1335, 1341, 3 L.Ed.2d 1434 (1959);  Id.   The privilege attaches to such communications regardless of whether they were made in connection with a mandatory duty of the speaker or were merely the result of his discretionary acts.  City of Miami v. Wardlow, 403 So.2d 414 (Fla.1981), citing Barr, 360 U.S. at 575, 79 S.Ct. at 1341.   Florida courts have extended the privilege to several categories of executive branch employees.  Id. 403 So.2d at 416-17 (extending to a deputy police commander of the city of Miami);  McNayr, 184 So.2d 428 (extending to a county manager);  Skoblow v. Ameri-Manage, Inc., 483 So.2d 809 (Fla. 3rd.  Dist.Ct.App.1986) (extending to employees of a state hospital);  Kribs v. City of Boynton Beach, 372 So.2d 195 (Fla. 4th Dist.Ct.App.1979) (extending to a city manager);  Densmore v. City of Boca Raton, 368 So.2d 945 (Fla. 4th Dist.Ct.App.1979) (extending to a city manager);  Johnsen v. Carhart, 353 So.2d 874 (Fla.3rd.Dist.Ct.App.1977) (extending to an assistant state attorney)
                

In Wardlow, the Florida Supreme Court held that allegedly slanderous statements by a City of Miami police internal security officer (Murphy) to a captain of the City of Key West police department concerning a former Miami police officer (Wardlow) were absolutely privileged. Wardlow, 403 So.2d at 416. The Key West police captain called the Miami police department to inquire about the background of Wardlow, who had applied to the Key West police department for employment. Id. at 415. In response to the inquiry, Murphy made several statements which Wardlow considered to be slanderous. Id. After noting that there was no administrative rule requiring Murphy to explain the circumstances under which Wardlow left his job, the court stated the following:

[w]hile the communication at issue here was privately made, as distinguished from the situation in Barr v. Matteo, we perceive that an important public function was involved. Murphy's job involved attempting to ensure that no unfit persons were allowed to serve as police officers in the City of Miami. An ancillary function, but very important to the public, would be to communicate the results of his department's investigations to inquiring officials from another municipal police department.

Id. at 416.

In Johnsen, the court held that a state attorney who had prosecuted Johnsen for several crimes involving moral turpitude and subsequently sent an allegedly defamatory letter to the Miami police department, expressing the attorney's reservations about the plaintiff's fitness to serve as a policeman, was absolutely immune from defamation liability because he acted in the interest of the public good. Johnsen, 353 So.2d at 875, 877. The court stated the letter "was something done for the public good and for the purpose of benefiting and enhancing the proper prosecution of criminal offenses." Id. at 877.

In Mueller, the court held that the Florida Bar's staff counsel's dissemination of a press release concerning the plaintiff's disbarment was absolutely privileged. Mueller, 390 So.2d at 452. The court stated:

It was clearly within the scope of the authority of staff counsel to advise not Id.

                only appellant's clients but also his prospective client's of appellant's disbarment.   The latter category consists of the public at large.   Thus dissemination of the press release was in the interest of the public good and therefore absolutely privileged
                

In Skoblow, the court held that allegedly defamatory statements made by several state hospital officials to the Miami Herald newspaper concerning a dentist who had been discharged from the hospital were absolutely privileged. The court stated:

[i]n the present case, all the defendants alleged to have defamed the plaintiff either had official supervisory responsibilities over the plaintiff or had responsibilities regarding personnel matters or community relations. Since the statements made concerning the plaintiff's discharge were related to and made within the scope of the defendants' official duties, we hold that these defendants are entitled to an absolute privilege and are, therefore, immune from liability for the alleged defamation.

Id.

In sum, communications by a public official are made within the scope of his duties if they involve an important public function, further the interest of public good, or if the public official exercised supervisory responsibilities over the alleged victim, or over personnel matters or community relations. In either of these circumstances, Florida law extends an absolute privilege to the communications.

Ferrara's communication with the Board clearly involved an important public function and furthered the interest of public good. The public good involved here is Florida's vital interest in ensuring that only those applicants who are of good character and fitness be admitted to the Bar. When Ferrara, a public official, responded to the Board's efforts to protect this vital interest, his...