Errington v. Mansfield Tp. Bd. of Ed., A--1103

• Decision Date: 27 March 1968
• Docket Number: No. A--1103,A--1103
• Citation: 100 N.J.Super. 130,241 A.2d 271
• Parties: Robert N. ERRINGTON, Plaintiff-Respondent, v. MANSFIELD TOWNSHIP BOARD OF EDUCATION, in the County of Warren, Defendant-Respondent, and Catherine D. Harsha, William Mannon, Norma Cregar, James A. Knapp, Myrtle Darcy and James R. Allen, Intervenors-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 130

100 N.J.Super. 130

241 A.2d 271

Robert N. ERRINGTON, Plaintiff-Respondent, v. MANSFIELD TOWNSHIP BOARD OF EDUCATION, in the County of

Warren, Defendant-Respondent,

and

Catherine D. Harsha, William Mannon, Norma Cregar, James A.

Knapp, Myrtle Darcy and James R. Allen,

Intervenors-Appellants.

No. A--1103.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 2, 1968.

Decided March 27, 1968.

Thomas L. Morrissey, Newark, for appellants (Carpenter, Bennett & Morrissey, Newark, attorneys; Michael S. Waters, Newark, on the brief).

Wayne Dumont, Jr., Phillipsburg, for respondent, Mansfield Tp. Bd. of Education.

Robert N. Errington, respondent, pro se.

Before Judges KILKENNY, CARTON and ROSEN.

The opinion of the court was delivered by

KILKENNY, J.A.D.

The six intervenors, former members of the Board of Education of Mansfield Township, who were sued individually by plaintiff in other separate suits for libel, appeal from a judgment of the Law Division in favor of plaintiff and defendant board of education, rejecting the claim of the intervenors that the board of education be directed to pay the legal fees and expenses in defending them in libel actions.

This matter is before us for the second time. In our earlier opinion, 81 N.J.Super. 414, 195 A.2d 670 (1963), we affirmed a summary judgment in favor of plaintiff, prohibiting the board of education from spending public funds for the legal defense of board members sued individually for libel. We deemed the allegedly tortious conduct to be the personal responsibility of the individual defendants and, under the particular facts of the case, not entitled to be defended at the public expense.

The Supreme Court granted certification, 41 N.J. 519, 197 A.2d 567 (1964), and thereafter reversed and remanded the matter so that a full record could be made in the libel actions. The Supreme Court deemed the meager record before it inadequate to resolve the question. The board agreed not to spend the public funds in the interim. 42 N.J. 320, 200 A.2d 492 (1964).

Depositions were then taken in the libel actions. Following the depositions, on January 12, 1966 a stipulation was entered into dismissing with prejudice both libel actions. Plaintiff was paid some consideration for signing the stipulation of dismissal.

The issue of the board's power to pay for the legal defense of its members sued personally for libel was left open in the settlement between plaintiff and the intervenors. At oral argument plaintiff stated that he was under the belief that the settlement made with him included a surrender by the individual board members of their claim for payment of their legal defense by the board. He conceded that such belief is not supported by anything in the settlement papers.

On March 17, 1966 the board rejected the request of the six former members to have their legal fees paid. These six then intervened in this action since they were personally interested and the board, as now constituted, was unwilling to pay and felt that it was legally unable to expend board funds for the legal defense of its former members sued individually for the alleged libels.

Subsequent to our decision and that of the Supreme Court and before the instant action was fully tried before the Law Division sitting without a jury in November 1966, the Legislature enacted N.J.S.A. 18:5--50.20, effective July 22, 1965. It provides:

'Whenever a civil or a criminal action has been brought against any person for any act or omission arising out of and in the course of the performance of his duties as a member of a board of education, and in the case of a criminal action, such action results in final disposition in favor of such person, the cost of defending such action, including reasonable counsel fees and expenses, together with costs of appeal, if any, shall be borne by the board of education.'

Both sides agree that this law, although seemingly tailored to fit the instant case, is only expressive of the law existing prior thereto. Its purpose was merely to state expressly a power deemed to exist impliedly in boards of education prior to its enactment.

We may assume, therefore, that a board of education has the power and the duty, now by statute as well as under its previous implied power, to pay or reimburse a member for the legal expenses involved in defending himself for any act and omission 'arising out of and in the course of the performance of his duties as a member of a board of education.' Thus, the narrow issue to be initially determined is whether the allegedly defamatory open letter which board member Catherine D. Harsha caused to be published on or about November 30, 1961 in the public press concerning plaintiff was an act 'arising out of and in the course of the performance of her duties as a member of the board of education.'

The Law Division held that it was not. We need not repeat herein the detailed and extensive analysis of the evidence or the rationale of the trial judge by which that conclusion was reached. They are clearly set forth in his comprehensive opinion. In substance, he held that Mrs. Harsha had composed the letter by dint of her own effort and had caused it to be published without authorization from the board. She had read its contents over the telephone to only two other members of this nine-member board of education. The mere fact that she was then president of the board did not clothe her with any authority to publish the letter. Nor did her motivation, even though one could assume they were salutary as well as personal. The letter was intended to annihilate a critic of the board's espousal of a site for a new school and thereby to influence voters at a pending referendum soon to be held. In her answer to the complaint, Mrs. Harsha asserted that she wrote the letter 'for the purpose of defending her own reputation.' The trial court concluded that her allegedly defamatory act did not arise out of and in the course of the performance of her duties as a member of as the president of the board of education. We agree with that conclusion.

The referendum carried. Almost a year later, but within one year of the publication as limited by the statute of limitations (N.J.S. 2A:14--3, N.J.S.A.), plaintiff sued Mrs. Harsha for libel. Then, for the first time, the board of education sought to help out in what had theretofore been the personal and unauthorized act of Mrs. Harsha. it adopted a resolution at a public meeting of the board held on November 15, 1962, in which it referred to the libel suit against Mrs. Harsha, and stated that at the time of the alleged libelous offense ...