Errington v. Mansfield Tp. Bd. of Ed. in Warren County

• Decision Date: 06 December 1963
• Docket Number: No. A--877,A--877
• Citation: 81 N.J.Super. 414,195 A.2d 670
• Parties: Robert N. ERRINGTON, Plaintiff-Respondent, v. MANSFIELD TOWNSHIP BOARD OF EDUCATION in the COUNTY OF WARREN, Defendant- Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 414

81 N.J.Super. 414

195 A.2d 670

Robert N. ERRINGTON, Plaintiff-Respondent, v. MANSFIELD TOWNSHIP BOARD OF EDUCATION in the COUNTY OF WARREN, Defendant- Appellant.

No. A--877.

Superior Court of New Jersey Appellate Division.

Argued Nov. 18, 1963.

Decided Dec. 6, 1963.

Wilbur M. Rush, Washington, for appellant (Robert L. Schumann, Washington, on the brief).

Robert N. Errington, New York City, for plaintiff-respondent pro se (Robert E. Frederick, Phillipsburg, attorney).

Thomas P. Cook, Princeton, for State Federation of District Boards of Education, intervening as amicus curiae.

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

KILKENNY, J.A.D.

May a local board of education spend school funds for the legal defense of its members, sued individually in tort because of an allegedly libelous letter published by the president of the board upon the purported authorization of the other members? The Law Division gave a 'no' answer to this question and granted summary judgment restraining the expenditure. Defendant board appeals therefrom. It also appeals from the denial of its motion to dismiss plaintiff's proceeding in lieu of prerogative writs for failure to exhaust his administrative remedies.

The allegedly offensive letter, addressed to plaintiff, was admittedly written and published by Catherine D. Harsha, the president of the board. This, it is said, was done pursuant to authorization by the other board members, informally given, but not at any regular or special board meeting. Copies were forwarded to the editors of the Hackettstown Gazette and Washington Star and published therein on November 30, 1961. The letter reads as follows:

'Dear Mr. Errington,

The Mansfield Township Board of Education will hold a special meeting December 5th, 1961, at 8:00 p.m. in the Firehouse at Port Murray. I sincerely hope you will be present.

After having read all your letters to the Editor, I am surprised that the truth concerns you at all.

You have become so desperate in your destructive drive to divide and conquer that you now twist and distort your previous untruths, half-truths and inferences.

I personally credit the people of this township with far more intelligence than to nurture the seed of doubt and distrust you have so cleverly tried to implant in their minds.

Mrs. Catherine D. Harsha, President,

Mansfield Board of Education.

Hackettstown, N.J.

November 27, 1961.'

On November 7, 1962 plaintiff filed his civil action for libel in the Superior Court, Law Division, naming Mrs. Harsha, the newspaper corporations, the editor of the Hackettstown Gazette, and the receiver of the Washington Star as defendants.

In her answer Mrs. Harsha asserted by way of affirmative defense that she wrote, published and caused to be published the alleged libelous words without malice 'for the purpose of defending her own reputation against numerous charges and allegations published * * * by the plaintiff.' The Hackettstown Gazette and its editor set forth in the same answer other separate affirmative defenses not pertinent here.

On November 15, 1962 defendant board adopted a resolution, reciting in its preamble plaintiff's libel suit against Mrs. Harsha and that at the time of the alleged libelous offense she 'was acting on behalf of the Mansfield Township Board of Education; and was acting as its chief executive officer.' The resolution directed the board's legal counsel 'to vigorously defend said suit' on behalf of Mrs. Harsha and transferred $1500 to the legal account, presumably to pay the fee.

On December 5, 1962 plaintiff instituted another libel action against the five board members individually who voted to defend Mrs. Harsha, on the basis that they had authorized and ratified the allegedly libelous publication and had approved and reaffirmed the words used by directing the expenditure of public funds for the defense of Mrs. Harsha.

On December 13, 1962 the defendant board adopted a further resolution authorizing the expenditure of funds for the defense of the board members named in the second libel suit.

Plaintiff's action in the Law Division to restrain the expenditure of school funds by defendant board in defending libel suits pending against the board members as individuals was filed on February 8, 1963. Defendant's motion to dismiss this complaint was denied. Plaintiff's cross-motion for summary judgment was granted. This appeal followed. The libel actions are still pending.

I.

In the Law Division, defendant moved to dismiss the complaint, contending that plaintiff had failed to exhaust his administrative remedies under R.S. 18:3--14 and 15, N.J.S.A. The motion was denied. Defendant argues that the Law Division erred in so ruling.

The propriety of spending school board funds for the defense of a libel action brought against individual members of a school board is a purely legal question. R.R. 4:88--14 provides that administrative remedies must be exhausted, 'Except where it is manifest that the interests of justice require otherwise.' Where the question presented, as in the case Sub judice, is solely one of law, the interests of justice do not require the exhaustion of administrative remedies. Resort to the Law Division directly is proper. Nolan v. Fitzpatrick, 9 N.J. 477, 484, 89 A.2d 13 (1952); Deaney v. Linen Thread Co., 19 N.J. 578, 581, 118 A.2d 28 (1955); Durgin v. Brown, 37 N.J. 189, 202, 180 A.2d 136 (1962); Wilbert v. Decamp, 72 N.J.Super. 60, 68, 178 A.2d 85 (App.Div.1952).

Accordingly, the motion to dismiss the complaint for failure to exhaust the administrative remedy was properly denied.

II.

Members of a board of education may not authorize an individual board member to give expression to personal views and then provide for the legal defense of that board member at public expense, if that expression of personal view is libelous. We are not passing judgment on whether the letter in the instant case is libelous, or whether there is any valid defense thereto. If there is liability by reason of its having been written, the liability is personal to the writer and is not that of the board of education. Defense of the action must be at the expense of the individual and not at the expense of the board.

We have not been referred to any authority, nor are we aware of any, upholding the right of a public official to be defended at the public expense in a suit for libel resulting from his expression of a purely personal opinion. When Mrs. Harsha gave vent to her personal appraisal of plaintiff's concern for the truth, his conduct and motives, she departed from the performance of any public duty. Authorization of her conduct by other board members did not alter the personal nature of her conduct.

Had Mrs. Harsha been directed by the board to discharge a public duty, a different situation would have been presented. In State, Bradley v....