Lombardo v. Stoke

• Citation: 222 N.E.2d 721,276 N.Y.S.2d 97,18 N.Y.2d 394
• Parties: , 222 N.E.2d 721 Josef V. LOMBARDO et al., Appellants, v. Harold W. STOKE et al., Respondents.
• Decision Date: 29 November 1966
• Court: New York Court of Appeals

Page 97

276 N.Y.S.2d 97

18 N.Y.2d 394, 222 N.E.2d 721

Josef V. LOMBARDO et al., Appellants, v. Harold W. STOKE et al., Respondents.

Court of Appeals of New York.

Nov. 29, 1966.

Thomas A. Bolan, New York City, and Frank S. Polestino, Jamaica, for appellants.

J. Lee Rankin, Corp. Counsel (Jerome Doyle, New York City, of counsel), for respondents.

FULD, Judge.

In this defamation action, a former President of Queens college and the New York City Board of Higher Education have interposed a defense of absolute privilege in connection with an allegedly libelous statement they made denying charges that anti-Catholic bias had influenced promotions on the Queens College faculty.

The charges were originally voiced in 1958 and the Board of Higher Education promptly ordered an investigation by a committee, headed by Porter Chandler, Esq., on which the Catholic, Protestant and Jewish faiths were equally represented. The committee issued a report some time later, noting that 'It is only natural when a man's promotion is passed over or delayed that he should try to explain it to himself, and perhaps to others, by seeking some extraneous reason. This natural process was reflected by some of the witnesses who appeared before us'. In conclusion, the committee found

'no satisfactory evidence that Catholics as such have been discriminated against in respect of promotions. * * * (nor any) pattern of religious discrimination at Queens College, and no instance in which there is any basis for preferring charges of religious discrimination against any person now at Queens College'.

While the committee was conducting hearings and drawing up its report, the State Commission Against Discrimination (SCAD)--now the State Commission on Human Rights--instituted an independent investigation of the matter. The Board of Higher Education challenged the commission's power to act in the field of public education and brought an article 78 proceeding to have the issue of jurisdiction decided by the courts. In connection with this litigation--which was ultimately resolved in SCAD's favor (see Matter of Board of Higher Education of City of New York v. Carter, 14 N.Y.2d 138, 250 N.Y.S.2d 33, 199 N.E.2d 141)--a Commissioner of SCAD filed an affidavit in October, 1960 which, he declared, was based partially on interviews with 'present or former faculty members of Queens College'. The affidavit, charging that the appointment and promotional processes at Queens College were tainted with religious bias and prejudice, received exceedingly widespread coverage in the press.

Confronted with this adverse publicity, the President of the college, the defendant Stoke, decided that it was necessary to defend the school against the attack and to issue a public explanation of the situation. He discussed the matter with the Chairman of the Board of Higher Education, who authorized the preparation of such a statement and approved the text before it was released to the newspapers. After reciting that it was made in response to the SCAD affidavit, the statement went on to declare:

'The agitation about anti-Catholic discrimination at Queens College has been fostered, if not originated, almost entirely by a few members of the College's own staff. These persons, unable to convince colleagues of their qualifications for advancement, have over a period of years, deliberately charged religious discrimination to explain their lack of academic success and to obtain promotion. It is time the College made this clear.

'Virtually everyone in the faculty and administration of Queens College knows this background and tolerates the questionable professional conduct of these colleagues as a part of the price educational institutions pay for the benefits of a system of permanent tenure.

'Unfortunately, people outside the College do not understand this. The College has not wished to dignify the circulation of anonymous letters, false statistics and trivial campus gossip as worthy of public discussion. * * * The time has come when the silence of the College has ceased to be a virtue.

'Queens College has a thoroughly democratic system of recruitment, appointment and promotion. It seeks its staff from the widest and most diverse sources. The College makes no inquiry and has no records of any kind as to the religious affiliation of its staff.

'Queens College has not engaged in the past, nor will it engage in the future, in anti-Catholic discrimination.'

It is conceded that the statement was intended and understood to refer to the plaintiffs, two associate professors at Queens College. We note in passing that they have previously, and unsuccessfully, sued the defendant board claiming that they were passed over for promotion in 1961 solely because of anti-Catholic discrimination. (See Matter of Lombardo v. Board of Higher Education of City of New York, 13 N.Y.2d 1097, 246 N.Y.S.2d 631, 196 N.E.2d 266.) In the present action for libel, the defendants interposed the defense of absolute privilege and moved for summary judgment. The court at Special Term denied the motion but, on appeal, the Appellate Division reversed, granted the motion and dismissed the complaint.

Whether or not the president of a municipal college may, under appropriate circumstances, raise the defense of absolute privilege--as opposed to qualified privilege (compare Sheridan v. Crisona, 14 N.Y.2d 108, 249 N.Y.S.2d 161, 198 N.E.2d 359, and Sanford v. Howard, 185 Okl. 660, 95 P.2d 644, with Hemmens v. Nelson, 138 N.Y. 517, 34 N.E. 342, 20 L.R.A. 440)--is a question we do not now decide in view of the record before us. In their complaint, the plaintiffs have actually alleged that the defamatory statement was issued 'with the knowledge and consent' of the defendant board and published after the board 'ratified and approved' the text. Accordingly, we need concern ourselves only with the scope of the board's privilege which, under the circumstances, may be invoked by President Stoke who was allegedly acting at the board's direction and on its behalf. Our decision in Sheridan v. Crisona (14 N.Y.2d 108, 249 N.Y.S.2d 161, 198 N.E.2d 359, supra) is authority for holding here that the Board of Higher Education was absolutely privileged to issue this press release.

In the Sheridan case (14 N.Y.2d 108, supra, 249 N.Y.S.2d 161, 198 N.E.2d 359), the plaintiff alleged that he had been defamed in a report which had originally been submitted by the Borough President of Queens to the Mayor of the City of New York and which was ultimately released for publication in the newspapers. We held that 'a Borough President acting within the scope of his official powers must be accorded the protection of absolute privilege', found that he was, indeed, 'acting within the scope of his official duties when he * * * made (the) report' and concluded that, since '(t)he report * * * concerned a matter of public concern', its subsequent release to the press was proper (14 N.Y.2d, at pp. 112--113, 249 N.Y.S.2d at p. 164, 198 N.E.2d at p. 361).

In reaching this result, we cited with approval, among other decisions, Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, a case in which the facts were not too unlike the one before us. In 1953, a scandal developed in the Federal Office of Rent Stabilization concerning employees who were permitted to take their accumulated annual leave in cash and were then rehired on a temporary basis. The affair became a Casue ce le bre in the newspapers and the Acting Director of the agency was prompted to suspend to subordinate officials who, he implied in a press release, were responsible for the misdeeds. The two officials sued for libel but the Supreme Court held that the statement was absolutely privileged. It was emphasized that the Director was the head of 'an important agency of government', that the 'integrity' of the internal operations of the agency had been 'directly and severely challenged', that 'wide publicity' had been given to the charges, and that the issuance of a press release was 'standard agency practice', 360 U.S., at p. 574, 79 S.Ct. at p. 1341.

In the case before us, the Board of Higher Education is undoubtedly an 'important agency' of municipal government; its 'integrity' had, indeed, been 'directly and severely challenged' by charges of anti-Cathodic bias at Queens College; and those accusations had been given 'wide publicity'. Under these circumstances, 'a publicly expressed statement of the position of the (board) * * * was an appropriate exercise of the discretion which (the board) * * * must possess if the public service is to function effectively.' 360 U.S., at pp. 574--575, 79 S.Ct. at p. 1341; see Sheridan v. Crisona, 14 N.Y.2d 108, 249 N.Y.S.2d 161, 198 N.E.2d 359; supra; Duffy v. Kipers, 26 A.D.2d 127, 271 N.Y.S.2d 338; Smith v. Helbraun, 21 A.D.2d 830, 251 N.Y.S.2d 533; Manceri v. City of New York, 12 A.D.2d 895, 209 N.Y.S.2d 915; Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 40 L.Ed. 780; Sauber v. Gliedman, 283 F.2d 941, cert. den. 366 U.S. 906, 81 S.Ct. 1047, 6 L.Ed.2d 204; Gregoire v. Biddle, 177 F.2d 579, cert. den. 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363; Glass v. Ickes, 2 Cir., 117 F.2d 273; Mellon v. Brewer, 57 App.D.C. 126, 18 F.2d 168, 53 A.L.R. 1519, cert. den. 275 U.S. 530, 48 S.Ct. 28, 72 L.Ed. 409.

We have previously recognized that making the official statements of some government executives absolutely privileged is "essential in the conduct of official business". (Sheridan v. Crisona, 14 N.Y.2d 108, 112, 249 N.Y.S.2d 161, 163, 198 N.E.2d 359, 360, supra.) In our view, the members of the defendant Board of Higher Education are such executives and they should be free to report to the public on appropriate occasions 'without fear of reprisal by civil suit for damages' 14 N.Y.2d, at p. 112, 249 N.Y.S.2d at p. 163, 198 N.E.2d at p. 360; see Smith v. Helbraun, 21 A.D.2d 830, 251 N.Y.S.2d 533, supra; contra Ranous v. Hughes, 30 Wis.2d 452, 141...