Montgomery County v. Fones, 031419 MDSCA, 1026-2017

Docket Nº:1026-2017
Opinion Judge:NAZARIAN, J.
Judge Panel:Fader, C.J. Nazarian, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.
Case Date:March 14, 2019
Court:Court of Special Appeals of Maryland




No. 1026-2017

Court of Special Appeals of Maryland

March 14, 2019

Circuit Court for Montgomery County Case No. 420238-V

Fader, C.J. Nazarian, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.



This is, at its core, an employment dispute that seeks an encore as a defamation claim. Frank Gilmer Fones, Jr. served as a police officer in the canine unit of the Montgomery County Police Department ("MCPD") for about twenty years. He was transferred out of that unit after a series of events involving his assigned police canine, Chip. Officer Fones challenged the employment decisions separately, then filed this defamation action against, among others, Montgomery County (the "County") and Captain Robert Bolesta, one of his supervisors. After motions to dismiss and motions for summary judgment were denied by the Circuit Court for Montgomery County, the case was tried to a jury, which found Captain Bolesta liable for defamation, but awarded no damages, and found the County liable for defamation and awarded Officer Fones $55, 000 in damages.

The County and Captain Bolesta appeal and we reverse. We hold first that the County is immune from liability for defamation. Second, we hold that Captain Bolesta cannot be liable for defamation because the undisputed facts do not support a finding that Captain Bolesta acted with the requisite degree of "malice" to defame Officer Fones, a public official, and, third, in any case he was protected by the common interest privilege.





The story began in April 2015, when Officer Fones's police canine, a Belgian Malinois named Chip, bit him during an exercise. The MCPD veterinarian prescribed the medication Trazadone to Chip, and Officer Fones administered it. Officer Fones also asked the veterinarian to prescribe Prozac to the dog, which she did, although Officer Fones never gave him any. Contrary to MCPD policy, Officer Fones did not inform his supervisors either that he had administered the Trazadone or of the Prozac prescription. Also contrary to MCPD policy, Officer Fones had not been keeping Chip, who lived in Officer Fones's family home, in a County-issued, outdoor kennel; instead, he kept Chip in a homemade kennel that he had erected in his basement.

Officer Fones's supervisors-including Captain Robert Bolesta, who oversaw the canine unit-eventually learned about the Trazadone, the Prozac prescription, and the kennel. In a memorandum dated June 19, 2015, the MCPD informed Officer Fones that he was being transferred out of the canine unit, a move he considered a demotion.

Officer Fones challenged the transfer through administrative channels, and that is not before us. This case arises from statements made by Captain Bolesta, then-Montgomery County Executive Isaiah Leggett, and others about the situation. Officer Fones alleges that these statements defamed him. The four statements alleged in his complaint fall into two general categories. The first category includes statements made internally within the MCPD, and specifically include statements made by Captain Bolesta to his superiors and to members of the canine unit: 1. Captain Bolesta's June 9 statement to Assistant Chief Betsy Davis and Chief Thomas Manger that Officer Fones had "surreptitiously" obtained Prozac for Chip;

2. Captain Bolesta's June 19 statement to canine unit Officer Jonathan Greene that Officer Fones "had given his dog mind-altering drugs"; and

3. Captain Bolesta's July 29 comments to all members of the canine unit that Officer Fones had committed "egregious" acts or violations, and his references to "mind-altering" drugs.

The second category, and fourth statement, consists of a single statement by County Executive Leggett to a member of the public: 4. County Executive Leggett's statement to Rupert Curry, a former canine unit officer and friend of Officer Fones's that Officer Fones "had given his dog a psychotropic drug."1

This was a contentious and emotional dispute from the start. But the parties agree on most of the relevant facts, and we set them forth below.


Factual Background

Officer Fones had been a member of the canine unit for twenty years. He was a well-regarded member of the canine unit, and had trained and worked with numerous police canines, including Chip, who lived with Officer Fones in his family home. It was standard operating procedure for canine unit officers to house their dogs at home, but the procedure also required officers to keep them in a kennel provided by the County, on a slab of concrete outdoors. Officer Fones had taken his County-provided kennel down in 2011, had a kennel erected in his basement, and kept Chip there instead. Officer Fones did not inform his supervisors about the alternative kenneling arrangement.

On April 23, 2015, Officer Fones brought Chip to a non-mandatory recertification exercise. During the exercise, Chip bit Officer Fones. Officer Fones sought medical attention, and afterward his immediate supervisor instructed him to keep Chip kenneled, to keep him away from Officer Fones's family when at home, and to have Chip evaluated by a veterinarian.

The day after the bite, Officer Fones brought Chip to Dr. Godwin, the veterinarian who worked with the MCPD canines. She examined Chip and prescribed Trazodone. Dr. Godwin testified that Trazodone was "a drug that we use for keeping an animal quiet when it's in a confined state essentially . . . ."2 Officer Fones administered the Trazodone to Chip for a week. MCPD standard operating procedures required officers to notify supervisors of any non-emergency medical treatment the police canines received. Officer Fones did not notify his supervisors of the Trazodone prescription or that he administered it to Chip.

Approximately three weeks later, Officer Fones asked Dr. Godwin to prescribe Prozac for Chip, which Dr. Godwin did. Officer Fones did not notify his superiors of the Prozac prescription, but ultimately never gave Chip any Prozac.

The MCPD scheduled an evaluation of Chip for May 20, 2015. During the evaluation, Chip jumped on Officer Fones again. That evening, Officer Fones received a letter of counseling, known as an "MCP 30," for failing to notify his supervisor about the Prozac. The next day, Officer Fones was ordered to board Chip away from his home. On May 25, Chip was evaluated by an outside expert who concluded, among other things, that Chip was not "command responsive," i.e., responsive to voice commands in a way that one would expect for a police canine.

On June 9, Captain Bolesta met with Chief Manger and Assistant Chief Davis to discuss Officer Fones and his future in the canine unit. At that meeting, Captain Bolesta made the first of the four allegedly defamatory statements at issue in this appeal. Captain Bolesta, Chief Manger, and Assistant Chief Davis discussed the possibilities of retraining Chip, Officer Fones getting a new dog, and transferring Officer Fones. Captain Bolesta testified that he stated to Chief Manger and Assistant Chief Davis that Officer Fones "surreptitiously" obtained Prozac for Chip.

On June 19, 2015, Officer Fones received a memo from Assistant Chief Davis informing him of her decision to transfer him from the canine unit. The letter included references to Officer Fones's failures to keep Chip in a County-owned kennel and to notify his supervisors of the Prozac prescription.

That same day, Captain Bolesta called Officer Jonathan Greene, a member of the canine unit, to discuss Officer Fones's transfer. Captain Bolesta asked for Officer Greene's assistance in communicating that news to the other canine unit members and in "keep[ing] emotions in check." Officer Greene also testified that Captain Bolesta told him that Officer Fones had given his dog "mind-altering" drugs, the second statement at issue: Q Now, after he was transferred from the K9 Section, did you have an opportunity to speak to Captain Bolesta --

A Yes.

Q -- about Officer Fones?

A Yeah, actually, that, that I do recall. The, the day that I learned that Gil was being transferred, which was probably the day that Gil learned he was being transferred, but not actually the day that he left the unit, so, I know he was given a notification, Captain Bolesta gave me a phone call.

You know, and he was, basically, telling me that, you know, I'm sure you've heard, or if you haven't heard, Gil has been transferred, and, you know, I want to make sure that you let the guys know. You know, there's two sides to every story. I can't tell you everything about what's going on. He was basically asking me to help to keep emotions in check, I suppose, and keep work going I mean as a, as supervisor would...

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