Peterfish v. Frantz

• Decision Date: 08 June 1988
• Docket Number: Docket No. 97555,AFL-CIO
• Citation: 168 Mich.App. 43,424 N.W.2d 25
• Parties: Evelyn PETERFISH, Plaintiff-Appellant, v. Richard FRANTZ and Calhoun CountyLabor Council, Defendants-Appellees. 168 Mich.App. 43, 424 N.W.2d 25
• Court: Court of Appeal of Michigan — District of US

Page 25

424 N.W.2d 25

Evelyn PETERFISH, Plaintiff-Appellant, v. Richard FRANTZ and Calhoun County AFL-CIO Labor Council,

Defendants-Appellees.

Docket No. 97555.

168 Mich.App. 43, 424 N.W.2d 25

Court of Appeals of Michigan.

Submitted Jan. 31, 1988.

Decided April 18, 1988.

Released for Publication June 8, 1988.

[168 MICHAPP 44] Brian K. Kirkham, P.C. by Brian K. Kirkham, Battle Creek, for plaintiff-appellant.

Smith, Haughey, Rice & Roegge by Susan J. Bradley, Grand Rapids, for Richard Frantz.

Chambers, Steiner, Mazur, Ornstein & Amlin, P.C. by Angela J. Nicita, Detroit, for Calhoun County AFL-CIO Labor Council.

Before McDONALD, P.J., and DOCTOROFF and ROBINSON, ^* JJ.

DOCTOROFF, Judge.

Plaintiff appeals as of right from an order entered by the Calhoun Circuit Court summarily dismissing her libel action against the defendants pursuant to MCR 2.116(C)(10). We affirm.

Plaintiff is employed by the City of Battle Creek as a contract compliance officer. She serves at the discretion of the city's executives, the mayor, vice-mayor, manager and commissioners. Her salary is paid by the public.

The plaintiff's responsibilities include monitoring the various construction projects "let" by the city for compliance with affirmative action requirements, minority hiring requirements, local hiring requirements, and prevailing wage standards. Plaintiff also monitors projects funded with local, state and federal moneys. However, she does not have the authority to monitor projects not let by the city. She acts only after she is told to do so by her superiors. Additionally, plaintiff administers the city's program for certification of women- and minority-owned businesses. She also conducts equal opportunity employment reviews for financial assistance on all businesses seeking tax abatements.

The individual defendant, Richard Frantz, serves [168 MICHAPP 46] as the business manager and financial secretary for the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 335, AFL-CIO. Defendant worked closely with plaintiff for a significant period of time, informing her as to which contractors and which projects were violating the local hiring practices and prevailing wage standards. After making an investigation, plaintiff would remedy the discovered violations.

In 1984, Cello-Foil Products, Inc. undertook the expansion of its Battle Creek facilities by building an addition to its plant and installing flex-o-graphic printing presses, two rotogravure printing presses and a solvent recovery system. The city became involved by assisting Cello-Foil in the obtaining of financing for its project. The city both loaned Cello-Foil money from its community block development grant funds and assisted the company in obtaining an urban development action grant (UDAG).

After work had begun on the Cello-Foil expansion project, defendant contacted plaintiff and informed her of numerous complaints he had received concerning the Cello-Foil project. He made inquiries as to whether the labor standards applied to the Cello-Foil project and also requested that plaintiff begin monitoring it for compliance with labor standards.

Following defendant's request, plaintiff began an investigation into whether the city possessed the authority to monitor the Cello-Foil project. She contacted several people and met with many more individuals to determine the extent of her authority. Additionally, she reviewed Department of Housing and Urban Development labor standard compliance regulations, HUD manuals, city ordinances [168 MICHAPP 47] and resolutions, applicable state statutes, and all tax abatement papers. No one she contacted believed that she had the authority to monitor the Cello-Foil project.

Plaintiff also contacted a labor relations specialist for HUD, who informed her that she and the city had no authority to monitor the project. He also told the plaintiff that the officials at HUD were of differing minds as to how labor standards monitoring could be applied to private industry construction projects being conducted with money loaned to the industry from federal funds. Consequently, clarification from Washington, D.C. had been sought. As of the date of plaintiff's contact, no answer had been received. Plaintiff never heard from HUD nor received the results of the contact made with HUD. She did not contact HUD herself.

Defendant believed that plaintiff had the authority to monitor the project. On July 30, 1985, he wrote a letter to her in which he charged her with being derelict in her duties and threatened legal action to force her to monitor the project. A copy of his letter was sent to the mayor, vice-mayor, city manager and city commissioners. When defendant refused to retract the allegation that she was derelict in her duties, plaintiff filed a complaint charging him and defendant Calhoun County AFL-CIO Labor Council with libel.

Following the filing of the suit, defendant Frantz' counsel sought an opinion from the HUD labor standards officer as to whether the city possessed the authority to monitor the Cello-Foil project. When plaintiff received a copy of the letter that HUD sent to defendant's counsel indicating that the city was responsible for monitoring the project for compliance with federal labor standards, the city manager directed her to meet with the labor standards officer for HUD, the city attorney [168 MICHAPP 48] and the executive vice-president of Cello-Foil. At this meeting, the labor standards officer informed the city that it should begin retroactive labor standards monitoring on the installation of the flex-o-graphic presses. Further, it was decided that once Cello-Foil received the UDAG money, the city would begin monitoring the construction of the solvent recovery system and the installation of the rotogravure presses.

At the close of discovery, Frantz for the second time filed a motion for summary disposition, in which the labor council joined. The court granted summary disposition pursuant to MCR 2.116(C)(10), finding that the plaintiff was a public official and further finding that the plaintiff was unable to show actual malice.

On appeal, plaintiff claims that the trial court erred when it summarily dismissed her libel action. She first contends that the trial court abused its discretion when it found her to be a public official for the purposes of libel law. She further asserts that the trial court erred by concluding that there was no genuine issue of material fact regarding the existence of actual malice.

A motion for summary disposition premised on MCR 2.116(C)(10) requires a trial court to review the entire record to determine whether the nonmoving party has discovered facts to support the claim or defense. Consequently, the trial court must look beyond the pleadings and consider affidavits, depositions, interrogatories, or other documentary evidence filed in the case. MCR 2.116(G)(5). In reviewing this evidentiary record, the trial court must give the benefit of any reasonable doubt to the nonmoving party in deciding whether a genuine issue as to a material fact exists. Rizzo v. Kretschmer, 389 Mich. 363, 371-732, 207 N.W.2d 316 (1973). Before judgment may be [168 MICHAPP 49] granted, the trial court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Huff v. Ford Motor Co., 127 Mich.App. 287, 293, 338 N.W.2d 387 (1983).

We turn now to plaintiff's first argument that the trial court erred by finding her to be a public official about whom the statements made were protected by a qualified privilege. We disagree. The initial determination of whether a privilege exists is one of law for the court. See Swenson-Davis v. Martel, 135 Mich.App. 632, 636, 354 N.W.2d 288 (1984), lv. den. 419 Mich. 946 (1984).

To establish liability for defamation, a plaintiff must prove the existence of the following:

"(a) a false and defamatory statement concerning plaintiff; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod )." Postill v. Booth Newspapers, Inc., 118 Mich.App. 608, 618, 325 N.W.2d 511 (1982), lv. den. 417 Mich. 1050 (1983).

Once the plaintiff has met his burden of establishing the existence of these common-law elements, the defendant brings forth his defense of truth or privilege. The fault which a plaintiff must prove varies with whether the allegedly defamed person is a "public official," a "public figure," or a private person. Id.

In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the United States Supreme Court recognized the existence of a qualified privilege extending to a media defendant who publishes a statement concerning a "public official":

[168 MICHAPP 50] "The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U.S. at 279-280, 84 S.Ct. at 726.

In VandenToorn v. Bonner, 129 Mich.App. 198, 208, 342 N.W.2d 297 (1983), lv. den. 421 Mich. 864 (1985), a panel of this Court extended the scope of this qualified privilege to nonmedia defendants who publishes statements about the conduct of public officials.

In Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed. 597 (1966), the United States Supreme Court, in defining for the first time the term "public official," stated:

"It is clear, therefore, that the 'public official' designation applies at the very least to those among the heirarchy of government...