Salazar v. Bjork

• Decision Date: 23 March 1973
• Docket Number: No. 957,957
• Citation: 1973 NMCA 51,509 P.2d 569,85 N.M. 94
• Parties: David SALAZAR, Jay Ven Eman, Gil Archibeque, Les Olson, Harold Martinez, William McKinstry, Robert Lopez, David Knight, Kathy Jimenez, Gloria Candelaria, Plaintiffs-Appellants, v. Lars BJORK and Center for Human Services, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 569

509 P.2d 569

85 N.M. 94

David SALAZAR, Jay Ven Eman, Gil Archibeque, Les Olson Harold Martinez, William McKinstry, Robert Lopez David Knight, Kathy Jimenez, Gloria Candelaria Plaintiffs-Appellants, v. Lars BJORK and Center for Human Services Defendants-Appellees.

No. 957.

Court of Appeals of New Mexico.

March 23, 1973.

Certiorari Denied April 26, 1973.

Frederick J. McCarthy, Belen, Ellis J. French, Albuquerque, for plaintiffs-appellants.

George T. Harris, Jr., Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, Edward H. Kerman, Friedlander, Misler, Friedlander & Kerman, Washington, D.C., for defendants-appellees.

OPINION

HERNANDEZ, Judge.

Plaintiffs appeal from a summary judgment in favor of the defendants. Plaintiff Olson, an employee of the Model Cities Program and nine other plaintiffs, members of the board of directors or employees of United Child Care, Inc., brought suit against defendants, responsible for preparing certain evaluations and reports for a state agency, on the grounds that the reports contained false and defamatory remarks concerning plaintiffs' performance and abilities in a child care program, and that these remarks were made by defendant Bjork as employee of defendant Center for Human Services in a willful and malicious manner. The trial court granted summary judgment for the defendants because, as 'arms' of the state and federal government, defendants enjoyed absolute immunity from suits for defamation. The appellate issue is whether defendants had absolute immunity.

In a second cause of action, William McKinstry alleged defendant Bjork slandered him. The trial court ruled that this second cause of action failed to state a claim upon which relief could be granted. The appellate issue is whether such a claim was stated.

In 1969 the New Mexico Department of Health and Social Services (HSSD) received a grant from the United States Department of Health, Education and Welfare (HEW) to establish a demonstration child care and development program in Albuquerque. The day-to-day operation of the program was conducted by United Child Care, Inc. (UCCI), a non-profit corporation established specifically for the child care project. Under the terms of the grant HSSD was required to make periodic progress and evaluation reports to HEW.

While the reports were to include evaluations of the project personnel as well as the project's operation, paragraph 8(8) of the grant agreement expressly provided that '(a)ll personal information concerning individuals served or studies under the project is confidential and such information may not be disclosed to unauthorized persons.'

Because the agency did not have sufficient personnel to write the reports, HSSD contracted with the defendant, Center for Human Services (hereinafter referred to as 'Consultants'), to evaluate the program and to write the required reports. Defendant Bjork was the regional director of Consultants and the author of the reports in question. By express terms of their agreement, the relationship of the Consultants to HSSD was that of an 'independent contractor.'

Prior to answering the complaint, the defendants filed a motion to dismiss for failure to state a claim upon which relief could be granted. Since testimony and other documentary evidence was introduced at the hearing on the motion the defendants asked that their motion be regarded as a motion for summary judgment. § 21--1--1(12)(b), N.M.S.A.1953 (Repl.Vol. 4).

None of the evidence submitted in support of defendants' motion controverted any of the allegations made in plaintiffs' complaint. The evidence consisted of testimony by the former director of HSSD, Mr. Jasper, as to the duties of that department and as to the execution of the project agreement between HSSD and HEW, and the subsequent contract between HSSD and the Consultants. Copies of these agreements were submitted together with copies of the three reports in question. Mr. Jasper testified that he had left office the month before the first of these reports had been submitted but that previous reports from the Consultants had been distributed only to those authorized to receive them. At the conclusion of the hearing counsel for the plaintiffs requested permission to submit evidence on the issue of publication at a later date. In response to this request defendants' counsel stated: 'I would say for the purpose of the motion I don't see why we could not admit that.' Although the court gave plaintiffs two weeks in which to request another hearing or to submit further evidence, there is nothing in the record to indicate that either side did anything further.

The trial court granted defendants' motion for summary judgment on the basis that:

'1. Upon the uncontroverted evidence before the Court, the defendants, and each of them, enjoy an absolute privilege and immunity as an 'arm' of both the Health and Social Services Department of the State of New Mexico and the Health, Education, and Welfare Department of the United States.

'2. The documents containing the matters alleged to have been defamatory are not public records, and upon the uncontroverted evidence before the Court, there has been no 'publication' by Defendants, or either of them, of any defamatory statements.

'3. The Complaint, and particularly the Second Cause of Action therein set forth, fails to state a claim upon which relief can be granted.'

First, as to the court's ruling that the defendants enjoyed absolute immunity as an 'arm' of both HEW and HSSD, what the court intended by the use of the term 'arm' we do not know. The facts are that the Consultants were independent contractors who were performing a specific job for HSSD pursuant to the terms of their agreement. There was no relationship contractual or otherwise between the Consultants and HEW. Second, is this a situation which requires the application of absolute immunity? We think not. As was stated in Stewart v. Ging, 64 N.M. 270, 327 P.2d 333 (1958), '(a)bsolute immunity from responsibility without regard to purpose, motive, or reasonableness of conduct is, and should be, confined to a very few rather well-recognized situations.' However, we do believe that the facts of this case give rise to a qualified...