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Availability of absolute or qualified privilege in judicial and quasi-judicial actions

By Harvey Randall, Esq.

Availability of absolute or qualified privilege in judicial and quasi-judicial actions
Rosenberg v Metlife, Inc, 2007 NY Slip Op 02627, decided on March 29, 2007, Court of Appeals, Graffeo, J

The Rosenberg case provides an opportunity to explore the issue of the ?qualified immunity? and the ?absolute immunity? of individuals in the public service sued for alleged libel or slander flowing from their performance of an official duty.

The United States Court of Appeals for the Second Circuit asked the New York State Court of Appeals whether, under New York State law, statements made by an employer on a National Association of Securities Dealers (NASD) Form U-5, Employee Termination Notice, are subject to an ?absolute privilege? or ?qualified privilege? in a defamation lawsuit.[1] Such a privilege provides the individual with ?immunity? in the event he or she is sued for libel or slander as a result of statements made in the course of his or her work or when required by law.

The Court of Appeals advised the Second Circuit that statements provided by an employer in completing the Form U-5 are protected by an ?absolute privilege? in contrast to a ?qualified privilege? under New York law.

New York courts typically apply the following standards in situations where a public officer or employee is sued for libel or slander because of statements he or she made in the course of a disciplinary action or an employee evaluation or in the course of similar events.

Public policy mandates that certain communications, although defamatory, cannot serve as the basis for the imposition of liability in a defamation action. ?When compelling public policy requires that the speaker be immune from suit, the law affords an absolute privilege, while statements fostering a lesser public interest are only [qualifiedly] privileged? (see Liberman v Gelstein, 80 NY2d 429, 437 [1992]).

The absolute privilege generally is reserved for communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings.

Communications that are protected by a qualified privilege are not actionable unless a plaintiff can demonstrate that the individual made the statement with malice.[2] Generally, a statement is subject to a qualified privilege when ?it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned.?

Statements made during the course of a judicial or quasi-judicial proceeding are protected by an absolute privilege ?as long as such statements are material and pertinent to the questions involved.? Further, the absolute privilege can extend to preliminary or investigative stages of the process, particularly where compelling public interests are at stake.

Public employees may claim that he or she has been defamed by the employer, a superior or a coworker and as a result, stigmatized or subjected to libel or slander. Legal action generally follows.

Cases alleging defamation typically involve consideration of such issues as (1) the immunity of public officials in making such statements and (2) the question of a ?public official? being able to recover damages because of such statements.

Among the most common situations are those involving an employee alleging that internal communications between administrators, or between an employee and an administrator concerning the worker, contains defamatory statements. Murphy v Herfort, 428 NY2d 117, is an example of litigation resulting from communications between administrators; Missek-Falkoff v Keller, 545 NY2d 360, is an example of a case where one employee sued another because of the contents of a memorandum from the second employee to a superior concerning a ?problem? with the coworker.[3]

The courts usually dispose of such a case by applying the doctrine of ?qualified immunity.? In Brooks v State of New York, NY2d, the Court of Claims considered a case involving alleged libel brought by an employee of one State agency against the State because of the allegedly disparaging statements made about him by the employee of another State agency. In the Brooks decision, Judge McCabe considered, among other things, both the issue of ?malice? and the doctrine of ?qualified immunity? in arriving at his determination.

The individuals involved in this case were Brooks, an attorney then employed by Mental Hygiene Information Services, and Catherine A. Maher, a Law Librarian with the Supreme Court. Maher sent a letter to her superiors concerning the ?security of the library.? The letter also included statements unrelated to the ?security issue? that the court said ?accused [Brooks] of dishonesty and untrustworthiness.? As Brooks was an attorney, such statements were was libelous per se.

Judge McCabe held that the statements made by Maher concerning Brooks were false. The opinion also indicates that Maher, after learning that the allegations she had made about Brooks were untrue, did nothing to correct the communication. In his ruling, Judge McCabe notes that in connection with the issue of ?correcting the record,? Maher testified that she ?didn?t care about details? and ?she was hoping that [Brooks] would be disciplined? as a result.

As to the ?public official? issue, Judge McCabe said that the ?public official? defense provides that an official cannot recover damages for defamatory falsehoods relating to his official conduct unless he proves the statements were made with actual malice, that is, with knowledge that the statements were false or with reckless disregard for their truth or falsity.? Judge McCabe ruled that Brooks was not a public official as he did not have ?substantial responsibility for control of conduct of governmental affairs.? Accordingly, the ?public official? defense was not available to the State.

As to the question of the existence of a ?qualified privilege,? the Court said that this type of communication is protected ?where it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned.? However, the privilege is not available if the statement is maliciously made. Judge McCabe found that Maher?s ?intemperate and vituperate language? in her letter supports an inference of malice.

Another aspect of the case concerned the ?excessive publication? of the letter. Maher sent copies of the letter to persons not having any interest in the ?security of the library.?

One of the tests used to determine the existence of the ?privilege? is whether the communication concerns a matter ?in which the party communicating had an interest and they were made to a party with a corresponding interest.?

The individual will usually lose his or her claim to any ?qualified privilege? that might otherwise be available if there is a distribution of the letter to unprivileged persons or to both privileged and unprivileged persons. The court found that this was the situation here as Maher had sent copies of her letter to persons without any interest in library security.

The State was held liable for Maher?s action and Brooks awarded $2,500 as damages.

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[1] Upon termination of a registered representative, the NASD requires member firms to complete and file a Uniform Termination Notice for Securities Industry Registration (Form U-5) with the NASD within 30 days of dismissal and to provide a copy of the form to the individual.

[2] Malice in this context has been interpreted to mean spite or a knowing or reckless disregard of a statement?s falsity.

[3] This issue may also arise in connection with an employee?s former employer supplying information to a prospective employer of the individual in response to a request for ?references? (see Buxton v Plant City, 57 LW 2649).

Full post as published by New York Public Personnel Law on January 11, 2008 (boomark / email).