Lowell v. Medford School Dist. 549C

599

Argued and submitted May 27, affirmed July 28, petition for review allowed

November 4, 2021 (368 Or 702)

See later issue Oregon Reports

Thomas LOWELL,

Plaintiff-Appellant,

v.

MEDFORD SCHOOL DISTRICT 549C,

Defendant-Respondent,

and

Stephanie MALONE et al.,

Defendants.

Jackson County Circuit Court

18CV19782; A173221

497 P3d 797

On appeal, plaintiff challenges the trial court’s grant of summary judgment

in favor of defendant, determining that defendant was entitled to absolute privi-

lege in this defamation action. Plaintiff argues that the court erred because the

absolute privilege defense applies only to statements of public officers who exer-

cise policy-making governmental authority, but not to mere employees engaged

in operational functions. Held: The defense of absolute privilege applies to all

employees of a public body when the defamatory statement was made in the per-

formance of the employee’s official duties.

Affirmed.

David G. Hoppe, Judge.

Linda K. Williams argued the cause and filed the briefs

for appellant.

Rebekah R. Jacobson argued the cause for respondent.

Also on the brief was Garrett Hermann Robertson PC.

Before Ortega, Presiding Judge, and Shorr, Judge, and

Landau, Senior Judge.

LANDAU, S. J.

Affirmed.

600 Lowell v. Medford School Dist. 549C

LANDAU, S. J.

At issue in this defamation case is whether the affir-

mative defense of absolute privilege applies to statements of

public employees. Plaintiff argues that the defense applies

only to statements of public “officers” who exercise “policy-

making governmental authority.” Defendant Medford School

District contends that the defense applies to statements of

any public employees made in the course and scope of their

employment. The trial court agreed with defendant, entered

summary judgment in favor of defendant on plaintiff’s def-

amation claim, and dismissed the remaining claims with

prejudice. We affirm.

The relevant facts are not in dispute. Plaintiff pro-

vided piano tuning services to Medford School District and

assisted in producing concerts performed in district facil-

ities. In the course of assisting in the sound and lighting

set-up for a concert at the North Medford High School,

plaintiff noticed an echo near the stage. He complained to

a school theater technician, Malone, but he felt that Malone

did not adequately respond. Meanwhile, Malone told her

supervisor, Bales, that she suspected that plaintiff had

been intoxicated, “smelled of alcohol,” and “this was not

the first time.” Bales repeated that to Armstrong, a dis-

trict support services assistant. Armstrong, in turn, sent

emails summarizing Malone’s suspicions to three other

district employees, including the supervisor of purchasing.

Armstrong expressed concerns that appearing on district

property under the influence of intoxicants violated district

policy and the terms of plaintiff’s contract. Medford School

District Policy KG-AR (Use of School Facilities) provides

that “[u]se of tobacco products or alcoholic beverages is not

permitted on school property.” Similarly, Policy KGB (Public

Conduct on District Property) provides that “[n]o person

on district property or grounds, including parking lots will

* * * possess, consume, give or deliver unlawful drugs and/

or alcoholic beverages.” Anyone who violates those policies

may be “ejected from the premises and/or referred to law

enforcement officials.”

Plaintiff initiated this action for defamation ini-

tially against Malone, Bales, and Armstrong, based on the

Cite as 313 Or App 599 (2021) 601

statements that he had been intoxicated on school district

premises. The trial court allowed the substitution of the

district for the individual defendants, based on allegations

that the individual defendants were acting in the course

and scope of their employment when they made the state-

ments at issue. The district answered, alleging a number of

affirmative defenses, including the absolute privilege that

applies to statements of public employees made in the course

and scope of their employment. The district alleged that,

because its employees were immune from liability by virtue

of the privilege, the district was immune as well. See ORS

30.265(5) (providing that public bodies are immune from lia-

bility for any claim arising from actions of officers, employ-

ees, or agents who are immune).

The district moved for summary judgment on that

affirmative defense, contending that there was no dispute

that the statements at issue were made by public employees

in the performance of their official duties. Plaintiff filed his

own motion for partial summary judgment on the same affir-

mative defense. He argued that the absolute privilege did

not apply to the statements made by the district’s employees

because the employees were merely “low level employees

performing ministerial tasks.” The trial court granted the

district’s motion. The court concluded that “[t]he alleged

defamatory statements were made by public officials in the

course of their official duties and they were entitled to abso-

lute privilege.”

On appeal, plaintiff argues that the trial court

erred in granting the district’s motion. More specifically,

plaintiff argues that the court erred in concluding that the

absolute privilege applies in this case. According to plaintiff,

the privilege applies only to statements made by a public

“officer” who “exercises judgment in making complex policy

decisions.” The privilege does not apply, plaintiff argues, to

mere employees of a public body. In this case, he contends,

the record shows that the individuals whose statements are

at issue were employees who exercised only “operational

functions.” There is no record, plaintiff complains, of “policy

choices” of the sort that would justify the application of the

absolute privilege.

602 Lowell v. Medford School Dist. 549C

The district responds that the relevant case law

makes clear that the absolute privilege applies to any

employee of a public body, provided that the statement at

issue was made in the performance of the employee’s official

duties. In this case, the district argues, there is no dispute

that the statements at issue were made by employees of a

public body and that it was their duty under district policies

to notify others to ensure the safe use of district facilities.

Summary judgment is appropriate when there are

no genuine issues of material fact, and the moving party is

entitled to judgment as a matter of law. ORCP 47 C; Jones v.

General Motors Corp., 325 Or 404, 413, 939 P2d 608 (1997).

The relevant facts here, as we have noted, are not in dispute.

The sole issue is whether the statements of the district’s

employees at issue are subject to absolute privilege.

The common law recognizes two forms of privilege

in a defamation action: an absolute privilege and a qualified

privilege. DeLong v. Yu Enterprises, Inc., 334 Or 166, 170,

47 P3d 8 (2002). An absolute privilege acts as a complete bar

to liability for defamation. Wallulis v. Dymowski, 323 Or 337,

347-48, 918 P2d 755 (1996). A qualified privilege does not

act as a complete bar to liability but requires that the plain-

tiff prove that the defendant abused the privilege as a condi-

tion of establishing liability. Bank of Oregon v. Independent

News, 298 Or 434, 437, 693 P2d 35, cert den, 474 US 826

(1985).

In Shearer v. Lambert, 274 Or 449, 547 P2d 98

(1976), the Oregon Supreme Court held that an absolute

privilege applies to executive officers of public entities, so

long as the statements at issue were made in the course of

their official duties. Significantly for our purposes, the court

concluded that the privilege is available to all executive offi-

cers, not just those of special rank. Id. at 454. The court

explained that, although some authorities limit the privi-

lege to the governor, the attorney general, and the heads

of state departments, others have extended the privilege

“to inferior state officers no matter how low their rank or

standing.” Id. The court said that it felt “compelled to adopt

the latter view because, starting with the premise that the

Cite as 313 Or App 599 (2021) 603

privilege is designed to free public officers from intimidation

in the discharge of their duties, we are unable to explain

why this policy would not apply equally to inferior as well as

to high-ranking officers.” Id.

In Chamberlain v. City of Portland, 184 Or App 487,

56 P3d 497 (2002), we concluded that the absolute privilege

recognized in Shearer applied to allegedly defamatory state-

ments that a police sergeant made in a written report about

the conduct of a fellow police officer. The plaintiff had argued

that the absolute privilege did not apply to the sergeant’s

statements because a police sergeant was not a sufficiently

high-ranking official and because the sergeant’s statements

were made in the process of engaging in a merely “ministe-

rial function.” We rejected both contentions. We began by

noting that, as a sworn police sergeant, the defendant was

an executive officer. Id. at 491. We stated that an “officer”

is a person “with ‘authority to exercise some portion of the

sovereign power of the State, either in making or admin-

istrating, or executing the laws.’ ” Id. (quoting Kaminsky v.

Good, et al., 124 Or 618, 627, 265 P 786 (1928)). As to the

plaintiff’s argument that the officer held insufficient rank,

we observed that in Shearer the Supreme Court adopted the

view that the privilege applies to “inferior state officers no

matter how low their rank or standing.” Chamberlain, 184

Or App at 491 (quoting Shearer, 274 Or at 454). As to the

nature of the sergeant’s duties, we concluded that the priv-

ilege applies “regardless of whether the alleged defamation

occurred in the performance of a discretionary or ministe-

rial function.” Id. at 492.

Similarly, in Johnson v. Brown, 193 Or App 375,

91 P3d 741 (2004), the defendant was “a Deschutes County

employee working in the adult criminal corrections pro-

gram” who had reported that her supervisor had engaged

in work-related misconduct. The supervisor was fired and

brought an action for defamation against the employee

and the county. The defendants argued that the absolute

privilege for public officials applied. The plaintiff contested

whether the privilege applies to a “public employee” who

makes defamatory statements in connection with a miscon-

duct investigation. Id. at 380-81.

604 Lowell v. Medford School Dist. 549C

We noted that the defendant employee’s responsi-

bilities were “largely ministerial,” involving the adminis-

tration of community service and related bench probation

programs for criminal offenders. We nevertheless concluded

that the employee was an “executive officer” for the purposes

of the absolute privilege. Citing Chamberlain, we explained

that the privilege broadly applies to persons who “exercise

some portion of the sovereign power of the state, either in

making, or administering, or executing the laws.” Id. at 385.

And in Christianson v. State of Oregon, 239 Or App

451, 244 P3d 904 (2010), rev den, 350 Or 297 (2011), we held

that the absolute privilege applied to allegedly defamatory

statements that a Department of Human Services (DHS)

supervisor made about an employee. We began by observing

that, in Shearer, “the Supreme Court held that an employee

of an executive agency has an absolute privilege to make

defamatory statements in the exercise of official duties, even

if * * * the person who made the statements is a lower-level

employee.” Id. at 459. We then noted that the record showed

that it was “beyond dispute that [the supervisor] was an

employee of DHS, an executive agency, and that she ren-

dered her reference in the exercise of official duties.” Id. at

460. That, we held, was sufficient to establish that the abso-

lute privilege applied. Id.

It may be argued that there is some tension between

Johnson and Chamberlain, on the one hand, and Christianson

on the other. In concluding that the absolute privilege applied,

Chamberlain first determined that the defendant police ser-

geant was a public “officer.” Johnson likewise concluded that

the privilege applied to the statements of a county employee

because her “largely ministerial” duties in administering a

corrections program made her a public “official” or “officer.”

In both cases, we explicitly addressed whether the duties of

the employee were such that they were properly considered

public “officers.” In Christianson, though, the court skipped

that analysis and simply declared that the privilege applies

to any public employees in the performance of their duties.

Whatever tension exists between those decisions,

the fact remains that Christianson is plainly controlling.

Under Christianson, the statements at issue here were made

Cite as 313 Or App 599 (2021) 605

by defendant’s employees, and so long as the statements

were made in the performance of their duties, the absolute

privilege applies.

Plaintiff contends that Christianson’s “loosely worded

description” of the law goes beyond Shearer and should be

disregarded. We need not address that contention, because

even if plaintiff were correct that Christianson went too far

in declaring that the absolute privilege applies to all public

employees, in view of Chamberlain and Johnson, we would

still conclude that the privilege applies here. Both decisions

applied a broad definition of “officer” that includes any per-

son who administers or executes the laws, regardless of how

ministerial and nondiscretionary their job duties. Johnson’s

application of that test was especially expansive. The court

in that case concluded that a county employee with “largely

ministerial” duties involving the administration of a county

correction program who had reported possible supervisory

misconduct was a public “officer” for the purposes of the

absolute privilege against defamation. 193 Or App at 385.

In this case, there is no suggestion that the duties of the

employees whose statements are at issue in this case did

not similarly include administering or executing the laws,

only that they cannot be regarded as “officers” because their

duties were “ministerial” and not requiring “judgment in

making complex policy decisions.” Both Chamberlain and

Johnson, however, squarely reject those contentions.

The remaining question is whether the statements

at issue were made in the performance of official duties.

Plaintiff does not dispute that. It was the uncontested fact

that the individuals were acting in the course and scope of

their employment that led the trial court to authorize the

substitution of the district in the first place. In any event,

it is not contested that consuming alcoholic beverages on

school district premises violated district policies and that

those policies expressly authorized the reporting of any such

violations. Nor is it contested that the supposedly defam-

atory statements were made by employees reporting their

concern that the policy may have been violated. Plaintiff

insists that “trying to follow policy” is insufficient to trigger

the absolute privilege in the absence of “the use of discretion

606 Lowell v. Medford School Dist. 549C

in the sense that a policy decision is required.” As we have

noted, though, the applicability of the absolute privilege

does not turn on whether discretion is exercised.

Plaintiff argues that applying the absolute privi-

lege to this case cannot be reconciled with the guarantee in

Article I, section 10, of the Oregon Constitution, that every

person “shall have remedy by due course of law.” It is doubt-

ful that plaintiff preserved such a contention. Although he

mentioned the remedy guarantee in his arguments to the

trial court, he offered no explanation as to why applying

the privilege here would violate the constitution. Even on

appeal, beyond asserting that the guarantee is in some way

“implicate[d],” plaintiff does not explain why the application

of an absolute privilege violates it. Rather, plaintiff merely

refers to an “unanswered question” of how to conform the

absolute privilege to the remedy clause. Given that various

absolute privileges against defamation liability have been a

part of the common law since at least the eighteenth century,

see, e.g., King v. Skinner, 98 Eng Rep 529, 530 (KB 1772) (rec-

ognizing absolute privilege for statements made in judicial

proceedings); Yates v. Lansing, 5 Johns 282, 291 (NY Sup Ct

1810) (an absolute privilege “is to be found in the earliest

judicial records”), a challenge to their constitutionality on

remedy-clause grounds requires more than a vague asser-

tion that applying such a privilege in this case runs afoul

of Article I, section 10. See, e.g., State v. Buyes, 280 Or App

564, 571 n 3, 382 P3d 562 (2016) (undeveloped argument

that constitutional violation “can result” from joinder insuf-

ficient to preserve contention that joinder violated the con-

stitution in that case). Plaintiff suggests that, at the least,

the existence of the remedy guarantee warrants construing

the absolute privilege narrowly. That, however, is a matter

for the Supreme Court.

Affirmed.