The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
ANDROSCOGGIN, SS. DOCKET NO. CV-00-169
CHUCK R. STARBIRD,
Plaintiff
DONALD L. GARBRECHT
TOWN OF MINOT et al., JUN 06 2002 LAW LIBRARY
Defendant § ANDROSCOGGIN JUN 20 2002
SUPERIOR COURT
The plaintiff filed this action claiming that he was defamed by defendants. He
has made claims against the Town and the defendants as individuals and in their
capacity as officers, agents, and representatives of the Town.
Chuck Starbird was appointed as Road Commissioner for the Town of Minot
in 1996. He held the office until September of 1999, when the Town abolished the
position of Road Commissioner and created the new position of Road Manager.
The position of Road Commissioner in most small Maine towns is very
important and coveted by many persons, especially contractors. As Road
Commissioner, plaintiff Starbird had the opportunity to have repairs and
maintenance performed by his own company at a fixed cost or hourly rate. In
return, the Town does not have to bear the cost for maintenance or repair of the
equipment.
The situation leading to this suit began in 1999. While Starbird was still in
office some invoices for repairs to construction equipment were directed to the
Town. After Starbird left office, a series of other events occurred. From the record,
these are best described as follows.
business (i.e., that he was taking advantage of the Town’s tax-exempt status to avoid
paying taxes) (Count II).
Then, the Board of Selectmen consulted with the Town’s attorney, who wrote a
letter on behalf of the Town to the Sales Tax Division of the Maine Revenue Service.
This letter alleged that Starbird had been using the Town’s accounts to avoid paying
taxes on equipment purchased for his business (Count I).
Next, the Board of Selectmen directed the Town Treasurer to contact all of the
Town's vendor’s who might have dealings with Starbird. The vendors were asked to
notify the Town if Starbird attempted to charge any purchases to the Town’s accounts
(Count IV).
Finally, at a Town Board Meeting, which was attended by a news reporter,
defendant Gould stated that following an inventory of equipment upon the departure
of Starbird, it appeared that one of the Town’s snowplows was missing. Starbird claims
that this statement was made in front of the reporter in order to embarrass him (Count
V).
The plaintiffs complaint contains the following six counts:
Count I Defamation against the Town based on the letter to the Maine
Revenue Service.
Count II Defamation against Rebecca Gould and Eda Tripp for statements
that Starbird improperly used Town accounts.
Count Defamation against Rebecca Gould that plaintiff accepted
kickbacks.
CountIV Defamation against Rebecca Gould and the Town Treasurer for
contacting all the Town’s vendors regarding plaintiffs purchases.
Count V Defamation against Rebecca Gould and Eda Tripp for statements
that plaintiff stole a snowplow.
Count VI Punitive damages against Rebecca Gould and Eda Tripp because
their acts were malicious.
The defendants have moved for summary judgments based on the Maine Tort
Claims Act (M.T.C.A.), 14 M.RS.A. § 8111(1)(A) and (C), that they are immune from suit
because they were acting within the scope of their office or official duties when they
investigated plaintiff’s purchasing and charging activities, and also because the plaintiff
was a “public figure.”
The plaintiff asserts that the actions were not discretionary acts within the
meaning of the M.T.C.A., that to deny plaintiff’s claims would be a violation of
plaintiff’s constitutional protections, that plaintiff is not a public figure and malice need
not be proven, and even if he is a public figure, defendants’ statements were driven by
malice.
“Whether a defendant is entitled to governmental immunity is a question of law
that may be resolved by a summary judgment in the absence of factual contradiction.”
Gove v. Carter, 2001 ME 126, ¥ 8, 775 A.2d 368, 371 (citing Grossman v. Richards,
1999 ME 9, ¥ 3, 722 A.2d 371, 373.
The Maine Tort Claims Act § 8111(1) “grants absolute immunity to employees of
governmental entities for liability resulting from performing or failing to perform any
of the employee’s discretionary function[s] or dut[ies].” Gove, | 9, 775 A.2d at 372
(quoting 14 M.RS.A. § 8111(1)).
To help determine whether a government employee is engaged in a
discretionary function, which is protected under the M.T.C.A., the Law Court has
identified four factors. These are:
1. Does the challenged act . . . necessarily involve a basic governmental
policy, program, or objective?
2. Is the questioned act . . . essential to the realization or the
accomplishment of that policy, program, or objective?
3. Does the act . . . require the exercise of basic policy evaluation,
judgment, and expertise on the part of the governmental employee
involved?
4. Does the governmental employee involved possess the requisite
constitutional, statutory, or lawful authority and duty to do or make the
challenged act ...?
Carroll v. City of Portland, 1999 ME 131, { 7, 736 A.2d 279, 282-83 (quoting Roberts v. State,
1999 ME 89, { 8, 731 A.2d 855, 857 (emphasis omitted).
In Grossman v. Richards, 1999 ME 9, 722 A.2d 371, an alderman and city council
president made statements about the plaintiff, a former city administrator, during a
televised counsel meeting. The Law Court applied the four factors in this matter:
(1) Richards’ statements involved a basic governmental objective,
namely, the proper custody and distribution of the public’s money.
(2) Questioning whether there was a conflict of interest involved in the
distribution of public money is essential to the realization of the function
of properly distributing public money.
(3) Richards’ statements required basic policy evaluation, judgment, and
expertise by Richards.
(4) Finally, Richards possessed the requisite lawful authority, as an
alderman voting to approve an appropriation, to question the possible
conflict of interest involved in the distribution of public money. Although
Richards’ comments appear ill-formed, ill-advised, and otherwise
actionable, they do not exceed the permissible bounds of discretion
allowed by 8011(1)(C).
Grossman, 722 A.2d at 374.
The Grossman Court concluded that “Richards performed a discretionary
function within the meaning of section 8111. Richards’ duties reasonably encompassed
his discretionary act of pointing out a potential conflict of interest regarding the
distribution of public money; therefore, Richards is entitled to discretionary function
immunity under the M.T.C.A.” Id.
Similarly, the individual defendants here should be entitled to protection under
the M.T.C.A. There was a legitimate governmental interest in making sure that the
Town’s accounts were not being improperly used; the letters to the vendors were
reasonably essential to achieving that goal; judgment and expertise were required on
the part of the Town officers; and the Town board members certainly possess the
lawful authority to question the use of the Town’s accounts.
In addition, any statements made regarding the presumed theft of the snowplow
(Count V) were in furtherance of the governmental objective of protecting Town
property.
The plaintiff does not contest the defendants’ motion as to Counts II and II.
Not all public employees are considered to be “public officials.” Id. The test for
“public official” status is “whether the public has an independent interest in the
qualifications and performance of the person holding that office beyond the interest in
the qualifications and performance of all government employees.” True v. Ladner, 513
A.2d 257, 263 (Me. 1986). A public official is a person “among the hierarchy of
government employees who [has], or appear[s] to the public to have, substantial
responsibility for or control over the conduct of government affairs.” Id.
“Whether a plaintiff is a public official or a public figure is a matter of law for the
court to decide.” Norris v. Bangor Pub. Co., 53 F. Supp. 2d 495, 502 (D. Me. 1999). In
Maine, police officers and the Director of the State Bureau of the Elderly have been
found to be public officials. Public school teachers have been found to not be public
officials. (police officer ~ Roche, 433 A.2d at 762 (Me. 1981); bureau director ~ Michaud,
381 A.2d at 1113 (Me. 1978); teacher — True, 513 A.2d at 261(Me. 1986)).
Here Starbird falls within the definition of a “public official.” The public clearly
has an interest in the maintenance and plowing of the roads. As the appointed Town
Road Commissioner, Starbird had substantial responsibility for or control over these
functions.
A “public figure” may recover only if the false and defamatory statement was
made with “actual malice, meaning (in the Supreme Court's non-literal usage) either
that defendant knew that the statement was false or showed a reckless disregard as to
its truth or falsity. Gray v. St. Martin's Press, Inc., 221 F.3d 243, 248 (1st Cir. 2000) (citing
New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)).}
As to Count IV, the defendants’ motion should be granted because there are no
false statements of fact contained in the October 14, 1999, letter sent to vendors. The
letter merely stated that the Town had changed procedures for purchasing materials
and supplies, that Starbird was no longer the Road Commissioner, that a new person
had been appointed as Road Manager and that as of September 11, 1999, Starbird was
no longer authorized to use any Town account and if he did make any charges to please
contact the Town Office.
As to the letter sent to the Maine Revenue Service, as a public official, Starbird
must prove malice.
In deciding upon a motion for summary judgment the court must decide
whether the facts, viewed in the light most favorable to the plaintiff, raise “a genuine
issue of fact from which a jury could reasonably find that actual malice was established
with convincing clarity.” Tucci, 464 A.2d at 167.
According to the facts alleged by the plaintiff, at least one of the members of the
Board of Selectmen knew that the “Big Rig” bill referenced in Attorney Skelton’s letter
had been corrected prior to the letter being sent. (P’s opposing statement of material
1. In order to recover punitive damages, Maine Law requires proof of malice or implied malice
without regard to a person’s status as a public official. Tuttle v. Raymond, 494 A.2d 1353 (Me. 1985).
6
facts, 7/27/01, J 22). Plaintiff also contends that had the Town “done even a cursory
investigation, it would have learned that the sales taxes had been paid in all three
instances, that Starbird made no charges against the Town’s account, and that the
vendors have made innocent errors.” (P’s memorandum in opposition to MSJ,
7/27/01, page 10).
The people responsible for this letter were ultimately the members of the Board
of Selectmen. If the plaintiff can prove the fact either that individual members of the
Board knew that the statements in the letter to the MRS were false, or that the Board’s
investigation was grossly inadequate, than plaintiff may prevail on this claim.
For the reasons stated above, the clerk will make the following entries as the
Order of this court.
1. Defendants’ Motion for Summary Judgment is granted
as to Counts II and II without opposition.
2. Defendants’ Motion for Summary Judgment as to
Counts IV, V, and VI is granted.
3. Defendants’ Motion for Summary Judgment as to
Count Tis denied.
So Ordered.
DATED: June 5, 2002 KA
Thomas K, Del ty
Justice, Supertof Court
Date Filed __ 09-18 -00 Androscoggin Docket No, _CV-00-169
County
Action Defamation
CHUCK R. STARBIRD TOWN OF MINOT
Minot, Maine REBECCA GOULD
Minot, Maine
EDA TRIPP
VS. Minot, Maine
Plaintiff's Attorney Defendant’s Attorney
Mark G. Lavoie, Esq. BAR #1195
Anthony K. Ferguson, Esq. Christopher C. Taintor, Esq. (all) BAR #3313
“..FALES & FALES NORMAN, HANSON & DETROY
P.O. Box 889 P.O. Box 4600
Lewiston, ME 04243-0889 Portland, ME 04112-4600
Oct 3 Received 09-14-00:
Summary Sheet filed.
Complaint filed. ($120.00 filing fee paid receipt #4 on 09-18-00)
Summons filed showing officer's return of service on 09-12-00 upon defendant
Town of Minot through Nikki Verrill.
Summons filed showing officers return of service on 09-12-00 upon defendant
Rebecca Gould.
Summons filed showing officer's return of service on 09-12-00 upon defendant
‘Eda Tripp.
vo Received 09-25-00:
Answer to Complaint filed.
Christopher C. Taintor, Esq. appears of behalf of all defendants.
" " On 10-03-00:
Case file notice mailed.
woo Received 10-03-00:
Scheduling Order filed. (Delahanty, J.)
"Scheduling Order filed. Discovery deadline is June 3, 2001."
Copies mailed to Anthony Ferguson, Esq. and Christopher Taintor, Esq. on
10-03-00.
Oct. 10: Received 10-5-00.
Plaintiff's Notification of Discovery Service, filed.
Subpoena and Notice to Take Oral Deposition of Arthur Dunlap; and Subpoena
and Notice to Take Oral Deposition of Dwight Tripp a/k/a Pete Tripp served on
Christopher C. Taintor, Esq. on October 4, 2000. = °°
Oct 16 Received 10-16-00:
$300.00 jury fee paid receipt #3 on 10-16-00.
vo" Received 10-12-00.
Defendants’ Notification of Discovery Service, filed.
Notice to Take Oral Deposition of Plaintiff Chuck R. Starbird served on
Anthony K. Ferguson, Esq. on October 11, 2000.