Opinion

Starbird v. Town of Minot

Court
Superior Court of Maine
Filed
Jun 5, 2002
Status
Unpublished
On the bench
Thomas E. Delahanty II
Cited by
0 cases
Authority
More cited than 34.1%

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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