Summary
In Elias v. Griffith, the city's police chief and assistant city manager gave an update to the city council about implementing a new tow-truck policy, and each employee made allegedly defamatory comments about the plaintiff, who had complained about the policy.
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NO. 01-17-00333-CV
07-03-2018
HANNA "JOHN" ELIAS, Appellant v. STEVE GRIFFITH AND DOUGLAS BRINKLEY, Appellees
On Appeal from the 268th District Court Fort Bend County, Texas
Trial Court Case No. 16-DCV-236558
MEMORANDUM OPINION
Appellant, Hanna "John" Elias, sued appellees, Steve Griffith, First Assistant City Manager of the City of Sugar Land, and Douglas Brinkley, Chief of Police of the City of Sugar Land, in their individual capacities for alleged slanderous statements made in a report they made to City Council during an open meeting of Council. Griffith and Brinkley filed an amended motion to dismiss and plea to the jurisdiction pursuant to section 101.106(f) of the Texas Civil Practice and Remedies Code, and on the grounds of absolute immunity and official immunity. The trial court granted Griffith and Brinkley's plea and dismissed Elias's suit.
On appeal, Elias contends that the trial court erred in granting Griffith and Brinkley's plea to the jurisdiction and dismissing Elias's suit against them. We affirm.
Background
A. Factual History
1. Non-Consent Tow Truck Rotation Selection Process
In 2014, the City of Sugar Land's Police Department implemented new procedures for the selection of tow truck companies to be placed on its non-consent tow truck rotation list ("rotation list"). These new procedures included, among other things, limiting the number of participants on the rotation list to five tow truck companies and implementing a one-year, non-consent tow truck contract.
Police-initiated vehicle tows, also known as non-consent tows, are authorized by Texas Transportation Code section 545.305. See TEX. TRANSP. CODE ANN. § 545.305 (West 2011). These tows arise when a driver is arrested, a vehicular accident occurs, or when a driver requests that a police officer initiate a tow of his disabled vehicle.
Under those procedures, Elias's company, Collision Clinic, L.L.C., did not qualify. Elias subsequently filed suit against numerous city officials, including Griffith and Brinkley, seeking declaratory and injunctive relief. On appeal from the trial court's denial of the officials' plea to the jurisdiction, the Fourteenth Court of Appeals reversed the order denying the plea and dismissed the petition for writ of mandamus and injunction as moot. See In re Griffith, 485 S.W.3d 529, 533 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
In preparation for selecting five qualified tow truck companies to be placed on the new annual rotation list for the year running from June 23, 2015 to June 22, 2016, the City Council adopted Resolution No. 15-02 establishing the procedures for creating and managing the City's 2015 non-consent tow truck rotation list. That year, only five companies met the qualification requirements of Resolution No. 15-02, one of which was Elias's tow truck company, Collision Clinic, L.L.C. Those five companies were subsequently placed on the City's 2015 rotation list.
In preparation for creation of a new rotation list for 2016, the City Council adopted Resolution No. 16-11, which, among other things, revised the procedures for creating and managing the rotation list by extending the time period of the rotation list agreement with the five selected companies from one to two years, absent a disqualifying event. The 2016-2018 rotation list is set to expire on July 24, 2018, and a new non-consent rotation list will be created for 2018-2020.
The City's Police Department is responsible for implementing the process described by Resolution 16-11, which includes conducting the pre-application meeting, reviewing applicants' qualifications to determine if they meet the requirements of the Resolution, developing the list of qualified applicants to be included in a selection lottery, and conducting the public selection lottery from the pool of qualified applicants. The Resolution authorizes Brinkley, as Chief of Police, to enter into agreements with the five qualified applicants selected by the lottery to further the purpose of the policy.
The City's Police Department also investigates complaints or concerns regarding how the qualification and selection process is conducted and whether a selected tow truck company has engaged in a disqualifying event, as defined by the Resolution, which may require removal from the rotation list. As part of his responsibilities as Chief of Police, Brinkley oversees the investigation into complaints regarding the rotation process and the tow truck companies which are on the City's rotation list. In carrying out this function, Brinkley reviewed a number of written complaints made by Elias regarding the City's 2016-2108 rotation list selection process; responded to Elias's complaints in writing; and attended meetings at which Elias was present to discuss Elias's complaints. Brinkley is also responsible for overseeing the investigation of concerns and complaints alleging wrongdoing or impropriety on the part of the officers of the Sugar Land Police Department as well as providing City Council with reports regarding the operation, function, and procedure of the Police Department.
Griffith, as First Assistant City Manager, is responsible for oversight of the management and administration of several of the City's departments, including its Police Department. As part of his duties, Griffith is responsible for the oversight of the investigation of complaints and concerns regarding the City's non-consent tow truck rotation selection process and the companies that are on the City's rotation list as well as concerns and complaints regarding wrongdoing or impropriety on the part of the Sugar Land police officers. Griffith is also responsible for providing City Council with reports pertaining to the operation, function, and procedure of the departments within his area of responsibility. Griffith was also aware of Elias's complaints about the rotation list process for 2016-2018 and had participated in two meetings with Elias in which Elias complained about alleged unfairness in the selection or qualification process for the 2016-2018 rotation list, the tow truck companies that were on the rotation list, and alleged wrongdoing and improprieties committed by officers of the Sugar Land Police Department.
On March 30 and April 6, 2016, the Sugar Land Police Department initiated the process established by Resolution No. 16-11 by advertising that the Police Department would hold a tow truck rotation list pre-application meeting on April 14, 2016, to discuss the application requirements and selection process as well as to answer any questions prospective applicants might have regarding the new process. At the pre-application meeting, applications for the City's 2016-2018 non-consent tow truck rotation list were made available to prospective applicants and were accepted by the City until May 9, 2016. After that date, the applications were vetted to ensure that the applicants met all of the requirements of Resolution No. 16-11 and of the State of Texas Department of Licensing and Regulation ("TDLR").
Following completion of the vetting process, fifteen tow truck companies were determined to have met all of the requirements of Resolution No. 16-11 and of the TDLR. On June 9, 2016, the Sugar Land Police Department advised the fifteen companies that they had qualified for the selection process, and that the public selection lottery would take place on June 13, 2016, at 10:00 a.m. Elias's company, Collision Clinic, L.L.C., was among the fifteen companies that qualified for the lottery.
On June 10, 2016, Elias submitted a written complaint to Meredith Riede, the City Attorney, regarding the application process, specifically complaining about ten different tow truck companies, seven of which were among the fifteen qualified participants in the upcoming lottery selection. Riede addressed Elias's complaints in writing and advised him that his complaints did not present a violation of Resolution No. 16-11.
On June 13, 2016, a representative from the Sugar Land Police Department conducted the lottery for inclusion of participants on the 2016-2018 non-consent tow truck rotation list. Each of the fifteen qualified companies—one of which was Elias's company, Collision Clinic—had a representative present to participate in and observe the lottery selection process. The fifteen companies were assigned a number that corresponded to a lottery ball, and the balls were placed in a bingo ball cage. The first five balls that were released from the ball cage were selected for a spot on the City's 2016-2108 rotation list. Collision Clinic was not among the companies selected.
In the ensuing three months, Elias made multiple phone calls and sent numerous text messages, emails, and letters to Sugar Land Mayor Joe Zimmerman and City Councilmembers, requested individual meetings with the mayor and councilmembers, and met several times with various City employees, including Mayor Zimmerman, Brinkley, Griffith, and Riede, to complain about the rotation selection process and the results of the lottery selection. On June 29, 2016, in response to Elias's complaints, the Police Department temporarily suspended implementation of the new rotation list pending guidance from the City Council's Finance and Audit Sub-Committee and resolution of the complaint. On July 15, 2016, the Police Department announced that it had met with the sub-committee and had been directed to resume implementation of the 2016-2018 non-consent tow truck rotation list. Elias continued to express his dissatisfaction with the selection process.
On September 13, 2016, Elias met with Mayor Zimmerman, the City Manager, Allen Bogard, Griffith, Brinkley, and Riede. At the meeting, Elias raised new allegations about the tow truck companies on the 2016-2018 rotation list and purportedly alleged improprieties by some of the Sugar Land police officers. Police Department staff investigated each allegation and reported to Elias in writing which allegations were confirmed, which allegations were denied, and which allegations were unable to be investigated further without the information that Elias had offered to provide to support his allegations.
2. Alleged Slanderous Statements Made During City Council Meeting
Following the September 13, 2016 meeting, in response to a request from a City Councilmember and the numerous communications and complaints from Elias to City Councilmembers, City Manager Bogard asked Griffith and Brinkley to make a presentation to City Council at its regularly scheduled meeting on September 20, 2016, to advise City Councilmembers of the status and/or conclusions of the Police Department's investigation of Elias's complaints. In compliance with the City Manager's request, Griffith and Brinkley appeared at the regularly scheduled public meeting of the Sugar Land City Council on September 20, 2016, to make a presentation to City Council on the non-consent tow truck rotation process.
At the meeting, during the "Public Comments" section of the meeting, Elias addressed City Council, stating, in part, that the the current rotation selection process was "defective" and that it allowed tow truck companies to "game the system." Later during the meeting, Brinkley and Griffith made their presentation to City Council, under "Agenda Item VII. A. Non-Consent Tow Truck Rotation. Receive report on 2016 Non-Consent Tow Truck rotation process." The presentation, which lasted fifty-one minutes, included questions and comments from various City Councilmembers.
The clerk's record does not include the recordings of Elias's comments or Brinkley's and Griffith's presentation to City Council. Upon appellees' request, we take judicial notice of the minutes from the City Council's meeting available on the City of Sugar Land's website, at http://www.sugarlandtx.gov/Archive.aspx?AMID=&Type=&ADID=829, under the video snippet at "Agenda Item VII. Non-Consent Tow Truck Rotation. Receive report on 2016 Non-Consent Tow Truck rotation process." TEX. R. EVID. 201(b)(2), (c)(2) (stating court may judicially notice facts that "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned," and that court "must take judicial notice if a party requests it and the court is supplied with the necessary information"); see City of El Paso v. Fox, 458 S.W.3d 66, 71-72 (Tex. App.—El Paso 2014, no pet.) (taking judicial notice of minutes from meeting of city council available on City's website).
After advising the City Councilmembers of the status and conclusion of the Police Department's investigation into Elias's complaints, Brinkley concluded his portion of the presentation by stating:
We try to be responsive as best as we can to the citizen's complaints and their needs. In this case, I think we went above and beyond the call of duty. When it gets to a point when you malign staff's credibility, their integrity, with obvious complaints that are false, misleading, and designed to profit personally from those mistakes, it really digs into my heart and everybody here at the City of Sugar Land. We want to balance that. I want to make sure we balance and be responsive to the needs of the complaints and make sure we thoroughly investigate those but when they become malicious and they become purposefully false, at some point you got to say stop.
In his portion of the presentation, Griffith spoke about the phases of Elias's complaints regarding the rotation selection process and described the current phase as follows, "It's the phase where purposeful lies are being told to discredit staff and threats are being made." He later stated, "Last May I marked 40 years of service in governmental entities. And in my experience, I have never seen a vendor use lies and threats to this degree to gain a personal financial benefit."
Following Brinkley's and Griffith's presentation, several City Councilmembers made comments and asked questions about the non-consent tow truck policy and the remarks made by Brinkley and Griffith. One of the City Councilmembers, Harish Jajoo, stated, in part:
When I read item 7A, Mr. Bogard, it says "receive report on 2016 non-consent tow truck rotation process. And with due respect to both of you, Chief and Mr. Griffith, I heard the process but I also heard a large portion of your comments on a personal note and I just wonder . . . I am a little disappointed that we could have received at least part of the report in executive session without very serious sort of allegations and charges against a citizen of our city. So I feel disappointed a bit but I just wanted to make sure you understood that . . . I am just referring to what it says as a caption and what it got into the issues about a company, a person. I personally feel disappointed . . . .
In response, Bogard explained why Griffith and Brinkley presented their reports during an open meeting of City Council as opposed to a closed non-public meeting. In particular, he pointed out that the last time the issue was debated in closed executive session, it became the subject of media coverage and public discussion. Bogard stated that, after further thought and in anticipation that the issue would again become a public discussion, he recommended to the Mayor that it be put on the regular agenda during an open meeting of the City Council.
B. Procedural History
On October 26, 2016, Elias filed suit against Griffith and Brinkley, alleging a cause of action for slander per se. On February 7, 2017, Griffith and Brinkley filed a motion to dismiss and plea to the jurisdiction. On February 16, 2017, Elias filed a response to the motion and plea and, in the alternative, a motion to amend pleading and motion for continuance, and a first amended original petition.
On March 20, 2017, Griffith and Brinkley filed a first amended motion to dismiss and plea to the jurisdiction and objection to plaintiff's affidavit, to which they attached as exhibits their affidavits and the affidavit of Bogard. On April 3, 2017, Elias filed a second amended original petition and, on April 4, 2017, he filed a supplemental response to Griffith and Brinkley's motion to dismiss and plea to the jurisdiction and, in the alternative, motion to amend pleadings and motion for continuance.
On April 7, 2017, the trial court held a hearing on Griffith and Brinkley's first amended motion to dismiss and plea to the jurisdiction. On April 8, 2017, the trial court signed an order granting Griffith and Brinkley's motion and plea. This interlocutory appeal followed.
Discussion
On appeal, Elias contends that the trial court erred in granting Griffith and Brinkley's plea to the jurisdiction and dismissing Elias's suit against them because they cannot prevail under any of the three theories asserted in their plea. First, Elias argues that the Texas Tort Claims Act does not apply because he sued Griffith and Brinkley individually, not in their official capacities. Nonetheless, he argues, Griffith and Brinkley did not meet their burden of conclusively establishing that they were acting within the scope of their employment when they made the alleged slanderous statements. Second, he asserts that Griffith and Brinkley failed to prove that they were entitled to dismissal on the ground of absolute immunity. Third, Elias contends that Griffith and Brinkley did not prove they were entitled to dismissal on the ground of official immunity.
Sovereign Immunity and Section 101.106(f) Dismissal
A. Standard of Review
"A motion to dismiss filed by an employee of a governmental unit pursuant to section 101.106(f) is a challenge to the trial court's subject-matter jurisdiction, which we review de novo." Fryday v. Michaelski, 541 S.W.3d 345, 348 (Tex. App.—Houston [14th Dist.] Dec. 7, 2017, pet. denied); see Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011) (noting that, in seeking dismissal under section 101.106(f), defendant is asserting claim of governmental immunity); Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (stating when appellate court reviews appeal of denial of jurisdictional plea asserting sovereign/governmental immunity, and evidence was presented to trial court, appellate court addresses de novo whether evidence raises material issue of fact). When a jurisdictional plea "challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties." Miranda, 133 S.W.3d at 227. The standard of review for a jurisdictional plea based on evidence "generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c)." Id. at 228.
B. Texas Tort Claims Act's Election-of-Remedies Provision
Sovereign immunity and governmental immunity protect the State and its political subdivisions, respectively, from lawsuits and liability. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655, 655 n.2 (Tex. 2008). "The Texas Tort Claims Act provides a limited waiver of [that] immunity for certain suits against governmental entities." Id. at 655; see also TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011). Following enactment of the Texas Tort Claims Act, "plaintiffs often sought to avoid the Act's damages cap or other strictures by suing governmental employees, since claims against them were not always subject to the Act." Garcia, 253 S.W.3d at 656.
To prevent such circumvention and to protect governmental employees, the Texas Tort Claims Act was amended in 2003 to include an election-of-remedies provision. Id.; Kraidieh v. Nudelman, No. 01-15-01001-CV, 2016 WL 6277409, at *3 (Tex. App.—Houston [1st Dist.] Oct. 27, 2016, no pet.) (mem. op.); see generally TEX. CIV. PRAC. & REM. CODE ANN. § 101.106. The election-of-remedies provision "force[s] a plaintiff to decide at the outset whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable, thereby reducing the resources that the government and its employees must use in defending redundant litigation and alternative theories of recovery." Garcia, 253 S.W.3d at 657 (footnote omitted).
The election-of-remedies statute provides, in relevant part:
If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under [the Texas Tort Claims Act] against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f). Thus, to be entitled to dismissal under the election-of-remedies provision of the Tort Claims Act, Brinkley and Griffith had the burden to conclusively prove that (1) they were governmental unit employees at the relevant time; (2) the complained-of conduct was within the general scope of their employment with a governmental unit; and (3) Elias's suit could have been brought under the Tort Claims Act against the governmental employer. See Franka, 332 S.W.3d at 369; Fink v. Anderson, 477 S.W.3d 460, 465-66 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (citing § 101.106(f)).
The parties do not dispute that the City of Sugar Land is a governmental unit and that Griffith and Brinkley were employees of the City at all times relevant to this suit. Thus, only two questions remain: whether Brinkley and Griffith conclusively proved that their conduct was within the general scope of their employment and whether Elias's suit could have been brought under the Tort Claims Act against the City.
C. General Scope of Employment
Section 101.001(5) of the Tort Claims Act defines "scope of employment" as "the performance for a governmental unit of the duties of an employee's office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority." TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(5) (West Supp. 2017). The Texas Supreme Court has further explained the term using the Restatement (Third) of Agency's negative definition: "An employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer." Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014) (per curiam) (citing RESTATEMENT (THIRD) OF AGENCY § 7.07(2) (2006)); see Fink, 477 S.W.3d at 466 ("[W]hen an employee engages in conduct 'for the sole purpose' of furthering someone else's interests and not his employer's, the conduct is outside the employee's scope of employment.").
In support of their arguments, the parties cite the Texas Supreme Court's recent decision in Laverie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017). There, Wetherbe, a Texas Tech University professor and associate dean, sued Laverie, a colleague, for defamation after he was passed over for a promotion. See id. at 750. In his suit, Wetherbe claimed that Laverie's statements to the university's provost about Wetherbe's perceived front-runner status in the search for a new dean for the business school and his supposed use of a "listening device" torpedoed his chances for promotion. See id. at 750-51. Laverie moved for summary judgment pursuant to section 101.106(f) of the Tort Claims Act, arguing the Act's "election-of-remedies provision foreclose[d] suit against her in her individual capacity because she acted in the scope of her employment when making the alleged [] defamatory statements." Id. at 751. The trial court denied Laverie's motion, and the court of appeals affirmed on the ground that Laverie failed to offer evidence that she was not furthering her own purposes, rather than her employer's, when she made the alleged defamatory statements. See id.
In reversing the trial court's denial of summary judgment, the Texas Supreme Court emphasized that the scope-of-employment analysis "calls for an objective assessment of whether the employee was doing her job when she committed an alleged tort, not her state of mind when she was doing it." Id. at 753. The Court explained:
The scope-of-employment analysis, therefore, remains fundamentally objective: Is there a connection between the employee's job duties and the alleged tortious conduct? The answer may be yes even if the employee performs negligently or is motivated by ulterior motives or personal animus so long as the conduct itself was pursuant to her job responsibilities.Id.
Elias contends that, although instructive, Weatherbe is factually distinguishable from the present case in two respects. He argues that, unlike the present case, Laverie made her alleged defamatory remarks in direct response to a question from her boss and because it was part of her job to report complaints about other professors to her boss. Elias asserts that Griffith and Brinkley have failed to conclusively establish that City Council asked them to assess and report on Elias's credibility or that it was part of their job to make such an unsolicited report to City Council.
In his affidavit, Brinkley stated that, as the City's Chief of Police, he is responsible for the administration of the police department which includes, among other duties, the creation and implementation of the City's non-consent tow truck rotation list as well as investigation of complaints and concerns regarding the selection process. He is also responsible for providing reports to City Council on the operation, function, and procedures of the City's Police Department. In his affidavit, Griffith stated that, as First Assistant City Manager, he is responsible for overseeing the management and administration of the City's police department, as well as other departments in the City. His oversight includes, among other things, reporting to City Council on matters that are conducted by, occur in, or affect the City's departments, including the police department, over which Griffith has oversight. In his affidavit, Bogard stated that, following the meeting with Elias on September 13, 2016, and in light of Elias's numerous communications with, and complaints to, City Councilmembers regarding the current rotation list, he asked Brinkley and Griffith to make a presentation to City Council at its regularly scheduled meeting on September 20, 2016, to advise the City Councilmembers of the status and/or conclusions of the police department's investigation of Elias's complaints. Contrary to Elias's assertion, this evidence demonstrates that Brinkley and Griffith's report to City Council at the September 20, 2016 meeting was both in response to the City Manager's request and in performance of their duties as Chief of Police and First City Manager, respectively.
Elias also argues that these statements are merely a pretext for Brinkley's and Griffith's defamatory remarks about Elias. Elias asserts that, even assuming that Bogard had asked Griffith and Brinkley to make such a presentation to City Council, there is nothing in the request that suggests they were invited to make defamatory statements about Elias. He asserts that "[a]t best, Griffith and Brinkley have proved that making a presentation about the non-consent tow truck rotation process was within the scope of their employment [and that] investigating the complaints made by Elias was also within the scope of their employment." However, Elias argues that personally attacking him was outside the scope of the City Council's agenda and, therefore, outside the scope of their employment.
As Brinkley and Griffith correctly note, an entry on a City Council agenda that succinctly describes the substance of a presentation does not define Brinkley and Griffith's scope of employment. Here, Brinkley and Griffith were asked to advise City Council of the conclusions reached following the police department's investigation of Elias's complaints. It was within the general scope of Brinkley's employment, as the administrative head of the Police Department and the person who oversees the creation and implementation of the rotation list and the investigation of complaints and concerns regarding the selection process, to report on those findings. See Laverie, 517 S.W.3d at 753 (noting Court's longstanding approach to scope-of-employment analysis "which concerns only whether the employee is 'discharging the duties generally assigned to her," and finding nothing in Tort Claims Act compelling different approach). Similarly, it was within Griffith's general scope of employment, as First Assistant City Manager responsible for overseeing the management and administration of the City's Police Department and as one of the individuals involved in the meetings with Elias regarding his complaints, to report on the conclusions of the investigation into those complaints. Brinkley's and Griffith's statements, even if defamatory, were made in their roles as Chief of Police and First Assistant City Manager. See Laverie, 517 S.W.3d at 753 (noting that connection between employee's job duties and alleged tortious conduct may exist "even if the employee performs negligently or is motivated by ulterior motives or personal animus so long as the conduct itself was pursuant to her job responsibilities"); see also Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007) ("The employee's acts must be of the same general nature as the conduct authorized or incidental to the conduct authorized to be within the scope of employment.").
Elias further argues that there is nothing in the affidavits of Brinkley, Griffith, or Bogard that explains why attacking Elias's credibility was within the scope of their employment. The Laverie Court noted that "[n]othing in the election-of-remedies provision or the statutory definition of 'scope of employment' suggests subjective intent is a necessary component of the scope-of-employment analysis." Laverie, 517 S.W.3d at 752-53, 755 ("Laverie's personal motivations, if she had any, ultimately do not change her job responsibilities and whether the statement was in performance of them.").
Elias argues that although Brinkley and Griffith were acting within the scope of their employment while giving a presentation on the non-consent tow truck rotation process, they "deviated" from the scope of their employment while making their remarks to City Council. Elias cites Fink, 477 S.W.3d 460, and Zarzana v. Ashley, 218 S.W.3d 152, 159-60 (Tex. App.—Houston [14th Dist.] 2007, pet. struck), in support of his argument.
In Fink, we considered whether representations made by Fink, a University of Texas physics professor, regarding a technology he had developed and whose patent was held by the university, were within the scope of Fink's employment for the purpose of determining whether Fink qualified for governmental immunity under the Tort Claims Act in a lawsuit filed by investors alleging common law and securities fraud. Fink, 477 S.W.3d at 462. In our analysis, we stated
Conduct that serves any purpose of the employer is within the scope of employment even if the conduct escalates beyond that assigned or permitted. . . . But conduct that is better viewed as a deviation from an assigned task instead of an escalation beyond what was authorized is not within the employee's scope of employment.Id. at 466-67. As an example of deviation, we cited Zarzana, in which the court of appeals concluded that an automotive service station employee was not within the scope of his employment when he sold a counterfeit inspection sticker because the service station did not conduct inspections and, thus, the act of selling counterfeit stickers was not "of the same general nature as [the conduct] authorized or incidental to the conduct authorized" by the employer. See Zarzana, 218 S.W.3d at 159-60.
The Fink court emphasized that the pertinent question was not whether fraudulent solicitation was within Fink's scope of employment but, rather, whether his general conduct, i.e., speaking about his invention at an investor meeting, was conduct that served any purpose of his employer. 477 S.W.3d at 470. The court noted that "Fink's unrebutted evidence demonstrated that his job duties included research, creating new intellectual property, and assisting in the commercialization of such UT-owned technology," and that "[t]he alleged fraud occurred while he was discussing the invention he co-created as a UT professor at meetings held by a company of which his employer, UT, held partial equity ownership." See id. at 470-71. Concluding that Fink had established that he had acted within the general scope of his employment while speaking at the meeting, the court reversed the trial court's denial of Fink's motion under section 101.106(f). See id. at 471, 475.
The Fink court also found that the investors' action could have been brought against Fink's employer under the Tort Claims Act. See Fink v. Anderson, 477 S.W.3d 460, 474 (Tex. App.—Houston [1st Dist.] 2015, no pet.).
Elias also contends that Councilmember Jajoo's remarks during the September 20, 2016 meeting demonstrate that Brinkley and Griffith had deviated from their assigned task and that their alleged defamatory statements were not made within the scope of their employment. At the meeting, Councilmember Jajoo stated that he was "disappointed" that Brinkley's and Griffith's statements of a personal nature regarding Elias were not made to City Council in closed executive session rather than in open public session. Contrary to Elias's assertion, Councilmember Jajoo's remarks demonstrate that Brinkley's and Griffith's comments, were, in fact, appropriate for City Council's consideration, albeit in a different setting.
Brinkley and Griffith conclusively established that their alleged defamatory statements made during their presentation to City Council were within the scope of their employment with the City of Sugar Land. See Laverie, 517 S.W.3d at 750; Melton v. Farrow, No. 03-13-00542-CV, 2015 WL 681491, at *1-3 (Tex. App.—Austin Feb. 10, 2015, pet. denied) (mem. op.) (affirming trial court's dismissal of professional engineer's defamation suit against former Executive Director of Texas Board of Professional Engineers and other board member for statements they made during public Board meeting that plaintiff had violated law and had been formally disciplined by Board; court held statements at issue related to Board's investigation of complaint filed against plaintiff and conduct was within general scope of defendants' employment).
D. Constitutionality of Section 101.106(f)
In addition to proving that their complained-of conduct was within the scope of their employment, Brinkley and Griffith must also prove that Elias's suit could have been brought under the Tort Claims Act against the City. See Laverie, 517 S.W.3d 752. The Texas Supreme Court has held that a claim is one that "could have been brought" under the Tort Claims Act if it (1) "is in tort" and (2) is not brought "under another statute that independently waives immunity," even if immunity has not been waived for the tort alleged. Franka, 332 S.W.3d at 375, 381 (explaining that "any tort claim against the government is brought 'under' the Act for purposes of section 101.106, even if the Act does not waive immunity").
Here, the only cause of action alleged against Griffith and Brinkley is slander per se, i.e. an intentional tort. See Ethio Express Shuttle Serv., Inc. v. City of Hous. 164 S.W.3d 751, 758 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (noting slander is intentional tort). Thus, for purposes of section 101.106(f), Elias's claim is one that could have been brought under the Tort Claims Act.
"Because the Tort Claims Act is the only, albeit limited, avenue for common-law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be 'under [the Tort Claims Act]' for purposes of section 101.106." Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008).
Elias acknowledges that if we find that the complained-of conduct was within the scope of Brinkley's and Griffiths' employment—as we do—then we must conclude under Franka that his suit could have been brought against the City. See Franka, 332 S.W.3d at 385 (stating that "for section 101.106(f), suit 'could have been brought' under the Act against the government regardless of whether the Act waives immunity from suit."). Nonetheless, he urges us to hold section 101.106(f) unconstitutional because such an interpretation violates the Open Courts provision of the Texas Constitution. See TEX. CONST. art. I, § 13 ("All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.").
"[The Open Courts] provision, among other things, prohibits the Legislature from unreasonably restricting common law causes of action." Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex. 1995) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 448 (Tex.1993)).
We have previously considered this same constitutional challenge to section 101.106(f) on several occasions and have found it to be without merit. In Williams v. Nealon, the plaintiff argued that section 101.106(f) violates the Open Courts provision because it required him to give up an actionable malpractice claim against the defendant doctors individually "for a potentially dismissable [sic] and non-viable claim under [the Act]." 394 S.W.3d 9, 12 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). The Williams court noted
While the Franka court was not presented with an Open Courts challenge to section 101.106(f), it did opine on the outcome of such a challenge as follows:
We recognize that the Open Courts provision of the Texas Constitution "prohibits the Legislature from unreasonably abrogating well-established common-law claims," but restrictions on government employee liability have always been part of the tradeoff for the Act's waiver of immunity, expanding the government's own liability for its employees' conduct, and thus "a reasonable exercise of the police power in the interest of the general welfare."
332 S.W.3d at 385 (internal citations omitted). Thus, the supreme court has indicated that an open courts challenge to section 101.106(f) would
fail because the restriction is reasonable when balanced against the statute's purpose.Id.; see Harold v. Carrick, No. 01-12-00175-CV, 2013 WL 4828744, at *2 (Tex. App.—Houston [1st Dist.] Sept. 10, 2013, pet. denied) (mem. op.); Kamel v. Univ. of Tex. Health Sci. Ctr. at Hous., 333 S.W.3d 676, 688 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Several other courts of appeal have reached a similar conclusion. See e.g., McFadden v. Olesky, 517 S.W.3d 287, 299 (Tex. App.—Austin 2017, pet. denied); City of Dallas v. Groden, No. 05-15-00033-CV, 2016 WL 1367380, at *5 (Tex. App.—Dallas Apr. 6, 2016, pet. denied) (mem. op.); Hamilton v. Pechacek, No. 02-12-00383-CV, 2014 WL 1096018, at *6 (Tex. App.—Fort Worth Mar. 20, 2014, no pet.) (mem. op.).
"When challenging a statute as unconstitutional on the basis that it restricts a common law cause of action, the litigant must demonstrate that (1) the statute restricts a well-recognized common law cause of action; and (2) the restriction is unreasonable when balanced against the statute's purpose." Williams v. Nealon, 394 S.W.3d 9, 12 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).
Because Brinkley and Griffith established that their alleged defamatory statements made during their presentation to City Council was conduct within the scope of their employment with the City of Sugar Land, and Elias's suit against them could have been brought under the Tort Claims Act, Brinkley and Griffith are immune from Elias's suit under section 101.106(f). Accordingly, we overrule Elias's issue.
Having concluded that Brinkley and Griffith are immune from suit under Texas Practice and Remedies Code section 101.106(f), we need not consider the alternative grounds of absolute and official immunity raised in their plea to the jurisdiction.
Conclusion
We affirm the trial court's order granting Brinkley and Griffith's first amended motion to dismiss and plea to the jurisdiction.
Russell Lloyd
Justice Panel consists of Justices Keyes, Brown, and Lloyd.