Opinion
No. 98-1506-C
Date: February 4, 2001
MEMORANDUM OF DECISION AND ORDER
This is a civil action in which the plaintiff, Paul Polonsky, a former employee of the Sheriff's Department who was in charge of the department's fleet of vehicles, alleges that the elected Sheriff of Essex County, plaintiff Frank G. Cousins, Jr., acted unlawfully by making defamatory statements about the plaintiff in several interviews with newspapers, that the newspapers violated his rights in reporting the statements, and that the Commissioners of Essex County are liable for failing to properly train and supervise the Sheriff in terms of the proper procedures for the discharge or termination of a public employee. The defendant Sheriff and defendant Commissioners have filed a motion to dismiss the claims against them on grounds that the complaint fails to state a claim upon which relief can be granted.
At oral argument and in their written submissions to the court, the parties have made reference to a number of newspaper articles containing statements attributed to the defendant Sheriff Cousins some of which are referred to in the complaint. There is no indication that the plaintiff has additional material to present in support of his claim. In the circumstances of this case, therefore, it is appropriate to treat the defendant's motion to dismiss as a motion for summary judgment under Mass.R.Civ.P. 56. See Aldoupolis v. Globe Newspaper Co., 398 Mass. 731, 733 (1986) (("A motion for summary judgment is particularly appropriate in defamation cases because if the allegedly libelous material is not actionably defamatory, there is no genuine issue of material fact for trial").
Mass.R.Civ.P. 16(b), provides in part that "[i]f on any motion asserting the defense numbered (6), for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56." Here the plaintiff filed a written objection to the defendant's motion to which is attached a newspaper article along with a written Memorandum of Law to which are attached several newspaper articles. The defendant, in turn, filed a supplemental Memorandum of Law to which is attached a newspaper article. In light of these circumstances and the preference expressed by the Supreme Judicial Court for the resolution of defamation cases under Rule 56, the court treats the defendants' motion as one for summary judgment.
BACKGROUND
There is no dispute in this case that defendant Cousins is the duly elected Sheriff of Essex County and that the plaintiff served under him as a Deputy Sheriff with responsibilities for the management of the department's fleet of vehicles. The parties also agree that on or about December 31, 1996, plaintiff Polonsky was discharged by the defendant from his employment with the Essex County Sheriff's Department.
In his complaint, the plaintiff alleges that the defendant Sheriff told several newspapers that "his decision to terminate Polonsky was due to Polonsky's mismanagement, which according to Cousins `resulted in a criminal investigation." Plaintiff's Complaint, para. 11. The plaintiff further alleges that he was contacted at home by newspaper reporters who inquired about a criminal investigation and indicated that it was related to an allegation that the plaintiff was "selling care parts." Plaintiff's Complaint, para. 12. The plaintiff also states that the defendants intentionally omitted to disclose the fact that the plaintiff's department within the Sheriff's office had been audited by a state auditor and that a written report had been published which indicates that the plaintiff's department was "`on the money' for the past three years," and that this was done to damage his reputation. Plaintiff's Complaint para. 14 and 15.
The parties have provided the court with a number of newspaper articles that help to put the plaintiff's allegations into a context. According to an article supplied by the plaintiff that appeared under the by-line of Michael Cohen in the Salem Evening News on January 4, 1997, Sheriff Cousins is reported to have "sacked" the plaintiff Polonsky from his position as "assistant deputy superintendent at the jail in charge of the Sheriff's Department fleet of 50 motor vehicles," and to have "launched a criminal investigation of alleged abuses in that department." The article reports that the investigation centers on why plaintiff Polonsky had ordered a large supply of motor vehicle parts "apparently not needed by the jail." In an excerpt from a second article supplied by the plaintiff that appeared in the Evening News on January 28, 1997, the defendant Sheriff Cousins states that the investigation established that Polonsky was responsible for "mismanagement" but did not establish violations of the criminal law or that the plaintiff had used his position for personal gain. The article contains quotes from both the plaintiff and the defendant Sheriff about the management of the fleet of vehicles, and explains that their difference was over the per vehicle budget that was used by the plaintiff ($1,533 allegedly spent per year, per vehicle by the plaintiff versus an estimate by the defendant Sheriff of $400 per year, per vehicle that should be spent). The article further states that the plaintiff understands that because his position was eliminated and as a result of the terms of his collective bargaining agreement, he could take another position at the jail that was held by a less senior employee. However, the article reports that the plaintiff has decided to move ahead with his life "and not fight to regain his job." A third article supplied by the plaintiff entitled "North Shorts" and under the by-line of Elizabeth Dinan, covers much the same ground adding that the defendant Sheriff eliminated the plaintiff's job because he believed that there was no need for a full-time manager for the department's fleet of vehicles.
The final newspaper article was offered by the defendant Sheriff Cousins from the Salem Evening News of January 29, 1997. This article again explains that the Sheriff ordered a "criminal probe" based on findings of an earlier audit report that the motor pool managed by plaintiff Polonsky had stockpiled "more than $100,000 worth of auto parts for no apparent reason." It also states that "Cousins was concerned that there may have been more going on than just bad management." It continues that "the investigation is now over, and Cousins said no criminal charges will be brought in the case." It then quotes Sheriff Cousins as follows: "The investigation has proven mismanagement. And I'll leave it at that." The article continues by stating that "Cousins also said the investigation found no evidence that Polonsky had used county vehicles or excess auto parts for personal gain." The article also reports that the plaintiff feels he was vindicated but "still feels damaged by the initial reports of the probe." It closes with some references to some of the reforms to be implemented by Sheriff Cousins relating to spending on vehicles.
Apart from the allegations relating to what is alleged to be defamation, the plaintiff's complaint also alleges that the defendant Commissioners of Essex County failed to properly supervise the defendant Sheriff by allowing him to violate G.L.c. 35, § 51 in terminating the plaintiff's employment.
The plaintiff alleges that as a result of these acts, he and members of his family have suffered physical and emotional injuries.
DISCUSSION
1. Standard applicable to motions under Mass.R.Civ.P. 56. "Summary judgment is a `device to make possible the prompt disposition of controversies on their merits without a trial, if in essence there is no real dispute as to the salient facts or if only a question of law is involved.'" Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983) (citations omitted). "Rule 56(c) of the Massachusetts Rules of Civil Procedure provides that a judge shall grant a motion for summary judgment `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' In considering a motion for summary judgment, the court does not `pass upon the credibility of witnesses or the weight of the evidence (or) make (its) own decision of facts.' A court should not grant a party's motion for summary judgment `merely because the facts he offers appear more plausible than those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial.' Instead, the court should only `determine whether a genuine issue of material fact exist(s).' When the court considers the materials accompanying a motion for summary judgment, `the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.' `Also, all doubt as to the existence of a genuine issue of material fact must be resolved against the party moving for summary judgment.' Attorney General v. Bailey, 386 Mass. 367, 370-71 (1982) (citations omitted). "Where the moving party does not bear the burden of proof at trial, "this burden need not be met by affirmative evidence negating an essential element of the . . . case, but may be satisfied by demonstrating that proof of that element is unlikely to be forthcoming at trial." Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226, 232, (1997). "If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat a motion for summary judgment." Pederson v. Time, Inc, 404 Mass. 14, 17 (1989).
2. Nature of the claims. The plaintiff's complaint does not set forth his claims in separate counts and does not describe them in such a way that it is possible to identify with precision what cause of actions are alleged against each of the defendants. However, at the oral argument on the defendants' motion to dismiss, counsel for the plaintiff made it clear that the complaint alleged only one cause of action against Sheriff Cousins-the tort of defamation, and only one cause of action against the County of Essex and its Commissioners — the tort of negligent training and supervision.
3. Defamation claim against Sheriff Cousins. (A) Legal status of the plaintiff. Recently, in Rotkiewicz v. Sadowsky, 431 Mass. 748 (2000), the Supreme Judicial Court held that a patrol-level, police officer is a "public official" for purposes of a defamation action, and, thus, may not recover for "a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 752, quoting New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964). The court explained:
"Law enforcement officials, from a chief of police to a patrol officer, necessarily exercise State power in the performance of their duties. All police officers are empowered to further the preservation of the law and order in the community, including the investigation of wrongdoing and the arrest of suspected criminals. Even patrol-level police officers are `vested with substantial responsibility for the safety and welfare of the citizenry in areas impinging most directly and intimately on daily living: the home, the place of work and of recreation, the sidewalks and streets.' Further, although a patrol officer such as the plaintiff is `low on the totem pole' and does set policy for the department, abuse of the office `can result in significant deprivation of constitutional rights and personal freedoms, not to mention bodily injury and financial loss.' All police officers have the ability and authority to exercise force."
Id. at 753-54 (quotations omitted).
In the present case, the plaintiff, while not a member of a municipal or state police force, was a law enforcement officer with police powers that exceed those of municipal police officers. See Commonwealth v. Howe, 405 Mass. 332 (1989) (Deputy Sheriffs have both common law and statutory powers of arrest that extend throughout the county in which they are appointed). Furthermore, as a deputy superintendent of the jail and a department head in the Sheriff's Office, he was employed in a managerial and supervisory capacity. Thus, the same reasons that led the Supreme Judicial Court in the Rotkiewicz case to conclude that a police officer is a public official lead to the conclusion that a Deputy Sheriff such as the plaintiff is a public official. Accord, St. Amant v. Thompson, 390 U.S. 727, 729 (1968).
(B) Legal standard applicable to claim against a "public official." "Defamation encompasses the torts of libel and slander-the one being in general written while the other in general is oral." Draghetti v. Chielewski, 416 Mass. 808, 812 n. 4 (1994). In order to recover damages in an action for defamation relating to his role as a "public official," the plaintiff must establish by clear and convincing evidence that the defendant made a false and defamatory statement with knowledge of its falsity or with reckless disregard for whether it was false. Rotkiewicz, supra, 431 Mass. at 755 (citations omitted).
(C) Sufficiency of the plaintiff's complaint. As a general rule, a cause of action for defamation may be supported by a claim that the defendant used words that "hold the plaintiff up to contempt, hatred, scorn or ridicule, or tend to impair his standing in the community." Poland v. Post Publishing Company, 330 Mass. 701, 704 (1953). However, an evolving body of cases based on both constitutional and common law considerations constrains the ambit of this tort by prohibiting redress for racial, ethnic, religious or gender-based epithets, pejorative rhetoric, and "pure" statements of opinion. Lyons v. Globe Newspaper Co., 415 Mass. 258, 266-67 (1993); Pritsker v. Brudnoy, 389 Mass. 776, 778 (1983). See generally Nolan and Sartorio, Tort Law § 130 (2d ed. 1989). The determination of whether statements are defamatory or simply offensive presents a question of law for the court in circumstances where it can be said that they are unambiguously one or the other. Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 433 (1991).
One of the critical elements missing from the plaintiff's case is any evidence whatsoever that the defendant Sheriff Cousins knew that the statements he is alleged to have made were false or that he made them with reckless disregard for whether they were false. There is no such allegation set forth in the complaint, nor in any of the additional material supplied by the parties. "A party against whom summary judgment is sought is not entitled to a trial simply because he has asserted a cause of action to which state of mind is a material element. There must be some indication that he can produce the requisite quantum of evidence to enable him to reach the jury with his claim." Dexter's Hearthside Restaurant, Inc. v. Whitehall Co., 24 Mass. App. Ct. 217, 223 (1987).
Even if this case examined exclusively under the more indulgent standard appropriate to a motion to dismiss under Mass.R.Civ.P. 12(b)(6), it should be dismissed. Although the rules and practice for pleading in Massachusetts requires only that the plaintiff present "a short and plain statement of the claim showing that the pleader is entitled to relief," Mass.R.Civ.P. 8(a), a claim for defamation by a "public official" based on statements allegedly made by another public official should not be regarded as sufficient unless it is alleged that the statements were made with actual malice because this is an essential element of the required proof. See Pond v. General Elec. Co., 256 F.2d 824, 828 (9th Cir.), cir. den. 358 U.S. 818 (1958), cited by Eyal, supra, 411 Mass. at 432 n. 7.
Under both the First Amendment to the Constitution of the United States and Massachusetts law, the general rule is that an individual may express an opinion, regardless of how offensive it is judged to be, whether by a particular individual or a by a community, without fear of a lawsuit for defamation. Pritsker v. Brudnoy, 389 Mass. 776, 778 (1983), quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974). This rule holds true in cases in which the opinion is based on disclosed facts or assumed nondefamatory facts (so-called "pure" opinions), but gives way to an exception when the opinions are "apparently based on facts regarding the plaintiff or his conduct that have not been stated by the defendant or assumed to exist by the parties to the communication" (so-called "mixed" opinions). Pritsker, supra at 778, quoting Restatement (Second) of Torts § 566 comment (b) (1977). The determination of whether a challenged opinion is actionable as defamatory is for the court to make in light of "the entire context of the communication." Pritsker, supra at 779. See also Fleming v. Benzaquin, 390 Mass. 175, 180-81 (1983) (quotation omitted) (court must consider all of the words used, whether the defendant used any cautionary terms, and the circumstances surrounding the making of the statements).
"The rationale for this rule is that, where a statement of opinion is based on disclosed and nondefamatory facts, the communication itself indicates to its recipient that there is no defamatory factual statement. This result does not obtain in the case of an opinion based on undisclosed defamatory facts." Lyons v. Globe Newspaper Co., 415 Mass. 258, 263 n. 5 (1993).
For the same reasons discussed by the Supreme Judicial Court in Lyons v. Globe Newspaper Co., 415 Mass. 258, 265-67 (1993) , King v. Globe Newspaper Co., 400 Mass. 705, 712-13 (1987), and Fleming v. Benzaquin, 390 Mass. 175, 186-89 (1983), the opinion expressed by the defendant Sheriff Cousins in this case — that plaintiff Polonsky had engaged in "mismanagement" in his administration of the department's fleet of vehicles-is based on disclosed, nondefamatory facts. From a consideration of the articles supplied by the plaintiff, there is no question that the defendant considered the per vehicle expenditures by the plaintiff to be far in excess of what was necessary or prudent. While the plaintiff vigorously disagreed with this judgment, that is not the point. The Sheriff was entitled to his opinion that the plaintiff had engaged in mismanagement, and was legally privileged to express it.
The other aspect of the statements attributed to the defendant Sheriff in the plaintiff's complaint and alleged to be defamatory relate to the fact that there was a "criminal investigation." There is no dispute in this case that the defendant Sheriff ordered a criminal investigation, that such an investigation was undertaken, and that it was concluded with a finding of no criminal wrongdoing. The defendant Sheriff did not accuse the plaintiff of being a thief or of having stolen public funds or property. In the context of the remarks attributed to the defendant Sheriff, he was simply expressing an opinion that there may have been criminal wrongdoing. See Friedman v. Boston Broadcasters, Inc., 402 Mass. 376, 379-80 (1988) (A news broadcast that charged the employees and owner of a finance company with being "insurance crooks," persons engaged in "insurance fraud," and "blatant and dramatic schemes" was not defamatory because the statements were opinions, and, in the context of the entire publication, it could not be said that they were based on undisclosed facts); Repucci v. Salem News Publishing Co., 1994 WL 903010 *4 (Mass. Superior Court 1994) (Hinkle, J.) (Statement by employer describing employee as an "abuser of women" was a statement of "pure" opinion and not actionable) . See also Foley v. Lowell Sun Pub. Co., 25 Mass. App. Ct. 416 (1988) (Newspaper report captioned "officer assaulted; two men charged" that went on to report that the plaintiff had been arrested for assaulting a police officer was merely descriptive of the fact that the police had made such an arrest and did not constitute an accusation by the newspaper that the plaintiff had committed a crime). Contrast, McAvoy v. Shufrin, 401 Mass. 593, 598 (1988) (Evidence that an attorney sent a letter to several boards of selectmen and stated that a named constable had "threatened" him and that a criminal complaint had been lodged against the constable was sufficient to support a jury verdict against the attorney for defamation; court draws a distinction between a statement that a person has filed an application for a complaint versus a statement that a criminal complaint exists); Lyons v. New Mass. Media, Inc., 390 Mass. 51, 60-61 (1983) (Statements in a newspaper article that union attorneys had passed on confidential information to town officials to the detriment of union members and that they had refused to act on legitimate grievances by union members were statements of fact and not opinion because they could be proved to be true or false at a trial).
In his complaint, paragraph 12, the plaintiff alleges that a reporter for the Salem Evening News told him that the defendant Sheriff "stated Polonsky was being criminally investigated for `selling car parts.'" None of the published articles supplied by the parties contain a statement like this that is attributed to the defendant Sheriff. Even if such a statement was made, in the context of the policy dispute between the plaintiff and the defendant Sheriff over the management of the department's fleet of vehicles, it constitutes a "pure" opinion for purposes of the law of defamation because it is based on disclosed facts, namely, that the plaintiff had ordered and stockpiled an unusually large amount of spare automobile parts.
There is no quantum of evidence or degree of suspicion that determines when it may be appropriate to undertake a criminal investigation. Compare S.J.C. Rule 3:07, Massachusetts Rules of Professional Conduct, Rule 3.8(a) (prosecutor shall refrain from "prosecuting" a charge that he or she knows is not supported by probable cause) with Commonwealth v. Moore, 32 Mass. App. Ct. 924 (1992) (rescript) (Police may initiate a criminal investigation based on a mere hunch; safeguards against unreasonable searches and seizures not implicated until an individual is deprived of his liberty). Thus, the fact that an elected official such as a Sheriff states that a criminal investigation has been initiated regarding the conduct of an employee, without more, is not a statement of fact that a crime has been committed, nor does it necessarily imply the existence of undisclosed facts indicative of criminal activity. See McAvoy v. Shufrin, supra at 598 n. 5 (explaining that there is a significant difference between a statement that an application for a criminal complaint has been filed and that a criminal complaint or charge exists; "[a]n application for a complaint consists only of bare allegations without any subsequent judicial action. Thus an application lacks the critical judicial `endorsement' associated with the complaint itself").
The distinction between a statement about the existence of a criminal investigation, and a statement of fact that someone committed a crime is illustrated by Draghetti v. Chielewski, 416 Mass. 808 (1994), where the Supreme Judicial Court observed that a police chief's statement to the press that there was "evidence" of criminal wrongdoing involving one of the patrol officers in the department, and that the allegations "were referred to the district attorney's office after being checked out by the department" were actionable because they reasonably could be understood to mean that the police chief was in possession of evidence that the patrol officer had committed a crime. Id. at 812.
4. Negligent training and supervision claim against Essex County. At oral argument, the plaintiff explained that his theory was that the defendant Sheriff Cousins acted negligently by failing to follow the requirements of the law in connection with his discharge or the elimination of his position. The plaintiff maintains that the county is liable for the Sheriff's negligence under G.L.c. 258, § 2. This claim fails for a number of reasons. First, there is no evidence that the plaintiff made the required written presentment of his claim pursuant to G.L.c. 258, 4. Written presentment of a tort claim to the appropriate executive official of the public employer within two years of when the cause of action arose is statutorily required. See Gilmore v. Commonwealth, 417 Mass. 718, 721 (1994). The plaintiff bears the burden of establishing compliance with this requirement, and the failure to do so requires dismissal or judgment for the defendant. Richardson v. Dailey, 424 Mass. 258, 262 (1997). Alternatively, and more fundamentally, the plaintiff has failed to allege facts that indicate that the county or the county commissioners had a duty to train or supervise the elected Sheriff in the management of his department.
ORDER
For the above reasons, the motion on behalf of defendant Sheriff Cousins and the County of Essex is treated as a motion for summary judgment under Mass.R.Civ.P. 56 and is ALLOWED.
______________________________ Peter W. Agnes, Jr. Justice of the Superior Court