Opinion
No. 89-01338.
Decided January 23, 1991.
Rita F. Joyce, for plaintiff.
Lee I. Fisher, Attorney General, and M. Celeste Cook, for the state.
This case requires a determination of whether a contract employee of the Lebanon Correctional Institution ("LCI") was defamed when other employees of LCI allegedly made allegations of her relationship with an inmate.
Vickie L. Kilroy, plaintiff herein, was an intern at LCI in the social services department from April 1986 to September 1986. Plaintiff performed well as an intern and was eventually offered a contract position in the social services department. The contract was short-term and was renewed several times.
Plaintiff's duties included interviewing inmates after their arrival at LCI and establishing what assistance they would need from social services. Plaintiff was assigned all inmates whose prison number ended in a "3" or "4."
Plaintiff was assigned to assist inmate William Wohfeil who arrived at LCI on July 14, 1987. Plaintiff determined it would be necessary to counsel Wohfeil on a regular basis and arranged regular counseling sessions for him.
The testimony differs regarding how often plaintiff counseled Wohfeil. The prison records indicate plaintiff met with Wohfeil over twenty times from August to December 1987. Plaintiff testified the visits ranged in duration from one hour to two hours maximum. Other employees testified that the visits sometimes would be daily and some days the sessions would last one-half day.
Plaintiff testified that these visits were necessary since Wohfeil was having family problems and a problem adjusting.
Other employees of LCI testified that they were concerned about the time that plaintiff was spending with Wohfeil. The employees testified that the time spent was in excess of any time that they would spend with an inmate and that if Wohfeil was having that serious of a problem, he should have been referred to psychiatric services. Plaintiff was approached by several employees, but was not receptive to any advice that they would offer concerning the time spent with Wohfeil.
Other evidence admitted at trial regarding the relationship plaintiff had with Wohfeil included pictures and greeting cards that were found in Wohfeil's cell after plaintiff's contract had expired. The pictures and cards were allegedly sent to Wohfeil by plaintiff. The pictures were of plaintiff and her family. Plaintiff testified that in early December 1987, Wohfeil was left alone in her office for ten or fifteen minutes and that the pictures were in her office. Plaintiff further testified that she did not notice any pictures missing afterwards. Wohfeil testified he stole the pictures from the desk and the unsigned cards were from his common law wife. However, Wohfeil had given Deputy Warden Dan Burns a statement stating plaintiff had given him the pictures.
Plaintiff's contract expired in December 1987 and she wanted to do a research project for her master's degree at LCI. Plaintiff was told that any research projects had to be submitted to the research committee for the Department of Rehabilitation and Correction. Plaintiff submitted her proposals to the Department of Rehabilitation and Correction. However, William Dallman, Warden at LCI, testified that he told Dr. Gilbert, Chairman of the Research Review Committee, that he no longer wanted plaintiff at LCI.
In January 1988, Dallman also had a telephone conversation with Professor Hahn from Xavier University concerning plaintiff and her problems at LCI. Dallman testified that he told Hahn he had "lost confidence in plaintiff and that he did not want her around." Dallman further testified that he told Hahn he did not approve of her demeanor with the inmates. Hahn testified by trial deposition that he told Dallman, "This is no big deal, we'll change the project."
Plaintiff thereafter filed this action for slander. "Slander" is confined to defamatory words spoken; and, in Ohio, for oral statements to be slanderous, the defamatory words, in the absence of special damages, must import a charge of an indictable offense involving moral turpitude that subjects the offender to infamous punishment, or impute some offensive or contagious disease calculated to deprive the person of society, or tend to injure him in his trade, occupation, or profession. 35 Ohio Jurisprudence 3d (1982) 448, Defamation and Privacy, Section 1.
The plaintiff in this case alleged that the statements made injured her in her occupation as a social worker. The court finds that plaintiff has failed to prove by a preponderance of the evidence that her professional reputation had been injured. The evidence shows that plaintiff was not hired for other positions with the Department of Rehabilitation and Correction because of collective bargaining agreements or because there were other applicants who were more qualified. Additionally, plaintiff offered no evidence to show her reputation had been injured with the university.
Defendant also has asserted two defenses for publication of any statements regarding plaintiff. The first defense is that the publication was true. If it is shown that a publication is true, no action may be maintained or damages awarded, regardless of the publication's defamatory character. R.C. 2739.02. See, also, 35 Ohio Jurisprudence 3d (1982) 493, Defamation and Privacy, Section 52.
Dallman testified that there are maybe 150 employees at any one time and over 1,800 prisoners at LCI. For security reasons, there must be no appearance of impropriety. Additionally, every employee must be able to work closely and rely on the other employees. Any statements that were uttered related to plaintiff spending too much time with inmate Wohfeil. Certainly, there were legitimate concerns. There was no evidence or inferences of any sexual relations and no evidence was presented that the alleged defamatory statements were made in reference to any sexual relationship. Dallman testified that if he thought there had been sexual relations, he would have prosecuted plaintiff. Thus, the court finds that the statements proven to be published were true, and that plaintiff was spending a comparatively inordinate amount of time with inmate Wohfeil in a prison setting. What may be perfectly normal in an outside setting could be construed as improper in a prison setting. Therefore, truth is a complete defense even if the words could be construed as defamatory.
Defendant also asserts that its employees had a qualified privilege to publish those statements concerning plaintiff. The existence of the privilege was explained in McKenna v. Mansfield Leland Hotel Co. (1936), 55 Ohio App. 163, 167, 24 Ohio Law Abs. 53, 54-55, 8 O.O. 463, 465, 9 N.E.2d 166, 168-169, as follows:
"`A publication is conditionally or qualifiedly privileged where circumstances exist, or are reasonably believed by the defendant to exist, which cast on him the duty of making a communication to a certain other person to whom he makes such communication in the performance of such duty, or where the person is so situated that it becomes right in the interests of society that he should tell third persons certain facts, which he in good faith proceeds to do.' 17 Ruling Case Law, 341.
"`The preponderance of authority supports the view that communications between an employer and an employee, or between two employees, concerning the conduct of a third employee or former employee, are qualifiedly privileged, and thus, even though such a communication contain[s] matter defamatory to such other or former employee, he cannot recover in the absence of sufficient proof of actual malice to overcome the privilege of the occasion.' 98 A.L.R., 1301, annotation." (Emphasis added.)
In West v. Peoples Banking Trust Co. (1967), 14 Ohio App.2d 69, 72, 43 O.O.2d 197, 199, 236 N.E.2d 679, 681, qualified privilege was explained further as follows:
"`* * * A communication made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation. The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty, and is not restricted within any narrow limits.[']" (Emphasis sic.)
The foregoing definition was adopted by the Ohio Supreme Court in the landmark decision of Hahn v. Kotten (1975), 43 Ohio St.2d 237, 245-246, 72 O.O.2d 134, 139, 331 N.E.2d 713, 719-720, 85 A.L.R.3d 1147, 1155. The standard enunciated through Hahn has become the basic law upon the issue of qualified privilege between private parties and is regularly applied in employment situations. See, e.g., Fawcett v. G.C. Murphy Co. (1976), 46 Ohio St.2d 245, 75 O.O.2d 291, 348 N.E.2d 144; Creps v. Waltz (1982), 5 Ohio App.3d 213, 5 OBR 476, 450 N.E.2d 716; Knecht v. Vandalia Medical Center, Inc. (1984), 14 Ohio App.3d 129, 14 OBR 145, 470 N.E.2d 230; Stearns v. Ohio Savings Assn. (1984), 15 Ohio App.3d 18, 15 OBR 39, 472 N.E.2d 372; Smith v. Klein (1985), 23 Ohio App.3d 146, 23 OBR 387, 492 N.E.2d 852; Patio World v. Better Business Bureau, Inc. (1989), 43 Ohio App.3d 6, 538 N.E.2d 1098. In the case at bar, the communication itself contained allegations of particular conduct of plaintiff which allegedly occurred during, and as part of, the performance of her employment. Obviously, this publication and its reiteration throughout the internal proceedings was, upon its face, made within the employment relationship, between supervisory personnel, for the employment purpose of monitoring security at the institution. Further, it was made upon the occasion of, and pursuant to, reports from other employees. Therefore, the conduct of defendant's employees appears to satisfy the standards enunciated in West and Hahn, supra.
Furthermore, statements made to the university and the research committee for the Department of Rehabilitation and Correction also would be protected by a qualified privilege. Dallman was communicating his reasons for not wanting plaintiff to do her research project at LCI to those involved with the project. Thus, there was a common interest and the statements were made in good faith.
A qualified privilege negates only the legal presumption of the maliciousness of the publication. It will not protect the publisher when the utterance is factually false and published, not from the good faith, proper motive for which the qualified privilege was established, but maliciously. On this point, the second paragraph of the syllabus from Hahn, supra, sets forth the applicable standard:
"A qualified privilege protecting the making of defamatory statements is exceeded when the statements are made with `actual malice,' that is, with knowledge that the statements are false or with reckless disregard of whether they were false or not. ( New York Times Co. v. Sullivan, 376 U.S. 254, [ 84 S.Ct. 710, 11 L.Ed.2d 686], followed.)"
In a later application of the Hahn standard for actual malice, contained within paragraph two of the syllabus, the Ohio Supreme Court affirmed instructions to a jury that "if the slander [by the employer] were motivated by malice the defendant would be liable irrespective of the relationship of the parties to whom the words were communicated." (Emphasis added.) Fawcett, supra, 46 Ohio St.2d at 255, 75 O.O.2d at 297, 348 N.E.2d at 150. Likewise, in Patio World, the court applied the actual malice standard from the syllabus of Hahn, yet stated that the plaintiff was required to prove that the publication was "actuated by express malice or actual ill-will." Patio World, supra, 43 Ohio App.3d at 10, 538 N.E.2d at 1102. Moreover, that case went further and required the Better Business Bureau to "make a thorough and complete investigation and to fully and accurately report information only from reliable sources." Id. at paragraph two of the syllabus. On the other hand, it was also recently stated in Varanese v. Gall (1988), 35 Ohio St.3d 78, 80, 518 N.E.2d 1177, 1180, that:
"* * * `[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. * * *' * * *"
From the above, it is clear that there is considerable variance in standards applied to determine the existence of actual malice for cases between private plaintiffs and non-broadcaster defendants. This has resulted in confusion as to which standard ought to be applied, both in the courts of appeals as well as more recent cases from the Supreme Court.
Nevertheless, the evidence presented in this case has failed to show the existence of actual malice in the mind of the publisher. Any actions were based upon the reports of other employees whose reliability and veracity Dallman had no reason to suspect. Reliable sources have consistently been found to rebut the charge of actual malice. See Perez v. Scripps-Howard Broadcasting Co. (1988), 35 Ohio St.3d 215, 520 N.E.2d 198; St. Amant v. Thompson (1968), 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262. Additionally, Dallman's statements to the research committee and the university were not made to injure plaintiff; the statements were made expressing Dallman's reason for not wanting plaintiff at LCI. The statements alleged to have been defamatory, without more, could hardly be considered to have been made by actual malice. Accordingly, defendant had a qualified privilege to utter those statements alleged by plaintiff to be defamatory. Thus, not only were the statements uttered true, the statements would be protected by a qualified privilege if found to be defamatory.
This cause of action is hereby dismissed. Costs assessed against the plaintiff.
Cause dismissed.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.