Opinion
No. 39770
Decided June 29, 1966.
Municipal corporations — Expenditure of funds to defend libel action against mayor — Statements by mayor concerning conduct of business by law director — Not enjoined, when.
A municipal corporation will not be enjoined from expending funds as and for a public purpose in authorizing additional compensation for the defense of its mayor in a libel action brought as a result of the publication of unprivileged statements by the mayor concerning the conduct of municipal business by the director of law of the municipal corporation, where it does not appear as a matter of law that the mayor's statements were beyond the scope of his employment.
APPEAL from the Court of Appeals for Cuyahoga County pursuant to the allowance of a motion to certify the record.
On January 14, 1964, Mayor Roger H. Skove of the city of Bedford called at the office of the Bedford-Times Register and had a conversation with the editor of that publication. As a result of that visit, an article appeared in the issue of the newspaper dated January 16, 1964, in which the mayor was quoted and paraphrased concerning the conduct of the director of law relative to a municipal zoning matter. The director of law was, on January 25, 1964, discharged by the council and its authority so to do is not challenged here. Thereafter, he commenced a libel and slander action against the mayor and the newspaper publisher.
The newspaper article is set out in full:
"`Bum Advice'
"Mayor Raps Longley Over Blocked Election
"`Bum legal advice' and `the inactivity of our law director' have been blamed by Mayor Roger H. Skove for the fact that Bedford voters will not go to the polls next Tuesday to decide on repeal of apartment zoning for a Turney Road development.
"Discussing a Jan. 8 court ruling that wording of a referendum petition was misleading and that City Council exceeded its authority in setting a Jan. 21 election, Skove said he didn't even know the case had come up until after the court granted an injunction to block the election.
"Skove feels the city should have been made a party in the lawsuit filed by developers Meyer Stein and Walter Zaremba against the County Board of Elections so that city officials could have offered testimony. He feels Law Director Earl T. Longley was remiss in not having this done. Skove said he was told by Longley as late as Jan. 6 `not to worry.'
"The mayor said he thought the electorate should have had its chance to decide the rezoning issue. Since the ruling of Judge John V. Corrigan was handed down, Skove has discussed the case with the county prosecutor's office, which represented the Board of Elections.
"`They don't want to pursue the thing any further,' the mayor said. Basis of this attitude is the expense involved. The county must pay court costs for the successful injunction against the board.
"`This judgment was not based on the will of the people,' Skove told the Times-Register. After making overtures to the prosecutor's office, he expressed doubt that the case could be reopened. `Until we can get competent legal advice, I don't know,' he said.
"[Earl T. Longley's position as Bedford law director was terminated by decision of City Council Tuesday night. Legal counsel will be employed on a per diem basis until council has time to interview candidates for the position.]
"Rezoning of the 55-acre Turney Road parcel to permit multiple-family dwellings was effected last fall by a 4-3 council vote. The referendum try followed, instigated by residents of the area who opposed apartment development.
"Skove feels the complexion of council has since changed with three of the four members who voted for rezoning no longer in office. He said the new council had asked Longley about the possibility of repealing the rezoning ordinance in council. Longley indicated there would be the possibility of a lawsuit for damages from developers Stein and Zaremba.
"`The city needs further legal advice,' the mayor said."
In her brief, appellee refers to an unreported decision of the Court of Appeals for Cuyahoga County in Longley v. City of Bedford, No. 27119, decided on February 17, 1965. The claim is that that case held that "the act of dismissal of Earl T. Longley by Skove on January 15, 1964, was without authority, ultra vires and unlawful." No other or further reference in the briefs or record in this case is made to that case. We assume it has no bearing or effect on the issues here.
On March 16, 1964, the council adopted a resolution reciting that it was "desirous of providing an adequate defense to Mayor Roger H. Skove * * * in order that debate on public issues may be open without deterrent from lawsuits * * *" and finding "that it is in the public interest to provide such an adequate defense" to the mayor. The resolution authorized and directed the successor director of law to defend the mayor against the libel action and provided the former with additional compensation "along with the necessary and incidental court costs and expenses" for that purpose.
Appellee brought this action as a taxpayer to declare that resolution void and for an injunction restraining any payment of funds for the purposes designated. The Court of Common Pleas granted the relief prayed for and the Court of Appeals affirmed.
Mr. Irwin B. Fried, for appellee.
Mr. Louis H. Orkin, director of law, for appellants.
This case cannot serve precisely to chart the shoals of private gifts and benefits from which the legislative authority of a municipal corporation must steer clear in the course of appropriating public funds. This is so for the reason that we cannot, as a matter of law, say on the record before us that the council of Bedford could not reasonably have had a public purpose in adopting the resolution under attack.
If the mayor is granted final judgment in his favor in the libel and slander action, Bedford will be exonerated from its potential vicarious liability for any injury caused by its mayor. 32 Ohio Jurisprudence 2d 91, Judgments, Section 332; 57 Corpus Juris Secundum 422, Master and Servant, Section 619; 92 A.L.R. 2d 33. It will not be faced in the future with a claim based on the doctrine of respondeat superior.
Whether this would be a legal or moral obligation would, in turn, depend upon the uncertain shifts in the application of the doctrine of governmental immunity. See Hack v. City of Salem, 174 Ohio St. 383. In either event, a consideration of the claim itself would be a proper public function of council, and it could be satisfied as a moral obligation. State, ex rel. Caton, v. Anderson, 159 Ohio St. 159.
Similarly, council has a legitimate interest in any judgment obtained by the plaintiff in the libel action. This court follows the rule that until the injured party receives full satisfaction, he may sue either the servant, who is primarily liable, or the master, who is secondarily liable, and a mere judgment obtained against the former is not a bar to an action or judgment against the latter. Losito v. Kruse, 136 Ohio St. 183.
Additionally, there is well-reasoned authority for the rule that the amount of the judgment in favor of plaintiff in the libel suit fixes the maximum limit of the potential liability of Bedford. 50 Corpus Juris Secundum 279, Judgments, Section 757, note 27.
On the other hand, whether a servant's libel or slander, or both, is within the scope of his employment is a question for the trier of the facts, under the usual tests. 36 Ohio Jurisprudence 2d 404 et seq., Master and Servant, Section 434 et seq.; 57 Corpus Juris Secundum 411, Master and Servant, Section 617.
For a court to answer that question as a matter of law in a taxpayer's action would be premature. It would require adopting the view of the Court of Appeals that the mayor's authority and privilege to speak out on public business are confined to the four walls of the council chambers and then only in a duly convened meeting.
The office of the mayor of Bedford, under its charter, is conferred upon the one councilman elected at large in that city. In addition to floor and voting privileges, he presides over council, is an ex-officio member of all elected and appointed boards and commissions of the city, has the duties of a statutory mayor (not inconsistent with the provisions of the charter), enjoys the right to demand written information from all directors and department heads of the administration, and is the chief magistrate and ceremonial head of the city. He has more specifically enumerated powers over the affairs of Bedford than our Chief Justice has over this court.
In the absence of any evidence of willful conduct on his part, to conclude that, in the role of spokesman for Bedford's council or its administration or both, he was acting ultra vires of any public purpose merely because that role is not specifically assigned to him in the charter or by ordinance, is unrealistic. Granting that he assumed that role voluntarily, if he had not, it would have been thrust upon him involuntarily, sooner or later, as it is on every presiding officer of every public body.
Moreover, the evidence in the record before us does not support the finding of the trial court that the action against the mayor was predicated on an act not arising "out of any official act in his capacity as councilman and mayor." Indeed, that finding is affirmatively refuted by the newspaper article and was as inappropriate in this action as it might be required in a libel action against the city, particularly in the absence of any evidence in this case of the pleadings, record or other proceedings in the libel action.
The judgment of the Court of Appeals is reversed, and final judgment is rendered in favor of appellants.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and BROWN, JJ., concur.