McLean v. Robertson

[Cite as McLean v. Robertson, 2016-Ohio-2953.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
VERA MCLEAN, : APPEAL NO. C-150651
TRIAL NO. A-1500001
Plaintiff-Appellant, :
O P I N I O N.
vs. :
JERALD ROBERTSON, :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 13, 2016
Newman & Meeks Co., L.P.A., and Robert B. Newman for Plaintiff-Appellant,
Surdyk, Dowd & Turner Co., L.P.A., Jeffrey C. Turner, Dawn N. Frick and Lauren L.
Clouse, for Defendant-Appellee.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Presiding Judge.
{¶1} Plaintiff-appellant Vera McLean filed a complaint against defendant-
appellee Jerald Robertson, alleging that Robertson had defamed her by falsely
publishing that she had a “felony record.” The trial granted summary judgment in
favor of Robertson. We affirm the trial court’s judgment.
{¶2} The record shows that from 2000 to 2003, McLean was employed as
the clerk of courts for the village of Elmwood Place Mayor’s Court. In 2003, Jim
Toles, the then mayor of Elmwood Place, asked McLean to resign based on
information he had received that McLean had been convicted of a felony. The clerk
of court’s duties required McLean to access the Regional Crime Information Center’s
(“RCIC”) database, and individuals with felony convictions were ineligible to use the
database.
{¶3} McLean testified that she had never been convicted of a felony. She
stated that she had been charged with theft as a felony, but had pleaded guilty to a
misdemeanor, which was later expunged. Nevertheless, McLean resigned from her
position a few months later.
{¶4} In 2008, McLean was rehired as the clerk of courts, which was then a
full-time position. Under Elmwood Place ordinances, the mayor appoints the clerk,
who serves at the pleasure of the mayor.
{¶5} In October 2014, Robertson became the mayor of Elmwood Place
after serving as a member of the village council. Robertson testified that he had been
dissatisfied with McLean’s job performance and had considered replacing her.
{¶6} On December 1, 2014, the village council passed an ordinance that
reduced the hours of several employees while increasing their hourly wages. The
ordinance was a money-saving measure that reduced the employees’ work week to
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OHIO FIRST DISTRICT COURT OF APPEALS
four days and allowed the village to shut down the town hall for three consecutive
days to save on utility costs.
{¶7} As a result of that ordinance, McLean’s position was reduced to 24
hours per week, which resulted in a loss of insurance benefits. Subsequently,
William Peskin, the Elmwood Place chief of police, asked McLean if she would be
interested in assuming the duties of the police department clerk, which was another
part-time position. Taking the position would have allowed her to supplement her
reduced hours as clerk of courts and regain her health benefits.
{¶8} Upon learning about Peskin's offer to McLean, Robertson came to his
office and asked, “Why are you hiring Ms. McLean. She could not use the RCIC
because she has a felony conviction.” On December 22, 2014, Robertson forwarded a
copy of a letter Peskin had written in December 2002, to then mayor Toles, stating
that McLean had “a felony conviction and is not allowed access to the [RCIC]
computer system and printouts. * * * This is unfortunate but needs immediate
attention[.]” Robertson wrote on the copy of the letter, “Please check this out again
as to her court record + the use of RCIC equipment. Verify below.” Peskin
responded, “Records shows no felony arrest or convictions. Also shows nothing in
clerk of courts records.”
{¶9} That evening, during an executive session of the village council
discussing issues related to McLean’s employment, Robertson mentioned McLean’s
alleged felony conviction to the members of council and the clerk treasurer.
Robertson also showed the vice-mayor a file containing a number of documents from
2003 discussing McLean’s felony conviction as well as a misdemeanor conviction for
menacing by stalking. No action regarding McLean’s employment was taken
following that meeting.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} In January 2015, discussion continued about McLean being
appointed to the police-clerk position. On January 2, 2015, Robertson sent Peskin a
memorandum stating that “[b]y combining the two jobs, we could justify restoring
Vera’s hours, salary and benefits while deducing [sic] past expenses. Looks like a
win-win possibility.” McLean never assumed the position of police clerk because the
position was not filled. McLean understood that the position would not be filled and
Peskin would assume the duties of police clerk so that the funds could be used for the
purchase of a new police cruiser. Nevertheless, McLean continued to be employed
part-time as the clerk of courts and was still employed by the village at the time of
the trial court proceedings.
{¶11} In her sole assignment of error, McLean contends that the trial court
erred in granting summary judgment in favor of Robertson. She contends that
material issues of fact exist for trial on the elements of defamation. This assignment
of error is not well taken.
{¶12} An appellate court reviews a trial court’s ruling on a motion for
summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671
N.E.2d 241 (1996); Evans v. Thrasher, 1st Dist. Hamilton No. C-120783, 2013-Ohio-
4776, ¶ 25. Summary judgment is appropriate if (1) no genuine issue of material fact
exists for trial, (2) the moving party is entitled to judgment as a matter of law, and (3)
reasonable minds can come to but one conclusion and that conclusion is adverse to the
moving party, who is entitled to have the evidence construed most strongly in his or her
favor. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977);
Evans at ¶ 25.
{¶13} To establish defamation, the plaintiff must show that (1) a false
statement of fact was made; (2) the statement was defamatory; (3) the statement was
published; (4) the plaintiff suffered injury as a proximate result of the publication;
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OHIO FIRST DISTRICT COURT OF APPEALS
and (5) the defendant acted with the requisite degree of fault in publishing the
statement. Mann v. Cincinnati Enquirer, 1st Dist. Hamilton No. C-090747, 2010-
Ohio-3963, ¶ 12. McLean contends that Robertson’s statements were defamatory per
se. See Williams v. Gannett Satellite Information Network, Inc., 162 Ohio App.3d
596, 2005-Ohio-4141, 834 N.E.2d 397, ¶ 7 (1st Dist.).
{¶14} The Ohio Supreme Court has stated that in a defamation action, the
plaintiff’s prima facie case is “made out when he has established a publication to a
third person for which defendant is responsible, the recipient’s understanding of the
defamatory meaning, and its actionable character.” Hahn v. Kotten, 43 Ohio St.2d
237, 243, 331 N.E.2d 713 (1975). The defendant “may then invoke various defenses,
if available.” Id.{¶15} One of those defenses is qualified privilege in which “the interest that
the defendant is seeking to vindicate is conditioned upon publication in a reasonable
manner and for a proper purpose.” Id. A publication is privileged when it is “fairly
made by a person in the discharge of some public or private duty, whether legal or
moral, or in the conduct of his own affairs, in matters where his interest is
concerned.” A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr.
Trades Council, 73 Ohio St.3d 1, 8, 651 N.E.2d 1283 (1995), quoting Toogood v.
Spyring, 149 Eng.Rep. 1044, 1049-1050, 1 C.M. & R. 181, 193 (1834).
{¶16} One type of interest protected by a qualified privilege is the public
interest. The public-interest privilege “involves communications made to those who
may be expected to take official action of some kind for the protection of some
interest of the public.” A & B-Abell Elevator Co. at 9, quoting Prosser & Keeton, The
Law of Torts, Section 115, 830 (5th Ed.1984). Where the circumstances of the
occasion for the alleged defamatory communication are not in dispute, the
determination of whether the occasion gives rise to the privilege is a question of law
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OHIO FIRST DISTRICT COURT OF APPEALS
for the court. A & B-Abell Elevator Co. at 7. The essential elements of a
conditionally privileged communication are 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. Id. at 8, quoting Hahn at 245-246.
{¶17} Robertson, as mayor of the village, was responsible for the
operations of the village, including the police department. He had a duty to
communicate information to other village officials regarding employees’
performance and ability to perform their duties. As the clerk of courts, McLean had
access to citizens’ personal information and collected thousands of dollars every
week. Further, the ability to access the RCIC database was an important
qualification for the police clerk, and whether McLean had a felony conviction and
was qualified to perform the duties of the clerk of courts or the police clerk were
matters of public concern. Moreover, Robertson communicated the information
only to other village public officials who also had an interest in village operations and
in its employees’ ability to perform their duties.
{¶18} McLean does not assert that there was no public interest. She
contends that Robertson did not act in good faith. To defeat a qualified privilege, the
plaintiff must prove that the published statements were made with actual malice.
Proof of actual malice requires clear and convincing evidence that the defendant,
acting out of spite or ill will, made the statements either with knowledge that they
were false or with reckless disregard for their truth. Jacobs v. Frank, 60 Ohio St.3d
111, 573 N.E.2d 609 (1991), paragraph two of the syllabus; Brunsman v. W. Hills
Country Club, 151 Ohio App.3d 718, 2003-Ohio-891, 785 N.E.2d 794, ¶ 24 (1st Dist.).
Mere negligence, including a failure to investigate, is not enough to establish actual
malice. A & B-Abell Elevator Co., 73 Ohio St.3d at 13, 651 N.E.2d 1283; Rolsen v.
Lazarus, Inc., 1st Dist. Hamilton Nos. C-990588 and C-990627, 2000 Ohio App.
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LEXIS 4466, *9 (Sept. 29, 2000). There must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth of the
publication. A & B-Abell Elevator Co. at 13, quoting St. Amant v. Thompson, 390
U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968).
{¶19} McLean asserts that because falsely asserting that she had a felony
record was defamation per se, she did not have to make a showing of actual malice.
This assertion is not a correct statement of the law. Even statements that would
otherwise constitute defamation per se are not actionable when the defendant has a
qualified privilege. Shepard v. Griffin Servs., 2d Dist. Montgomery No. 19032,
2002-Ohio-2283, ¶ 45; Stokes v. Meimaris, 111 Ohio App.3d 176, 189, 675 N.E.2d
1289 (8th Dist.1996).
{¶20} McLean argues that a reasonable juror could have found that
Robertson acted with actual malice because he told the village council about her
alleged felony conviction after the police chief had already told him that court
records did not reveal any felony conviction. We disagree. First, the record is
unclear as to when Robertson actually received that information. Second, Robertson
had contrary information from McLean’s file, including documents related to her
2003 resignation, so that he was justified in discussing the issue with the village
council and other city officials.
{¶21} McLean also contends that Robertson was aware that she had
applied for an expungement and that the later absence of any record of a conviction
would be “highly suggestive, if not conclusive, of the granting of an expungement.”
Again, we disagree. While Robertson may have been aware that she had applied for
an expungement, nothing in the record shows that he knew whether the
expungement had been granted and what conviction had actually been expunged. In
fact, a 2003 letter in McLean’s file from the village solicitor indicated that she had
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OHIO FIRST DISTRICT COURT OF APPEALS
more than one conviction, and therefore, a court would be unlikely to grant her an
expungement.
{¶22} We hold that McLean failed to present clear and convincing evidence
of malice as a matter of law. See A & B-Abell Elevator Co., 73 Ohio St.3d at 13-14,
651 N.E.2d 1283. The trial court was correct when it stated:
While Plaintiff argues that Defendant acted with reckless disregard,
the evidence submitted does not support such. Defendant reviewed
the documents in Plaintiff’s file, requested that the Police Chief verify
whether the information was still valid, and contacted the former
mayor to confirm the information. There is simply no evidence of
reckless disregard or malice.
{¶23} We find no issues of material fact. Construing the evidence most
strongly in McLean’s favor, we hold that reasonable minds could come to but one
conclusion—that McLean failed to show actual malice and, therefore, the qualified
privilege applied. Robertson was entitled to judgment as a matter of law, and the
trial court did not err in granting summary judgment in his favor. Consequently, we
overrule McLean’s sole assignment of error and affirm the trial court’s judgment.
Judgment affirmed.
H ENDON and S TAUTBERG , JJ., concur.
Please note:
The court has recorded its own entry this date.
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