By Devin L. Palmer, Esq.
Wednesday January 7, 2004
The Daily Record
Can a municipal employee ordered to submit to a mental evaluation under New York’s Civil Service Law § 72 sue the employer for defamation?
This was the central issue before the Wayne County Supreme Court in Williams v. County of Wayne, et al (Index No. 52436). The alleged defamation was the result of a written order issued by the defendants pursuant to Civil Service Law §72 directing the plaintiff, a deputy sheriff, to undergo a medical examination to ascertain his mental competence to perform his duties. In granting the defendants’ motion dismiss the plaintiff’s complaint, acting Supreme Court Justice John B. Nesbitt found “such statements absolutely privileged as a matter of law,” and held that “communications to commence or otherwise issued in the context and relevant to the purpose of proceedings under Civil Service Law §72 cannot predicate a defamation action against those making such communications.”
The Facts
As a corrections officer at the County Jail, the plaintiff was responsible for maintaining, monitoring, and managing the security and institutional environment throughout the jail’s secure inmate areas. In February and March, 2002, the plaintiff’s commanding officers concluded that he was behaving inappropriately and in a manner that threatened the discipline and security of both fellow employees and inmates. At least ten employees filed incident reports with the jail, documenting the plaintiff’s actions.
In the wake of these reports, the defendants were of the opinion the plaintiff’s actions might be the result of a physical or emotional disability. Accordingly, rather then initiate disciplinary proceedings under Civil Service Law §75, they instituted an administrative proceeding pursuant to Section 72 of the Civil Service Law to inquire into his mental health. To initiate such a hearing, the defendants were required by statute to sign and deliver a personnel order notifying the plaintiff that he was being suspended with pay subject to the results of a medical evaluation. The notice also specified basis for the defendants’ action. Copies of the order were directed to the County Personnel Director, County Payroll Department, County Attorney, and two of the plaintiff’s superiors.
Pursuant to this directive, the plaintiff underwent an examination by a psychiatrist, who reported that although the plaintiff had some personality deficits, he was “not psychiatrically disabled from his usual work” nor “psychotic.” The plaintiff’s suspension was, therefore, lifted and he resumed his usual duties as a corrections officer.
As a result of the defendants’ issuance of the personnel order issued pursuant to the Civil Service Law, the plaintiff commenced an action alleging “Defendants published or caused to be published statements in the above-referenced personnel order that were false, defamatory and malicious, and were libel per se.” The defendants moved to dismiss the plaintiff’s complaint on the basis they were absolutely privileged to make the alleged defamatory statements.
Court Ruling
Terming the issue “novel,” acting Supreme Court Justice John B. Nesbitt issued decision thoroughly addressing Civil Service Law §72 and specifically whether employers are cloaked with absolute immunity when initiating proceedings under the statute.
Citing Kilcoin v. Wolansky (75 A.D.2d 1 [2d Dept. 1980]) and Monore v. Schenectady County (266 A.D.2d 792 [3rd Dept. 1999]), the Court began by acknowledging absolute immunity has been extended to disciplinary proceedings brought against public employees, including those brought pursuant to Civil Service Law §75, as they involve the exercise of judicial or quasi-judicial discretion. The central question before the Court, therefore, was whether a Section 72 proceeding, which is not clearly defined as a disciplinary proceeding, and particularly the personnel order describing the reasons for a medical examination, also constituted a quasi-judicial function triggering absolute immunity.
Justice Nesbitt began by reviewing the history of Civil Service Law §72, and its purpose as compared to Civil Service Law §75. Section 75 provides for the removal or discipline of an employee for incompetency or misconduct after a hearing upon stated charges. Until 1969, Section 75 was the only means of addressing a public employee’s performance. However, upon request of the State Civil Service Department, Section 72 was enacted and designed to deal with the situation of a mentally impaired public employee unfit to perform his or her duties.
As originally enacted, Section 72 differed from Section 75 by offering an employee neither an adversarial proceeding, nor formal notice of such a proceeding prior to being placed on leave of absence. As tenured public employment had earlier been deemed a property right entitled to constitutional due process protection by the Supreme Court, opinions in Snead v. Department of Social Services (355 F. Supp. 764 [S.D.N.Y. 1973]), and Laurido v. Simon, (489 F. Supp. 1169 [S.D.N.Y. 1980]), found Section 72 offended due process. According to those decisions, due process required notice of, and an opportunity to challenge, the facts upon which the medical examiner’s opinion of mental unfitness depended. In response, Section 72 was thoroughly overhauled by the State Legislature in 1983, and as presently enacted tracks the procedural due process protections found in Civil Service Law §75 disciplinary proceedings.
Due to this legislative history, Judge Nesbitt determined, “while §72 procedures may not have been quasi-judicial in nature as they were originally enacted in 1969, they undeniable became quasi-judicial by virtue of the 1983 statutory revision.” The only remaining question before the Court, therefore, was whether the notice sent pursuant to the Section 72 proceeding was also quasi-judicial in nature.
The Court determined the personnel order was also quasi-judicial for three distinct reasons. First, it was evident that the federal courts in Snead and Laurido, and the Legislature by adopting the 1983 revision to §72, were of the opinion that the notice aspect of due process was integral to a fair hearing. “The federal courts would not have discussed, much less ordered, a particular type of notice before the medical examination unless that was necessary for the statutory procedures to satisfy due process,” wrote the Court. Second, Justice Nesbitt recognized that when courts had found disciplinary proceedings quasi-judicial, they had uniformly extended the privilege to statements or communications leading to or initiating those proceedings. There was no reason to distinguish notice under Section 72 from this precedent. Finally, the Court held to not “confer absolute immunity upon communications invoking Civil Service Law §72 proceedings, while doing so for Civil Service Law §75 or similar types of disciplinary proceedings, would be an incentive for public employers to treat close cases that could be addressed medically or psychiatrically under § 72 as disciplinary matters under §75 or similar statutes…[and] that would undercut the very purpose in the enactment of §72 – to provide a more humane vehicle to address mental health afflictions that may be temporary and treatable.”
Accordingly, the defendants were entitled to absolute immunity and their motion to dismiss the complaint was granted.
Reprinted with the permission of The Daily Record.
