In defamation suit 1st District Court of Appeals holds employees responding to city council questions in open meeting were acting within course and scope of employment for § 101.106(f) purposes

Elias v Griffith, et al, 01-17-00333-CV, 2018 WL 3233587 (Tex. App. – Houston [1st  Dist.], July 3, 2018.)

This is a defamation case brought against individual city officials for acts performed within their course and scope of employment.  The First District Court of Appeals held the individuals were entitled to the statutory immunity provided by to § 101.106(f) of the Texas Civil Practice and Remedies Code.

Elias owns a tow truck company.  Elias sued the First Assistant City Manager (Griffith) and the Chief of Police (Brinkley) for defamation, in their individual capacities, for statements made to the City Council during a public meeting. The City implemented new procedures for the selection of five (5) tow truck companies to be placed on its non-consent tow truck rotation list. Brinkley, as Chief of Police, manages the list as well as investigates complaints about companies. Griffith is the assistant city manager responsible for overseeing various departments, including PD. A lottery was held, and Elias was not selected. Elias called multiple officials complaining about the process and other companies. At the next public meeting, the City Manager asked Griffith and Brinkley to make a presentation to City Council. They listed multiple citizen complaints filed against Elias and that Elias was reported to be misleading and deceptive. They addressed how they responded to Elias’ complaints about the system and the other companies who were selected by the lottery. At one point, Griffith stated “…I have never seen a vendor use lies and threats to this degree to gain a personal financial benefit.”  Elias filed suit against Griffith and Brinkley, alleging a cause of action for slander per se.  Griffith and Brinkley filed a motion to dismiss under Tex. Civ. Prac. & Rem. Code Ann. §101.106(f) which requires dismissal of employees acting in their course and scope of employment and substitution of the City, which the trial court granted. Elias appealed arguing he sued Griffith and Brinkley individually and not in their employed capacities.

The appellate court analyzed the history of § 101.106 and its purpose. The court then analyzed “…whether Brinkley and Griffith conclusively proved that their conduct was within the general scope of their employment and whether Elias’s suit could have been brought under the Tort Claims Act against the City.”  Section 101.001(5) of the Tort Claims Act defines “scope of employment” and the court injected Texas Supreme Court precedent.  The Texas Supreme Court emphasized that the scope-of-employment analysis “calls for an objective assessment of whether the employee was doing her job when she committed an alleged tort, not her state of mind when she was doing it.”  Laverie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017). Here, Brinkley and Griffith were asked to advise City Council of the conclusions reached following the police department’s investigation of Elias’s complaints. It was within the general scope of Brinkley’s employment, as the administrative head overseeing the program. It is also within Griffith’s general scope of employment, as First Assistant City Manager responsible for overseeing the PD and as one of the individuals involved in the meetings with Elias regarding his complaints, to report on the conclusions into those complaints.  As a result, Brinkley and Griffith conclusively established their statements made during their presentation to City Council, even if defamatory, were within the scope of their employment.

Next, the court held the only cause of action alleged was a tort. As the Texas Supreme Court previously noted, “because the Tort Claims Act is the only, albeit limited, avenue for common-law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be ‘under [the Tort Claims Act]’ for purposes of section 101.106.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008).  The court noted §101.106 has previously been held constitutional. Brinkley and Griffith are therefore statutorily immune.

If you would like to read this opinion click here. Panel consists of Justice Keyes, Justice Brown and Justice Lloyd. Memorandum Opinion by Justice Lloyd.  The attorney listed for Elias is Leland M. Irwin.  The attorneys listed for the City Defendants is Patricia L. Hayden.