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POLONSKY
v.
COUSINS
COMMONWEALTH OF MASSACHUSETTS
THE TRIAL COURT
ESSEX,SS SUPERIOR COURT
DEPARTMENT
CIVIL ACTION NO. 98-1506-C
PAUL POLONSKY, Plaintiff
v.
FRANK G. COUSINS, JR., as he
is Sheriff of Essex County, et al.[1]
MEMORANDUM OF DECISION AND
ORDER
AGNES.
This is a civil action in which the plaintiff,
Paul Polonsky, a former employee of the Sheriff’s Department
who was in charge of the department’s fleet of vehicles,
alleges that the elected Sheriff of Essex County, plaintiff Frank
G. Cousins, Jr., acted unlawfully by making defamatory statements
about the plaintiff in several interviews with newspapers, that
the newspapers violated his rights in reporting the statements,
and that the Commissioners of Essex County are liable for failing
to properly train and supervise the Sheriff in terms of the
proper procedures for the discharge or termination of a public
employee. The defendant Sheriff and defendant Commissioners have
filed a motion to dismiss the claims against them on grounds that
the complaint fails to state a claim upon which relief can be
granted.
At oral argument and in their written
submissions to the court, the parties have made reference to a
number of newspaper articles containing statements attributed to
the defendant Sheriff Cousins some of which are referred to in
the complaint. There is no indication that the plaintiff has
additional material to present in support of his claim. In the
circumstances of this case, therefore, it is appropriate to treat
the defendant’s motion to dismiss as a motion for summary
judgment under Mass. R. Civ. P. 56.[2] See Aldoupolis
v. Globe Newspaper Co., 398 Mass. 731, 733 (1986)(("A
motion for summary judgment is particularly appropriate in
defamation cases because if the allegedly libelous material is
not actionably defamatory, there is no genuine issue of material
fact for trial").
BACKGROUND
There is no dispute in this case that defendant
Cousins is the duly elected Sheriff of Essex County and that the
plaintiff served under him as a Deputy Sheriff with
responsibilities for the management of the department’s
fleet of vehicles. The parties also agree that on or about
December 31, 1996, plaintiff Polonsky was discharged by the
defendant from his employment with the Essex County
Sheriff’s Department.
In his complaint, the plaintiff alleges that
the defendant Sheriff told several newspapers that "his
decision to terminate Polonsky was due to Polonsky’s
mismanagement, which according to Cousins ‘resulted in a
criminal investigation." Plaintiff’s Complaint, para.
11. The plaintiff further alleges that he was contacted at home
by newspaper reporters who inquired about a criminal
investigation and indicated that it was related to an allegation
that the plaintiff was "selling care parts."
Plaintiff’s Complaint, para. 12. The plaintiff also states
that the defendants intentionally omitted to disclose the fact
that the plaintiff’s department within the Sheriff’s
office had been audited by a state auditor and that a written
report had been published which indicates that the
plaintiff’s department was "‘on the money’
for the past three years," and that this was done to damage
his reputation. Plaintiff’s Complaint para. 14 and 15.
The parties have provided the court with a
number of newspaper articles that help to put the
plaintiff’s allegations into a context. According to an
article supplied by the plaintiff that appeared under the by-line
of Michael Cohen in the Salem Evening News on January 4, 1997,
Sheriff Cousins is reported to have "sacked" the
plaintiff Polonsky from his position as "assistant deputy
superintendent at the jail in charge of the Sheriff’s
Department fleet of 50 motor vehicles," and to have
"launched a criminal investigation of alleged abuses in that
department." The article reports that the investigation
centers on why plaintiff Polonsky had ordered a large supply of
motor vehicle parts "apparently not needed by the
jail." In an excerpt from a second article supplied by the
plaintiff that appeared in the Evening News on January 28, 1997,
the defendant Sheriff Cousins states that the investigation
established that Polonsky was responsible for
"mismanagement" but did not establish violations of the
criminal law or that the plaintiff had used his position for
personal gain. The article contains quotes from both the
plaintiff and the defendant Sheriff about the management of the
fleet of vehicles, and explains that their difference was over
the per vehicle budget that was used by the plaintiff ($1,533
allegedly spent per year, per vehicle by the plaintiff versus an
estimate by the defendant Sheriff of $400 per year, per vehicle
that should be spent). The article further states that the
plaintiff understands that because his position was eliminated
and as a result of the terms of his collective bargaining
agreement, he could take another position at the jail that was
held by a less senior employee. However, the article reports that
the plaintiff has decided to move ahead with his life "and
not fight to regain his job." A third article supplied by
the plaintiff entitled "North Shorts" and under the
by-line of Elizabeth Dinan, covers much the same ground adding
that the defendant Sheriff eliminated the plaintiff’s job
because he believed that there was no need for a full-time
manager for the department’s fleet of vehicles.
The final newspaper article was offered by the
defendant Sheriff Cousins from the Salem Evening News of January
29, 1997. This article again explains that the Sheriff ordered a
"criminal probe" based on findings of an earlier audit
report that the motor pool managed by plaintiff Polonsky had
stockpiled "more than $100,000 worth of auto parts for no
apparent reason." It also states that "Cousins was
concerned that there may have been more going on than just bad
management." It continues that "the investigation is
now over, and Cousins said no criminal charges will be brought in
the case." It then quotes Sheriff Cousins as follows:
"The investigation has proven mismanagement. And I’ll
leave it at that." The article continues by stating that
"Cousins also said the investigation found no evidence that
Polonsky had used county vehicles or excess auto parts for
personal gain." The article also reports that the plaintiff
feels he was vindicated but "still feels damaged by the
initial reports of the probe." It closes with some
references to some of the reforms to be implemented by Sheriff
Cousins relating to spending on vehicles.
Apart from the allegations relating to what is
alleged to be defamation, the plaintiff’s complaint also
alleges that the defendant Commissioners of Essex County failed
to properly supervise the defendant Sheriff by allowing him to
violate G.L. c. 35, § 51 in terminating the plaintiff’s
employment.
The plaintiff alleges that as a result of these
acts, he and members of his family have suffered physical and
emotional injuries.
DISCUSSION
1. Standard applicable to motions under
Mass. R. Civ. P. 56. "Summary judgment is a ‘device
to make possible the prompt disposition of controversies on their
merits without a trial, if in essence there is no real dispute as
to the salient facts or if only a question of law is
involved.’" Cassesso v. Commissioner of Correction,
390 Mass. 419, 422 (1983)(citations omitted). "Rule 56(c) of
the Massachusetts Rules of Civil Procedure provides that a judge
shall grant a motion for summary judgment ‘if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.’ In
considering a motion for summary judgment, the court does not
‘pass upon the credibility of witnesses or the weight of the
evidence (or) make (its) own decision of facts.’ A court
should not grant a party’s motion for summary judgment
‘merely because the facts he offers appear more plausible
than those tendered in opposition, or because it appears that the
adversary is unlikely to prevail at trial.’ Instead, the
court should only ‘determine whether a genuine issue of
material fact exist(s).’ When the court considers the
materials accompanying a motion for summary judgment, ‘the
inferences to be drawn from the underlying facts contained in
such materials must be viewed in the light most favorable to the
party opposing the motion.’ ‘Also, all doubt as to the
existence of a genuine issue of material fact must be resolved
against the party moving for summary judgment.’ Attorney
General v. Bailey, 386 Mass. 367, 370-71 (1982)(citations
omitted). "Where the moving party does not bear the burden
of proof at trial, "this burden need not be met by
affirmative evidence negating an essential element of the …
case, but may be satisfied by demonstrating that proof of that
element is unlikely to be forthcoming at trial." Highlands
Ins. Co. v. Aerovox Inc., 424 Mass. 226, 232,(1997). "If
the moving party establishes the absence of a triable issue, the
party opposing the motion must respond and allege specific facts
which would establish the existence of a genuine issue of
material fact in order to defeat a motion for summary
judgment." Pederson v. Time, Inc, 404 Mass. 14, 17
(1989).
2. Nature of the claims. The
plaintiff’s complaint does not set forth his claims in
separate counts and does not describe them in such a way that it
is possible to identify with precision what cause of actions are
alleged against each of the defendants. However, at the oral
argument on the defendants’ motion to dismiss, counsel for
the plaintiff made it clear that the complaint alleged only one
cause of action against Sheriff Cousins–the tort of
defamation, and only one cause of action against the County of
Essex and its Commissioners–the tort of negligent training and
supervision.
3. Defamation claim against Sheriff Cousins.
(A) Legal status of the plaintiff. Recently, in Rotkiewicz
v. Sadowsky, 431 Mass. 748 (2000), the Supreme Judicial Court
held that a patrol-level, police officer is a "public
official" for purposes of a defamation action, and, thus,
may not recover for "a defamatory falsehood relating to his
official conduct unless he proves that the statement was made
with ‘actual malice’–that is, with knowledge that
it was false or with reckless disregard of whether it was false
or not." Id. at 752, quoting New York Times v.
Sullivan, 376 U.S. 254, 279-80 (1964). The court explained:
"Law enforcement officials, from a chief
of police to a patrol officer, necessarily exercise State power
in the performance of their duties. All police officers are
empowered to further the preservation of the law and order in the
community, including the investigation of wrongdoing and the
arrest of suspected criminals. Even patrol-level police officers
are ‘vested with substantial responsibility for the safety
and welfare of the citizenry in areas impinging most directly and
intimately on daily living: the home, the place of work and of
recreation, the sidewalks and streets.’ Further, although a
patrol officer such as the plaintiff is ‘low on the totem
pole’ and does set policy for the department, abuse of the
office ‘can result in significant deprivation of
constitutional rights and personal freedoms, not to mention
bodily injury and financial loss.’ All police officers have
the ability and authority to exercise force."
Id. at 753-54 (quotations omitted).
In the present case, the plaintiff, while not a
member of a municipal or state police force, was a law
enforcement officer with police powers that exceed those of
municipal police officers. See Commonwealth v. Howe, 405
Mass. 332 (1989)(Deputy Sheriffs have both common law and
statutory powers of arrest that extend throughout the county in
which they are appointed). Furthermore, as a deputy
superintendent of the jail and a department head in the
Sheriff’s Office, he was employed in a managerial and
supervisory capacity. Thus, the same reasons that led the Supreme
Judicial Court in the Rotkiewicz case to conclude that a
police officer is a public official lead to the conclusion that a
Deputy Sheriff such as the plaintiff is a public official. Accord,
St. Amant v. Thompson, 390 U.S. 727, 729 (1968).
(B) Legal standard applicable to claim
against a "public official." "Defamation
encompasses the torts of libel and slander–the one being in
general written while the other in general is oral." Draghetti
v. Chielewski, 416 Mass. 808, 812 n. 4 (1994). In order to
recover damages in an action for defamation relating to his role
as a "public official," the plaintiff must establish by
clear and convincing evidence that the defendant made a false and
defamatory statement with knowledge of its falsity or with
reckless disregard for whether it was false. Rotkiewicz, supra,
431 Mass. at 755 (citations omitted).
(C) Sufficiency of the plaintiff’s
complaint. As a general rule, a cause of action for
defamation may be supported by a claim that the defendant used
words that "hold the plaintiff up to contempt, hatred, scorn
or ridicule, or tend to impair his standing in the
community." Poland v. Post Publishing Company, 330
Mass. 701, 704 (1953). However, an evolving body of cases based
on both constitutional and common law considerations constrains
the ambit of this tort by prohibiting redress for racial, ethnic,
religious or gender-based epithets, pejorative rhetoric, and
"pure" statements of opinion. Lyons v. Globe
Newspaper Co., 415 Mass. 258, 266-67 (1993); Pritsker v.
Brudnoy, 389 Mass. 776, 778 (1983). See generally Nolan
and Sartorio, Tort Law § 130 (2d ed. 1989). The determination of
whether statements are defamatory or simply offensive presents a
question of law for the court in circumstances where it can be
said that they are unambiguously one or the other. Eyal v.
Helen Broadcasting Corp., 411 Mass. 426, 433 (1991).
One of the critical elements missing from the
plaintiff’s case is any evidence whatsoever that the
defendant Sheriff Cousins knew that the statements he is alleged
to have made were false or that he made them with reckless
disregard for whether they were false. There is no such
allegation set forth in the complaint, nor in any of the
additional material supplied by the parties. "A party
against whom summary judgment is sought is not entitled to a
trial simply because he has asserted a cause of action to which
state of mind is a material element. There must be some
indication that he can produce the requisite quantum of evidence
to enable him to reach the jury with his claim."
Dexter’s Hearthside Restaurant, Inc. v. Whitehall Co.,
24 Mass. App. Ct. 217, 223 (1987).[3]
Under both the First Amendment to the
Constitution of the United States and Massachusetts law, the
general rule is that an individual may express an opinion,
regardless of how offensive it is judged to be, whether by a
particular individual or a by a community, without fear of a
lawsuit for defamation. Pritsker v. Brudnoy, 389 Mass.
776, 778 (1983), quoting Gertz v. Robert Welch, Inc., 418
U.S. 323, 339-40 (1974). This rule holds true in cases in which
the opinion is based on disclosed facts or assumed nondefamatory
facts (so-called "pure" opinions), but gives way to an
exception when the opinions are "apparently based on facts
regarding the plaintiff or his conduct that have not been stated
by the defendant or assumed to exist by the parties to the
communication" (so-called "mixed" opinions). Pritsker,
supra at 778, quoting Restatement (Second) of Torts §
566 comment (b) (1977).[4] The determination of of whether a challenged opinion is
actionable as defamatory is for the court to make in light of
"the entire context of the communication." Pritsker,
supra at 779. See also Fleming v. Benzaquin,
390 Mass. 175, 180-81 (1983)(quotation omitted)(court must
consider all of the words used, whether the defendant used any
cautionary terms, and the circumstances surrounding the making of
the statements).
For the same reasons discussed by the Supreme
Judicial Court in Lyons v. Globe Newspaper Co., 415 Mass.
258, 265-67 (1993), King v. Globe Newspaper Co., 400 Mass.
705, 712-13 (1987), and Fleming v. Benzaquin, 390 Mass.
175, 186-89 (1983), the opinion expressed by the defendant
Sheriff Cousins in this case–that plaintiff Polonsky had
engaged in "mismanagement" in his administration of the
department’s fleet of vehicles–is based on disclosed,
nondefamatory facts. From a consideration of the articles
supplied by the plaintiff, there is no question that the
defendant considered the per vehicle expenditures by the
plaintiff to be far in excess of what was necessary or prudent.
While the plaintiff vigorously disagreed with this judgment, that
is not the point. The Sheriff was entitled to his opinion that
the plaintiff had engaged in mismanagement, and was legally
privileged to express it.
The other aspect of the statements attributed
to the defendant Sheriff in the plaintiff’s complaint and
alleged to be defamatory relate to the fact that there was a
"criminal investigation." There is no dispute in this
case that the defendant Sheriff ordered a criminal investigation,
that such an investigation was undertaken, and that it was
concluded with a finding of no criminal wrongdoing. The defendant
Sheriff did not accuse the plaintiff of being a thief or of
having stolen public funds or property. In the context of the
remarks attributed to the defendant Sheriff, he was simply
expressing an opinion that there may have been criminal
wrongdoing.[5] See Friedman v. Boston Broadcasters, Inc., 402
Mass. 376, 379-80 (1988)(A news broadcast that charged the
employees and owner of a finance company with being
"insurance crooks," persons engaged in "insurance
fraud," and "blatant and dramatic schemes" was not
defamatory because the statements were opinions, and, in the
context of the entire publication, it could not be said that they
were based on undisclosed facts); Repucci v. Salem News
Publishing Co., 1994 WL 903010 *4 (Mass. Superior Court
1994)(Hinkle, J.)(Statement by employer describing employee as an
"abuser of women" was a statement of "pure"
opinion and not actionable). See also Foley v. Lowell Sun Pub.
Co., 25 Mass. App. Ct. 416 (1988)(Newspaper report captioned
"officer assaulted; two men charged" that went on to
report that the plaintiff had been arrested for assaulting a
police officer was merely descriptive of the fact that the police
had made such an arrest and did not constitute an accusation by
the newspaper that the plaintiff had committed a crime). Contrast,
McAvoy v. Shufrin, 401 Mass. 593, 598 (1988)(Evidence that an
attorney sent a letter to several boards of selectmen and stated
that a named constable had "threatened" him and that a
criminal complaint had been lodged against the constable was
sufficient to support a jury verdict against the attorney for
defamation; court draws a distinction between a statement that a
person has filed an application for a complaint versus a
statement that a criminal complaint exists); Lyons v. New
Mass. Media, Inc., 390 Mass. 51, 60-61 (1983)(Statements in a
newspaper article that union attorneys had passed on confidential
information to town officials to the detriment of union members
and that they had refused to act on legitimate grievances by
union members were statements of fact and not opinion because
they could be proved to be true or false at a trial).
There is no quantum of evidence or degree of
suspicion that determines when it may be appropriate to undertake
a criminal investigation. Compare S.J.C. Rule 3:07,
Massachusetts Rules of Professional Conduct, Rule
3.8(a)(prosecutor shall refrain from "prosecuting"
a charge that he or she knows is not supported by probable cause)
with Commonwealth v. Moore, 32 Mass. App. Ct. 924
(1992)(rescript)(Police may initiate a criminal investigation
based on a mere hunch; safeguards against unreasonable searches
and seizures not implicated until an individual is deprived of
his liberty). Thus, the fact that an elected official such as a
Sheriff states that a criminal investigation has been initiated
regarding the conduct of an employee, without more, is not a
statement of fact that a crime has been committed, nor does it
necessarily imply the existence of undisclosed facts indicative
of criminal activity. See McAvoy v. Shufrin, supra
at 598 n. 5 (explaining that there is a significant difference
between a statement that an application for a criminal complaint
has been filed and that a criminal complaint or charge exists;
"[a]n application for a complaint consists only of bare
allegations without any subsequent judicial action. Thus an
application lacks the critical judicial ‘endorsement’
associated with the complaint itself").
The distinction between a statement about the
existence of a criminal investigation, and a statement of fact
that someone committed a crime is illustrated by Draghetti v.
Chielewski, 416 Mass. 808 (1994), where the Supreme Judicial
Court observed that a police chief’s statement to the press
that there was "evidence" of criminal wrongdoing
involving one of the patrol officers in the department, and that
the allegations "were referred to the district
attorney’s office after being checked out by the
department" were actionable because they reasonably could be
understood to mean that the police chief was in possession of
evidence that the patrol officer had committed a crime. Id.
at 812.
4. Negligent training and supervision claim
against Essex County. At oral argument, the plaintiff
explained that his theory was that the defendant Sheriff Cousins
acted negligently by failing to follow the requirements of the
law in connection with his discharge or the elimination of his
position. The plaintiff maintains that the county is liable for
the Sheriff’s negligence under G.L. c. 258, § 2. This claim
fails for a number of reasons. First, there is no evidence that
the plaintiff made the required written presentment of his claim
pursuant to G.L. c. 258, 4. Written presentment of a tort claim
to the appropriate executive official of the public employer
within two years of when the cause of action arose is statutorily
required. See Gilmore v. Commonwealth, 417 Mass. 718, 721
(1994). The plaintiff bears the burden of establishing compliance
with this requirement, and the failure to do so requires
dismissal or judgment for the defendant. Richardson v. Dailey,
424 Mass. 258, 262 (1997). Alternatively, and more fundamentally,
the plaintiff has failed to allege facts that indicate that the
county or the county commissioners had a duty to train or
supervise the elected Sheriff in the management of his
department.
ORDER
For the above reasons, the motion on behalf of
defendant Sheriff Cousins and the County of Essex is treated as a
motion for summary judgment under Mass. R. Civ. P. 56 and is
ALLOWED.
______________________________
Peter W. Agnes, Jr.
Justice of the Superior Court
Date: February 4, 2001
FOOTNOTES:
[1] The other named defendants are
the Commissioners of Essex County, the Evening News newspaper,
the Daily Evening Item newspaper, the Boston Herald newspaper,
and the Eagle Tribune newspaper.
[2] Mass. R. Civ. P. 16(b), provides
in part that "[i]f on any motion asserting the defense
numbered (6), for failure of the pleading to state a claim upon
which relief can be granted, matters outside the pleading are
presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided
in Rule 56, and all parties shall be given reasonable opportunity
to present all material made pertinent to such motion by Rule
56." Here the plaintiff filed a written objection to the
defendant’s motion to which is attached a newspaper article
along with a written Memorandum of Law to which are attached
several newspaper articles. The defendant, in turn, filed a
supplemental Memorandum of Law to which is attached a newspaper
article. In light of these circumstances and the preference
expressed by the Supreme Judicial Court for the resolution of
defamation cases under Rule 56, the court treats the
defendants’ motion as one for summary judgment.
[3] Even if this case examined
exclusively under the more indulgent standard appropriate to a
motion to dismiss under Mass. R. Civ. P. 12(b)(6), it should be
dismissed. Although the rules and practice for pleading in
Massachusetts requires only that the plaintiff present "a
short and plain statement of the claim showing that the pleader
is entitled to relief," Mass. R. Civ. P. 8(a), a claim for
defamation by a "public official" based on statements
allegedly made by another public official should not be regarded
as sufficient unless it is alleged that the statements were made
with actual malice because this is an essential element of the
required proof. See Pond v. General Elec. Co., 256 F.2d
824, 828 (9th Cir.), cir. den. 358 U.S. 818
(1958), cited by Eyal, supra, 411 Mass. at 432 n.
7.
[4] "The rationale for this rule
is that, where a statement of opinion is based on disclosed and
nondefamatory facts, the communication itself indicates to its
recipient that there is no defamatory factual statement. This
result does not obtain in the case of an opinion based on
undisclosed defamatory facts." Lyons v. Globe Newspaper
Co., 415 Mass. 258, 263 n. 5 (1993)
[5] In his complaint, paragraph 12,
the plaintiff alleges that a reporter for the Salem Evening News
told him that the defendant Sheriff "stated Polonsky was
being criminally investigated for ‘selling car
parts.’" None of the published articles supplied by the
parties contain a statement like this that is attributed to the
defendant Sheriff. Even if such a statement was made, in the
context of the policy dispute between the plaintiff and the
defendant Sheriff over the management of the department’s
fleet of vehicles, it constitutes a "pure" opinion for
purposes of the law of defamation because it is based on
disclosed facts, namely, that the plaintiff had ordered and
stockpiled an unusually large amount of spare automobile parts.
