COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69410 : HERBERT R. WHITING : : : JOURNAL ENTRY Plaintiff-Appellant : : and v. : : OPINION THOMAS J. COYNE, ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 29, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-254148 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: LEWIS A. ZIPKIN, ESQ. WILLIAM D. BEYER, ESQ. MARY E.R. BARTHOLIC, ESQ. KATHLEEN M. SASALA, ESQ. ZIPKIN & FINK FADEL & BEYER Suite 224 1340 Sumner Court 2460 Fairmount Boulevard Cleveland, Ohio 44115 Cleveland Heights, Ohio 44106 DAVID LAMBROS, ESQ. Law Director for Brook Park NEAL M. JAMISON, ESQ. Assistant Law Director 6161 Engle Road - 2 - Brook Park, Ohio 44142 - 3 - KARPINSKI, J.: This case arises from statements made by public officials of the City of Brook Park concerning real property operated within the city as the Brookwood Inn. Plaintiff-appellant Herbert Whiting ultimately filed a three-count amended complaint against defendants-appellees, Brook Park Mayor Thomas Coyne and Planning Commission members Daniel Gallagher, Lou LaGuardia, Barbara O'Rourke, Mary Calabrese and Ann Lischner. Whiting's complaint alleged that he was president and principal stockholder of Brookwood Inn, Inc., which owned and operated the Inn prior to closing by the City of Brook Park. Whiting generally alleged that defendants made false statements to the Plain Dealer concerning the closing of the Inn and that these statements were not within the scope of their official duties. The challenged statements were made (1) by Mayor Coyne orally during an interview and (2) by the Planning Commission members in a subsequent written letter to the Plain Dealer Editor. The statements, which involved safety and maintenance concerns, occurred following the decision to close the Brookwood 1 Inn after a series of code violations. Whiting's complaint raised claims for "invasion of right to privacy," "defamation," and "intentional infliction of mental and emotional suffering." 1 The Plain Dealer articles are reproduced in their entirety in the Appendix. - 4 - Defendants denied the allegations in Whiting's complaint and, after extensive discovery, filed a joint motion for summary judgment. Defendants argued they were immune from liability under the Ohio Political Subdivision Tort Liability Act, R.C. 2744.01 et seq., and that Whiting failed to establish any of his tort claims. Whiting filed a brief in opposition to summary judgment, and defendants filed a reply brief. The trial court granted summary judgment in a seven-page opinion and ruling journalized July 14, 1995. During the course of the appeal, this court remanded the matter to the trial court to rule on Whiting's Civ.R. 60(B) motion for relief from judgment. The trial court denied the motion for relief. Whiting raises the following sole assignment of error: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, WHEN IT GRANTED APPELLEES' MOTION FOR SUMMARY JUDGMENT BASED UPON ITS FINDING THAT ALL DEFENDANTS WERE IMMUNE FROM SUIT. This assignment of error lacks merit. Whiting contends the trial court improperly granted summary judgment for two reasons. Whiting argues that the planning commission members lost their statutory immunity when they drafted their letter to the Plain Dealer, because they failed to comply with the Ohio open meetings law set forth in R.C. 121.22. Whiting also argues that he presented evidence that defendants did not qualify for statutory immunity under R.C. 2744.03(A)(6). Open Meeting R.C. 121.22 generally requires public bodies to conduct - 5 - meetings in public except under limited circumstances. Whiting argued, for the first time in his motion for relief from judgment, that the planning commission failed to comply with these requirements when it drafted its letter to the Plain Dealer and, therefore, lost any statutory immunity for its actions under R.C. 2744.01 et seq. Even if this argument were not waived and the drafting of a letter to a newspaper by a public body constitutes a "meeting" within the scope of R.C. 121.22, failure to conduct an open meeting does not per se defeat statutory immunity under R.C. 2744.01 et seq. The Franklin County Court of Appeals has specifically applied statutory immunity to defeat claims against a planning commission, despite the fact that the commission violated the open meetings law. State ex rel. Singh v. Frances Schoenfeld, Clerk Treasurer, Village of Minerva Park et al. (May 4, 1993), Franklin App. Nos. 92AP-188 and 92 AP-193, unreported. A party seeking to defeat statutory immunity in a case alleging a violation of the open meetings law must, as in all other cases, demonstrate that the challenged conduct falls outside the scope of the immunity statute. Accordingly, we reject Whiting's claim that the alleged violation of the open meetings law per se defeats statutory immunity, and proceed to consider whether his claims against the mayor and planning commission members fall within an exception to the immunity act. Statutory Immunity Whiting conceded in the trial court that the statutory - 6 - immunity act applies to this case, but contends that defendants did not qualify for statutory immunity under R.C. 2744.03(A)(6). Recently, in Piro v. Franklin Township (1995), 102 Ohio App.3d 130, the Summit County Court of Appeals rejected claims similar to those raised by Whiting in the context of a case involving the same claims of invasion of privacy, defamation, and infliction of emotional distress. R.C. 2744.03(A)(6) provides in pertinent parts as follows: In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division, the employee is immune from liability unless one of the following applies: (a) His acts or omissions were manifestly outside the scope of his employment or official responsibilities; (b) His acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; The record does not show either of these two conditions were satisfied to defeat statutory immunity in this case. Accord State ex rel. Singh v. Frances Schoenfeld, Clerk Treasurer, Village of Minerva Park, supra at 9. A Whiting initially contends that defendants lost statutory immunity in this case because their statements to the media were manifestly outside the scope of their employment or official responsibilities. R.C. 2744.03(A)(6)(a). Prior to the adoption of the immunity act, courts recognized that statements made by public officials to the media on matters of public concern were protected by at least a qualified privilege. Barr v. Mateo - 7 - (1959), 360 U.S. 546 (absolute privilege); Costanzo v. Gaul (1980), 62 Ohio St.2d 106, 110-111 and Deoma v. Shaker Heights (1990), 68 Ohio App.3d 72, 82-83 (qualified privilege). Although statements to the media may not be a necessary part of defendants' governmental duties, as Whiting argues, the United States Supreme Court in Barr recognized a generation ago that the issuance of press releases by high public officials has become "standard *** practice *** with many governmental agencies" and is "in the line of duty." Id. at 574-575. The making of such statements is equally within "the scope of defendants' employment or official responsibilities" under R.C. 2744.03(A)(6)(a). We note that even if the making of such statements were outside the scope of their employment or official responsibilities, as Whiting argues, they are not "manifestly" so to defeat statutory immunity. B R.C. 2744.03(A)(6)(b) provides an exception to statutory immunity when the acts or omissions of an employee of a political subdivision occur with "malicious purpose, in bad faith, or in a wanton or reckless manner." Whiting's brief on appeal argues, consistent with the more familiar qualified privilege defamation standard, that he presented sufficient evidence that defendants acted with "actual malice" to impose liability for the challenged statements. (Brief at pp. 14-15). Our review of the record has found no evidence to impose liability under the circumstances of - 8 - 2 this case. Whiting specifically argues that defendants acted with actual malice because they knew or recklessly disregarded whether their respective statements were false. In support, Whiting claims the following: (1) the mayor's statements were contradicted by other officials, (2) members of the planning commission did not have personal knowledge, and (3) each defendant failed to investigate the facts sufficiently. These arguments fall short, however, of establishing the necessary actual malice to impose liability against public officials for defamation. Whiting complains about the following statements attributed to Mayor Coyne in the Plain Dealer: Coyne said the lack of a license is only one of many problems at the hotel, which he described as "a disaster waiting to happen." He said families are "living in squalor" in tiny rooms with makeshift kitchen facilities. There is no sprinkler system and there are numerous health-code violations, Coyne added. "These people are literally in danger there, and we have no choice but to close it down," Coyne said. "Herb Whiting has steadfastly refused to do anything about it and clearly believes that safety is a lark. He's making a profit on that facility, preying upon those less fortunate than he, and I find that really sad." 2 Under the circumstances we need not determine whether there is any difference in the scope of the statutory immunity under R.C. 2744.03(A)(6)(b) or qualified privilege applying to Whiting's defamation claim against the public officials in this case. Whiting did not present evidence of the kind of aggravated culpability to defeat statutory immunity under R.C. 2744.03(A)(6)(b) or actual malice to overcome the qualified privilege and raise a prima facie claim of defamation. - 9 - Whiting's claims against the planning commission members arise from the following comments: When Whiting appeared before the board, he agreed to the stipulations that he would paint the exterior of the building, provide landscaping and repair as well as cleaning the debris from the driveway. He also asked for additional time because this would be a [sic] very costly to the property he inherited some 15 years ago. He was granted the extension, but never did comply with the wishes of the board. In addition, he erected new signage with a name change (Brookwood Inn) but failed to appear before the commission for approval. Now he complains that the mayor is handling this situation with an iron fist. As former law director, he also operated the establishment without proper licensing from Ohio. As a former judge, he should not only know the law, but abide by it. Perhaps he should set an example to others by keeping a fire-code approved, clean establishment. Whiting claims he adequately maintained the property, so that these statements indicating the contrary were false and made with actual malice to impose liability for defamation. Although some of the comments may have been debateable, intemperate, or dramatically overstated, Whiting has not shown that any defendant knew or recklessly disregarded whether they were false. It is well established that the failure to investigate does not alone support a finding of actual malice in defamation cases. Harte-Hanks Communications, Inc. v. Connaughton (1989), 491 U.S. 657, 692; A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council (1995), 73 Ohio St.3d 1, 12-13; Varanese v. Gaul (1988), 35 Ohio St.3d 78, 81. The property has an extensive history of regulatory oversight. Mayor Coyne, who also served as safety director prior to making the statements, personally observed the premises and was aware of the recent - 10 - history of violations following repeated inspections. His statements are not required to be based solely on information or conclusions by other city employees. The statements of the planning commission were based on proceedings before the commission and the members' conclusion that Whiting did not perform maintenance as promised. All the officials filed affidavits, moreover, stating the officials believed their respective statements were true. The exact condition of the premises or status of the code violations is not clear from the record. However, even if all violations and maintenance problems were corrected prior to the statements, as Whiting contends, there is no evidence the mayor or planning commission members knew or were aware, to a high degree of probability, that the problems had been corrected or that their respective statements were false. Litigants may not transform every event involving a dispute of facts into an actionable claim for defamation merely by alleging the opponent made false statements. It is essential to show defendants actually knew or recklessly disregarded the truth. Claims of inadequate investigation which do not amount to an avoidance of the truth are insufficient. See Harte-Hanks Communications, Inc. v. Connaughton, supra. Under the circumstances of this case, Whiting has failed to submit sufficient evidence that defendants made their respective statements with actual malice. Whiting has made no specific argument why his invasion of privacy and infliction of emotional distress claims are not - 11 - likewise barred by statutory immunity. The same conclusion, that there is no evidence that any of the defendants' acts or omissions were done with the kind of culpability to impose liability under R.C. 2744.03(A)(6)(b), likewise applies to warrant judgment in favor of defendants on these claims. Accordingly, Whiting's sole assignment of error is overruled. Judgment affirmed. - 12 - It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J., and PORTER, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and .