Can Government Employees Be Sued for Defamation?

As a general rule, both the United States and the Commonwealth of Virginia enjoy sovereign immunity, which shields the government entities and their agencies from defamation lawsuits as well as most other types of litigation. The law becomes trickier when applied to the employees of those governments. Federal employees are immune from defamation claims based on things they said while acting within the scope of their employment. Those who work for the Commonwealth of Virginia, on the other hand, or one of its counties, cities, or towns, don’t have it so easy. Virginia employees do enjoy some degree of sovereign immunity for their actions, but–with limited exceptions–the protection they are afforded is less than the absolute protection federal employees receive. Like federal employees, state and local employees must be acting within the scope of their employment to be potentially entitled to claim immunity, but state employees need to meet additional criteria before they will be granted immunity.

The Virginia Supreme Court has described sovereign immunity as “a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities.” This rule of social policy is essentially based on the following goals: (1) to protect the “public purse” (i.e., to preserve tax dollars), (2) to address the concern that officials might be unwilling to carry out their public duties if they lived in constant fear of being sued, (3) to encourage citizens to take public jobs, and (4) to permit the orderly administration of government by discouraging improper influence through vexatious litigation. (See Messina v. Burden, 228 Va. 301, 308 (1984)). Consideration of these policies is what guided the Virginia courts to develop a rule affording immunity to some state and local employees but not others.

To determine whether a state or local government employee is entitled to the protection of the immunity doctrine, Virginia courts will first determine the identity of the employer. State employees are somewhat more likely to be protected than city and town employees, due to their closer proximity to the sovereign. Next, the court will look to the identity of the employee. Is the employee operating at the highest levels of Virginia government? If so, the employee will likely be afforded absolute immunity and that will end the inquiry. If the defendant is a lower-level employee who doesn’t have substantial responsibility for, or control over, the conduct of governmental affairs, the shield.jpgcourt will proceed to examine the following factors: (1) the nature of the function performed by the employee; (2) the extent of the state’s interest and involvement in the function; (3) the degree of control and direction exercised by the state over the employee; and (4) whether the act complained of involved the use of judgment and discretion. (See James v. Jane, 221 Va. 43, 53-54 (1980)).

Sovereign immunity is less likely to be granted where the employee has the independence to make his or her own decisions with regard to a matter and is not being strictly controlled by the employer. Immunity is more likely to be granted where the state or local government entity controls the work and has a strong interest in its performance.

Getting back to the question posed in the title, if a Virginia state employee slanders someone, would that person have a viable cause of action? It depends (of course). First of all, a government employee who commits defamation may (depending on the person’s specific job) have acted beyond the scope of his or her employment. Remember that conduct outside the scope of the employment is not protected by sovereign immunity.

Next, even if the employee would be entitled to sovereign immunity with respect to negligence claims, immunity will not extend to intentional torts or acts involving gross negligence. If defamation is an intentional tort, sovereign immunity will not be a valid defense.

The question of whether defamation is an intentional tort is not that simple. Defamation cannot easily be characterized as intentional or unintentional because it can be either, depending on the circumstances. For example, in defamation actions brought by public figures, a showing of actual malice is required, meaning that the plaintiff must show the defendant knew that his statement was false or spoke with reckless disregard as to its truth. Private plaintiffs, on the other hand, need only demonstrate a level of culpability akin to negligence, a standard that does not require of showing of intent. If the theory of the case is that a county employee maliciously made false and defamatory statements about another person, knowing the statements to be false (as opposed to merely acting negligently or recklessly), then defamation in that context would be an intentional tort. As such, the county employee would not be entitled to sovereign immunity.

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