The Virginia Defamation Law Blog
Appearances can be deceiving. But in terms of analyzing whether a particular government employee should be treated as a “public official” for purposes of asserting a defamation claim, appearances may make all the difference in whether a plaintiff will be required to show malice or merely negligence. Horne v. WTVR was a case based on a claim of implied defamation that I wrote about back in 2017. As noted in my earlier blog post, the case ended with a directed verdict in favor of WTVR, because the trial court deemed Ms. Horne a public official and found insufficient evidence of malice to justify allowing a jury to consider the claim. Ms. Horne appealed that ruling, and on June 18, 2018, the Fourth Circuit Court of Appeals affirmed. In doing so, it elaborated on what it means to be a “public official” in Virginia.
If the plaintiff in a defamation case is a public official, he cannot “recover[] damages 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.” (New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964)). This is significant, because private plaintiffs are only required to establish negligence to succeed on a defamation claim–a much lower threshold.
The U.S. Supreme Court has held that the “public official” designation applies “at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” (Rosenblatt v. Baer, 383 U.S. 75, 85 (1966)). Many prior cases that grappled with the issue of whether to subject a particular government employee to the malice standard simply looked to whether the employee held a sufficiently high position within the government; i.e., a position involving substantial power and control. The Fourth Circuit, however, emphasized that what was truly important was appearances: even if actual power and control are lacking, apparent substantial responsibility can be enough to make one a public official for purposes of a defamation claim.
In Horne v. WTVR, Ms. Horne’s title was Director of Budget & Finance for the Prince George County School Board. That certainly sounds like a high-level position involving the handling of Other People’s Money. Ms. Horne, however, argued that her actual job duties were a lot less impressive than the title. She said she lacked substantial responsibility or control over governmental affairs because she did not actually make decisions about how to spend county dollars but merely performed an administrative role in carrying out the budget created by the superintendent and the school board. She also pointed out that she never actually performed several tasks reflected in her written job description.
The court found that appearances were more important than the tasks she actually performed. In determining whether a plaintiff has apparent substantial responsibility, courts examine whether “the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees….” (See Rosenblatt, 383 U.S. at 86). In other words, the court wrote, to find apparent authority, “[t]he employee’s position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scruting and discussion occasioned by the particular charges in controversy.”
Where the handling of Other People’s Money is involved, courts around the country have often found such positions to invite a higher level of public scrutiny than other government jobs, and have consequently treated such employees as public officials. As examples, the court cited Fuller v. Brownsville Indep. Sch. Dist., 2016 WL 3960563 (S.D. Tex. May 18, 2016) (Chief Financial Officer and budget administrator of a school district who was responsible for allocating and tracking the district’s $500 million budget was a public official because “[t]he public clearly would have an independent interest in the performance of this position, irrespective of the identity of the occupant”); Davis v. Borskey, 660 So. 2d 17, 21 n.6 (La. 1995) (university purchasing agent who purchased items for the university under a state-regulated purchasing process was a public official because he had “the authority to negotiate financial transactions and handle significant amounts of university funds”); Ferguson v. Union City Daily Messenger, Inc., 845 S.W.2d 162, 162, 167 (Tenn. 1992) (plaintiff who held positions of “Director of Accounts and Budgets,” “Finance Director,” and “Purchasing Agent” for county was a public official because he had actual and apparent substantial responsibility over the conduct of the financial affairs of the county and because “[t]he efficient management of financial matters is crucial to the proper operation of government”); and Carroll v. Jones, 74 Va. Cir. 466, 2008 WL 2594769, at *4 (Va. Cir. Ct. 2008) (“Director of Contracting for the Southeast RMC” who had authority to award government contracts and spend funds on behalf of the United States was a public official because “[i]mproper performance of governmental functions that involve significant issues is something that would create a question that the public has a significant interest in”).
With respect to Ms. Horne, while noting that “titles are not dispositive,” the court held that the title “Director of Budget & Finance” implied substantial control over the school system’s budget and finances. And regardless of what Ms. Horne actually did in the role, she held what appeared to be the top financial position in the school system, which had a budget of nearly $60 million. Part of the job description was “[t]o manage the financial, budgetary, and purchasing affairs of the School Division in a prudent and effective manner.” Relying again on Rosenblatt, the court held that Ms. Horne should be treated as a public official:
We are convinced that serving as the Director of Budget & Finance, thus, created the appearance that Horne’s governmental responsibilities were significant and necessarily involved discretion regarding several tasks as she managed the school system’s financial affairs. This would, we believe, “invite public scrutiny and discussion of the person holding it,” and provide “independent interest in the qualifications and performance of the person” in that position. … Consequently, we conclude that Horne is a “public official” because she has apparent substantial responsibility and control over the school system budget and finances.
As a public official, and because the alleged implication that Ms. Horne lied on her job application related to her official conduct, Ms. Horne was required to show malice on the part of WTVR to succeed on her defamation claim. The court found that Ms. Horne failed to provide sufficient evidence of malice to allow her claim to proceed to a jury, so it affirmed the trial court’s decision to enter a directed verdict.