Thomas v. City of Annapolis

EYLER, Judge. Robert T. Thomas, appellant herein and plaintiff below, appeals from the entry of summary judgment in favor of City of Annapolis (Annapolis), Mayor Alfred A. Hopkins (Mayor ⁴⁴³ Hopkins), Fire Chief Edward P. Sherlock, Jr. (Chief Sherlock), Deputy Chief Charles W. Smith, III (Chief Smith), and Sergeant Stanley Malm (Sgt. Malm), appellees herein and defendants below. At the time the pertinent events began to unfold, appellant was a firefighter employed by the Annapolis Fire Department.

Appellee Mayor Hopkins was the Mayor of Annapolis, Chief Sherlock was the Fire Chief of the Annapolis Fire Department, Chief Smith was the Deputy Fire Chief of the Annapolis Fire Department, and Sgt. Malm was a sergeant employed by the Annapolis Police Department. 1 The events in question were an outgrowth of an internal investigation by the Annapolis Police Department revolving around allegations that police personnel had engaged in on-duty sexual activities. The police department’s investigation had begun in the summer of 1991, when Sgt. Malm was informed that persons whom we identify in this opinion as Cheryl B. and Pam H. may have, on several occasions, engaged in consensual sex with Annapolis Police Department personnel while such personnel were on duty.

In August of 1991, the Annapolis Police Department informed Chief Sherlock of the Annapolis Fire Department that Annapolis Fire Department personnel were also alleged to have participated in on-duty sexual activities with the same females. Chief Sherlock began his own inquiry into the allegations and assigned Chief Smith to supervise the investigation of Fire Department personnel. Because of the interrelated nature of the two inquiries, the Annapolis Police Department assigned Sgt. Malm to coordinate the police department’s investigation with the fire department’s investigation.

Sgt. Malm interviewed Cheryl B. under oath on August 19, 1991 and September 13, 1991, concerning any sexual encounters she may have had with on-duty fire department personnel. In sworn statements, she specifically implicated several ⁴⁴⁴ individuals, including appellant. By the latter part of October, many of the named individuals had been interviewed and some had admitted to on-duty sexual activities with Cheryl B. and Pam H. Appellant was interviewed on October 16, 1991 but denied any improper conduct.

While many of the improper activities involving other members of the police and fire departments occurred close in time to the inquiry, the alleged events involving appellant were said to have transpired several years earlier. . With respect to appellant, Cheryl B. stated that, during one occasion when she and Pam H. were at the fire station, she engaged in sexual intercourse with appellant while he was on duty. Cheryl B. also stated that, on another occasion when appellant was on duty, she witnessed appellant and Pam H. enter an ambulance located at the fire station, after which Cheryl B. was told by Pam H. that she and appellant had engaged in sexual activities while inside the ambulance. Another witness and associate of Cheryl B. and Pam H., whom we identify as Karen D., also stated that, on an occasion when she and Cheryl B. were at the fire station, she "witnessed appellant and Cheryl B. enter an ambulance after which Cheryl B. told her that appellant and Cheryl B. had engaged in sexual intercourse.

The testimony of other firefighters also placed appellant and Cheryl B. near an ambulance on one occasion and, on at least one other occasion, in a parking lot near a car owned by Pam H., all while appellant was on duty. On October 30, 1991, the results of the investigation were given to Chief Sherlock. On November 1, 1991, appellant and another firefighter, Lieutenant Kenneth E. Rowe, Jr., were given notices of termination of employment effective November 21, 1991, based on information that they had participated in sexual misconduct while on duty and giving false statements to investigators. As a result of the various rumors surrounding the investigation, a press conference was also conducted by Mayor Hopkins on November 1,1991.

Mayor Hopkins stated that, as a result of the investigation, two male members of the police depart ⁴⁴⁵ ment and five male members of the fire department had been disciplined for sexual misconduct. Specifically, the Mayor stated that three members of the departments had been given notices of termination, but the Mayor did not mention any specific names. Appellant’s name and the names of other disciplined personnel first appeared in the press on November 5, 1991, though it was alleged by appellant that the press was aware of the names on October 31, 1991. Appellant produced no evidence that the Mayor knew that the press had the names at the time of his press conference.

Appellant also did not produce any evidence indicating how the press obtained those names and, consequently, there was no direct evidence indicating that any of the appellees released the appellant’s name to the press or any other member of the public. In appellant’s own words, he testified at his deposition on May 23, 1995 that he was “guessing” that his name had been revealed to the press by one or more of the appellees. After receiving his notice of termination on November 1, appellant requested a hearing before the Civil Service Board of Annapolis. The hearing was held on December 6, 1991, at which time several of the involved parties were called to testify, including Karen D. While a transcript of this hearing was not made part of the record, Karen D. apparently recanted her previous statements made under oath.

After Karen D. recanted her testimony but prior to completion of the hearing, Chief Sherlock withdrew the notice of termination as to appellant. In an affidavit dated November 13,1995, filed in support of appellee’s motion for summary judgment, Chief Sherlock stated that the withdrawal of the notice was based on “the conduct of the proceedings and information provided during the course of the proceedings.” On December 9, 1991, appellant was reinstated with back pay and all benefits. Over appellant’s objection, the Civil Service Board decided that it no longer had jurisdiction to continue the proceedings and dismissed the case. Two members of the fire department and two members of the police department admitted the truth of the accusations made against them and were disciplined.

Other employees ⁴⁴⁶ denied the allegations. Of all employees implicated, it appears that only appellant and Lieutenant Rowe were discharged. Like appellant, Lieutenant Rowe has also filed a civil action in the Circuit Court for Anne Arundel County, which is pending. Appellant filed his initial complaint on September 11, 1992 and an amended complaint on October 30, 1992.

The amended complaint contained six counts: Count I, intentional infliction of emotional distress; Count II, defamation; Count III, invasion of privacy; Count IV, “Wrongful and Malicious Civil Discharge Proceedings;” Count V, negligence; and Count VI, gross negligence. The individual appellees were sued personally and in their official capacity as agents of the City of Annapolis. There were no express allegations made against the City of Annapolis other than liability for the actions of the individual appellees. Appellées filed a motion for summary judgment on November 14,1995, asserting, to the extent pertinent: the absence of evidence of outrageous conduct or emotional distress to support the intentional infliction of emotional distress claim, the lack of evidence of publication of any defamatory statement or publication of any statement not of legitimate concern to the public, the lack of evidence' of malice, the defense of qualified immunity, and the absence of evidence of breach of any legal duty.

Appellant filed an answer to the motion, appellees filed, a reply, and, after a hearing held on December 13, 1995, appellees’ motion for summary judgment was granted by order entered December 27, 1995. This appeal was noted on January 22,1996. Questions Presented Appellant poses three questions that, in essence, inquire: 1. Did the lower court err in ruling that appellees had probable cause to make public and defamatory statements? ⁴⁴⁷ 2.

Did the lower court err in ruling that public accusations were justified, given that matters of intent and ill-will were not properly resolved on summary judgment? 3. Did the lower court err in ruling that there was no publication of unlawful statements by appellees? Appellees pose four questions that, in essence, ask: 1. Whether the lower court erred in granting summary judgment in favor of the individual appellees on the basis of public official immunity with respect to appellant’s claims for negligence, gross negligence, defamation, and invasion of privacy? 2.

Whether the lower court erred in granting summary judgment on appellant’s claims for defamation and invasion of privacy based on the lack of evidence that appellees published or communicated any false and defamatory statements about appellant? 3. Whether the lower court erred in granting summary judgment on appellant’s claims for negligence and gross negligence based on the absence of any duty as a matter of law? 4. Whether the lower court erred in granting summary judgment on appellant’s claim for intentional infliction of emotional distress based on the lack of evidence of any extreme and outrageous conduct resulting in severe emotional distress. Contentions of the Parties Appellant argues that there was evidence establishing the elements of each tort 2 and that the issues of probable cause, intent, and malice are issues of fact that cannot be determined on summary judgment.

Appellant asserts that there is legally sufficient evidence to show that appellees encouraged wit ⁴⁴⁸ nesses to fabricate testimony, made charges against appellant without evidence, disregarded evidence of appellant’s innocence, refused to tell appellant the specific allegations against him prior to termination, that they were motivated by spite because of appellant’s union activities, and that they subjected appellant to disparate treatment as compared to the others who were implicated in the investigation. Appellant explains that issues of probable cause, intent, and malice are relevant because appellees claim probable cause .as a shield to defamation, that the claims of intentional infliction of emotional distress, defamation, and gross negligence involve both motive and intent, and that malice is relevant to defamation and the claims of immunity. Appellant also argues that there is no privilege or immunity for intentional torts, i.e., intentional infliction of emotional distress, defamation, and invasion of privacy. Finally, with respect to defamation and invasion of privacy, appellant argues that there was publication of a tortious communication based on a factual inference from the communications made to the public, and that, even if appellees did not otherwise publish appellant’s name, appellant’s name was “understood” by the public to be one of the individuals identified at the press conference on November 1.

Appellees argue that, in the absence of legally sufficient evidence of malice, summary judgment was properly entered in favor of the individual appellees on all claims except for intentional infliction of emotional distress, on the basis of public official immunity, pursuant to Md Code Ann., Cts & Jud.Proc. § 5 — 321(b) (1995 Repl.Vol.) (hereinafter, CJ § 5-321(b)). With respect to intentional infliction of emotional distress, appellees argue that there is no evidence of severe emotional distress or extreme or outrageous conduct. Additionally, appellees argue that there was no legal duty to conduct an investigation as well as no evidence of negligence in the conduct of the investigation. Finally, appellees argue that there is no evidence of publication with respect to the claims of defamation and invasion of privacy and, alternatively, that there is a common law absolute or conditional privilege applicable to the conduct of the internal investigation. ⁴⁴⁹ The Standard of Review A party is entitled to a summary judgment when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.

Md. Rule 2 — 501(a); DeBusk v. Johns Hopkins Hosp., 105 Md.App. 96 , 658 A.2d 1147 (1995), aff'd 342 Md. 432 , 677 A.2d 73 (1996). On appellate review of a motion for summary judgment, we examine the record to determine whether the court was legally correct in ruling that no dispute of material fact exists when all inferences are drawn against the moving party. Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 335 Md. 135 , 642 A.2d 219 (1994); Heat & Power Corp. v. Air Products & Chemicals, Inc., 320 Md. 584, 591-92 , 578 A.2d 1202 (1990).

While the initial burden of proof rests squarely on the moving party, the opposing party must show by admissible evidence that there are actual material facts in dispute. Md.Rule 2-501(b). The trial judge did not issue a written opinion, and it is difficult to determine from the colloquy with counsel the complete basis or bases for the trial court’s decision. It is apparent from the transcript of the hearing that the trial court concluded that appellant failed to provide sufficient evidence to show any publication or communication of a statement that was defamatory or otherwise unlawful, as well as finding that there was insufficient evidence to show any extreme or outrageous conduct on the part of appellees.

These findings were the bases, at least in part, for the ruling on defamation, invasion of privacy, and intentional infliction of emotional distress. With respect to the negligence claims, the trial court found no evidence of a breach of duty, if a duty existed. While statutory public official immunity and common law qualified privilege were both argued in writing and orally during the summary judgment hearing, it is unclear from the transcript whether the trial court ruled on those issues in its final disposition of the case. Nevertheless, appellant, in arguing the questions framed by him on appeal, assumes that the questions of immunity and privilege are at issue in this Court. ⁴⁵⁰ While it would be beneficial on appeal to have a more developed understanding of the trial court’s reasoning as to why summary judgment was granted, without evidence to the contrary, we must assume that the court carefully considered all the various grounds asserted and determined all or at least enough of them to merit the granting of the summary judgment.

See Bond v. Nibco, Inc., 96 Md.App. 127, 133 , 623 A.2d 731 (1993). Since a trial judge is presumed to know the law, the judge is not required to set out in detail each and every step of his thought process. Kirsner v. Edelmann, 65 Md. App. 185 , 499 A.2d 1313 (1985). On appeal, it is the burden of the appellant to show judicial error.

Bradley v. Hazard Technology Co., 340 Md. 202 , 665 A.2d 1050 (1995). Ordinarily, an appellate court will not affirm a summary judgment by ruling on a ground not ruled upon by the trial court. If the alternative ground is one as to which the trial court had no discretion, however, summary judgment may be affirmed. Maryland Casualty Co. v. Lorkovic, 100 Md.App. 333, 357 , 641 A.2d 924 (1994).

In this case, there is no genuine dispute as to a material fact and appellees are entitled to judgment as a matter of law for the reasons discussed below. Public Official Immunity Because the issues before us require an understanding of the concept of “public official immunity,” clarity requires that we review the general common law and statutory principles governing it. Despite the fact that applicable statutes have been in force since 1979, common law public official immunity is still relevant in applying and interpreting those statutes and in those instances in which the statutes do not apply. 3 ⁴⁵¹ The Court of Appeals has recently discussed the current status of public official immunity in Ashton v. Brown, 339 Md. 70 , 660 A.2d 447 (1995). With Ashton , in mind, our first objective is to determine the nature of the torts to which public official immunity applies and, if applicable, to identify the standard of conduct that will defeat the immunity.

In Ashton , the Court was faced with a claim for damages against the City of Frederick and members of its police department as a result of arrests for violation of Frederick’s juvenile curfew ordinance. The Court held the ordinance to be unconstitutional on its face and, in doing so, discussed both ⁴⁵² constitutional and intentional torts. 4 The Ashton Court, in discussing the common law intentional torts of false imprisonment and assault and battery, 5 stated that under common law “[p]ublic official immunity is not a defense to these intentional torts.” 339 Md. at 117 , 660 A.2d 447 . With respect to non-constitutional common law torts, it had been clear, prior to Ashton , that immunity was available to public officials in negligence actions, if the necessary elements were present and in the absence of malice. The common law requirements for public official immunity were set forth in James v. Prince George’s County, 288 Md. 315, 323, 324 , 418 A.2d 1173 (1980), and quoted with approval in Ashton .

Stated briefly, in order for the immunity to apply: (1) the actor must be a public official, rather than a mere government employee or agent; (2) the conduct must have occurred while the actor was performing discretionary, as opposed to ministerial, acts; and (3) the actor must have performed the relevant acts within the scope of his official duties. If those three conditions are met, the public official enjoys a qualified immunity in the absence of “malice.” In support of its statement that public official immunity is not a defense to intentional torts, the Court of Appeals in Ashton cited Parker v. State, 337 Md. 271 , 653 A.2d 436 (1995), Cox v. Prince George’s County, 296 Md. 162 , 460 A.2d 1038 (1983), Brewer v. Mele, 267 Md. 437 , 298 A.2d 156 (1972), Robinson v. Board of County Comm’rs, 262 Md. 342 , 278 A.2d ⁴⁵³ 71 (1971) and Mason v. Wrightson, 205 Md. 481 , 109 A.2d 128 (1954). The Court of Appeals stated that no decision by it prior to Ashton had held public official immunity applicable to an intentional tort. Similarly, we are not aware of a Court of Appeals decision prior to Ashton in which the Court had held that public official immunity was not applicable to torts having intent as an element.

Moreover, with the exception of three cases, the language used in pre-Ashton decisions relating to public official immunity refers to acts as malicious versus nonmalicious, as opposed to intentional versus unintentional. The three exceptions are Parker v. State, supra, Cox v. Prince George’s County, supra, and Carder v. Steiner, 225 Md. 271 , 170 A.2d 220 (1961). When discussing the limits of qualified public official immunity, the Court in Carder used the terms “actual malice or deliberate intent.” 225 Md. at 276 , 170 A.2d 220 . In Cox , the Court stated that a police officer does not enjoy public official immunity if he “commits an intentional tort or acts with malice.” 296 Md. at 169 , 460 A.2d 1038 .

In both cases, the statements were dicta for, in Carder , the Court had before it only an allegation of negligence and, in Cox , there was evidence of actual malice. In support of its decision, the Cox Court cited Brewer v. Mele, supra, and Robinson v. Board of County Comm’rs, supra, and Duncan v. Koustenis, 260 Md. 98 , 271 A.2d 547 (1970), which, as noted, all use the term “malice.” The Court of Appeals in Parker , confronted with an issue of absolute judicial immunity, not qualified public official immunity, stated on page 285 of the opinion: Indeed, while this Court has never sustained the defense of public official immunity to an intentional tort action, it is clear that judicial immunity operates to bar civil suits regardless of the nature of the tort alleged to have been committed. 337 Md. at 285 , 653 A.2d 436 . The Court continued and, on the same page, stated that “qualified public official immunity may apply only to negligence actions,” 337 Md. at 285 , 653 A.2d 436 (emphasis added), citing Cox v. Prince George’s ⁴⁵⁴ County, supra, and James v. Prince George’s County, supra, for support. If common law public official immunity is otherwise available, we turn our attention to the nature of the conduct necessary to defeat it.

As stated above, the older cases spoke in terms of “malice.” See Robinson, 262 Md. at 347 , 278 A.2d 71 . In that case, the plaintiff alleged that he had been maliciously beaten during an arrest, and he filed a civil suit for damages. The Court held that an allegation that an arresting officer acted without just cause and without probable cause was sufficient to state a cause of action and sufficient to avoid immunity raised on demurrer. “We can not think of any reason,” the Court of Appeals stated, “why a public official should not be held responsible for his malicious actions even though he claims they were done within the scope of his discretionary authority.” Robinson, 262 Md. at 348 , 278 A.2d 71 . The Robinson Court relied on Duncan v. Koustenis, 260 Md. at 104 , 271 A.2d 547 , Eliason v. Funk, 233 Md. 351, 356 , 196 A.2d 887 (1964), Carr v. Watkins, 227 Md. 578, 585 , 177 A.2d 841 (1962), Carder v. Steiner, 225 Md. at 274 , 170 A.2d 220 , and State use of Clark v. Ferling, 220 Md. 109, 114 , 151 A.2d 137 (1959).

In all of those cases, the Court stated the general proposition that immunity is not available if a public official acts maliciously. In Brewer, supra, a County Sheriffs Deputy arrested the plaintiff on the erroneous belief that he had stolen a tractor. After evidence proving ownership was provided, the charges were dismissed. The plaintiff sued the Deputy and a State policeman who prepared the charging document for false imprisonment and malicious prosecution.

Summary judgment was entered for the defendants. The Court stated that there was no tort of false imprisonment because it was based upon an arrest with probable cause. The Court went on to state that it had never been called upon to decide the definition of malice necessary to defeat public official immunity in a mali.cious prosecution case. Brewer, 267 Md. at 445 , 298 A.2d 156 .

The Court posed the question of whether the test is actual malice requiring an affirmative showing, such as in Robinson , ⁴⁵⁵ supra, or whether it is sufficient to infer malice from want of probable cause. While the Court did not discuss the issue further because it found that probable cause existed as a matter of law, it assumed that “actual malice” is the requisite level of malice. 267 Md. at 445 , 298 A.2d 156 . This Court, when holding public official immunity to be applicable, has defined malice as “actual malice.” Leese v. Baltimore County, 64 Md.App. 442, 479-81 , 497 A.2d 159 (1985). In Leese , a case frequently cited by litigants, this Court was presented with an action against the County and several of its employees arising from the termination of employment of the plaintiff.

This Court recited the general test for public official immunity, including that the individual must act without “actual malice.” Leese, 64 Md.App. at 479 , 497 A.2d 159 . We defined “actual