Public Employee is Protected by Claims Statute for Purported Defamatory Statements Made “Incidentally” to Such Employment

On December 20, 2016, the Arizona Court of Appeals handed down a decision affirming the superior court which dismissed a defamation action brought against the Vice Mayor of Flagstaff for failure of the Plaintiff to serve a preliminary claim against either the Vice Mayor or the Flagstaff City Counsel as required by A.R.S. Section 12-821.01.  In the case of Villasenor vs. Evans, Plaintiff claimed that Defendant, who was Flagstaff’s Vice Mayor sent an email which contained misstatements about a meeting earlier attended by Plaintiff, Defendant and a third party.  Before he filed his suit, Plaintiff did not file a claim against the Vice Mayor or the City.  According to A.R.S. Section 12-821.01, before various claims may be maintained against a public entity or public employee, a notice of claim must be served within 180 days from the time of the event giving rise to the claim.  Plaintiff alleged that serving a claim was unnecessary under the circumstances.

In support of his argument, Plaintiff claimed that a Vice Mayor is not an “employee” of a governmental body, because “[she] was a City ‘officer’ rather than a City ’employee.'”  In rather swiftly disposing of Plaintiff’s first theory, the court noted that Section 12-820(1) defines “employee” as “an officer, director, employee or servant…who is authorized to perform any act or service.”  The fact that in the definition the word “public” was not inserted before the word “employee” was determined to be of no consequence since the entire tenor of the statute pertained to public entities and employees.

Next, Plaintiff alleged that because the Vice Mayor was an officer in a homeowners association which may have had an interest in the project at the heart of this dispute and because she used her personal computer to send the email in question, her actions were outside of the scope of her functions and duties as the Vice Mayor, and therefore not protected by the shortened time frame for serving a notice.  The appeals court noted that the controversy between the parties arose out of the potential action on a proposed zoning ordinance.  Assuming the Vice Mayor’s opinions in this matter was in part motivated by an element of her personal interest, zoning matters are precisely the types of matter that municipalities deal with as a necessary governmental function and “at the very least, [the Vice Mayor’s involvement with this zoning matter was] incidental to her work as a Councilmember and Vice Mayor.  It was therefore sufficiently related to her public employment to require service of the notice of claim.

The Court of Appeals therefore upheld the dismissal of the case by the superior court.

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