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Heller v. Fulare

July 6, 2006

RONALD C. HELLER; JOHN R. FLINN; MATHEW W. LINDSEY; OTTO G. BARTON, II; CHRIS WILLIAM BENDER APPELLEES
v.
JERRY C. FULARE, A/K/A JEROME FULARE, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS A LOGAN TOWNSHIP SUPERVISOR, APPELLANT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. Civ. No. 04-cv-00265J ) District Judge: Honorable Kim R. Gibson.

The opinion of the court was delivered by: Weis, Circuit Judge

PRECEDENTIAL

Argued May 17, 2006

Before: RENDELL, Van ANTWERPEN and WEIS, Circuit Judges.

OPINION

This appeal is from the District Court's denial of common law immunity to defendant, a township supervisor, for allegedly defamatory comments made during meetings of the township's board of supervisors. The statements were based on information defendant obtained in violation of the Board's chain of command policy, which was designed to discourage interference with the police department by individual supervisors. The District Court determined that by failing to abide by the Board's policy, defendant supervisor acted beyond his authority and thus forfeited his right to immunity from suit. We conclude that the supervisor is entitled to the absolute immunity granted to high public officials by Pennsylvania law. Accordingly, we will reverse and remand.

I.

Logan Township is a municipality in Pennsylvania designated as a second-class township and, as such, is governed by an elected board of supervisors. The defendant, Fulare, is a member of the Board and plaintiffs are members of the township police department. In 2002, the Board hired a new chief of police. Because he had not previously worked as a police officer in Pennsylvania, he had to pass a state certification examination. Two of the plaintiffs reported to the township's solicitor and manager that the new chief of police had engaged in improprieties during the examination process.

During a regular, public meeting of the Board on September 8, 2004, Fulare stated that he had asked for an investigation of the township police department by the state attorney general. Fulare further stated that he wanted to learn of possible misconduct or criminal activity within the police department.

In a subsequent Board meeting on September 23, 2004, Fulare said that the individual who administered the certification examination to the chief suspected a conspiracy by officers of the police department against the new police chief with respect to his certification examination. Fulare commented that the "conspiracy theory hits the nail on the head."*fn1

At a Board meeting on October 14, 2004, Fulare revealed that a deputy attorney general had told him that there are "numerous serious misconduct issues [with the police department] that the Board should address" and that it should "hire a good attorney and clean the place up." Moreover, Fulare commented that he found the "conspiracy theory pretty interesting."

Before these events occurred, the Board had adopted a "chain of command" policy with respect to communications between supervisors and the police department. In a memorandum of March 23, 2004 addressed to the township manager, the Board wrote that it would communicate its directives on police matters to the manager who would convey them to the police officers. In turn, the officers were to report their concerns to the chief who would pass them on to the manager who would then contact the Board. The memorandum from the Board stated that it would "not participate in violating the order of the chain of command, nor will they tolerate any deviation from the chain of command." The memo is consistent with the police manual that the Board adopted some years earlier.

Plaintiffs filed a complaint against Fulare in the District Court alleging federal constitutional violations of the Due Process Clause and retaliatory actions contrary to the First Amendment. In addition, an amended complaint included a count for defamation under state law.

Fulare moved for dismissal of the defamation count on the grounds of absolute immunity based on state law. The District Court recognized that, under Pennsylvania jurisprudence, a township supervisor is considered a "high public official" generally entitled to a common law immunity for alleged defamatory statements made during public governmental meetings. However, the court concluded that immunity was not available to Fulare in ...


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