Can defamatory comments be made in the scope of employment?

In a recent case, the Court of Appeals for the First District of Texas decided that a defendant was not liable because he was acting within his scope of employment when he made allegedly defamatory remarks against the plaintiff.

The plaintiff stated the following allegations in the present case. The matter arose after he filed a lawsuit alleging slander against the defendant, the city attorney for the City of Shenandoah, and against other city employees and elected officials.

The agenda for the Apr. 27, 2022 city council meeting included this slander lawsuit and listed the suit as an item for discussion in a closed executive session. During the meeting’s public portion, the mayor requested a “city attorney update” from the defendant.

The defendant publicly gave the update and discussed the slander lawsuit. Allegedly, he failed to address the suit’s merits or subject matter and instead commented on his preliminary findings regarding the suit, namely that several courts had sanctioned the plaintiff and that the Commission for Lawyer Discipline had brought a petition against him.

The present case concerned a second slander lawsuit, this time filed against the defendant individually. The plaintiff claimed that the defendant made defamatory comments about him and about his law practice to the city council at the Apr. 27 public meeting.

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The defendant filed a motion to dismiss under section 101.106(f) of the Texas Civil Practice and Remedies Code. He argued that the plaintiff’s second slander suit was against the city, not against him. The plaintiff’s pleadings showed that the defendant was acting in the scope of his employment as city attorney when he made the allegedly defamatory comments, the defendant explained.

The trial court denied the motion to dismiss, which prompted the defendant to appeal.

Claim against employee dismissed

In the case of William C. Ferebee v. Law Office of Frank Powell & Frank C. Powell, the Court of Appeals for the First District of Texas reversed the order of the trial court. The defendant was entitled to dismissal from the second slander suit based on lack of jurisdiction under section 101.106(f), the appellate court ruled.

The appellate court noted that it did not need to address whether the defendant had ulterior motives, had personal animus, acted to serve his own purposes, or had authority to make defamatory comments. Rather, the appellate court only needed to analyze whether the defendant was performing his job duties when he committed the alleged wrong.

The plaintiff argued that the defendant deviated from his job duties when he commented on personal litigation unrelated to the city’s business and that his comments amounted to an independent course of conduct that did not serve the city’s purposes.

The appellate court disagreed and found that the plaintiff’s pleadings showed the following. First, the defendant was performing his job duties when he gave a litigation update upon the mayor’s request at the city council meeting. Second, the first slander suit was related to the city’s business since it involved city employees and officials.

Regardless of whether the defendant’s comments went off topic, he made them while performing his job duties as the city attorney, the appellate court said. Besides, the defendant’s comments were an escalation rather than a deviation from his job duties, the appellate court noted.