Offen v. Brenner

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M. Louis Offen v. Alan I. Brenner Misc. No. 1, September Term, 2007. LIBEL AND SLANDER - PRIVILEGED COMMUNICATIONS - ABSOLUTE PRIVILEGE - ADMINISTRATIVE PROCEEDINGS: Where a statement serves to initiate an administrative proceeding, the defamed employee s duties and authority are a factor in considering whether the nature of the public function of the proceeding is sufficient to warrant the extension of an absolute privilege. TORTS - DEFAMATION LAW - ABSOLUTE PRIVILEGE - ADMINISTRATIVE PROCEEDINGS - NATURE OF THE PUBLIC FUNCTION OF THE PROCEEDING: A defamed employee s duties and authority are relevant to, but not dispositive of, the nature of the public function of an administrative proceeding when determining whether an absolute privilege applies to statements that initiate the proceeding. On Ce rtification from the U.S. C ourt of A ppeals for the Fourth Circuit Case No. 05-2337 IN THE COURT OF APPEALS OF MARYLAND Misc. N o. 1 September Term, 2007 M. Louis Offen v. Alan I. Brenner Bell, C.J. Raker Harrell Battaglia Greene Wilne r, Alan, M . (Retired, specially assigned) Cathell, Dale R. (Retired, specially assigned), JJ. Opinio n by Rak er, J. Filed: November 14, 2007 Pursuant to the Maryland Uniform Certification of Questions of Law Act, Md. Code (1974, 2006 Repl. Vol.), §§ 12-601 to 12-609 o f the Cou rts and Judicial Proceedings Article, the United States Court of Appeals for the Fourth Circuit has certified the following question of Maryland law: [I]n deciding whether a statement that led to an administrative proceeding against a pu blic emplo yee is protected by absolute privilege, should the duties and authority of the employee against whom the statement was made be considered in determining the nature of the public function of the proceeding ? Our answer to the Fourth Circuit s qu estion shall be a qualified yes; the duties and a uthority of the emplo yee are a usef ul factor, bu t should not be determinative, in considering the nature of the public function of the administrative proceeding. I. We recite the facts as set ou t in the Certification Order. The plaintiff (and appellant in this certification procedure), M. Lou is Offen, M.D., is an employee with the U.S. Department of Health and Hu man Ser vices (DH HS), wo rking in the Division of Vaccine Injury Com pensation ( DVIC ). Offen is a neurolog ist who reviews claims filed against the DHHS by persons seeking compensation for alleged vaccine-related injury. Offen evaluates the merits of a claim and transm its his conclusions to the Department of Justice (DOJ) lawyer assigned to represent the DHHS on the claim. The DOJ has the authority to determine how to proceed with a claim. Offen has no authority in that regard. In 2004 Offen review ed a Hepatitis B vac cine injury claim and reported his conclusions to the assigned DO J lawyer. The DOJ lawyer then contacted Of fen s supe rvisor, Vito Caserta, M.D., for further assistance in evaluating the claim. Caserta, in turn, discus sed the claim with two other physicians, the defen dant, A lan I. Brenner, M.D., a rh eumatolo gist who is an outside consu ltant for DVIC , and A rnold G ale, M .D. In May 2004 Offen forwarded certain materials related to the claim to Brenner for his review. Later, on July 30, 2004, Brenner sent a letter to Offen s supervisor, Caserta, which contained the following passages: In the past several months I have had a number of telephone calls and E ma il communications from Dr. Offen, each requesting my private opin ion on D VIC ca ses not off icially assigne d to me for con sultation . . . . The first of this latter type of call was regarding the makeup of our Civilian Expert Immunization Committee (CEIC). The substance of that call w as to question me about the process of selection of comm ittee me mbers . I felt that the tone of the questions was accusatory and, in my opinion, defamatory and degrad ing to D VIC. . . . You will recall that, several months ago, you arranged a telephone conference in which you, Dr. Arnold Gale and I participated. The purpose of that conference was to discuss [the Hepa titis B cla im]. . . . About 2 months ago Dr. Offen called me, stating that the case h ad not bee n presented in its entirety and that you had misreprese nted the fa cts to induce Dr. Gale and me . . . . My recollection of the call was that Dr. Offen accused you of twisting the facts and of leaving out pertinent information to suit some personal purpose and that he wanted to send me the case record suggesting that my review of the doc uments would prove th at our conclusion w as in error. I have been very disturbed by the tone of Dr. Offen s accusations and the way in which he has seemed to try to enlist my support in some sort of personal vendetta against DV IC in general -2- and several me mbers of the office in particular. Indeed I believe that Dr. Offen has had something derogatory to say about each and every medical officer involved. Dr. Offen h as also ma de it quite clear that he has no respect for the leadership of DVIC. He positively gloated over Thom Balbier s transfer, telling me that Thom had been removed for incompetence and stating that you would be the next to go. J.A. 6-7. This letter prompted Caserta to initiate formal DHHS disciplinary proceedings against Offen, who was suspended for five days without pay and stripped of some of his responsibilities. The administrative proceedings against Offen were conducted according to the procedures set forth in the agency s regulations, and he does not contend that the proced ural saf eguard s were inadeq uate. II. Dr. Offen f iled a com plaint, in the U nited States District Court for the District of Maryland, alleging defamation. Dr. Brenner filed a mo tion to dismis s pursuan t to Rule 12(b)(6) of the Federal Rules of Civil Proce dure, failure to state a claim upon which relief may be gran ted. Following a hearing, the district court dismissed the complaint in favor of the defendant based on absolute immu nity. Dr. Offen appealed to the United States Co urt of Appeals for the Fourth Circu it. He conten ds that the distric t court erred in refusing to consider his limited duties and auth ority when the court analyzed the nature o f the public function of the proceeding. The Court of Appeals for the Fourth Circuit certified the question o f law to this C ourt. -3- The question b efore us ar ises from the application of factors se t forth by this Court in Gersh v. Ambrose, 291 Md. 188, 434 A.2d 547 (1981). In that case, a staff member of the Baltimore City Comm unity Relations Comm ission filed a defam ation suit for s tatements made by an assistant sta te s attorney at a qu asi-legislative p ublic hearin g. This Court found the defense of absolute immunity did not apply, but noted as follows: [W]e have decided that whether absolute witness immunity will be extended to any administrative proceeding will have to be decided o n a case-by-ca se basis and will in large part turn on two factors: (1) the nature of the public function of the proceeding and (2) the adequacy of procedural safegu ards. Id. at 197, A.2d at 551-52. Although we have ruled on the interpretation of the second factor of the Gersh test the adequacy of procedural safeguards in several cases, we have not yet had cause to examine the first factor in such detail, that of the nature of the public function of the proceeding. III. Before this Court, Dr. Offen argues, first, that no significant pu blic interest is implicated to justify the application of absolute immunity under the first prong of the Gersh test. He contends the district court erred when it relied on an overly generalized public interest. The district court said the impo rtant public function of adm inistrative disciplinary procedures is to have an orderly system of personnel, dedicated and competent employees, and that s especially important in the area of health. Dr. Offen argues his behav ior would -4- not be of significant public concern and that the district cou rt s identification of an ord erly system of person nel is not a so cially important c oncern tha t rises to the level of a vital public interest. 1 Second, Dr. Offen maintains that the district court erred when it failed to consider the defamed employee s duties and auth orities in its analysis under the first Gersh factor. According to Dr. Offen, the application of the nature of the public function of the proceeding depends upon a factual inquiry into the employee s duties and powers. He relies on Miner v. Novotny, 304 Md. 164, 498 A .2d 269 (1985 ), Imperial v. Drapeau, 351 Md. 38, 716 A.2d 244 (1998), and Reichardt v. Flynn, 374 Md. 361 , 823 A.2d 566 (2003), to support his conclusion, contending that when statements precede the initiation of an administrative proceeding, each of those cases make necessary an evaluation of the essential public interest of a particular category of employee. Failing to consider the duties and authority of an employee, according to Dr. Offen, creates a per se app lication of ab solute privilege, allowing generalized public interes ts to sufficien tly support the firs t Gersh factor. Dr. Brenner counters that the duties, responsibilities and authority of an emplo yee should not be dispositive as to whether a privilege applies. He rejects the contention that the justification for extending absolute immunity changes depending on whether an 1 The question of whe ther the pub lic interest identified by the district court, to have an orderly system of personne l, is sufficiently co mpelling to warrant an absolute privilege is not before this Court. We answer only the certified question of whether an employee s duties and authority should be taken into consideration when examining the nature of the public function of the proceeding. -5- administrative hearing is pending at the time of the defamation or whether instead the statement serves to initiate a subsequent proceeding. He contends that the first Gersh factor has been applied the same way regardless of this temporal difference, with the purpose of ensuring that the nature of the proceeding factors into the public policy reason for extending the privilege. Dr. Brenner argues that adopting an approach where the first prong turns on an inquiry into the rank of the defamed employee would deter legitimate complaints against low-level employees for fear of retaliation. IV. Under Maryland law, to present a prima facie case of defamation, a plaintiff must establish four elements: (1) that the defendant made a defamatory statement to a third person, (2) that the statem ent was false, (3) that the defendant was legally at fault in making the statement, and (4) that the p laintiff th ereby suf fered h arm. Smith v. Danielczyk, 400 Md. 98, 115, 928 A.2d 795, 805 (2007). A defamatory statement is one which tends to expose a person to public scorn, hatred, contem pt or ridicule, thereby discouraging others in the commu nity from hav ing a good opinion o f, or associatin g with, that p erson. Gohari v. Darvish, 363 Md. 42, 55, 767 A.2d 321, 327 (2001) (quoting Rosenberg v. Helinski, 328 Md. 644, 675, 616 A.2d 866, 871 (1992)). Depending upon the circumstances, a defend ant in a -6- defamation suit may assert a conditional or an absolute privilege.2 Danielczyk, 400 Md. at 116-17, 928 A.2d at 80 6. See gene rally D AN B. D OBBS, T HE L AW OF T ORTS, §§ 413-414 (2000). An absolute privilege provides complete immunity from suit. The grant of absolu te privilege was first applied in Maryland to witnesses in judicial proceedings in Hunckel v. Voneiff, 69 Md. 179, 14 A. 500 (1888). We have articulated the longstanding public policy behind the privilege as follows: [I]t is of the greatest importance to the administration of justice that witnesses should go upon the stand with their minds absolutely free from apprehe nsio n tha t they m ay subject themselves to an action of slander for what they may say while giving their testimony. . . . The witness speaks . . . under the control of the cou rt; is compelled to speak, w ith no right to decide what is immaterial; and he should not be subject to the possibility of an action for his words. Id. at 187-88, 14 A. at 501 (internal citation omitted). Based on this justification, we provided absolute privilege for statements made by a witness in the course of judicial proceedings. Reichardt v. Flynn, 374 Md. at 366-67, 823 A.2d at 569 (quoting Hunckel, 69 2 A conditional privilege protects a person from liability where the statement was published in good f aith in furth erance of his own le gitimate intere sts, or those sh ared in common with the recipient or third parties, or wh ere his declaration would b e of interest to the public in general. Gohari v. Darvish, 363 Md. 42, 56, 767 A.2d 321, 328 (2001) (internal quotation omitted). An absolute privilege differs from a conditional privilege because the former provides immunity regardless of the purpose or motive of the defen dant, or the reasonableness of his conduct, while the latter is conditioned upon the absence of malice and is forfeited if it is abused. Kennedy v. Cannon, 229 Md. 92, 97, 182 A.2d 54, 57 (1962). -7- Md. at 193, 14 A . at 504); Bartlett v. Ch risthilf, 69 Md. 219, 223-27, 14 A. 518, 519-20 (1888). The privile ge applies e ven wh en the witn ess publishin g the defamatory statement does so maliciously, despite known falsity, or under otherwise unreaso nable con duct. Reichardt, 374 Md. at 36 7, 823 A .2d at 569; Schaub v. O Ferr all, 116 Md. 131, 138, 81 A. 789, 792 (1911). Maryland follows the minority English rule, where the privilege applies irrespective of the statement s relevance to the procee ding. Reichardt, 374 Md. at 367, 823 A.2d at 569; Korb v. Kowaleviocz, 285 Md. 699 , 703-04, 402 A .2d 897, 898-99 (1 979); Schaub, 116 Md. at 138-39, 81 A. at 792. We hav e upheld the application of absolute pr ivilege for sta tements by w itnesses in the courtroom during the course of a trial. Korb, 285 M d. at 704, 40 2 A.2d a t 899; Maulsby v. Reifsnider, 69 Md. 143, 164 , 14 A. 505 , 511 (188 8). Absolu te privilege ap plies also to statements contained in pleadings, affidavits or other documents directly related to the case. Keys v. Chrysler Credit Corp., 303 Md. 397, 403-04, 494 A.2d 200, 203 (1985) (applying absolute im munity to the issuance of a writ garnishing wages post-judgm ent); Di Blasio v. Kolodner, 233 Md. 512, 197 A.2d 245 (1964) (finding stricken allegations are protected by the privilege) ; Bartlett, 69 Md . at 227, 14 A. at 520 (holding privileged a petition alleging contempt of court in an ongoing proceeding). The privilege extends also to stateme nts that s erve to in itiate a jud icial pro ceedin g. See, e.g., Kerpelman v. Bricker, 23 Md. App. 6 28, 630, 329 A.2d 423, 425 (1974). In 1980, this Court extended the privilege to statements prepared for possible use in an action, but not actually introduced as part of the -8- proceeding. Adam s v. Peck, 288 Md. 1, 415 A.2d 292 (19 80). One year later, the Court addressed whether absolute privilege could apply in administrative proceedings in Gersh v. Ambrose, 291 Md. 188 , 434 A.2d 547 (1981). In Gersh, an assistant state s attorney mad e allegedly def amatory rem arks abou t a member of the city s community relations commission at a public hearing before that commission. While declining to apply the privilege in the particular case because of the lack of formal pro cedure atten dant to the o pen hearin g and an in sufficiently com pelling public interest, we nevertheless recognized that the absolute privilege afforded judicial proceedings could extend to adjudicatory hearings before admin istrative b odies. Id. at 193, 434 A.2d at 549-50. We noted that when administrative proceedings fram ework and p rotections are functiona lly comparab le to judicial pro cesses, imm unity could be safely extended to cover such procee dings. Id. at 192- 93, 434 A.2d a t 549-5 0. Impo rtantly, the Court chose not to limit the test for w hether to ap ply the privilege to only the existence of adequate procedural safeguards. Instead, we provided that the analysis should examine such procedural safeguards in conjunction with the nature of the public function of the proceeding: [W]e have decided that w heth er ab solu te witnes s imm unity will be extended to any admin istrative proce eding w ill have to be decided on a case-b y-case basis an d will in large part turn on two factors: (1) the nature of the public function of the proceeding and (2) the adequacy of procedural safeguards which will min imize th e occu rrence o f defa matory sta temen ts. -9- Id. at 197, 4 34 A.2 d at 551 -52. The Court declined to apply the doctrine of privilege because the safeguards were insufficie nt and bec ause the pu blic interest w as not suff icient to outweigh potential harm to the individual, reasoning as follows: In the instant case the public interest sought to be advanced is far less comp elling . . . . More over, we f ind nothin g in the record before us to indicate the presence of conditioning devices or safeguards . . . which are pres ent in jud icial pro ceedin gs . . . . The public ben efit to be derived from testimony at Commission hearings of this type is not sufficiently compelling to outweigh the possible da mage to individual reputations to warrant absolu te witne ss imm unity. Id. at 196, 434 A.2d at 551 (emphasis ad ded). The test, since its establishment in Gersh, has been a pplied b y this Cou rt in five cases. In Miner v. Novotny, 304 Md. 164, 498 A.2d 269 (1985), this Court ap plied absolu te immunity to citizen complaints of police brutality that led to an administrative hearing. After determining there were sufficient procedural safeguards under the second factor of Gersh, we noted as follows: Our society vests its law -enforcem ent officers with form idable power, the abuse of which is often extremely detrimental to the public interest. Citizen complain ts of such abuses, and the administrative disciplinary procedure which has been developed to investigate these complaints, serve a public function of vital importance by providing a mechanism through which abuses may be reported to the proper authorities, and the ab users held accountable. The viability of a democratic government requires that the channels of comm unication b etween citizens an d their public officials remain op en and un impeded . Were co mplaints such as Novotny s not absolu tely privileged, the possibility of incurring -10- the costs and inconvenience associated with defending a defamation suit might well deter a citizen with a legitimate grievance from filing a compla int. We therefore conclude that the possible harm a false brutality complaint may cause to a law-enforcement officer s reputation, despite the procedural safeguards provided by the LEOBR, is outweighed by the public s interest in encouraging the filing and investigation of valid co mplain ts. Id. at 176, 498 A.2d at 274-75. The inhibition of citizens criticisms of those entrusted with their protection was a far worse evil than the harm that a false a ccusation o f brutality may have on a law-enforcement officer. Id. at 177, 498 A.2d at 275. Next, in McDermott v. Hughley, 317 Md. 12, 561 A.2d 1038 (1989), we reaffirmed the basis for extending absolute immunity, to prevent unduly hindering important speech, and to ensure that otherwise actionable conduct thus is protec ted wher e the accus ed acts in furtherance of a recognized socially important interest. Id. at 23, 561 A.2d at 1044. We noted that McD ermott asse rt[ed] the im portance to the public of having men tal health care profession als render unfettered diagnoses particularly where a police officer is involved. Id. at 25, 561 A.2d a t 1045. Nevertheless, we declined to extend the privilege to a psychologist who issued a requested report evaluating the fitness of an officer in the police department s horse-mounted patrol unit because of the absence of procedural safeguards in the proceeding.3 3 While bo th Dr. Of fen and D r. Brenner a rgue that McDermo tt supports their respective positions on Gersh s first factor, we did not reach an evaluation of the importance of the nature of the public function identified in the case. Our holding instead was that (contin ued...) -11- In Odyniec v. Schneider, 322 Md. 520, 588 A.2d 786 (1991), a patient underw ent a required physical examination during the investigation of her pending medical malpractice claim before the Health Claims Arbitration Offic e. The examining doctor, who was expected to later present his expert testimony before the arbitration panel, told the patient during his assessment that her previous doctor had performed un necessary medical proced ures on her. The treating doctor filed a complaint alleging defamation, and this Court held that absolute immunity barred suit. Where the statement was made by a witness in connection with a legislatively-mandated arbitration process, we found that both prongs of the Gersh test had been met. The policy extending immu nity under Gersh applied, [t]aking full account of the vital public fun ction of he alth care ma lpractice proceedings initiated before arbitration panels as well as the procedural safeguards established by the claims arbitration process. Id. at 534, 588 A.2d at 792-93. We sa id further: The soc ial benefit derived from free and candid participation by potential witnesses in the arbitration pro cess is essential to achieve the goal of a fair and just resolution of claims of malpra ctice ag ainst he alth care provid ers, 3 (...continued) immunity did not apply because procedural safegua rds, as required under Gersh s second fact or, w ere la ckin g. W e do note , how ever , the s trikin g sim ilarit y of th e cas es fa ctua lly, because like in McD ermott, Dr. Offen is accused of having no respect for his supervisor and harb oring a perso nal v endetta a gain st certain emp loyees. Th e psyc holo gist's allegedly defamatory report in McD ermott contended that the defamed employee referred to his superv isor as a N azi, comp lained abo ut manag ement style, and was refu sing to cooperate because he did not like the Unit or the Unit commander. Id. at 19-20, 561 A.2d at 1042. In the present case, Dr. Brenner's letter asserted that Dr. Offen had a personal vendetta against the department, made derogatory remarks about its members, and did not respect its leadership. -12- stressing the societal value of maintaining the integrity of the process itself. Id. at 534-35, 588 A.2d at 793. We add ressed the d efense of absolute pr ivilege in adm inistrative proc eedings ag ain in Imperial v. Drapeau, 351 M d. 38, 716 A .2d 244 (1 998). The question in that case was whether an EMT could maintain a suit for defamation where a doctor, acting as a priva te citizen, alleged the EMT s incompetence in letters to the Governor and a member of Congress. This Court upheld the application of an absolute privilege. Citing the importance to the public th at all me dical pa rticipan ts in the e merge ncy med ical system be com petent, the Court s aid as follow s: Because the quality of pre-hospital, emergency m edical care can literally be a matter of life and death, it carries a very high priority. Accordingly, public policy encourages the communication of information to public authorities responsible for ma intainin g the qu ality of em ergenc y medica l service s. Id. at 50, 716 A.2d at 250-51. Fina lly, this Court, in Reichardt v. Flynn, 374 Md. 361, 823 A.2d 566 (2003), applied the privilege to b ar suit regard ing defam atory statemen ts made by parents and their children to public school authorities alleging sexual misconduct on the part of Flynn, a high school teacher and coach. We found that both prongs of Gersh were satisfied. As to the first prong, we quoted the language of the Co urt of Spe cial Appeals finding tha t the first Gersh prong was me t: [T]here is really nothing more important to the core of the well-being of our co mmunity, our State and our nation than the -13- public school system. It is unquestionably an issue of strong public interest that students and parents should be protected from suit for reporting a teacher s alleged sexual miscon duct. Id. at 373, 823 A.2d at 573 (internal quotation om itted). The second prong of Gersh was the primary focus on appeal. The Court of Special A ppeals had found an absolute pr ivilege did not apply because Flynn lacked a right to appeal his suspension by the Superintendent, and even if he had a right to appeal, the proc edural safeguards o f the proceeding w ere inadequa te because the alleged d efamation had prece ded the he aring and any safeguards therein. We disagreed and reversed, finding that Flynn was entitled to appeal his suspension to the Montgom ery County Board of Education and subsequently to the State Board of Education. We also noted that the availability of procedural safeguards only after an initial adverse action satisfied the second factor of Gersh, since [t]his sa me situation . . . is going to exist in every case in which a complaint is made about government personnel, and the complaint initiates an administrative proceeding. Id. at 376, 823 A.2d at 575. With this background in mind, we turn to the specific certified question from the United S tates Court o f Appe als for the F ourth Circu it. V. The Fourth Circuit Court of Appea ls asks us to c larify how to a pply the first Gersh factor when an allegedly defamatory statement is made prior to the institution of administrative proceedings. See Gohari v. Darvish, 363 Md. at 74, 767 A.2d at 338 (noting -14- that in defamation cases, the existence of [a] privilege . . . is a question of law for the court. ) . The fact that we have not thus far had cause to base a denial of privilege on the insufficient public nature of the procee ding shou ld not lead to the mistaken conclusion that the first Gersh factor is subject to on ly a cursory inquiry. We made clear in Gersh that any extension of absolute privilege will turn in large part on two factors, setting forth the importance of a dual inquiry into both the nature of the public function of the proceeding and the adequacy of procedural safegu ards. Gersh, 291 M d. at 197, 43 4 A.2d a t 551-52. T his Court has consistently examined both fa ctors to determine wh ether a privileg e exists. See, supra, Part IV. The public policy underpinnings of Gersh support the idea that quasi-judicial processes alone are insufficient justification for privilege. We held the existence of privilege depended on procedural safeguards and the nature of the question into which it is [the tribunal s] duty to inquire. Gersh, 291 Md. at 196, 434 A.2d at 551 (quoting Trapp v. Mackie , 1 All E.R. 489, 492 (1979), 1 W.L.R . 377 (H.L. 1978 )). In keeping with the policy reasons for extending the privilege, this C ourt said in Odyniec, and repeated in Imperial: Gersh, Miner, and McD ermott thus stand for the proposition that absolute witness immunity will not be extended to a nonjudicial proceeding unless the same policy considerations which underlie application of the privilege in the judicial sphere are also present. It must appear from the nature and conduct of the proceeding that society s benefit from unfettered speech during the procee ding is grea ter than the interests of an individ ual wh o migh t be def amed during that pro ceedin g. -15- Odyniec, 322 Md. at 531, 588 A.2d at 791 (emphasis ad ded); Imperial, 351 Md. at 48, 716 A.2d at 249. The overarching purpose of the first Gersh factor in considering the nature of the proceeding s public function is to require more than procedural safeguards for an extension of privilege to nonjudicial settings. Without the first fac tor, the mere existence of quasi-judicial processes c ould protect every defamatory statement that leads to a proceeding from becoming actionable. Such a result would lead to a per se immunity for administrative proceedings. It would collapse the inquiry into the nature of the public function of the proceeding into simple reliance on the nature of administrative proceedings in and of themselves. Dr. Brenner argues that the quote from Odyniec, calling for the same policy considerations for the extension of the privilege in both judicial and administrative proceedings, supports h is contention that the justification for applying privilege must be the same, regardless of whether an administrative proceeding is pending or not yet initiated at the time of the defamatory statement. The phrase same policy consideration, how ever, refers to the policy interest in favor of fostering freedom of expression, even at the cost of individual reputati on. This justification occurs only when both the nature and conduct of the proceeding raise it to the level that implicates favoring free speech over potential harm. We have held that the sufficiency of procedural safeguards does not vary depending upon whether the defamation occurs during or instead initiates a n adm inistrativ e proce eding. See -16- Reichardt, 374 Md. at 376-77, 823 A.2d at 575. It does not follow, however, that nature of the public function will be the same, regardless of temporal difference. In McD ermott we said th at otherw ise actionab le conduct thus is protected where the accused acts in furtherance of a recognized socially important interest. McDermott, 317 Md. at 23, 561 A.2d at 1044 . It follows that when the nature of the public function of the proceeding is that it acts to protect a socially impo rtant interest, abs olute imm unity should apply. In the conte xt of ong oing judicia l or quasi-jud icial administr ative proceedings, we have recognized the socially important interest that it is of the greatest importance to th e administration of justice that witnesses should go upon the stand with their minds a bsolutely free from app rehension that they may sub ject themselv es to an action of slander for what they may say while giving their testimony. Hunckel, 69 Md. at 187, 14 A. at 501. We have relied on a similar justification for the extension of privilege in cases of ongoing administrative procee dings. Odyniec, 322 Md. at 534, 588 A.2d at 792 (noting the vital public function of the arbitration machinery established by the legislature for health care malpractice claims encouraged the extension of privilege to the witnesses before arbitration panels ). In evaluating the nature of the public function of the proceeding when administrative proceedings have not yet been initiated at the time the defamatory statement is published, we hav e found ju stification for the privilege in Miner, Imperial, and Reichardt. Each of those cases em phasized the socially important interest in allowing for the -17- protestation and reporting of alleged abuses of the public trust as a result of o fficial cond uct. This Court laid out the importance of this public interest in Miner, noting that citizen complain ts of police brutality abuses serve a public function of vital importance by providing a mechanism through which abuses may be reported to the proper authorities, and the abusers held accountable. The viability of a democratic government requires that the channels of communication between citizens and their public officials remain open and unimped ed. Miner, 304 M d. at 176, 49 8 A.2d a t 275. The importanc e of not de terring citizen c ompla ints outw eighed the pos sible ha rm of d efama tory statem ents. Similarly, in Reichardt, the complained-of abuse affected the public school system, which the Court called the core of the well-being of our community, our state and our nation. Reichardt, 374 M d. at 373 , 823 A .2d at 573. We e xpressed a similar public function as the one we found in Miner, stating [i]t is unquestionably an issue of strong public interest that stud ents and p arents shou ld be protec ted from s uit for reporting a teacher s alleged sexual misconduct. Id. Finally, in Imperial, this Court noted the life and death situations entru sted to eme rgency med ical technicians to emphasize how the competence of such workers critically affects the public at large. Again our focus was on allowing the unhindered reporting of complaints, as we observed that public policy encourages the comm unication of information to public authorities responsible for maintaining the qua lity of eme rgency m edical se rvices. Imperial, 351 Md. at 50, 716 A.2d at 250. -18- By identifying the socially important interest of avoiding abuses up on the pub lic welfare, this Court emphasized the public function of the eventual proceeding. The phrase the nature of the public function implies a further inquiry into the nexus between the socially important interest (the public function) and the proceeding. It requires an examination of an iden tified public in terest, and ho w it is advanced by the proceedin g. This Court has foun d that in case s where a citizen ques tions official conduct and protests the abuses of public officers, the nature of the public function to protect the public from such abuse is served well by an administrative proceeding. A nexus exists between the proceeding s functio n and a legitima te public interest, such as avoiding abuses upon the public.4 Examining the nature of the public function of the proceeding sheds light on the proceeding s effect on the public and its impact on a socially important interest. It therefore may be neces sary in som e cas es to exam ine th e public a utho rity or duties entrusted in the employee. The duties and authority attendant to a particular position may determine how much influence an official has over the public from his or her position, which in turn can affect how closely the proceeding serves a public intere st. From our jurisprudence, it follows that the nature of the public function of the proceeding therefore also includes an inquiry 4 Miner, Imperial and Reichardt have all identified a significant public interest that protects against abu ses upon th e public by cer tain officials. W e do not su ggest that this is the only justificatio n that migh t suffice un der the first Gersh factor in future cases. -19- into a person s power over the public when the identified public interest is an important check on that pow er. In Miner, the connection between the public interest in protecting society from the abuse of power and the duty and authority of the police officer w as self-evide nt. We said [o]ur society vests its law -enforcem ent officers with formidable pow er, the abuse of which is often extremely detrimental to the public interest. Miner, 304 M d. at 176 , 498 A .2d at 274-75. In Reichardt we stated [i]f public school teacher were substituted for law-enforcement officer, the above-quoted passage would b e fully applicab le in the case at bar. Reichardt, 374 Md. at 371, 823 A.2d at 572. Both cases dealt with the yielding of considerab le authority and p ower ov er the public trust. Extend ing absolu te privilege in Miner was pref erable to the inhibition of citizens criticism s of those e ntrusted w ith their protecti on, directly implicating the duty law enforcement officers have to protect the public at large. Miner, 304 Md. at 177, 498 A.2d at 275. The same duties of trust and protection were implicated in Reichardt when th e Court sa id: It is unquestionably an issue of strong public interest that students and parents should be protected from suit for reporting a teacher s alleged sexual misconduct. Reichardt, 374 M d. at 373, 82 3 A.2d a t 573. An d in Imperial we said, the imp ortance to th e public tha t all medical p articipants in the emergency medical system be competent is self-evident, focusing on the particular category of employee and the p ublic s in teres t in its duty a nd authority. Imperial, 351 Md. at 50, 716 A.2d at 250. In each of these cases, the Court c onsidered the emplo yee s duty and au thority -20- in evaluating the nature of the public function served by prospective administrative proceedings. By contrast, Dr. Offen contends that he has no authority or power over the public. He characterizes himself as a low-level employee making only recommendations on claims, which the Department of Justice (DOJ) then has the power to adopt or not. Dr. Brenner argues that this characterization is disingenuous and that Dr. Offen s position of expertise and the importance of handling vaccination claims effectively results in a system that defers to the recommendations provided by perso nnel such as Dr. Of fen and re lies on their cred ibility. Dr. Brenner s rebu ttal highlights the importance of d etermining how Dr. Offen s duties relate to the important interest identified by the trial court. We would not separate Dr. Offen s duties and responsibility from an evaluation of the nature of the public function of the proceeding in this case. In keeping with our reasoning that the nature and scope of such proceedings are too varied to be circumscribed by specific criteria, Gersh, 291 Md. at 197, 434 A.2d at 551, the inquiry into the duty and authority of a defamed employee is not determinative. As we have indicated, whether a privilege w ill apply is to b e determ ined on a case-b y-case ba sis. Id. In McD ermott, we listed several procedural failures in holding the investigation did not meet Gersh s second factor. T his Court sta ted that it was not implying either that the a bove is a complete listing of fac tors or th at each of the f actors lis ted is alw ays requir ed. -21- McD ermott, 317 Md. at 26 , 561 A.2d at 104 5. The same can be said of our holding here under the f irst Gersh factor. Acc ordingly, under Maryland defamation law, the duties and authority of the employee against whom a statement was made should be considered, but are not dispositive, in determining the nature of the public function of an administrative proceeding when deciding whether a statement that led to that proceeding against an employee is protected by absolute privilege. CERTIFIED QUESTION OF LAW ANSWERED AS SET FORTH ABOVE. COSTS TO BE EQUALLY DIVIDED BY THE PAR TIES. -22-

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