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Ray v. City of Bossier City10/24/2003
by the IA investigation report was that "there was not a criminal violation."
Actual malice means that the defendant made the statement with knowledge that it was false, or with reckless disregard for the truth. New York Times Co., supra. To establish reckless disregard, the plaintiff must show that the false publication was made with a high degree of awareness of its probable falsity or that the defendant entertained serious doubts as to the truth of the publications. St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968). Actual malice is not shown merely by evidence of ill will or "malice" in the ordinary sense of the word; nor is it to be inferred from evidence of personal spite, an intent to injure, or a bad motive. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (1989); Tarpley v. Colfax Chronicle, 94-2919 (La. 02/17/95), 650 So. 2d 738.
We note that the IA investigation confirmed that Ray and Patten were involved to some degree with discussing stopping Jones and Halphen if they were driving under the influence of alcohol. Jones was aware of this unfavorable information concerning Ray and Patten. We acknowledge that there had been an antagonistic relationship between plaintiffs, as officers of the Bossier City Police Union and Jones, as a City Councilman. However, ill will alone is insufficient to establish that there was actual malice. See Harte-Hanks Communications, Inc., supra; Tarpley, supra. Based upon the information that the IA report revealed and based upon what Jones had been told, there is absolutely no evidence to show that Jones felt that the statements he made were not true. Considering the fact that Jones was aware of the results of the IA investigation, which he had kindled to begin with, he had a truthful foundation upon which to base his comments. Ray and Patten have failed to make any showing of actual malice on the part of Jones. The trial court correctly granted summary judgment in favor of Jones regarding plaintiffs' defamation claim.
Exhaustion of Civil Service Remedies
Citing La. Const. Art. X, § 12, the City urges that Ray and Patten failed to exhaust state civil service review; therefore, it argues that plaintiffs waived their right to challenge the voluntariness of their respective resignation and retirement. We note that after Ray retired and Patten resigned, Ray demanded a hearing before the Bossier City Municipal Fire and Police Civil Service Board ("the Board"). He argued that he was constructively discharged from the police department. The Board rejected his complaint. Patten never sought any type of civil service review. While Ray could have appealed the Board's decision, he did not. Instead, he and Patten filed the instant action with the district court.
La. Const. Art. X, §§ 1-15, or "Part I," pertains to state and city civil service employees other than police officers. La. Const. Art. X, §§ 16-20, or "Part II," governs the police and fire civil service.
Section 19 provides, in pertinent part:
Nothing in Part I of this Article authorizing cities or other political subdivisions ... shall authorize the inclusion in a city civil service system of fireman and policeman in any municipality having a population greater than thirteen thousand but fewer than four hundred thousand and operating a regularly paid fire and municipal police department ... Such fireman and policeman are expressly excluded from any such system.
Further, Louisiana's Whistleblower Statute, La. R.S. 23:967, provides in part:
B. An employee may commence a civil action in a district court where the violation occurred agains
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