                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-2004



DAVID E. CONLEY,

                                             Plaintiff - Appellant,

           versus


TOWN OF ELKTON; CATHY H. MURPHY, individually
and in her official capacity as a Council
Member and Vice Mayor of Elkton; JAY T. DEAN;
PHILLIP    “RICK”   WORKMAN;   THEODORE  PENCE;
RANDALL L. SNOW, individually and in their
official capacities as Council Members of the
Town    of    Elkton;    RICHARD   W.   PULLEN,
individually and in his official capacity as
Chief of Police of the Town of Elkton; JOAN
SIGAFOOSE, Executor of the estate of Lucky C.
Sigafoose,

                                            Defendants - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (CA-04-30-5)


Argued:   May 25, 2006                      Decided:   July 14, 2006


Before WILKINS, Chief Judge, GREGORY, Circuit Judge, and Joseph F.
ANDERSON, Jr., Chief United States District Judge for the District
of South Carolina, sitting by designation.


Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Chief Judge Wilkins and Judge Anderson joined.
ARGUED: Timothy Earl Cupp, CUPP & CUPP, Harrisonburg, Virginia, for
Appellant.   David Patrick Corrigan, HARMAN, CLAYTOR, CORRIGAN &
WELLMAN, Richmond, Virginia, for Appellees. ON BRIEF: Jeremy D.
Capps, HARMAN, CLAYTOR, CORRIGAN & WELLMAN, Richmond, Virginia, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                2
GREGORY, Circuit Judge:

     David E. Conley brought this action pursuant to 42 U.S.C. §

1983 against the Town of Elkton, Virginia (“Town”), Richard Pullen,

the Chief of the Town’s Police Department, and six members of the

Town’s Council (“Council”) (collectively “defendants”), asserting

that defendants terminated him from the Police Department because

he exercised his First Amendment rights.          Conley also asserted a

pendent state law claim of defamation against Chief Pullen.             The

district court granted defendants’ motion for summary judgment and

dismissed Conley’s complaint in its entirety.        Finding no error in

the district court’s decision, we now affirm.



                                 I.

     The Town has a small Police Department comprised of five

officers.   Police   officers   are     at-will   employees   subject    to

discharge at any time by the Council.     In addition, the Town’s Code

specifically provides that “[t]he Council shall employ police

officers or terminate their employment, upon the recommendation of

the Chief of Police.”   J.A. 734.

     In September 2000, Conley began working as a police officer in

the Town’s Police Department.       Shortly after Conley was hired,

Elkton terminated the police chief, Rob Marshall.        Although Conley

applied for the position of police chief, the Council offered the

position to Richard Pullen.


                                    3
     Conley knew Pullen from his previous job in the Page County

Police Department. During their employment together, Conley’s wife

apparently telephoned Pullen’s wife in 1992 to inform her that

Pullen   was   engaging    in   an    extramarital   affair.1    During    his

deposition, Conley opined that “I guess [the telephone call] would

cause    him   to   have   some      animosity   toward   me.”   J.A.     195.

Nevertheless, Conley attested that he had felt “[e]xcited” that

Pullen had received the position as police chief and thought that

they could work well together.          J.A. 124.

     Soon after Conley began working for the Police Department, he

earned a reputation as a highly regarded police officer with

excellent communication skills.          According to Chief Pullen, Conley

was more productive than the other officers, adept at solving

cases, and proactive in performing volunteer work. Conley was also

well-liked within Elkton.

     Within the Police Department, however, Conley experienced

significant friction with two of the existing officers, Harold

Shifflet and John Painter.2           In early 2001, Officer Shifflet and


     1
      In fact, Conley himself knew about Pullen’s affair and had
reported Pullen’s conduct to the sheriff at Page County.
     2
      Officer Shifflet and Officer Painter initially feared that
Conley had been hired to replace Marshall as police chief.       In
early January 2001, when Pullen assumed his duties as the new
police chief, Conley was promoted to the position of Corporal.
According to Conley, the other officers (Donald Dean, Shifflet, and
Painter) resented his rank. Conley further alleges that he was
downgraded four to six weeks later in order “to keep the peace . .
. .” J.A. 133.

                                         4
Officer Painter unsuccessfully propositioned a married woman in the

community to entice Conley back to her home “in order to implicate

him in improper relations with a woman while on duty.”         J.A. 720.

The woman was “shocked” at the suggestion and instead, informed

both Conley and Chief Pullen of the officers’ proposal.               Id.

According to Conley, Chief Pullen did not discipline either Officer

Shifflet or Officer Painter for this incident. Ultimately, Officer

Shifflet   and   Officer   Painter   both   resigned   from   the   Police

Department in 2001 because of their personal difficulties with

Conley.

     Conley was also involved in disputes with the other officers.

Officer James Morris testified that he noticed that Conley had

various “altercations” with Chief Pullen, Sergeant John Atwood, and

the other patrol officers.      J.A. 303.     On one occasion, Officer

Rodney Hensley told Chief Pullen that he had “snapped” at Conley

when Conley attempted to assist him in a case.           J.A. 288.     On

another occasion, Conley accused Officer Donald Dean of badmouthing

him in public, at which point Officer Dean began “screaming and

yelling” at Conley.    J.A. 145.

     In March 2001, Conley confronted Chief Pullen regarding the

lack of productivity he perceived within the Police Department. At

one point, Conley pointed to the summons log, which recorded the

amount of work performed on a monthly basis, and raised his voice

at Chief Pullen, claiming that “nobody’s not [sic] doing anything.”


                                     5
J.A.    135.      Conley    subsequently   received   a   reprimand   for

insubordination for his conduct.

       Following these incidents, Chief Pullen concluded that Conley

was not getting along with the other officers.             See J.A. 581

(Pullen, stating that “[i]f it would have been Officer Conley and

one particular individual, I would have said, okay, there’s [a]

personality conflict here, but it was always Officer Conley and

someone else; it was Officer [Conley] and John Painter, Officer

Conley and Harold Shifflet, Officer Conley and someone else”).

Conley admitted that his “fellow officers had trouble getting along

with me,” J.A. 168, but claimed that any disruptions were minimal

because the officers worked different shifts.         He further stated

that the other officers “had made complaints on me ever since I’ve

been there.     They’ve made it hard on me ever since I been there.

They, not me; they.”       J.A. 169.

       In May or June of 2001, the Council called a meeting to

address complaints it had received from several officers about

Conley.    According to Cathy Murphy, a member of the Council, the

other officers “did not feel comfortable with Officer Conley, that

Officer Conley was overbearing, issuing orders, telling them they

weren’t doing their job correctly, that he was the best officer.”

J.A. 343.      Despite these complaints, the Council took no action

against Conley at that time.




                                       6
     Although he had difficulties with his fellow officers, Conley

flourished in his volunteer activities with Neighborhood Watch, a

seventy-five member organization that focused on improving safety

within the Town.    During a Neighborhood Watch program held in the

summer of 2002, Conley remarked that a canine unit (“K-9 program”)

“would be the best drug deterrent in a small town.”      J.A. 153.

Neighborhood Watch immediately jumped at the suggestion and began

fundraising efforts for the K-9 program.

     When Neighborhood Watch approached Chief Pullen with the K-9

program, Chief Pullen responded that he would discuss it with the

Council. According to Neighborhood Watch, Chief Pullen represented

that he had received approval from the Council to move forward with

the K-9 program.     However, after Neighborhood Watch had raised

enough money to start the K-9 program, it learned that Chief Pullen

had not even spoken with the Council about instituting the K-9

program.   Members of Neighborhood Watch grew angry with Chief

Pullen because they believed that he had lied to them.

     Chief Pullen did not directly dispute that he misrepresented

that he had received approval from the Council.      Rather, Chief

Pullen stated that he did inform the Council of the idea, but that

the Council had dragged its feet in deciding whether to proceed

with the program.    Chief Pullen opined that the K-9 program had

created havoc among the community because “Neighborhood Watch was

trying to dictate to the town what was to be done with the dog, who


                                  7
was supposed to handle the dog, that sort of thing.”   J.A. 559-60.

Chief Pullen further admitted that he believed that Officer Morris

would be a superior K-9 officer based on his physical fitness, but

that he felt too much pressure from Neighborhood Watch to support

Conley.

     Some members of the Council similarly became frustrated with

the way in which Neighborhood Watch had thrust the K-9 issue upon

them. Indeed, Murphy admitted that the Council felt that the issue

had created considerable disruption:

     The havoc was that the canine issue became public really
     before it came to council for discussion; and what that
     did, because it was a public issue before it was a
     council issue to even accept the canine, it put pressure
     on the chief, it put pressure on the council to
     accommodate a canine.

J.A. 330.      In general, however, the Council supported the K-9

program.

     In January 2003, the Council decided to appoint Conley as the

K-9 officer.     Conley poured a concrete pad at his house for the

kennel and prepared for a training session scheduled in March 2003.

When Conley and Chief Pullen went to visit the designated K-9 dog,

Conley apparently remarked that he did not want to train the dog in

cold weather; therefore, Chief Pullen pushed back the training date

to the middle of April.

     Meanwhile, Conley continued to experience difficulties with

his fellow officers.    On January 24, 2003, Chief Pullen met with

the newly-elected Mayor Wayne E. Printz, Council member Lucky

                                 8
Sigafoose, Sergeant Atwood, Officer Morris, and Officer Hensley.

At this point, Chief Pullen and the other officers expressed that

Conley was adversely affecting morale.              Chief Pullen further

informed Mayor Printz that the officers “were of the impression

that Mr. Conley was trying to make himself look great to their

detriment.”   J.A. 512.

     In March 2003, Conley met with John Boone, an officer at the

Massanutten Police Department, at a restaurant in the Town. During

their conversation, Conley told Officer Boone that “there was a lot

of people that wanted to see Pullen out the door.”                 J.A. 93.

Conley then asked Officer Boone “how much would [he] have to be

paid [in terms of] salary to come to Elkton.”              J.A. 97.      When

Officer   Boone   replied,   “$33,000,”    Conley     stated,   “[t]he   Town

Council is not going to pay that.”        J.A. 187.    Ultimately, Officer

Boone understood Conley to mean that “he was trying to get me to

work down there just in case Pullen got fired . . . .”             J.A. 97.3

     At one point during his conversation with Officer Boone,

Conley asked a bystander which candidate he would be supporting in

the upcoming sheriff’s election.          When the man responded, “Don

Farley,” Conley replied, “well, when I get some time and I’m off

duty, let me talk to you.”     J.A. 86-87.     Officer Boone understood



     3
      According to Conley, his recruiting inquiries to Officer
Boone and another individual, David Barry (who was an experienced
K-9 officer), were “strictly in the essence, if we had openings,
that maybe they could come fill those openings.” J.A. 187.

                                   9
Conley’s comment to express his support for Buddy Farris, the only

other candidate running for sheriff.

       Because both officers were in uniform at that time, Officer

Boone felt nervous that he had violated his department’s gag order

prohibiting police officers from discussing the sheriff’s election

during    active    duty   in   public.    To   avoid   the     appearance   of

impropriety, he reported the conversation to his supervisor and

Chief Pullen. Although Boone told them that Conley “did not openly

support Buddy Farris,” J.A. 101, Chief Pullen believed that Conley

had violated the Police Department’s prohibition against police

officers supporting political candidates while on duty.

       Thereafter, Chief Pullen contacted Murphy and other members of

the Council to discuss his recommendation to terminate Conley.

According   to     Chief   Pullen,   the   Council   was   in    agreement   to

terminate Conley.      Chief Pullen believed that “enough was enough,

and we should give him the option to resign or be terminated.”

J.A. 529.    Chief Pullen did not, however, discuss the matter with

Mayor Printz because, in Chief Pullen’s view, “it was obvious that

Mayor Printz would not be in favor of [terminating Conley].”             J.A.

585.

       On April 8, 2003, the Council convened in a special closed

session. At the session, Chief Pullen distributed a sheet of paper

reciting eight reasons underlying his recommendation to terminate

Conley:


                                      10
     1.     Enter into conspiracy to disrupt operation of
            Police Department.
     2.     Interfering with cases of other officers.
            395 [Officer Hensley] in court.
            391 [Officer Adam Williams] at Neighborhood Watch.
     3.     Participate in political campaigns while on duty.
     4.     Failed to take felony warrants to Sheriff’s Office
            on the day told to do so. (02/20/2003).
     5.     Becomes defensive when questioned about activities.
     6.     On two separate occasions has failed to appear for
            court cases without proper notification.
     7.     Informed in writing that Conley is reluctant to
            deal with friends and relations.
     8.     On three separate occasions Conley has been called
            before council for altercations with superiors and
            co-workers.

J.A. 475.

     The    Council   unanimously   voted   to    accept    Chief   Pullen’s

recommendation to terminate Conley.          At the time of Conley’s

termination, there were six members on the Council: Jay T. Dean,

Cathy Murphy, Theodore Pence, Lucky Sigafoose, Randall L. Snow, and

Phillip Workman, II.    Each member, with the exception of Sigafoose

(who is now deceased), gave differing reasons based on Chief

Pullen’s list for terminating Conley.

     Following    his   termination,     Conley   brought    suit   against

defendants, asserting § 1983 claims against the Council related to

his termination and a defamation claim against Chief Pullen.           Upon

defendants’ motion for summary judgment on all of Conley’s claims,

the district court granted the motion and dismissed the complaint.

Conley now appeals.




                                    11
                                           II.

                                            A.

       We review de novo the district court’s decision to grant

defendants’ motion for summary judgment.                 Holly Hill Farm Corp. v.

United States, 447 F.3d 258, 262 (4th Cir. 2006).                         According to

Rule   56(c)       of   the   Federal   Rules     of    Civil    Procedure,      summary

judgment is appropriate where “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, . . . show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.”          Fed. R. Civ. P. 56(c).            Although we view the

facts and inferences drawn therefrom in the light most favorable to

Conley,      the    non-moving    party,     he   has    the    ultimate    burden   of

demonstrating a genuine issue of material fact for trial.                            See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).



                                            B.

       Conley first asserts that the district court erroneously

granted      summary     judgment    with    respect      to    his   §   1983    claims

regarding (1) his comments concerning the sheriff’s election and

(2) his association with Neighborhood Watch.                    We disagree.

       The    First      Amendment      “protects        public       employees    from

termination of their employment in retaliation for their exercise

of speech on matters of public concern.”                 McVey v. Stacy, 157 F.3d


                                            12
271, 277 (4th Cir. 1998).      Protected speech must involve “an issue

of social, political, or other interest to a community.” Love-Lane

v. Martin, 355 F.3d 766, 776 (4th Cir. 2004) (internal quotation

marks and citations omitted); Edwards v. City of Goldsboro, 178

F.3d 231, 247 (4th Cir. 1999) (holding that the determination of

whether speech is protected rests on “whether the public or the

community is likely to be truly concerned with or interested in the

particular expression, or whether it is more properly viewed as

essentially    a    private   matter   between   employer   and   employee”

(internal quotation marks and citations omitted)).          However, even

if the speech at issue is protected, an employee’s interest “is not

absolute and must be tempered by the government’s interest in

governmental effectiveness, efficiency, order, and the avoidance of

disruption.”       McVey, 157 F.3d at 277.

     In accordance with these principles, a plaintiff claiming

retaliatory discharge based on speech protected under the First

Amendment must satisfy a three-part test.         First, the speech must

implicate a matter of public concern. Id. Second, the “employee’s

interest in First Amendment expression must outweigh the employer’s

interest in efficient operation of the workplace.”           Goldstein v.

Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 352 (4th Cir.

2000) (internal quotation marks and citations omitted). Third, the

speech must have been a “substantial factor” in the termination

decision.     McVey, 157 F.3d at 278 (internal citations omitted).


                                       13
     We first find that the district court properly dismissed

Conley’s   §   1983    claim    regarding     his   comments     concerning   the

sheriff’s election.        Although Conley’s comments regarding the

election implicated a matter of public concern, he cannot establish

that his right to express those views while in uniform and on duty

outweighed the Police Department’s interest in maintaining an

effective police force. Indeed, as the Tenth Circuit has observed,

“public endorsement of candidates by police officers has stirred

great controversy within police departments and has detracted from

the efficiency and the quality of the services provided by law

enforcement.”       Jantzen v. Hawkins, 188 F.3d 1247, 1258 (10th Cir.

1999) (internal quotation marks and citations omitted) (holding

that the police department’s interest in providing effective law

enforcement outweighed the police officers’ free speech interest in

running against the sheriff in an election); Horstkoetter v. Dep’t

of Pub. Safety, 159 F.3d 1265, 1274 (10th Cir. 1998) (finding that

Oklahoma’s     interests       in    insulating     troopers     from   political

pressures, promoting efficiency and harmony amongst troopers, and

ensuring that police protection would be available to the public

regardless     of   political       affiliations    outweighed    the   troopers’

individual rights to display political signs). See also U.S. Civil

Serv. Comm’n v. Nat’l Assoc. of Letter Carriers, 413 U.S. 548, 565

(1973) (“[I]t is not only important that the Government and its

employees in fact avoid practicing political justice, but it is


                                         14
also critical that they appear to the public to be avoiding it, if

confidence in the system of representative Government is not to be

eroded . . . .”).         Since the record fails to reflect any further

prohibitions on Conley’s ability to engage in political activities

while off-duty or out of uniform, the Police Department’s intrusion

on his First Amendment rights, if any, was slight.                             The Police

Department’s      legitimate          interest        in   insulating         itself    from

political divisiveness within both the Police Department and the

community outweighed Conley’s right to free speech.                              Thus, we

affirm the district court’s decision to grant summary judgment on

this claim.

       We similarly find that the district court properly dismissed

Conley’s    §    1983    claim       regarding       his   right   to    associate      with

Neighborhood Watch.             Even assuming that Conley has otherwise

satisfied the elements of his claim, Conley failed to establish the

requisite       causal     connection          between       his    association         with

Neighborhood Watch and his termination--i.e., that his association

with    Neighborhood       Watch        was     a     substantial       factor    in     his

termination.       As an initial matter, Conley did not present any

evidence that the Council ever discussed his association with

Neighborhood Watch.        In voting to terminate Conley, each member of

the    Council    relied       on    various        justifications--e.g.,         Conley’s

altercations       with        his     fellow        officers,     various       acts    of

insubordination,         and    conversations          concerning       the    efforts    to


                                              15
terminate   Chief   Pullen--which    were    wholly    unrelated    to   his

association with Neighborhood Watch. Thus, the Council “would have

fired [Conley] even in the absence of the protected speech.”             Hall

v. Marion Sch. Dist., 31 F.3d 183, 193 (4th Cir. 1994) (internal

citations omitted).4

     Although Conley asserts that his actions were legitimate in

each of the cited instances, we note that the Council members “need

not have been correct in their apprehension of the facts underlying

the articulated justifications.”         Goldstein, 218 F.3d at 357.

Moreover, even if, as Conley claims, Chief Pullen harbored an

unconstitutional    retaliatory     motive   against    Conley     for   his

association with Neighborhood Watch, there is no evidence that the

Council merely rubber-stamped that reason in terminating Conley.

Kirby v. City of Elizabeth City, 388 F.3d 440, 451 (4th Cir. 2004)

(no causal connection where the plaintiff failed to “forecast[]

evidence that the City Manager approved of retaliation against

Kirby as a basis for the demotion”). Accordingly, we conclude that




     4
      We further note that Conley’s argument that the temporal
proximity between his activities with Neighborhood Watch and his
termination establishes causation is weak.         Conley joined
Neighborhood Watch in 2001 (two years before his termination) and
suggested the K-9 program in 2002 (one year before his
termination). These events are simply too far removed from his
termination to raise a genuine issue of material fact concerning
causation.

                                    16
the district court’s decision to grant summary judgment on this

claim was appropriate.5



                                           C.

       Conley next contends that the district court erroneously

granted summary judgment with respect to his defamation claim.

Conley’s defamation claim rested on Chief Pullen’s recommendation

that Conley be terminated because he had conspired to disrupt the

Police Department.           In dismissing this claim, the district court

reasoned that Conley did not present sufficient evidence showing

that Chief Pullen acted with the requisite malice in making this

statement.       We agree with the district court.

       Virginia       law,   which    governs   Conley’s    defamation   claim,6

applies a qualified privilege to allegedly defamatory statements

made       in   the   context    of   an    employment     decision.   Union   of

Needletrades v. Jones, 603 S.E.2d 920, 924 (Va. 2004).                   As the

Supreme Court of Virginia has explained, such statements are

protected because they are “‘made between persons on a subject in

which the persons have an interest or duty.’”                     Id. (quoting

Larimore v. Blaylock, 528 S.E.2d 119, 121 (Va. 2000)).                 Moreover,



       5
      We therefore need not reach the issue of qualified immunity
discussed by the district court.
       6
      See Johnson v. Hugo’s Skateway, 974 F.2d 1408, 1416 n.7 (4th
Cir. 1992) (a federal court is required to apply state law to
pendent state claims brought with § 1983 claims).

                                           17
the   qualified   privilege   facilitates       free    discussions    between

employees and employers because:

      Public policy and the interest of society demand that in
      cases such as this an employer, or his proper
      representatives, be permitted to discuss freely with an
      employee, or his chosen representatives, charges
      affecting his employment which have been made against the
      employee to the employer. There is a privilege on such
      occasions   and   a   communication   made   under   such
      circumstances, within the scope of the privilege, without
      malice in fact, is not actionable, even though the
      imputation   be   false,   or  founded   upon   erroneous
      information.

Chesapeake Ferry Co. v. Hudgins, 156 S.E. 429, 441 (Va. 1931).

      To overcome the qualified privilege in the employment context,

the plaintiff cannot rely on merely showing the falsity of the

communication; rather, he must establish that the communication was

“inspired by malice.”      Larimore, 528 S.E.2d at 121 (“The question

is not as to the truth or falsity of the communication, or whether

the action taken by the defendant with reference thereto or based

thereon was right or wrong, but whether the defendant in making the

publication   acted   in   good   faith    or   was    inspired   by   malice.”

(internal citations omitted)).        Specifically, the plaintiff must

establish common-law malice--i.e., “behavior actuated by motives of

personal spite, or ill-will, independent of the occasion on which

the communication was made.”      Union of Needletrades, 603 S.E.2d at

924   (internal   quotation   marks       and   citations   omitted).7      In


      7
      As the district court concluded, Conley cannot simply rely on
showing that Chief Pullen made the conspiracy accusation with the
knowledge that it was false or with reckless disregard for the

                                    18
addition, the plaintiff must prove common-law malice by clear and

convincing evidence, which is defined as follows:

     Clear and convincing evidence is that degree of proof
     which produces in the mind of the trier of facts a firm
     belief or conviction upon the allegations sought to be
     established. It is intermediate proof, more than a mere
     preponderance, but less than proof beyond a reasonable
     doubt. It does not mean clear and unequivocal.

Se. Tidewater Opportunity Project, Inc. v. Bade, 435 S.E.2d 131,

133-34 (Va. 1993) (internal quotation marks and citations omitted).

     The record indicates that Chief Pullen premised his conspiracy

accusation on the conversation between Conley and Officer Boone in

March 2003.   During that conversation, Conley told Officer Boone

that a growing alliance sought to terminate Chief Pullen, and

subsequently suggested that Officer Boone could switch to the

Town’s   Police   Department   in   the   near   future.   Officer   Boone

interpreted Conley’s comments to mean that “he was trying to get me

to work there just in case Pullen got fired . . . .”         J.A. 97.

     Officer Boone subsequently relayed the substance of this

conversation to his supervisor and to Chief Pullen. After learning

of the conversation, Chief Pullen believed that Conley had spoken

with members of Neighborhood Watch to plot his removal as police

chief. Moreover, Chief Pullen determined that Conley’s conduct had

violated the Police Department’s Code of Conduct, which provides,

in relevant part, that:


truth to overcome the qualified privilege in the employment
context. See Union of Needletrades, 603 S.E.2d at 924 n.4.

                                    19
       Any member of the Police Department who enters into a
       conspiracy, combination, or agreement with the purpose of
       substantially interfering with or obstructing the
       efficient conduct or operation of the police force by a
       strike or other disturbance, shall be guilty of gross
       neglect of duty, the penalty for which is dismissal.

J.A. 745.      Indeed, Chief Pullen expressly relied on the language

set forth in the Code of Conduct in characterizing his first

reason--“Enter into conspiracy to disrupt operation of Police

Department”--for recommending Conley’s termination to the Council.

J.A. 475.

       The circumstances surrounding Chief Pullen’s accusation thus

establish that he made the accusation in accordance with his good

faith belief that Conley had violated the Code of Conduct.                 See

Larimore, 528 S.E.2d at 121 (“The question is not as to the truth

or falsity of the communication, or whether the action taken by the

defendant with reference thereto or based thereon was right or

wrong, but whether the defendant in making the publication acted in

good   faith    or   was    inspired   by   malice.”   (internal     citations

omitted)).      As the district court noted, “[r]ightly or wrongly,

Chief Pullen believed that Conley had conspired to get him fired.”

J.A. 822.      Setting aside whether Chief Pullen’s determination was

actually     correct,      we   perceive    no   indication   that   improper

considerations such as malice motivated Chief Pullen to make the

conspiracy accusation.

       Conley nevertheless raises several contentions in support of

his view that Chief Pullen acted out of malice.                Specifically,

                                       20
Conley maintains that the following establish Chief Pullen’s hatred

of him: (1) Chief Pullen’s failure to substantiate the conspiracy

accusation; (2) Chief Pullen’s failure to confer with Mayor Printz

concerning the recommendation to terminate Conley or to provide

Conley with an opportunity to respond to the recommendation; (3)

Chief Pullen’s desire to protect his own job as police chief; (4)

Chief Pullen’s resentment toward Conley for his appointment as the

K-9 officer; (5) Chief Pullen’s failure to discipline Officer

Painter and Officer Shifflet for their plot to set up Conley in

2001; and (6) Chief Pullen’s anger arising from Conley’s wife’s

disclosure of Chief Pullen’s extramarital affair in 1992.

        None of these arguments raises a genuine issue of material

fact regarding the existence of malice.            First, Conley’s assertion

that    Chief    Pullen’s    failure    to     substantiate     the    conspiracy

accusation demonstrates malice overlooks the fact that Chief Pullen

learned     of   Conley’s    comments        directly   from   Officer    Boone.

Significantly, Conley did not proffer any evidence that would cast

doubt    over    Officer    Boone’s    credibility,      or    would   otherwise

undermine Chief Pullen’s good faith reliance on Officer Boone’s

account of the conversation.          Second, Conley’s argument that Chief

Pullen circumvented established Town policy by refusing to inform

Mayor Printz of the recommendation to terminate Conley prior to the

closed session and depriving Conley of an opportunity to respond is

flawed.      No Town policy or provision entitles Conley to the


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procedures he seeks.       Third, Chief Pullen’s admitted desire to

protect his own job is not indicative of personal spite or ill-will

against Conley in light of his good faith belief that Conley was

attempting to steal his job.       Fourth, Conley’s argument that Chief

Pullen   sought   to   terminate   him    as   a   retaliatory   measure   for

Conley’s selection as the K-9 officer amounts to mere speculation

and is unsupported by the record.

     Finally, the two incidents cited by Conley as indicative of

longstanding bad blood between himself and Chief Pullen are too far

removed in time from Conley’s termination.            As the district court

noted, Conley’s incident with Officer Painter and Officer Shifflet

occurred more than two years prior to Conley’s termination, while

Conley’s wife’s disclosure of Chief Pullen’s extramarital affair

occurred more than ten years prior to the termination.             Moreover,

it is undisputed that Conley was “[e]xcited” that Chief Pullen was

joining the Police Department, J.A. 124, and that Chief Pullen

later commended Conley for his performance in a counterfeiting ring

in 2002.   In light of these positive interactions between the two

men, we are hard-pressed to infer that Chief Pullen continued to

harbor malice toward Conley until his ultimate termination in 2003.

See Se. Tidewater Opportunity Project, 435 S.E.2d at 132 (holding

that to avoid the privilege, the plaintiff must show “that the

words were spoken with malice in fact, actual malice, existing at




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the time the words were spoken . . . ” (internal citations

omitted)).

     Ultimately, we agree with the district court that Conley has

failed to establish, by clear and convincing evidence, that Chief

Pullen acted out of personal spite or ill-will in making the

conspiracy accusation. Accordingly, we affirm the district court’s

decision to grant summary judgment on this claim.




                              III.

     The district court’s decision to grant defendants’ motion for

summary judgment is therefore affirmed.

                                                         AFFIRMED




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