         [Cite as McLean v. Robertson, 2016-Ohio-2953.]
                     IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                      HAMILTON COUNTY, OHIO




VERA MCLEAN,                                     :        APPEAL NO. C-150651
                                                          TRIAL NO. A-1500001
        Plaintiff-Appellant,                     :
                                                             O P I N I O N.
  vs.                                            :

JERALD ROBERTSON,                                :

    Defendant-Appellee.                          :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 13, 2016




Newman & Meeks Co., L.P.A., and Robert B. Newman for Plaintiff-Appellant,

Surdyk, Dowd & Turner Co., L.P.A., Jeffrey C. Turner, Dawn N. Frick and Lauren L.
Clouse, for Defendant-Appellee.




Please note: This case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS




F ISCHER , Presiding Judge.

       {¶1}    Plaintiff-appellant Vera McLean filed a complaint against defendant-

appellee Jerald Robertson, alleging that Robertson had defamed her by falsely

publishing that she had a “felony record.” The trial granted summary judgment in

favor of Robertson. We affirm the trial court’s judgment.

       {¶2}    The record shows that from 2000 to 2003, McLean was employed as

the clerk of courts for the village of Elmwood Place Mayor’s Court. In 2003, Jim

Toles, the then mayor of Elmwood Place, asked McLean to resign based on

information he had received that McLean had been convicted of a felony. The clerk

of court’s duties required McLean to access the Regional Crime Information Center’s

(“RCIC”) database, and individuals with felony convictions were ineligible to use the

database.

       {¶3}    McLean testified that she had never been convicted of a felony. She

stated that she had been charged with theft as a felony, but had pleaded guilty to a

misdemeanor, which was later expunged. Nevertheless, McLean resigned from her

position a few months later.

       {¶4}    In 2008, McLean was rehired as the clerk of courts, which was then a

full-time position. Under Elmwood Place ordinances, the mayor appoints the clerk,

who serves at the pleasure of the mayor.

       {¶5}    In October 2014, Robertson became the mayor of Elmwood Place

after serving as a member of the village council. Robertson testified that he had been

dissatisfied with McLean’s job performance and had considered replacing her.

       {¶6}    On December 1, 2014, the village council passed an ordinance that

reduced the hours of several employees while increasing their hourly wages. The

ordinance was a money-saving measure that reduced the employees’ work week to




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four days and allowed the village to shut down the town hall for three consecutive

days to save on utility costs.

       {¶7}     As a result of that ordinance, McLean’s position was reduced to 24

hours per week, which resulted in a loss of insurance benefits.       Subsequently,

William Peskin, the Elmwood Place chief of police, asked McLean if she would be

interested in assuming the duties of the police department clerk, which was another

part-time position. Taking the position would have allowed her to supplement her

reduced hours as clerk of courts and regain her health benefits.

       {¶8}     Upon learning about Peskin's offer to McLean, Robertson came to his

office and asked, “Why are you hiring Ms. McLean. She could not use the RCIC

because she has a felony conviction.” On December 22, 2014, Robertson forwarded a

copy of a letter Peskin had written in December 2002, to then mayor Toles, stating

that McLean had “a felony conviction and is not allowed access to the [RCIC]

computer system and printouts. * * * This is unfortunate but needs immediate

attention[.]” Robertson wrote on the copy of the letter, “Please check this out again

as to her court record + the use of RCIC equipment. Verify below.”            Peskin

responded, “Records shows no felony arrest or convictions. Also shows nothing in

clerk of courts records.”

       {¶9}     That evening, during an executive session of the village council

discussing issues related to McLean’s employment, Robertson mentioned McLean’s

alleged felony conviction to the members of council and the clerk treasurer.

Robertson also showed the vice-mayor a file containing a number of documents from

2003 discussing McLean’s felony conviction as well as a misdemeanor conviction for

menacing by stalking.       No action regarding McLean’s employment was taken

following that meeting.




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       {¶10}     In January 2015, discussion continued about McLean being

appointed to the police-clerk position. On January 2, 2015, Robertson sent Peskin a

memorandum stating that “[b]y combining the two jobs, we could justify restoring

Vera’s hours, salary and benefits while deducing [sic] past expenses. Looks like a

win-win possibility.” McLean never assumed the position of police clerk because the

position was not filled. McLean understood that the position would not be filled and

Peskin would assume the duties of police clerk so that the funds could be used for the

purchase of a new police cruiser. Nevertheless, McLean continued to be employed

part-time as the clerk of courts and was still employed by the village at the time of

the trial court proceedings.

       {¶11}     In her sole assignment of error, McLean contends that the trial court

erred in granting summary judgment in favor of Robertson. She contends that

material issues of fact exist for trial on the elements of defamation. This assignment

of error is not well taken.

       {¶12}       An appellate court reviews a trial court’s ruling on a motion for

summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

N.E.2d 241 (1996); Evans v. Thrasher, 1st Dist. Hamilton No. C-120783, 2013-Ohio-

4776, ¶ 25. Summary judgment is appropriate if (1) no genuine issue of material fact

exists for trial, (2) the moving party is entitled to judgment as a matter of law, and (3)

reasonable minds can come to but one conclusion and that conclusion is adverse to the

moving party, who is entitled to have the evidence construed most strongly in his or her

favor. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977);

Evans at ¶ 25.

       {¶13}     To establish defamation, the plaintiff must show that (1) a false

statement of fact was made; (2) the statement was defamatory; (3) the statement was

published; (4) the plaintiff suffered injury as a proximate result of the publication;



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and (5) the defendant acted with the requisite degree of fault in publishing the

statement. Mann v. Cincinnati Enquirer, 1st Dist. Hamilton No. C-090747, 2010-

Ohio-3963, ¶ 12. McLean contends that Robertson’s statements were defamatory per

se. See Williams v. Gannett Satellite Information Network, Inc., 162 Ohio App.3d

596, 2005-Ohio-4141, 834 N.E.2d 397, ¶ 7 (1st Dist.).

       {¶14}     The Ohio Supreme Court has stated that in a defamation action, the

plaintiff’s prima facie case is “made out when he has established a publication to a

third person for which defendant is responsible, the recipient’s understanding of the

defamatory meaning, and its actionable character.” Hahn v. Kotten, 43 Ohio St.2d

237, 243, 331 N.E.2d 713 (1975). The defendant “may then invoke various defenses,

if available.” Id.

       {¶15}     One of those defenses is qualified privilege in which “the interest that

the defendant is seeking to vindicate is conditioned upon publication in a reasonable

manner and for a proper purpose.” Id. A publication is privileged when it is “fairly

made by a person in the discharge of some public or private duty, whether legal or

moral, or in the conduct of his own affairs, in matters where his interest is

concerned.” A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr.

Trades Council, 73 Ohio St.3d 1, 8, 651 N.E.2d 1283 (1995), quoting Toogood v.

Spyring, 149 Eng.Rep. 1044, 1049-1050, 1 C.M. & R. 181, 193 (1834).

       {¶16}     One type of interest protected by a qualified privilege is the public

interest. The public-interest privilege “involves communications made to those who

may be expected to take official action of some kind for the protection of some

interest of the public.” A & B-Abell Elevator Co. at 9, quoting Prosser & Keeton, The

Law of Torts, Section 115, 830 (5th Ed.1984). Where the circumstances of the

occasion for the alleged defamatory communication are not in dispute, the

determination of whether the occasion gives rise to the privilege is a question of law



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for the court.    A & B-Abell Elevator Co. at 7.          The essential elements of a

conditionally privileged communication are good faith, an interest to be upheld, a

statement limited in its scope to this purpose, a proper occasion, and publication in a

proper manner and to proper parties. Id. at 8, quoting Hahn at 245-246.

        {¶17}    Robertson, as mayor of the village, was responsible for the

operations of the village, including the police department.           He had a duty to

communicate      information    to   other   village   officials   regarding   employees’

performance and ability to perform their duties. As the clerk of courts, McLean had

access to citizens’ personal information and collected thousands of dollars every

week.    Further, the ability to access the RCIC database was an important

qualification for the police clerk, and whether McLean had a felony conviction and

was qualified to perform the duties of the clerk of courts or the police clerk were

matters of public concern. Moreover, Robertson communicated the information

only to other village public officials who also had an interest in village operations and

in its employees’ ability to perform their duties.

        {¶18}    McLean does not assert that there was no public interest.           She

contends that Robertson did not act in good faith. To defeat a qualified privilege, the

plaintiff must prove that the published statements were made with actual malice.

Proof of actual malice requires clear and convincing evidence that the defendant,

acting out of spite or ill will, made the statements either with knowledge that they

were false or with reckless disregard for their truth. Jacobs v. Frank, 60 Ohio St.3d

111, 573 N.E.2d 609 (1991), paragraph two of the syllabus; Brunsman v. W. Hills

Country Club, 151 Ohio App.3d 718, 2003-Ohio-891, 785 N.E.2d 794, ¶ 24 (1st Dist.).

Mere negligence, including a failure to investigate, is not enough to establish actual

malice. A & B-Abell Elevator Co., 73 Ohio St.3d at 13, 651 N.E.2d 1283; Rolsen v.

Lazarus, Inc., 1st Dist. Hamilton Nos. C-990588 and C-990627, 2000 Ohio App.



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LEXIS 4466, *9 (Sept. 29, 2000). There must be sufficient evidence to permit the

conclusion that the defendant in fact entertained serious doubts as to the truth of the

publication. A & B-Abell Elevator Co. at 13, quoting St. Amant v. Thompson, 390

U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968).

       {¶19}     McLean asserts that because falsely asserting that she had a felony

record was defamation per se, she did not have to make a showing of actual malice.

This assertion is not a correct statement of the law. Even statements that would

otherwise constitute defamation per se are not actionable when the defendant has a

qualified privilege. Shepard v. Griffin Servs., 2d Dist. Montgomery No. 19032,

2002-Ohio-2283, ¶ 45; Stokes v. Meimaris, 111 Ohio App.3d 176, 189, 675 N.E.2d

1289 (8th Dist.1996).

       {¶20}     McLean argues that a reasonable juror could have found that

Robertson acted with actual malice because he told the village council about her

alleged felony conviction after the police chief had already told him that court

records did not reveal any felony conviction. We disagree. First, the record is

unclear as to when Robertson actually received that information. Second, Robertson

had contrary information from McLean’s file, including documents related to her

2003 resignation, so that he was justified in discussing the issue with the village

council and other city officials.

       {¶21}     McLean also contends that Robertson was aware that she had

applied for an expungement and that the later absence of any record of a conviction

would be “highly suggestive, if not conclusive, of the granting of an expungement.”

Again, we disagree. While Robertson may have been aware that she had applied for

an expungement, nothing in the record shows that he knew whether the

expungement had been granted and what conviction had actually been expunged. In

fact, a 2003 letter in McLean’s file from the village solicitor indicated that she had



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more than one conviction, and therefore, a court would be unlikely to grant her an

expungement.

       {¶22}    We hold that McLean failed to present clear and convincing evidence

of malice as a matter of law. See A & B-Abell Elevator Co., 73 Ohio St.3d at 13-14,

651 N.E.2d 1283. The trial court was correct when it stated:

       While Plaintiff argues that Defendant acted with reckless disregard,

       the evidence submitted does not support such. Defendant reviewed

       the documents in Plaintiff’s file, requested that the Police Chief verify

       whether the information was still valid, and contacted the former

       mayor to confirm the information. There is simply no evidence of

       reckless disregard or malice.

       {¶23}    We find no issues of material fact. Construing the evidence most

strongly in McLean’s favor, we hold that reasonable minds could come to but one

conclusion—that McLean failed to show actual malice and, therefore, the qualified

privilege applied. Robertson was entitled to judgment as a matter of law, and the

trial court did not err in granting summary judgment in his favor. Consequently, we

overrule McLean’s sole assignment of error and affirm the trial court’s judgment.

                                                                  Judgment affirmed.



H ENDON and S TAUTBERG , JJ., concur.



Please note:

       The court has recorded its own entry this date.




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