Villasenor v. Evans, 754 Ariz. Adv. Rep. 34 (App. Div. I, December 20, 2016) (J.Swann)

NOTICE OF CLAIM REQUIRED TO SUE PUBLIC OFFICIAL/EMPLOYEE FOR ANY ACTS OR OMMISIONS OCCURING WITHIN SCOPE OF PUBLIC EMPLOYMENT

Plaintiff was a developer and lobbyist facing public opposition to a zoning change he was seeking before the Flagstaff City Council to allow for the construction of multi-resident student housing.  Plaintiff met with the Vice Mayor and Councilmember Carol Evans on the issue. Evans arranged the meeting with plaintiff and  a community organizer. The local newspaper wrote a story about the meeting. Evans then sent an e-mail to the newspaper seeking a follow up story to correct things in the original story and attaching an e-mail from the community organizer in attendance, summarizing what was said at the meeting.  Plaintiff sued Evans claiming both e-mails were defamatory.

It is undisputed that no notice of claim (ARS §12-821.01) was ever served on defendant by plaintiff. Plaintiff's position was that the notice of claim was not required because Evans was not a “public employee” under the statute or was acting outside the scope of that employment. Plaintiff claimed defendant wore two hats including one as an executive director of a neighborhood association and that the defamation was committed in that or a personal capacity and not in Evans' capacity as a councilmember. Plaintiff claimed defendant used a personal cell phone and personal e-mail to communicate the defamatory statement  and did not copy any City Council members rendering the communication private. Finally plaintiff claimed the City was not paying for  Evans' defense.

Evans claimed the City was in fact paying for her defense and there was no City policy prohibiting her from using a personal device and personal e-mail for public business. The trial court agreed with Evans and granted defendant summary judgment and the Arizona Court  of Appeals affirmed.

As to plaintiffs claim that Evans as a public official/city councilmember was not a public “employee” the court of appeals noted that under §12-820(1), the term "employee" includes "an officer, director, employee or servant . . . who is authorized to perform any act or service." The court found that to adopt plaintiff's interpretation of the definition would defeat the purpose of the statute which is to allow the government to properly and timely evaluate and resolve risk.

As to plaintiff's claim that defendant  was acting outside the scope of public employment the court of appeals considered that plaintiff presented evidence that Evans's interest in the public issue was, "both professional, in her role as Vice Mayor of Flagstaff City Council, as well as personal."

Nonetheless, under Dube v. Desai, 218 Ariz. 362 (App. 2008), “An employee's improper actions, even those serving personal desires, will be deemed motivated to serve the employer if those actions are incidental to the employee's legitimate work activity. . . . [here evidence of personal  interest was] insufficient to defeat summary judgment: even if Evans was motivated by personal interests, the undisputed evidence showed that her conduct was, at the very least, incidental to her work as a Councilmember and Vice Mayor.”