March 5, 2013 – A county official in Barron County accused of defaming another county official was not immune from suit based on executive or legislative privilege, but the plaintiff’s damages are capped at $50,000, a state appeals court has ruled.
Gene Anderson, former patrol superintendent of the county’s highway department, alleged that County Administrator Duane Hebert was liable for defamation based on statements he made at county board meetings. Hebert suggested that Anderson’s department, under Anderson’s direction, falsified billing records. He also made statements to reporters who published the statements in local newspapers.
A jury ruled that Hebert was liable for defamation – the statements were not true or substantially true and he made them with reckless disregard as to their truth or falsity. The jury awarded $150,000 for three separate instances of defamation.
However, the Barron County Circuit Court capped the damages at $150,000 under Wis. Stat. section 893.80(3), which caps damages at $50,000 for tort-based claims against public officials or employees who commit torts within the scope of employment.
The circuit court applied the $50,000 cap to each instance of defamation alleged. But in Anderson v. Hebert, 2012AP1313 (March 5, 2013), the District III Wisconsin Court Appeals ruled that section’s 893.80(3) caps the entire award at $50,000.
“Here, Anderson alleged Hebert made various defamatory statements on three separate occasions. Nonetheless, Anderson brought his claims in a single action,” Judge Michael Hoover wrote. The statute “provides for one damages cap, per person, per action.”
The three-judge appeals panel also rejected Hebert’s argument that he was immune from liability based on absolute executive or legislative privilege.
Specifically, the appeals court refused to extend absolute executive privilege to him as a “lower strata executive.” In addition, the panel said the defamatory statements were not protected by legislative privilege – which protects some statements made in legislative proceedings – because Hebert was not under oath and the body was not legislating.
“Here, the board was conducting a regular meeting and not considering any existing or potential legislation,” Judge Hoover wrote. “Hebert cannot claim a legislative privilege before a body that is not legislating.”
