Judge Monica Gordo of Third District Court of Appeal wrote the opinion. Courtesy photo.

Can former Florida officials be sued for alleged defamatory statements they made while in office?

No, according to the Third District Court of Appeal, which waded into a lawsuit that asked whether a letter former Sweetwater Mayor Jose M. Diaz wrote while in office could be subject to defamation per se claims.

Fired Parks and Recreation director Luis Quintero sued Diaz in 2015, claiming that his termination letter maliciously and falsely said he had poor judgment and was "incompetent, negligent and inefficient in the performance of [his] duties."

Diaz, who's now Sweetwater's commissioner, denied acting in bad faith.

The lawsuit alleged Diaz knew that the statements in that letter — memorialized in public record — were false when he wrote them. And that, the plaintiff claimed, fell under Florida Statute Section 768.28(9)(a), which waives sovereign immunity for certain torts.

But the Third DCA disagreed, finding it didn't matter what Diaz said or didn't say within the scope of his duties: Florida's doctrine of absolute immunity protected him from legal repercussions.

"As the trial court aptly noted, Quintero's argument overlooks the well-settled fact that the defense of absolute immunity or privilege is a separate and distinct concept from sovereign immunity," the opinion said, drawing heavily from Fourth DCA case law.

Third DCA Judge Monica Gordo wrote the opinion, which drew concurrences from Chief Judge Kevin Emas and Judge Vance E. Salter.

Counsel to the plaintiff Howard Brodsky of Gerald J. Tobin P.A. in Coral Gables did not respond to a request for comment by deadline.

'We want people to serve'

The ruling held "no surprises" for Diaz's attorney, Michael R. Piper of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman in Fort Lauderdale, who said his client was "always comfortable with the fact that he was doing his job and he was doing it the right way."

Michael R. Piper of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman in Fort Lauderdale. Courtesy photo.

Piper said he agreed with the panel's findings that a plaintiff can't waive sovereign immunity for a claim that couldn't be brought against the government in the first place.

"If you could never have sued the mayor for defamation, as in this case, then the waiver of sovereign immunity statute did not then create a cause of action that didn't exist," Piper said.

Though his client has never admitted any wrongdoing, Piper stressed that the idea behind absolute immunity is that public policy should favor open responses from public officials.

"It's better for the public to know what the public official is thinking without the public official having to worry about whether he's going to get sued later for something that he said," Piper said.

In Piper's view, this opinion provided a much-needed acknowledgment of immunity.

"We're seeing in other arenas that privileges are being whittled away at, and may be discouraging people from serving, particularly in the law enforcement arena. I think that this is an important decision in that regard, because we want people to serve," Piper said. "This is just further recognition of the public policy in Florida that that's what we want, and that, every once in a while, something's going to have to give in order to get people to do things that not everybody wants to do."

Read the opinion:

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