Interactions with public officials create a heightened risk of reputation injury since statements and writings are often memorialized and discoverable as a result of: Florida's "Government in the Sunshine Law" (where governmental meetings are often recorded, or minutes taken), Florida's Public Records Law (where various types of records must be preserved for differing, minimum  retention schedules), competitive procurement standard procedures (requiring disclosure of instances where contracts may have been terminated by a governmental agency "for cause"), and by hiring practices (where prior public employment records are obtained and reviewed).

In Florida, it is extremely difficult to subject public officials and employees to suit for defamatory statements they may make within the course of their duties. Notably, Section 768.28(9) (a), Fla. Stat. (2019), reads relevant part:

"No officer, employee, or agent of the state or any of it subdivisions shall be held personally liable and toward were named as a party defendant and any action or any injury or damage suffered as a result of any active, event, or omission of action in the scope of his or her employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting want to and willful disregard of human rights, safety, or property."

While the above paragraph may suggest that a public official or employee may have liability for statements or writings made within the scope of his duties and which are made in bad faith or with malicious purpose, this conclusion would not be correct. Recently, the Third District Court of Appeal held that a former mayor enjoyed absolute immunity with regard to statements the mayor made in a termination letter issued to a former director of Parks and Recreation that were stipulated as being both false and defamatory per se. In Quintero vs. Diaz, 45 Fla. Law Weekly D51 (Fla. 3rd DCA Jan. 2, 2020), the court described the mayor's statements as indicating that the plaintiff had exhibited "poor judgment," and that he had been "incompetent, negligent, and inefficient in the performance of [his] duties." The termination letter was part of the former employee's personnel file. The issue presented was whether the statutory provision set forth above would result in the former mayor being held personally liable for defamation. Citing to Florida case law established in the 1970s and continuing more recently, the Third District Court of Appeal held that Section 768.28(9) (a), Fla. Stat. (2019) was limited in application to a waiver of sovereign immunity, and that it did not affect case law in Florida concerning absolute immunity.

Absolute immunity protects public officials and employees for statements made within the course and scope of their duties—even when those statements are false and made maliciously. In relevant part, the Quintero court's opinion summarized how the two forms of immunity are distinct:

"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. See Cobb's Auto Sales v. Coleman, 353 So. 2d 922,923 (Fla. 4th DCA 1978). The Cobbs court explained why these legal concepts are distinct:

The doctrine of sovereign immunity was a rule laid down by the ruling authority that he, because he was the ruler, could do no wrong and therefore was immune from any charges that he had done wrong. The legislature, by an acting Section 768.28, decided that this common law doctrine should be removed from the law of Florida.

On the other hand, the defense of absolute privilege is based on consideration of the public interest:

The public interest requires that statements made by officials of all branches of government in connection with their official duties be absolutely privileged. Under our democratic system the stewardship of public officials is daily observed by the public. It is necessary that free and open explanations of their actions be made."

If the Legislature were ever to determine that malicious and defamatory statements made by Florida's public officials and employees (which are often preserved and memorialized by the application of certain public laws and practices) do not substantially further the important public interest of protecting "free and open explanations" of such officials' and employees' actions, then perhaps the Legislature will enact legislation that limits or waives absolute immunity (e.g., in a manner similar to how the Legislature enacted a limited waiver individual liability in the context of sovereign immunity).

Donald J. Lunny Jr. is a partner at Brinkley Morgan with more than 30 years of experience representing clients in the public and private sectors, focusing on local government law.