McOuirk v. Donnelley (August 20, 1999)
* Court: Ninth Circuit
* Public Employer: Sheriff of Glenn County
* Plaintiff's Job Class: Not stated
* Trial Court Decision: In favor of sheriff
* Appellate Court Decision: In favor of plaintiff
* Issue Areas: Releases, former employees, defamation
McOuirk Facts
* McQuirk worked in the Glenn County Sheriff's Office between 1976
and 1990.
* McQuirk was medically retired in 1990.
* In 1995, McQuirk applied for a job with a police department in the
state of Washington as a non-sworn property room manager.
* McQuirk signed a release as part of the application process for the
Washington job which freed Glenn County from liability for responding to
the potential new employer's inquiries.
* On April 11, 1995, the new department told McQuirk to report to
work on April 13.
* On April 12, 1995, the Glenn County sheriff told the new department
that McQuirk had appeared to have stolen something from the evidence
locker, had submitted a false insurance claim, had committed perjury,
had fabricated a police report, and had stolen a ring from the locker
room.
* The new department rescinded its employment offer.
* McQuirk sued the Glenn County sheriff in Washington state court for
defamation and related causes of action; the case was removed to federal
court and transferred down to Sacramento; the district court granted
summary judgment in favor of the sheriff.
* The Ninth Circuit reversed.
McQuirk Analysis
* The Ninth Circuit concluded that the release McQuirk had signed as
part of his application violated California Civil Code section 1668.
Section 1668 voids any contract that excuses someone for future
intentional wrong-doing, such as defamation. The release was therefore
unenforceable.
* Given the absence of California case law, the Ninth Circuit in its
ruling had to predict what the California Supreme Court would do with
such a case.
* The Ninth Circuit further held that the sheriff did not have
immunity under Government Code section 820.2. Section 820.2 accords
immunity to a public employee for discretionary acts. Looking to prior
decisions of the California Supreme Court, which limited the category of
discretionary acts to those involved planning, not operations, the Ninth
Circuit concluded that the sheriff's comments were operational and
therefore not immune under section 820.2.
* The Ninth Circuit also held that the sheriff's statements were not
privileged under Civil Code section 47(a). Section 47(a) provides a
privilege for statements made in the proper discharge of an official
duty. Again relying on California Supreme Court precedent, the Ninth
Circuit limited this privilege to official duties involving a
policy-making function. The Ninth Circuit concluded that the sheriff's
statements to the new department did not involve policy but were instead
operational and therefore not privileged.
* The Ninth Circuit did recognize that the sheriff, when this case is
remanded, may raise the qualified privilege former employers possess
when giving references under Civil Code section 47(C).
Conclusion
The trustees do from time to time receive complaints from
participants or former participants concerning a department's alleged
breach of a resignation agreement. This case, although based on unusual
facts, highlights the jam a department can get itself into.
