Melvin T. SMITH, Appellee, v. Ferron C. LOSEE et al., Appellants.
No. 72-1244.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted May 23, 1973.
Decided Aug. 22, 1973.
Harley W. Gustin, Sp. Asst. Atty. Gen. (Vernon B. Romney, Atty. Gen., H. Wright Volker and Paul E. Reimann, Asst. Attys. Gen., with him on the brief), for appellants.
Bryce E. Roe, Salt Lake City, Utah, for appellee.
Before LEWIS, Chief Judge, and HILL, SETH, HOLLOWAY, MCWILLIAMS, BARRETT and DOYLE, Circuit Judges, sitting en banc.
SETH, Circuit Judge.
This is an appeal from a judgment of the United States District Court for the District of Utah, Central Division, awarding damages to the appellee in an action under 42 U.S.C. § 1983. The suit was based on plaintiff’s dismissal as an associate professor from a Utah state junior college.
Plaintiff-appellee, Melvin T. Smith, was an associate professor at Dixie Junior College, St. George, Utah. At all times material the college was subject to the management and control of the Utah State Board of Education. Defendant Losee was the President of the college; defendant Barnum was Dean of Academic affairs, and defendant Peterson was Dean of Applied Arts. The other defendants were members of the Board of Education (hereinafter the Board).
Smith was hired in September 1965 as an associate professor of history and held that position until his dismissal on May 31, 1969. He appears to have been very well qualified for his teaching duties at the college. No issue is raised as to the performance of his classroom duties or as to his scholarship.
In February 1968, near the end of Smith’s third year at the college, his department head recommended that he be granted tenure, citing his “outstanding” teaching performance, “dedication to professionalism,” and “excellent” dedication to the college and service to the community. Thereafter, the Faculty Personnel Committee, in accordance with the college’s “Policy on Faculty Tenure and Promotions,” and in accordance with the college’s practice, considered the recommendation and voted, three to two, that Smith receive tenure; the two dissenting members, Barnum and Peterson, believed that Smith should be “placed on one year’s probation,” and reevaluated the following year. President Losee wrote to Smith and told him that he was recommending to the Board of Education that Smith be placed on another year’s probation before tenure would be granted, citing the committee’s report which “indicates one or two instances which seem to lack professionalism.” No conditions to this probationary status were set out.
From a reading of the record, it appears that following receipt of the letter Smith met with Losee to discuss the matter. Losee cited Smith’s “anti-administration” attitude, the “Dixie Leavitt matter,”- the “Phyllis Bell matter,” and that Smith had told students that the administration was misusing student funds, in support of Smith’s lack of professionalism. As to the latter assertion, Smith has repeatedly denied telling the students this, and the record shows absolutely no evidence or testimony to the contrary. On May 8, 1968, Smith met with the Personnel Committee in Losee’s presence and inquired about the statements that he was alleged to have made. No proof was made as to these alleged statements. Losee reread the committee’s original recommendation and, in the presence of Losee and Smith, the committee reaffirmed its original recommendation. The vote was again three to two with Barnum and Peterson in the minority. Losee refused to reconsider his position. He therefore “recommended” to the Board of Education that Smith be placed on probationary status for the following academic year. The Board concurred. Although the Board did have the power to overrule the president's “recommendation,” the Board’s chairman stated that its policy was to have sustained the president in any event.
It is important to a full examination of this controversy that a rather detailed examination be made of the grounds upon which the president Losee refused to “recommend” tenure for Smith, notwithstanding the Personnel Committee’s favorable recommendation. As noted above, Losee cited four “instances” of Smith’s lack of “professionalism.” Smith’s purported “anti-administration” attitude appears very difficult to objectively assess. However, the “Dixie Leavitt matter” concerned Smith’s activity as a sponsor for the college’s Young Democrats. The Young Democrats, in a 1966 state senate election contest between Dixie Leavitt and his opponent, circulated a flier, under the name of their organization, in which Leavitt’s voting record was challenged. Subsequently, Losee told Smith, in a rather informal conversation, that he had had complaints about this activity from a number of townspeople, that he thought Smith was the author of the flier, and that he was misusing the name of Dixie College.
The “Phyllis Bell matter” involved a typing instructor of that name. Smith, as a member of the executive committee of the Faculty Association, had been approached by another typing instructor concerning Phyllis Bell’s competence and performance as a typing instructor. Smith presented this to Barnum, the Academic Dean, which Peterson, then Dean of the Applied Arts division of the college, considered to be an interference in an area in which Smith had no jurisdiction.
As for the alleged statements of Smith relating to the college administration’s misuse of funds, nothing in the record, apart from the vaguest form of inferential conjecture, supports this allegation.
As to the 1968 denial of permanent status, the trial court found that:
“Losee, Barnum and Peterson, without justifiable cause, rejected the recommendations [of the Personnel Committee] and recommended to [the Board] that permanent status be denied [Smith]. This recommendation was acquiesced in and accepted by the defendant members of the State Board of Education without their having given [Smith] an opportunity to be heard.”
Smith continued in his duties as an associate professor of history at the college, under a one year contract and on “probation,” as he had for the preceding three years, for the 1968-69 academic year.
In February 1969, the Personnel Committee again met to consider, among other things, Smith’s permanent status at the college. Barnum had then become acting head of the department of social sciences under which Smith served. His recommendation to the Personnel Committee referred to the 1968 action and noted that he had never observed Smith’s teaching but was influenced by “comments of students and the observations of faculty members.” Smith’s capabilities as a teacher were never in question. The focus of Barnum’s “recommendation” was Smith’s “antiadministration demonstrations and allegations.” He recommended that Smith be denied tenure.
The Personnel Committee voted four to one not only to deny Smith tenure but also to not renew his contract for the next academic year. The only issue during the committee’s discussion was whether Smith had “changed his attitude” since the 1968 action. No witnesses were interviewed, Smith was not given any opportunity to address the committee on his own behalf, nor was the committee given any additional-information concerning Smith’s conduct during the preceding year.
By letter dated February 25, 1969, Lo-see informed Smith of the committee’s recommendation and that he, in turn, accepting the recommendation, would not recommend that Smith be reappointed to the college’s faculty.
Pursuant to the college’s “Policy on Faculty Tenure and Promotion,” Barnum, on March 12, 1969, wrote to Smith “explaining” the committee’s action. This explanation cited Smith’s lack of a positive attitude toward the college’s administration as evidence of his lack of “professionalism.” As further evidence of his lack of professionalism, Barnum’s letter reiterated the “Dixie Leavitt matter” which was raised in the 1968 committee meeting and mentioned Smith’s “influencing academic instructors against personnel in the vocational-technical division of the College, using instruction time to report certain personal views to students,” and that Smith had “led out in creating a schism in the faculty by unduly influencing several faculty members.” No specific instances of these alleged activities were ever presented, either to Smith, to the members of the Personnel Committee, to Losee, to the Board of Education, or to the District Court in its hearing.
In this regard, Losee, in his recommendation to the Board of Education that Smith be denied tenure and that he not be given another teaching contract at the college, detailed certain instances of Smith’s activities in support of his position. These included Smith’s use of his position as advisor to the Young Democrats “to make a personal attack on Senator Leavitt,” and the use of a college publication in the attack, as well as matters arising from Smith’s position on the Faculty Association. Losee concluded his recommendation to the Board of Education with a quotation from the Board’s tenure policy to the effect that a teacher of Smith’s status could be “terminated at the will of the President of the institution.” On March 14, 1969, the-Board of Education approved Losee’s recommendation that Smith be denied tenure and dismissed from the college’s faculty.
Smith applied to “sixty or seventy” other colleges for employment but never received an offer. He finally obtained employment at the Utah Historical Society, of which he is now the director.
There are three main issues raised on appeal:
(1) Was Smith refused tenure and future employment for having exercised his First Amendment rights of free speech ?
(2) Was Smith denied procedural due process in that he had a right to and was not given a hearing and a written statement of the reasons for his dismissal, and, if so, in that he was not given such a hearing prior to his dismissal?
(3) Are these defendants immune from an award of money damages ?
The basic requirements of a complaint based upon 42 U.S.C. § 1983 are: (1) that the conduct complained of was engaged in under color of state law, and (2) that such conduct deprived the plaintiff of rights, privileges, or immunities secured by the Federal Constitution and laws. Jones v. Hopper, 410 F.2d 1323 (10th Cir.). Clearly, the defendants in this case were acting under color of state law when they acted to deny Smith a teaching contract and tenure at Dixie College. The central question, then, is whether in so doing they deprived Smith of the right of free speech guaranteed to him by the First and Fourteenth Amendments.
Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), is somewhat similar and, as here, concerned a nontenured teacher. The Court ordered that the summary judgment be vacated to allow the plaintiff to present evidence to establish his claim, holding that his nontenure status was immaterial to the free speech claim. Despite the broad language of the Court in Perry v. Sindermann, it is clear that a teacher’s First Amendment rights are not absolute. As the Court has previously stated in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968):
“The problem in any ease is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
The instant case presents a slightly different problem in that the statements here complained of were not made to the public as in Pickering, but were made at meetings at which only Dixie College administrators and faculty were present. Furthermore, most of the statements complained of were made in Smith’s capacity as president or member of the executive committee of the Faculty Association. These statements by Smith that are criticized were expressions of opinion, or the position of the Faculty Association, rather than intended to be statements of fact, as in Pickering. The record indicates that the purpose of the joint meetings would be to hear the opinions of the faculty and to air grievances.
It is now settled that a nontenured teacher asserting that he has not been rehired for constitutionally impermissible reasons has the burden of proving that he was dismissed for the exercise of constitutional rights. Fluker v. Alabama State Board of Education, 441 F.2d 201 (5th Cir.). Neither the burden of going forward nor the burden of proof changes until the plaintiff has established that the failure to rehire him was for his exercise of constitutionally protected rights. When his proof so shows, the defense must then assume the burden of showing that the plaintiff’s acts materially and substantially interfered with the requirements of appropriate discipline in the operation of the school. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).
In findings of fact Nos. 19 and 23, the trial court found:
“19. The actions of defendants Lo-see, Barnum and Peterson in denying permanent status and employment to plaintiff were taken for the purpose of punishing him for having supported a particular candidate in a state political election, for having opposed the • college administration in his capacity as president and member of the executive committee of the faculty association, and for having expressed opposition to some administration policies during meetings of the Dixie College Faculty Association. The other defendants made no substantial inquiry into the reasons behind the action taken by defendants Losee, Barnum and Peterson, and affirmed their actions solely on the ground that it was their duty to support the president of the college.
* * * * * *
“23. There were no justifiable grounds for denying plaintiff permanent status on the faculty of Dixie Junior College or for denying him employment at the college after the end of the 1968-1969 academic year.”
The record contains ample evidence that Smith was dismissed and denied tenure for the reasons set out in finding No. 19. There is also substantial evidence in the record to support the finding of the district court that only Losee, Barnum, and Peterson were actively engaged in seeking Smith’s dismissal from the college.
Dr. Barnum’s reasons for opposing Smith are set out in his memorandum to the Personnel Committee wherein he stated that Smith’s probationary status “is more for anti-administration demonstrations and allegations.” When asked to explain what he meant by anti-administration, he replied, “outspoken criticism of administrators.”
Peterson’s testimony at the trial hearing was concerned solely with the “Phyllis Bell matter.” This matter was apparently a major factor in Peterson’s decision to oppose Smith. In the record this is an insignificant matter.
The defendants did not at trial and do not on appeal assert that Smith was dismissed for anything other than his critical and “negative” attitude toward the administration.
There is certainly substantial evidence in the record to sustain the finding that Smith was refused tenure and reemployment as a reprisal for the exercise of his constitutionally protected First Amendment rights as stated in finding No. 19 above.
It has been pointed out above that plaintiff’s First Amendment rights are not absolute. The balancing considerations expressed by the Court in Pickering and Tinker must be taken into account. The plaintiff having proved that his dismissal was grounded upon the exercise of his First Amendment rights, the burden of proof thereby shifted to the defendants to show by clear and convincing evidence, Williams v. Kimbrough, 295 F.Supp. 578 (W.D.La.1969), that the plaintiff’s activities and speech “materially and substantially interfere with the requirements of appropriate discipline in the operation” of the college. Tinker v. Des Moines Independent Community School Dist., 393 U.S. at 509, 89 S.Ct. at 738; Fluker v. Alabama State Board of Education, 441 F.2d 201 (5th Cir.).
In finding No. 23, the trial court found that “[t]here were no justifiable grounds for denying plaintiff permanent status on the faculty of Dixie Junior College or for denying him employment at the college after the end of the 1968-1969 academic year.” The defendants in this case did not urge any “justifiable grounds” for Smith’s dismissal. They were, and still are, apparently suffering under the misapprehension that Smith, by reason of his lack of permanent status on the college’s faculty, could be dismissed for any reason whatsoever, even for the relatively harmless exercise of his constitutional rights. Such, of course, is not the law. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).
Taking the entire record and applying it to the balancing test as prescribed in the Pickering and Tinker decisions, it is apparent that the plaintiff’s exercise of his First Amendment rights in the manner in which he did far outweigh the interest of the defendants in promoting the efficiency and harmony of Dixie College by the means they chose to do so.
It is now established that “the nonrenewal of a nontenured public school teacher’s one-year contract may not be predicated on his exercise of First and Fourteenth Amendment rights.” Perry v. Sindermann. If this court’s opinion in Jones v. Hopper, 410 F.2d 1323 (10th Cir.), be construed to hold the contrary, it has been modified by subsequent Supreme Court decisions. The findings Nos. 19 and 23 of the district court are supported by substantial evidence. Therefore, Smith has established his claim under 42 U.S.C. § 1983.
Considering these findings by the trial court, and the record generally, we turn to a basic issue on appeal relating to the defenses available to the defendants. Among these the only one present of any significance is that of official privilege.
It is important to stress that this is purely a damage action, and this opinion is directed only to such a cause of action. The doctrine of official immunity or official privilege arises in damage suits against public officials. It is a defense which may be asserted to bar the action and, if so, it is an absolute privilege; or it may permit the proof of facts at trial which if present constitute a defense and, if it is of this latter nature, it is a qualified privilege. It is an old doctrine as applied to legislators and to judges. Its age has been questioned as applied to other officials, Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, but in any event it may be said to have existed at common law.
The Supreme Court has considered the doctrine of official privilege on several occasions, so the history is well developed in its opinions and need not be repeated here. See Bradley v. Fisher, 80 U.S. 335, 20 L.Ed. 646; Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019; Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288; Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577. These cases discuss absolute privilege. The reason for the rule has been again recently expressed by the Court in Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912, as follows:
“The official immunity doctrine, which ‘has in large part been of judicial making,’ Barr v. Matteo, 360 U.S. 564, 569, 79 S.Ct. 1335, 1338, 3 L.Ed.2d 1434 (1959), confers immunity on government officials of suitable rank for the reason that ‘officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties— suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.’ Id., at 571, 79 S.Ct. [1335] at 1339. The official immunity doctrine seeks to reconcile two important considerations—
“ ‘[0]n the one hand, the protection of the individual citizens against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government; and on the other, the protection of public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities.’ Id., at 565, 79 S.Ct. [1335] at 1336.”
Considering the purpose and reason for the doctrine as above expressed, it is applicable today with the complexity of government, with the growth of commissions and boards, and with broad and important duties and responsibilities assigned to such panels. Many of the important governmental functions, especially those relating to various institutions, are placed in boards of local citizens who give their time and' talents usually without compensation. This volunteer talent has come to provide a significant part of the important decision-making, policy-making functions in today’s government. These boards are supported by full-time and paid officials charged with the day to day administration of the particular institution or group of institutions.
As stated in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, the doctrine of official privilege has grown out of case law, except the absolute privilege afforded to members of Congress by the Constitution. Thus the doctrine has adjusted to changes and to needs, within its basic purpose. As above indicated, the breadth and the procedural manner in which it may be asserted varies depending upon the nature of the function or duties with which the public official is charged. This variation will be hereinafter further considered.
The doctrine has not been eliminated nor significantly changed in its application to suits brought under the Civil Rights Act § 1983. The Supreme Court held in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288, in reference to the privilege afforded a judge:
“We do not believe that this settled principle of law was abolished by § 1983, which makes liable 'every person’ who under color of law deprives another person of his civil rights. The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities. Accordingly, this Court held in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), that the immunity of legislators for acts within the legislative role was not abolished. The immunity of judges for acts within the judicial role is equally well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.”
Thus the rule must be here recognized and applied. It is one which has been formulated and used in the federal courts; it must be a “federal” one because the federally created cause of action cannot be restricted by state laws or rules relating to sovereign immunity nor to official privilege. The Supreme Court in the cases cited herein has discussed only absolute privilege.
It is apparent that there is a collision between the doctrine of official privilege, and section 1983 of the Civil Rights Act. There is coexistence as the Supreme Court has said, but the interaction is not easy to trace, and the points where it occurs are elusive in any particular case. Its consideration must also be related to the Eleventh Amendment problems which are inherent in most if not all of the cases under the Act. The Civil Rights Act refers to “persons,” but is restricted to acts “under color” of state law, etc. Thus these “persons” must be, almost without exception, state or local officials. However, under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, they cannot be so acting or the action is barred under the Eleventh Amendment. Their acts are thus enough beyond their proper official functions to satisfy Ex parte Young, but still must be under enough official “col- or” to come within the Civil Rights Act. The privilege doctrine is restricted to acts or duties within the scope of the official’s powers — -the official must be acting on a matter within the ordinary exercise of his duties. This requirement must also be accommodated to Ex parte Young. Thus we have this interrelation of these several concepts and doctrines pertaining to the duties or powers of the official, and to the particular act concerned.
The scope of the official privilege rule, or the extent of its application to a particular official, varies depending upon the nature of his duties and functions. We have described the absolute privilege of legislators, judges, judicial officers, and some executives which may be asserted as a plea in bar. The doctrine is applied in a somewhat different form to other officials — a qualified privilege — whereby in an action it may be asserted as a matter of defense, but it is “qualified” in that proof to support the defense is required. This proof is often lack of malice, or good faith, or some similar showing of good and proper cause for the act complained of. If such a defense can be established during the course of the trial, the jury or judge must then find for the defendant. This qualified privilege thus does not meet that element of the purpose of the rule that the official should not be required to expend time in the defense of litigation brought against him, but it is in accord with the other elements.
A qualified defense has been recognized to be available to police officers in an action brought against them under the Civil Rights Act. Thus the Supreme Court, in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288, said:
“We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983.”
It is apparent that “good faith” and “probable cause” have been long recognized defenses to actions for false arrest and totally unrelated to Civil Rights Acts issues. The above reference to the “defenses” may not be a reference to the privilege doctrine as such. The Court, however, mentions them in the same case wherein it states that the defense of official immunity has not been removed by the Civil Rights Act.
The cases considering the nature of official privilege have recognized that its scope or the extent to which it may be asserted as a defense is related to the duties of the official concerned. The Supreme Court considered this again in Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912, and stated:
“In the Barr case, the Court reaffirmed existing immunity law but made it clear that the immunity conferred might not be the same for all officials for all purposes. Id., 360 U.S. at 573, 79 S.Ct. [1335] at 1340; see also Tenney v. Brandhove, 341 U.S. at 378, 71 S.Ct. [783] at 789, 95 L.Ed. 1019; Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. [1425], 1487, 18 L.Ed.2d 577 (1967). Judges, like executive officers with discretionary functions, have been held absolutely immune regardless of their motive or good faith. Barr v. Matteo, supra, 360 U.S. at 569, 79 S.Ct. 1335; Pierson v. Ray, 386 U.S. 547, 553-555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). But policemen and like officials apparently enjoy a more limited privilege. Id., at 555-558, 87 S.Ct. 1213. Also, the Court determined in Barr that the scope of immunity from defamation suits should be determined by the relation of the publication complained of to the duties entrusted to the officer. Barr v. Matteo, supra, 360 U.S. at 573, 574, 79 S.Ct. 1335; see also the companion case, Howard v. Lyons, 360 U.S. 593, 597-598, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959). The scope of immunity has always been tied to the ‘scope of authority.’ Wheeldin v. Wheeler, 373 U.S. 647, 651, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963).”
The Court there also said:
“Because the Court has not fashioned a fixed, invariable rule of immunity but has advised a discerning inquiry into whether the contributions of immunity to effective government in particular contexts outweighs the perhaps recurring harm to individual citizens, there is no ready-made answer as to whether the remaining federal respondents — the Public Printer and the Superintendent of Documents —should be accorded absolute immunity in this case.”
The Court had previously, in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, a defamation suit, said in effect that the greater the range of responsibilities and duties and the wider the scope of discretion, the greater was the need for the privilege. Also that the matters and things committed to the officials’ control or supervision must provide the “guide in delineating the scope of the rule . . . . ” The statements in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, do not restrict the scope of Barr v. Matteo on this point and its references to the Act have been somewhat adjusted as to defenses' by Pierson v. Ray.
It is obvious that the doctrine of official privilege has not been discussed in a number of Supreme Court cases wherein school boards are the defendants. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811, and others. Some of these cases had causes of action for damages and some did not. As to this point the fact that the issue was not raised or not treated is a consideration, but silence is always a difficult factor in which to find guidance. Qualified privilege is after all a defense, and it would not be expected to be discussed if not directly raised. We are persuaded by the extended treatment of the issue in Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912, where it necessarily was a basic issue. It there, of course, arose under the Speech or Debate Clause whereunder absolute immunity was raised, but the statements in the opinion when taken with the holdings of Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288, give some direction. The Court, however, has in its opinions considered only absolute privilege, with what may possibly be an exception in Pierson v. Ray.
Many decisions analyze the ministerial versus the discretionary functions as the determining factor, see Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358, but as we have indicated in Franklin v. Meredith, 386 F.2d 958 (10th Cir.), this is an important factor, but it must be evaluated together with the purposes and need for the rule. This must be done with the more general considerations indicated in the recent Supreme Court opinions above referred to. We recognize that the Second Circuit has apparently refused to recognize the privilege doctrine in actions under section 1983, or has suggested it be used sparingly. Sostre v. McGinnis, 442 F.2d 178 (2d Cir.). The Seventh Circuit has equated success in showing a justifiable cause or grounds with the required showing for immunity, speaking apparently of absolute privilege. McLaughlin v. Tilendis, 398 F.2d 287 (7th Cir.). The Sixth Circuit in Nelson v. Knox, 256 F.2d 312 (6th Cir.), advanced a “good faith” test.
The defendant members of the Board of Education are charged with broad duties and given extensive powers under the Utah statutes. These duties and powers, within their limited subject matter are not greatly dissimilar from those of a legislative body. They are required to formulate rules and regulations for the institutions, to establish and announce policies on fundamental matters. As we have seen, the scope of the defense afforded police officers as to arrests is “good faith and probable cause.” This test certainly existed long before the revived interest in the Civil Rights Act, but we must consider it as of some direction in this action. This test applied to one of the officer’s most important acts in relation to a particular individual and in the general performance of his duties.
Considering all the factors, and especially the extent of their duties, the defense available to members of the Utah State Board of Education must lie somewhere in the area between that of legislators and of police officers. These two are of course not the extreme positions, but are mentioned because they are defined positions in the decisions of the Supreme Court. We thus hold that the defendant board members were entitled to a qualified privilege as a defense in this damage action. This defense may be established, and was here so done, by an affirmative showing that the decision not to renew or to discharge was board action representing an exercise of its discretion vested in it by state law, made in good faith, and without malice, when the official facts before them showed a good and valid reason for the decision although another reason or reasons advanced for nonrenewal or discharge may have been constitutionally impermissible. Under this test no damages are here recoverable against the defendant members of the school board.
This holding applies the official privilege doctrine within the general definitions laid down by the Supreme Court, and within the “intent” references in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492. If the privilege defense is not given its proper scope, the consequences are the same as applied in the Eleventh Amendment cases because there results an interference with the proper administrative functions of the state. It is here critical that the action complained of was taken by the board members in response to a mixture of many different and unrelated reasons advanced for and against the discharge of plaintiff. The board members reached'their conclusion thereon and acted. The plaintiff points out that one of the defendant board members testified as to a matter of opinion to the effect the board would have followed the recommendation of defendant Losee in any event. We do not attach particular significance to this testimony when taken in the context of the entire record, and its speculative character.
The defendant Losee, President of the college, defendant Barnum, Dean of Academic Affairs, and defendant Peterson, Dean of Applied Arts, are each in a somewhat different position under the factors herein considered. At the outset, it should be noted that the trial court found actual malice to support punitive damages to have existed in defendants Losee and Barnum as to plaintiff. This is supported by the record. Thus under anything short of absolute privilege, recovery would be possible if damages were proven. They, of course, had no such absolute privilege.
As to defendant Peterson, the trial court found that his actions (together with those of defendants Losee and Barnum) were taken for the purpose of punishing the plaintiff for having supported a particular candidate in a state political election, and for other reasons relating to his First Amendment rights. This finding is supported in the record. With such a finding, he is liable for actual damages but not for punitive damages.
As to proof of damages, the record contains no evidence to support an award of general damages. As to this matter, plaintiff testified that he attempted to find a teaching position at other schools but was unable to do so. He did find another position with the state at a comparable or better salary. He is entitled to no damages just by reason of a change of jobs. There was no showing as to any effect resulting from the inability to find a teaching position. There was evidence that he was, in the words of the trial court, harassed by defendants Losee and Barnum. However, there is no pendent cause for defamation or any related cause. Many, if not all, of the incidents complained of appear to have taken place after the discharge was announced, although under the record it is difficult to determine just when the actual termination was effective. We must hold that the award of general damages was without adequate basis in the facts, and must be set aside.
As indicated above, there was evidence to support the award of punitive damages. Also there was evidence as to the actual costs of the move which had to be made by plaintiff following his discharge, and this is recoverable against defendants Losee, Barnum, and Peterson.
The judgment is reversed as to defendants Baekman, Allred, Baker, Snow, Morrill, Tanner, Ure, Riddle, and Richards. The judgment insofar as it awards general damages is also reversed. The judgment is affirmed insofar as it awards actual damages in the amount of $4,100.00 against defendants Losee, Barnum, and Peterson, and affirmed insofar as it awards punitive damages in the amount of $2,500.00 against defendant Losee and also $2,500.00 against defendant Barnum. It is so ordered.