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Hartlep v. Torres

Case Date: 08/29/2001
Court: 1st District Appellate
Docket No: 1-00-3768 Rel

THIRD DIVISION
August 29, 2001




No. 1-00-3768



BRIAN HARTLEP)Appeal from the
)Circuit Court of
Plaintiff-Appellant,)Cook County.
)
v.)
)
DAVID TORRES, Chief of Police)
of Posen, Illinois)Honorable
)David R. Donnersberger,
Defendant-Appellee.)Judge Presiding.


JUSTICE WOLFSON delivered the opinion of the court:

Plaintiff Brian Hartlep brought this suit for slanderagainst defendant David Torres, Chief of Police of the Village ofPosen, Illinois, alleging Torres made defamatory statements whenhe characterized Hartlep "as being not trustworthy, and not re-employable." Because Torres spoke the allegedly defamatory wordswhile testifying at a disciplinary hearing before the Village ofGlenwood Board of Fire and Police Commissioners (BFPC), the trialcourt found the statements were absolutely privileged. The trialcourt then granted Torres' section 2-619 motion to dismissHartlep's complaint. See 735 ILCS 5/2-619 (West 1998). Weaffirm.

FACTS

On April 7, 1999, Torres testified before the Glenwood BFPCin a disciplinary hearing involving Hartlep:

Q What was your experience with Brian [Hartlep] as apolice officer?

A In terms of?

Q His performance?

A Well, my personal experience with Mr. Hartlep was -

MR. MCGUIRE [plaintiff's counsel]; Objection; relevance andmateriality as to performance. We're not here for thegeneralization. We should get to the specifics which,unfortunately, the Board wants to get to.

MR. BROIHIER [BFPC counsel]; You indicated there was adifficulty with his employment at Posen; why don't we go tothat.

Torres then testified that while Hartlep was working as aprobationary police officer for the Village of Posen, he "made apass at a female driver who was stopped by Officer Hartlep on atraffic incident, and that he had given his business card to thisyoung lady with his home telephone number." According to Torres,Hartlep was "in violation of our rules and regulations pertainingto his conduct and ethics * * *." When asked if Torres would re-employ Hartlep, Torres said, "No, I would not."

Torres' testimony was inconsistent, however, with astatement filed by the Village of Posen with the IllinoisDepartment of Employment Security. The statement indicated thatalthough Hartlep had once been suspended, he was reliable andsubject to being rehired by the Village of Posen.

DECISION

On appeal, Hartlep contends the trial court erred ingranting Torres' motion to dismiss because the allegedlydefamatory statements were not pertinent or relevant to thedisciplinary hearing before the BFPC of the Village of Glenwood.

A section 2-619 motion may be granted when the claimasserted is barred by some affirmative matter defeating theclaim. 735 ILCS 5/2-619(a)(9) (West 1998). An absoluteprivilege is an affirmative defense that may be raised anddetermined under section 2-619. Malevitis v. Albert BrooksFriedman, Ltd., No. 1--00--1527, slip op. at 3 (June 29, 2001). "Whether a particular statement is privileged is a question oflaw" we review de novo. Malevitis, No. 1--00--1527, slip op. at3.

"It is the established law of Illinois that statements madeduring quasi-judicial proceedings are absolutely privileged([citations]), and such protection encompasses testimony givenbefore administrative agencies, as well as communications toadministrative agencies, when these agencies are performing ajudicial function. ([Citations.])" Parrillo, Weis & Moss v.Cashion, 181 Ill. App. 3d 920, 925-26, 537 N.E.2d 851 (1989).

Hartlep agrees "There is no question *** the plaintiff-appellant was involved in an administrative proceeding involvingdiscipline, ***." See 65 ILCS 5/10-2.1-17 (West 1998) (The BFPC"shall conduct a fair and impartial hearing *** [E]ach member ofthe board shall have power to administer oaths and affirmations,and the board shall have power to secure by its subpoena bothattendance and testimony of witnesses ***.") The Glenwood BFPCwas performing a judicial function.

Hartlep contends, however, that "[a]lthough Torres didtestify as a witness before the Glenwood [BFPC], ***, he was notabsolutely privileged as his testimony had no relation to theproceeding ***." We do not agree.

The scope of the privilege is set forth in section 588 ofthe Restatement (Second) of Torts (1977), which states inpertinent part:

"A witness is absolutely privileged to publish defamatorymatter concerning another in communications preliminary to aproposed judicial proceeding or as a part of a judicialproceeding in which he is testifying, if it has somerelation to the proceeding." Restatement (Second) of Torts