Police Chief Loses Defamation Claims Against Union’s Law Firm

Written on 11/05/2022
Will Aitchison

Mark Elbert was the chief of police for Bellevue, Nebraska. Officers in the Police Department are represented by the Bellevue Police Officers Associa­tion (BPOA). Gary Young and the law firm Keating, O’Gara, Nedved & Peter (KONP) represents the BPOA.

At a meeting on September 13, 2017, BPOA members discussed Chief Elbert and some of his conduct, and, by a vote of 72 to 1, expressed “no confidence” in him as the chief of police. After the meeting, the BPOA issued a press release drafted by their attorneys at KONP, as­serting there was “substantial evidence” Elbert had engaged in “dishonest and deceptive conduct” in carrying out his duties. The press release also claimed that Elbert had initiated multiple in­ternal investigations of union leaders in retaliation for union activity and made “derogatory comments towards women and racial minorities.”

KONP subsequently completed an “Allegation/Inquiry/ Commendation” (AIC) form, which discussed the allega­tions in the press release, as well as other alleged dishonesty by Elbert, and filed it with the City. KONP also assisted in drafting two informal complaints that individual Bellevue Police Depart­ment officers filed with the Nebraska Commission on Law Enforcement and Criminal Justice (Crime Commission). The substance of both complaints was that Elbert had instructed employees to lie and conceal information.

Elbert filed suit against KONP in September 2018, alleging he was defamed and placed in a false light by the press release, AIC allegations, and Crime Commission complaints. Elbert also alleged KONP engaged in a civil conspiracy to place him in a false light, “harm him in his professional career, and interfere with his [prospective] employment as US Marshall and the ability to continue as a Nebraska Chief of Police.”

The Nebraska Supreme Court up­held the dismissal of Elbert’s lawsuit. The core of the Court’s decision turned on whether the allegations contained in the AIC forms and those filed with the Crime Commission were “absolutely privileged” under the law. The Court began by noting that “an absolutely priv­ileged communication is one for which, by reason of its character or the occasion on which it was made, no remedy exists in a civil action for defamation. Abso­lute privilege attaches to defamatory statements made incident to, and in the course of, judicial or quasi-judicial proceedings if the defamatory matter has some relation to the proceedings.

“Here, based upon our jurisprudence, we conclude that the informal complaints to the Crime Commission involve qua­si-judicial proceedings. The Nebraska Police Standards Advisory Council, with the review and approval of the Crime Commission, has statutory authority to suspend or revoke law enforcement officers’ certificates or diplomas upon finding ‘serious misconduct,’ among other things. Members of the public can file informal complaints with the executive director of the Crime Commission, who reviews them and determines whether to file a formal complaint for hearing by the council.

“The council’s regulations provide for it to receive evidence, hear testimony, cause subpoenas to be issued, and make written findings of fact, conclusions of law, and recommendations regarding revocation, which are forwarded to the Crime Commission for final review. The Crime Commission must then either dismiss the complaint or revoke the certificate upon a finding by clear and convincing evidence that the certificate should be revoked.

“We also conclude that the AIC sub­mitted to the Bellevue Police Department similarly involves quasi-judicial proceed­ings. Law enforcement agencies have a statutory duty to adopt policies regarding complaints of officer misconduct and investigate any alleged misconduct. The Department’s AIC policy provides for the receipt of complaints from employees or members of the public. The policy also provides for review of allegations; formal and informal investigations; employee participation; findings of fact; adjudica­tion by officers in the chain of command, with final adjudication by the chief of police; and disciplinary sanctions if the allegations are found to be substantiat­ed. The chief’s decision can be formally appealed pursuant to the collective bar­gaining agreement.

“Public policy considerations support the application of absolute privilege to Crime Commission and internal affairs complaints. Such complaints involve alleged misconduct by law enforcement and, thus, can be seen to serve a public function of vital importance by providing a mechanism through which abuses may be reported to the proper authorities, and the abusers held accountable.

“Accordingly, having determined that both an informal complaint to the Crime Commission and an AIC with the Bellevue Police Department involve a quasi-judicial proceeding, we consider KONP’s statements to be relevant and protected by absolute privilege. Whether KONP acted ‘as part of a plan to destroy the career of a decorated law enforcement officer,’ as Elbert alleges, is immaterial.”

Elbert v. Young, 312 Neb. 58 (2022).

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