This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-2613

Jon V. Tofte,

Appellant,

vs.

Lawrence A. Ianni, et al.,

Respondents.

Filed July 22, 1997

Affirmed

Parker, Judge

St. Louis County District Court

File No. C795601032

Douglas P. Kempf, 5357 Highpointe Terrace, Bloomington, MN 55437 (for appellant)

Joseph J. Mihalek, Fryberger, Buchanan, Smith & Frederick, 700 Lonsdale Building, 302 West Superior Street, Duluth, MN 55802-1863 (for respondents)

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Davies, Judge.

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Appellant Jon Tofte contests the district court's grant of summary judgment to respondents University of Minnesota; Nils Hasselmo, the president of the University; Lawrence A. Ianni, the former chancellor of the University's Duluth campus (UMD); and Sandra Featherman, the former vice chancellor in charge of academic affairs at UMD. Because appellant failed to provide sufficient facts to establish the elements of his claims for reprisal based on his exercise of his right to free speech, defamation, violation of his liberty interests, and intentional interference with a prospective contract, we affirm.

D E C I S I O N

On appeal from summary judgment, an appellate court determines whether the district court erred in its application of the law and whether any genuine issues of material fact remain. Minn. R. Civ. P. 56.03; State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Summary judgment must be granted against a party who fails to establish the elements of his claim, if he has the burden of proof. Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994). A party opposing summary judgment cannot rely upon mere general statements of fact, denials, or speculation, but rather must demonstrate that specific facts exist which create a genuine issue for trial. Hunt v. IBM Mid Am. Empl. Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986).

I.

Tofte contends the district court erred in granting summary judgment to respondents Ianni, Featherman, and Hasselmo on his claim for violation of his constitutional right to free speech. To state a claim under 42 U.S.C. § 1983 (1996), a claimant must show that (1) the First Amendment protects the speech involved and (2) that the protected speech was a substantial factor in the adverse employment decision. Mt. Healthy City School Dist. Bd. of Edu. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576 (1977). The district court held that Tofte failed to present sufficient facts to establish that his speech activity was a substantial motivating factor in the nonrenewal of his position.

Tofte was a full-time assistant professor in the Industrial and Technical Studies Department (ITS) at UMD from September 1, 1990, to May 31, 1993. He coordinated the Masters in Industrial Safety Program (MIS) within ITS and taught many of its courses. In the spring of 1991, the University began to plan for retrenchment. ITS was slated for elimination. As the least-senior, non-tenured professor, Tofte's position was eliminated and set for termination as of May 1993. A few months later, MIS was added to the retrenchment plan. Upon learning of the cuts, Tofte began lobbying the Minnesota legislature. Because Tofte did not engage in his lobbying efforts until after the decision to cut his position, he failed to demonstrate that his speech activities motivated his termination.

Tofte argues that his association with ITS faculty members, who had lobbied the legislature prior to the retrenchment proposals, provides a basis for connecting the program cuts to his speech activities. Tofte alleges that Ianni was upset about the ITS faculty members' lobbying activities prior to the decisions to eliminate ITS and MIS. He asserts that Ianni complained during a March 1990 meeting about the ITS faculty members' contact with legislators when they disliked administrative decisions. Ianni allegedly stated to an ITS faculty member, "I'm going to get you guys." The record indicates, however, that Tofte was not a member of the ITS Department until months after the alleged statements. While he may have taught a course in ITS during the spring of 1990, Tofte was a member of the College of Fine Arts, not the ITS Department.

Tofte erroneously relies on Rampey v. Allen, 501 F.2d 1090 (10th Cir. 1974), to claim that his later association with the ITS faculty provides a basis for transferring retaliatory intent. In Rampey, a group of plaintiffs who worked in the same department of a state college brought suit for retaliatory discharge based on the exercise of their First Amendment rights to freedom of expression. Id. at 1091. While the court and the college treated the plaintiffs as one group for the purposes of that case, the plaintiffs there all participated in the protected speech activity prior to the adverse employment decision. Id. Rampey does not authorize an inference of retaliatory intent for protected speech activities to Tofte's situation merely because he associated with others who had engaged in protected speech prior to the decision to cut his position.

Tofte also argues that respondents acted with retaliatory motives when they offered to rehire him. After Tofte's lobbying efforts, the MIS program was salvaged from retrenchment plans. The University dissolved ITS during the spring of 1993 and moved MIS to Continuing Education and Extension (CEE). Tofte was offered a contract to teach for the MIS program during the 1993-94 school year at a rate of $1,000 per credit. This amount was substantially less than he had received prior to retrenchment. Tofte asserts that respondents intentionally offered a low compensation level in retaliation for his speech activities.

Tofte provides no evidence supporting this accusation. Rather, the record indicates that CEE programs relied on a funding mechanism and pay schedule different from the rest of the University. While Tofte was offered a contract to teach MIS courses at a rate lower than he had received before, the rate fell near the top of CEE's guidelines. Tofte did not accept this offer in a timely manner and was therefore not rehired. In light of these facts, the district court properly concluded that Tofte failed to support his claim of retaliation because he did not provide facts to show that his speech activities played a substantial role in any adverse employment decisions.

II.

Under Minnesota law, a party may be held liable for defamation when a claimant shows that a false statement that tends to harm or lower the claimant's reputation in the estimation of the community was communicated to a third person. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980). Tofte contends that respondent Ianni should be held liable for several defamatory statements contained in a series of letters sent to alumni in August and September of 1993. Ianni sent these letters in response to concerns about the quality of the MIS program.

Tofte objects to the following statements:

[T]he program is not accreditable based on the formal qualifications of the current staff. * * * Efforts to improve instructional personnel in the program have met with considerable opposition. * * * The university wants to strengthen the program.

Tofte argues that because he was the only full-time faculty member in the program and because the persons to whom Ianni wrote knew this fact, the statements defamed his reputation. However, the letters did not actually refer to Tofte, but spoke only of the program in general. Further, seven other individuals taught MIS courses.

Tofte also failed to demonstrate that these statements were false. Because the program did not have three full-time faculty members, it was not accreditable with its current staff. Tofte admitted that he objected to the administration's attempts to seek faculty members who had doctorate degrees. Thus, there was opposition to the administration's efforts. While Tofte may have disagreed with the University's plans, the University in fact made several attempts to strengthen the program.

Moreover, the statements made by Ianni are entitled to absolute privilege. Statements of public officials are absolutely privileged and immune from liability if the statements fall within the official's assigned functions, are integral to performing those functions, and the public interest is furthered by allowing the official to speak freely about the subject matter. Bol v. Cole, 561 N.W.2d 143, 147 (Minn. 1997); Board of Regents v. Reid, 522 N.W.2d 344, 347 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). Ianni made these contested statements in his official correspondence as chancellor. The very essence of this role requires that he speak on behalf of the University and respond to alumni concerns. Thus, absolute privilege bars this claim.

III.

An employee's constitutional liberty interests may be violated if the employee can establish that he has been stigmatized as a result of a discharge. Board of Regents v. Roth, 408 U.S. 564, 573-74, 92 S.Ct. 2701, 2707 (1972). The employer must have made charges against an employee that damage his standing in the community or otherwise impose a stigma that effectively forecloses his freedom to take advantage of other employment opportunities. Id. The employee must also establish that the charges made against him were false. See Codd v. Velger, 429 U.S. 624, 628, 97 S.Ct. 882, 884 (1977).

Tofte contends the statements made by Ianni in the letters cited above were defamatory so as to trigger a liberty interest claim. As discussed, the statements were not directed at Tofte, and he has not shown them to be false. In addition, the statements did not stigmatize Tofte. See Shands v. City of Kennett, 993 F.2d 1337, 1347 (8th Cir. 1993) cert. denied 114 S.Ct. 880 (1994) (stigma occurs where "the employer has accused the employee of dishonesty, immorality, criminality, racism or the like"); see also Roth, 408 U.S. at 574, 92 S. Ct. at 2707 (charge that seriously damages person in community's eyes would be charge of dishonestly or immorality). The statements here concerned the lack of qualifications in the program according to academic standards that the University hoped to attain. The statements did not denigrate Tofte and therefore do not establish a claim.

IV.

Tofte contends that Ianni and Featherman interfered with the salary arrangements for his 1993-94 contract. An employer's agent may be liable for tortious interference with another employee's contract, if the agent acts outside the scope of his duties. Nordling v. Northern States Power Co., 478 N.W.2d 498, 506 (Minn. 1991). Generally, an agent acts outside the scope of his duties when he acts with malice. Id. Actual malice means bad faith, personal ill will, spite, hostility, or a deliberate intent to harm the employee and does not include actions taken under a good-faith belief, whether valid or not, that they are in furtherance of the employer's business. Id. at 507.

Tofte presented no evidence to show that respondents interfered with the compensation level of his employment offer. The record indicates that the dean of the College of Science and Engineering, who administered CEE, set the salary according to the CEE's requirements. In fact, Tofte was offered compensation at the high end of the range for an instructor position in CEE. He has also shown no malice.

Furthermore, we conclude that official immunity protects respondents' actions here. The official immunity doctrine provides that a public official charged with duties that call for the exercise of judgment or discretion is not personally liable to an individual for damages resulting from his decisions unless he is guilty of a willful or malicious wrong. Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988). Restructuring, cost containment, hiring, and salary decisions are discretionary. These decisions involve the exercise of professional judgment, and official immunity precludes this court from second-guessing such actions in the absence of a showing of malice or willful wrong. This record contains no evidence of either.

Affirmed.