We write to correct several errors in an Oct. 26 Journal News story, Putnam Sheriff Don Smith’s $150K Defamation Settlement Against Adam Levy Under Scrutiny, that claimed the Putnam County Legislature was unaware of key facts regarding the defamation lawsuit by former District Attorney Levy against Sheriff Smith when we approved the settlement. The article not only misstates the information the Legislature possessed, but also the facts of the litigation itself.
Contrary to assertions made in the Journal News story, no court ever “ruled that Smith was liable as an individual, not as a county official.” In a tactic to secure a legal advantage, Levy’s lawsuit did name Sheriff Smith “individually and not in his capacity as an employee of the County of Putnam.” However, the allegations in Levy’s complaint obviously concerned actions taken by Sheriff Smith while acting in his capacity as Sheriff. The comments at issue were press releases on official letterhead made during an investigation.
In considering Sheriff Smith’s motion to dismiss Levy’s complaint, the state Supreme Court was required to assume that everything alleged in Levy’s complaint was true, even if disputed by Sheriff Smith. At that early stage in the case — over two years before the trial began and before discovery was completed — the court ruled that Sheriff Smith was not entitled to a dismissal of the case based on an “absolute privilege” providing him immunity from defamation claims.
While the court rejected Sheriff Smith’s claim of absolute privilege, it allowed him to pursue a claim of “qualified privilege” while also dismissing some of Levy’s allegations and claims. And in the subsequent cross-motions for summary judgment filed by the parties, the court once again left open Sheriff Smith ‘s defense of qualified privilege. It was left for the jury to decide during the trial whether Levy could prove that Sheriff Smith’s statements were made with knowledge that they were false or with a reckless disregard for the truth.
These court decisions, as well as the appellate rulings on them, were known to the entire Putnam County Legislature — including Legislator Dini LoBue — when evaluating the proposed settlement. Legislator Paul Jonke’s statement that he was unaware of the rulings was based on them being incorrectly described to him — just as they are in the article — by a reporter who asked for his comment. And Legislator LoBue did, in fact, have the court decisions in-hand, and had their meaning explained to her, prior to voting for the settlement. Her claims to the contrary months later are part of Legislator LoBue’s campaign to poison the well for her fellow legislators after she was soundly rejected by the voters in the primary election, ending her legislative career.
The entire Legislature — including Legislator LoBue — was also mindful of the Putnam County Charter provision that requires the County to be held liable for any judgment obtained against an employee, including the amount of any settlement of a claim or attorney’s fees and litigation expenses.
While there is an “intentional wrongdoing” exception to that liability requirement, the County would still have been required to pay any judgment against Sheriff Smith if the jury found he had negligently defamed Levy. During opening statements by Levy ‘s attorney at the start of the trial, it became apparent that Levy would indeed be pursuing a theory of negligent defamation.
Legislator LoBue was made aware of this, as well.
It was only after considering all of the facts and circumstances — including the decisions which the Journal News article wrongly claims were unknown to us — as well as the advice of the County Attorney, Legislative Counsel, and both the claims counsel and trial counsel for the County’s insurer, that the Legislature unanimously decided to approve the settlement. While no member of the Legislature was happy about it, we all recognized that the settlement served the best interests of Putnam County taxpayers and avoided potentially much greater exposure to liability.
Ginny Nacerino, Chairwoman
Legislator, District 4
Joseph Castellano, Deputy Chairman
Legislator, District 7
Legislator, District 1
Legislator, District 2
Legislator, District 3
Legislator, District 5
Legislator, District 6
Legislator, District 9