TAYLOR, Chief Judge.
Joanne Smith brings this appeal from a November 17, 2009, summary judgment dismissing Smith's defamation claims against Odell Martin. We affirm in part, vacate in part, and remand.
Martin is the mayor of Horse Cave, Kentucky.
After the city council meeting, Martin distributed a publication called News from Horse Cave City Hall (Horse Cave Newsletter). Martin published the newsletter regularly to inform citizens of Horse Cave about activities of city council. In a subsequent edition of the newsletter, the following excerpt of an article appeared recounting the events of the July 31 city council meeting:
Later in 2008, Smith filed a complaint against Martin in the Hart Circuit Court alleging libel and slander in relation to Martin's oral statements directed to Smith during the city council meeting and publication of the newsletter recounting Martin's statements directed to Smith during the city council meeting. Eventually, Martin filed a motion for summary judgment alleging that his statements were not defamatory and were privileged. Martin asserted he was entitled to absolute immunity for any statements made during the city council meeting. The circuit court agreed and dismissed Smith's defamation claims by summary judgment entered November 17, 2009. This appeal follows.
Smith contends that the circuit court erred by rendering summary judgment dismissing her defamation claims against Martin. Summary judgment is proper where there exists no material issue of fact and movant is entitled to judgment as a matter of law. When ruling
To establish a claim for defamation, the following elements must exist: "[1.] defamatory language, [2.] about the plaintiff, [3.] which is published, and [4.] which causes injury to reputation." Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 793 (Ky.2004)(footnote omitted). A claim of defamation may be defeated by establishing the truth of the matter asserted which is an absolute defense. Additionally, a defamation claim may be defeated by assertion of a "privilege." A privilege is recognized as a defense to a defamation claim; the defense may be either absolute or qualified. An absolute privilege affords a defendant a complete defense to a claim of defamation; whereas, a qualified privilege only affords a defendant a conditional defense to a claim of defamation. Both privileges are pivotal to the resolution of this appeal.
In her complaint, Smith claimed that Martin defamed her by: (1) Martin's oral statements directed to Smith during the city council meeting, and (2) Martin's publication of the Horse Cave Newsletter recounting Martin's statements directed to Smith during the city council meeting.
In Jacobs v. Underwood, 484 S.W.2d 855, 857 (Ky.1972), the Supreme Court recognized that the General Assembly enacted KRS 84.050 and thereby bestowed upon members of secondary legislative bodies (city commissions) an "absolute privilege under which they cannot be liable for statements made during a debate before a formal meeting of the assembly." KRS 84.050 was eventually repealed, but it was substantively reenacted in KRS 83A.060(15), which reads:
Under KRS 83A.060(15), members of secondary legislative bodies, such as city councils, acquired an absolute privilege from liability for statements made during such meetings.
In this case, Martin was mayor of Horse Cave. Horse Cave is organized and governed by a mayor-council plan. KRS 83A.030. Under the mayor-council plan, the mayor presides at city council meetings and casts a vote in case of a tie. KRS 83A.130(5). When Martin presides over a city council meeting, he is performing a legislative duty and should be entitled to the same absolute privilege afforded other members of the city council under KRS 83A.060(15). As Martin's statements directed at Smith occurred during a city council meeting, these statements are absolutely privileged, and Martin cannot be liable for same in this defamation action.
However, the defense of absolute privilege is not available to Martin in regard to his publication of the Horse Cave Newsletter. Rather, we must look to the qualified privilege contained in KRS 411.060.
Under KRS 411.060, the publication of a "fair and impartial" report of a city council meeting is privileged unless such publication was "maliciously made." 13 David J. Leibson, Kentucky Practice—Tort Law § 15:19 (2010). Simply stated, KRS 411.060 creates a qualified privilege. The privilege is qualified or conditioned upon the report being fair and accurate and not being maliciously made. If the report is fair and accurate and not maliciously made, the publication of the report is considered privileged and will defeat the defamation claim. And, the report is considered "maliciously made" if it is published "solely for the purpose of causing harm to the person defamed." Pearce v. Courier-Journal, 683 S.W.2d 633, 636 (Ky.App. 1985) (citation omitted). The determination of whether the report was fair and impartial or was maliciously made presents an issue of fact. Kremer v. Kopmeyer, 418 S.W.2d 237 (Ky.1967).
In our case, the qualified privilege created in KRS 411.060 encompasses Martin's publication of the Horse Cave Newsletter recounting Martin's statements directed to Smith during the city council meeting. As the circuit court did not determine whether the qualified privilege of KRS 411.060 was applicable, there has been no determination
In sum, we hold that members of secondary legislative bodies are entitled to an absolute privilege for statements made during official meetings of those bodies under KRS 83A.060(15). At the Horse Cave city council meeting, Martin was performing legislative duties; thus, Martin's statements directed to Smith at the meeting are absolutely privileged. As such, the circuit court properly rendered summary judgment dismissing Smith's defamation claim based upon these statements. We also conclude that KRS 411.060 provides a qualified privilege for the publication of a report recounting events at a city council meeting. Martin's publication of the Horse Cave Newsletter recounting statements made by Martin to Smith comes within the ambit of KRS 411.060. We are, nevertheless, unable to determine whether the qualified privilege operates as a defense to Smith's defamation claim in this case. Under KRS 411.060, the determination of whether the Horse Cave Newsletter's report was fair and accurate or was maliciously made presents a factual issue, which was not addressed by the circuit court. Thus, we remand Smith's defamation claim as to the publication of the Horse Cave Newsletter and affirm the dismissal of her defamation claim as to Martin's statements at the city council meeting.
We view Smith's remaining contentions of error to be without merit or moot.
For the foregoing reasons, the summary judgment of the Hart Circuit Court is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
ALL CONCUR.