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Villasenor v. Evans - 12/20/2016

Arizona Court of Appeals Division One holds that the notice of claim requirement in A.R.S. § 12-821.01 applies to claims against elected city officials.


An elected member of a city council met with a lobbyist for a developer to discuss the developer’s efforts to obtain a controversial zoning change.  When a newspaper wrote about the meeting, the city council member sent an email to the columnist in an effort to correct alleged inaccuracies in the story.  The lobbyist sued the city council member for alleged defamatory remarks made in the email to the columnist.  The city council member successfully moved for summary judgment because the lobbyist had not filed a notice of claim within 180 days as required by A.R.S. § 12-821.01.

Under A.R.S. § 12-821.01(A), a person with a claim against a “public employee” must file a notice of claim with the person “authorized to accept service for . . . the public employee.”  If the person fails to file the notice of claim as required, any lawsuit on the claim is barred.  On appeal, the lobbyist argued that no notice of claim was required because the city council member, an elected official, was an “officer” and not a “public employee.”  Other statutory provisions related to governmental immunity separately define “public employee” and “employee.”  Under Section 12-820(1), “employee” includes an “officer, director, employee or servant” and Section 12-820(6) defines “public employee” as an “employee of a public entity.”  Based on these different definitions, the lobbyist argued that the term “public employee” is narrower than “employee” and excludes officers such as the city council member.  The Court of Appeals rejected this argument, explaining that because (i) “public employee” is defined as an “employee” of a public entity and (ii) “employee” includes officers, the city council member is a “public employee” under the notice of claim statute. 

Judge Swann authored the opinion; Presiding Judge Gould and Judge Orozco concurred.

Posted by: Joshua M. Ernst  

 

Posted On: 1/6/2017