spoken is not fatal to . . . [a] defamation claim." Schibursky, 820 F. Supp. at 1181.
Finally the Court takes note of the specific allegation that on June 10, 1992 defendant Commisso expressly referred to plaintiff Kenneth P. LaCorte as a "thug." While it may be true that characterization as a "thug" may not support a claim of defamation, notwithstanding defendants' arguments to the contrary Schibursky does not establish that proposition. Nor have the defendants established to the Court's satisfaction that under no circumstances could Commisso's remark be considered defamatory. It follows then that defendants' motion to dismiss plaintiffs' claims alleging invasion of his Due Process liberty interest in reputation is DENIED.
C. Legislative Immunity:
Defendants Meyer and Commisso claim that they are entitled to absolute legislative immunity to plaintiffs' charges. See Tenney v. Brandhove, 341 U.S. 367, 372, 95 L. Ed. 1019, 71 S. Ct. 783 (1951); Goldberg v. Rocky Hill, 973 F.2d 70, 72-73 (2d Cir. 1992). Defendants urge this Court to analyze the conduct of Meyers and Commisso under a functional approach, focusing on the nature of the alleged conduct undertaken by these legislative defendants, and to conclude that the acts complained of were undertaken by these defendants in their legislative capacities. See Rateree v. Rockett, 852 F.2d 946 (7th Cir. 1988).
Defendants then point to a line of cases, including Rateree, which essentially hold that budgetary or policy determinations by legislators which result in the termination of individual government employees are not thereby transformed from legislative functions into administrative functions which would no longer be shielded by absolute immunity. See Drayton v. Rockville, 699 F. Supp. 1155 (D. Md. 1988); Orange v. County of Suffolk, 830 F. Supp. 701 (E.D.N.Y. 1993). It follows also that these policy and budgetary decisions which negatively impact individual employee-plaintiffs are not divested of absolute immunity by plaintiffs' allegations that they were undertaken because of personal animus or malicious motive. See Ellis v. Coffee County Board of Registrars, 981 F.2d 1185 (11th Cir. 1993). In short, defendants argue that their conduct in denying plaintiffs the airport contract is analogous to undertaking legislative action which results in the termination of employment.
Plaintiffs likewise argue that the scope of legislative immunity in the individual case must be determined by the particular function undertaken by the legislative defendants. They argue, however, a line of cases which hold that legislative immunity is unavailable where the complained of action affects only specified individuals and does not turn on broad general policy statements or generally applicable rules of conduct. See Cutting v. Muzzey, 724 F.2d 259, 261-62 (1st Cir. 1984); Haskell v. Washington Township, 864 F.2d 1266, 1277-78 (6th Cir. 1988); see also, Moore v. Trippe, 743 F. Supp. 201, 207 (S.D.N.Y. 1990) ("Courts have recognized that local legislative immunity may be lost if the actions taken impact on particular individuals, rather than on a community generally, or if the factors considered in adopting the legislation relate to specific individuals, instead of general policy implications.") (citations omitted). Plaintiffs' analogize from these zoning cases that where, as plaintiff has alleged here, legislators undertake activity in a narrow field which affects only specified individuals, they are actually acting administratively and should not partake of legislative immunity.
Plaintiffs' rely most heavily on Three Rivers Cablevision, Inc. v. Pittsburgh, 502 F. Supp. 1118 (W.D. Pa. 1980). The Three Rivers Court squarely addressed the question, posed by a disappointed bidder, of the immunity of legislative defendants who have passed by vote a resolution authorizing award of a competitively bid contract to an allegedly improperly selected contractor. Id. at 1121. That Court held that the critical city council resolution was administrative in nature in that it turned on application of existing legislation to a specific situation. Id. at 1135-36. As such, legislative immunity was denied to that otherwise concededly legislative body's conduct in determining who should be awarded a public works contract.
Proper application of the doctrine of legislative immunity to the facts alleged poses an exceedingly close and difficult question. The Court has determined, however, that legislative immunity should not be available as to the actions undertaken by Meyer and Commisso in authorizing the award of the Albany airport contract. Of course plaintiffs' allegations of bad motive and wrongful conduct play no part in that determination.
Rather, the Court first finds that defendants' analogy to the budget-employment cases fails at its first premise. Here questions of budgeting of resources and policy play no role in the determination mandated by New York State General Municipal Law § 103: which among specified individual contractors is the lowest responsible bidder?
Furthermore, the Court finds that the facts of Three Rivers Cablevision are on all fours with plaintiffs' allegations and agrees with the analysis and conclusions of that Court. While the initial decisions to undertake the airport project and to adopt certain contract specifications may properly be characterized as flowing from legislative decision-making and actions, adoption of the resolution denying the contract to these alleged low-bidders is more properly characterized as an administrative act. That resolution merely applied to a specific instance the broad policies promulgated by those earlier legislative inquiries. See Three Rivers Cablevision, 502 F. Supp. at 1136.
The Court also notes that the New York State General Municipal Law which defendants acted pursuant to strictly circumscribes their discretion in awarding contracts. See N.Y. Gen. Mun. Law § 103 (McKinneys 1986 & 1995 Supp.). Furthermore, plaintiffs have also alleged that certain of Meyers and Commisso's complained of actions were undertaken after whatever contracting discretion they possessed within § 103 was further circumscribed by two separate orders of the New York State Supreme Courts after plaintiffs sought Article 78 review. (Cmplt. PP 201-02, 235-37); see also n.10 infra. Such limitations on the scope of the legislative action under consideration have been found properly cognizable by Courts undertaking the legislative immunity inquiry. See Front Royal & Warren County Industrial Park Corp. v. Town of Front Royal, 865 F.2d 77, 79 (4th Cir. 1989).
Finally, the Court notes that adherence to and application of the inquiries and general standards outlined in § 103 are mandated to be undertaken by "the appropriate officer, board or agency of [the] political subdivision" awarding the relevant contract. See N.Y. Gen. Mun. Law § 103(a) (McKinneys 1986 & 1995 Supp.). While by no means dispositive in categorizing the "function" allegedly performed by these defendants, this Court has difficulty in characterizing inquiries and determinations which are statutorily assigned to either an executive, a legislative or an administrative decision-maker, as action undertaken solely in a legislative capacity.
For all the foregoing reasons the Court finds that the defense of legislative immunity to plaintiffs' allegations is unavailable to defendants Meyer and Commisso.
The motion to dismiss for failure to state a claim upon which relief can be granted of the Albany defendants is DENIED.
The motion for judgment on the pleadings based on legislative immunity of Meyer and Commisso is, likewise, DENIED.
IT IS SO ORDERED
April 18, 1995
Binghamton, New York
Thomas J. McAvoy
Chief U.S. District Judge