may result in rendering the business submitting the questionnaire non responsible [sic] with respect to the present bid or future bids, and in addition, may subject the person making the false statement to criminal charges." Guide at 9. Persons answering "Yes" to questions about contract incidents or investigations must fully explain their answers.
The forms for Celebrity and both Dachs listed the reason for denial of Celebrity's contract as "qualified bid and unsubstantiated allegation of offering gratuity to inspector." "Principal Questionnaire" for Paul Dachs ("Dachs PQ") at 7, attached to Shapiro Ltr. Printouts of the information displayed on the Vendex program computer screens for plaintiffs indicate that this information appeared in data files on all of the plaintiffs, but in modified form. Despite the statement by the Board of Review that the bribery allegation would not be considered at the hearing, and presumably would not be at issue, the Vendex system lists "bribery" as the reason for the denial of the bid, and a comments field displays the language plaintiffs used: "qualified bid and allegation of offering gratuity." Vendex VDMXQ802, attached to Shapiro Ltr.
Defendants make several arguments regarding Vendex publication. First, they assert that the Vendex notices are not punitive because the purpose of the system is to allow the City to "make well-informed decisions with respect to those with whom it contracts." Shapiro Ltr. at 3. This argument misses the mark. There is no doubt that the City can establish the Vendex system for the legitimate purpose of monitoring its contracting relationships. Cf. Sanitation and Recycling Ind., Inc. v. City of New York, 107 F.3d 985, 990-94 (2d Cir. 1997)(upholding city's carting regulatory scheme); Valmonte v. Bane, 18 F.3d 992, 1003 (2d Cir. 1994) (noting that state has a strong interest in maintaining centralized child abuse registry); Lee TT. v. Dowling, 87 N.Y.2d 699, 708-9, 642 N.Y.S.2d 181, 664 N.E.2d 1243 (N.Y. 1996) (holding that state's registry of suspected child abusers is a legitimate exercise of the police power).
That power, however, is not limitless. As the Court of Appeals for the District of Columbia Circuit stated in a similar context: "Thus to say that there is no 'right' to government contracts does not resolve the question of justiciability. Of course there is no such right; but that cannot mean that the government can act arbitrarily, either substantively or procedurally, against a person . . . ." Gonzalez v. Freeman, 118 U.S. App. D.C. 180, 334 F.2d 570, 574 (D.C. Cir. 1964). While it may well be that to be effective, a system like Vendex must inevitably contain defamatory matter, nothing in New York law supports the proposition that the power to establish the Vendex system confers an unqualified right to defame.
Defendants make two additional arguments regarding publication, one of which appears to be an open question under New York law. First, they assert that there can be no liability because the plaintiffs effectively consented to the publication of the statements. Second, they argue that even if publication is found, that the statements are subject to a qualified privilege, and that, therefore, liability cannot attach. In response, plaintiffs argue that because they merely repeated what Scarpa's letter stated, and because the BOE knew that the plaintiffs were required to report the unsubstantiated allegations in the Scarpa letter, see Ltr. to court from Robert J. Jossen, Esq. counsel to plaintiffs dated May 24, 1996, the fact of their publication of the allegations should not be seen as manifesting consent.
Publication of a libel to a third party is a necessary element of a defamation claim. See Youmans v. Smith, 153 N.Y. 214, 218, 47 N.E. 265 (N.Y. 1897). Publication occurs when the libelous words are read "by someone other than the person libeled and the person making the charges." Fedrizzi v. Washingtonville Cent. Sch. Dist., 204 A.D.2d 267, 268, 611 N.Y.S.2d 584 (2d Dep't 1994). To be liable for defamation, the defendant must induce or cause publication in some fashion; a person who makes a defamatory remark is not liable for its repetition if they have no control over the publication. See Schoepflin v. Coffey, 162 N.Y. 12, 17, 56 N.E. 502 (N.Y. 1900). In New York, consent to publication is a bar to a defamation action. See Teichner v. Bellan, 7 A.D.2d 247, 251, 181 N.Y.S.2d 842 (4th Dep't 1959). This rule is subject to the important qualification that a plaintiff who authorizes an inquiry is not to be deemed to have consented unless she has reason to think that the statement will be defamatory. See id.
Plaintiffs' defamation claim is best seen as one for compelled self publication, a narrow exception to the rule of no liability. This concept embraces several theories. A defendant may be liable for defamation if the defendant "'knew or could have foreseen that the plaintiff would be compelled to repeat the defamatory statement.'" J. Crew Group, Inc. v. Griffin, 1990 U.S. Dist. LEXIS 15835, No. 90 Civ. 2663, 1990 WL 193918 at *2 (S.D.N.Y. Nov. 27, 1990) at *2 (quoting Churchey v. Adolph Coors Co., 759 P.2d 1336, 1344 (Colo. 1988)(en banc)). The second theory "'imposes liability if the defendant knew or could have foreseen that the plaintiff was likely to repeat the statement.'" J. Crew, at *2 (quoting Churchey at 1344). Another approach is suggested by the Restatement (Second) of Torts, which finds publication to have occurred when a defamed plaintiff communicates a defamatory statement "without an awareness of the defamatory nature of the matter and if the circumstances indicated that communication to a third party would be likely . . . ." Restatement (Second) of Torts § 577 cmt. m (1976).
Generally, the issue of compelled self publication arises in employee termination cases, where the terminated plaintiff asserts that she is compelled to repeat the defamatory statement in the process of applying for a new job. See Lewis v. Equitable Life Assurance Society of the United States, 389 N.W.2d 876, 886 (Minn. 1986) (collecting cases). The argument is essentially a proximate cause one:
The rationale for making the originator of a defamatory statement liable for its foreseeable republication is the strong causal link between the actions of the originator and the damage caused by the republication. This causal link is no less strong where the foreseeable republication is made by the person defamed operating under a strong compulsion to republish the defamatory statement and the circumstances which create the strong compulsion are known to the originator of the defamatory statement at the time he communicates it to the person defamed.
McKinney v. Santa Clara County, 110 Cal. App. 3d 787, 797-98, 168 Cal. Rptr. 89 (Cal. 1st Dist. 1980). Most courts that have endorsed the theory have adopted a standard composed of compulsion and foreseeability rather than a standard that allows liability on a lesser showing of likelihood or reasonableness. See, e.g., Chrzanowski v. Lichtman, 884 F. Supp. 751, 755 (W.D.N.Y. 1995); J. Crew Group, at *3; Elmore v. Shell Oil Co., 733 F. Supp. 544, 546 (E.D.N.Y. 1988); Lewis, 389 N.W.2d at 888 (holding that liability exists only where "defamed person has no reasonable means of avoiding publication of the statement or avoiding the resulting damages").
There is scant law on this issue in New York. In a memorandum decision, Wieder v. Chemical Bank, 202 A.D.2d 168, 170, 608 N.Y.S.2d 195 (1st Dep't 1994), lv. to appeal denied, 83 N.Y.2d 759, 615 N.Y.S.2d 876, 639 N.E.2d 417 (1994), the First Department flatly rejected a claim of compelled self publication in the case of a lawyer who was discharged for misconduct. However, the Weider decision rests on the holding in Weintraub v. Phillips, Nizer, Benjamin, Krim, & Ballon, 172 A.D.2d 254, 255, 568 N.Y.S.2d 84 (1st Dep't 1991). The facts of this case did not demonstrate compelled self publication, see Wright v. Guarinello, 165 Misc. 2d 720, 724 (Sup. Ct. Kings Cty. 1995), nor was the issue of compelled self publication actually considered.
More recently, a trial court adopted the self publication rationale, although it limited the relief to a name-clearing hearing. In Wright v. Guarinello, 165 Misc. 2d 720 (Sup. Ct. Kings Cty. 1995), plaintiff Wright brought an Article 78 proceeding following his termination by a social service agency against the state Office of Mental Retardation and Developmental Disabilities. Wright was terminated for "misconduct" after a report that he improperly handled a disabled person. Pursuant to state regulations Wright's employer was required to report this charge of abuse. Wright argued that he was faced with the choice between failing to disclose information that was available through a state maintained system and full disclosure, which would result in his inability to obtain a job. See id. 165 Misc. 2d at 721-22. The court ordered a name clearing hearing and suggested that the theory of compelled self publication should be adopted in New York, at least in a situation where a potentially defamatory statement must be reported:
Nothing in the 100-year history of "at will" employment permits an employer to go beyond the boundary of ending one employment by inventing a knowingly false charge that it can foresee will foreclose any future employability, where the circumstances bespeak a strong compulsion by the employee to self-publish the stated grounds. A license to fire at will does not carry with it permission to poison with immunity.