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Florida Third DCA rules that Florida’s statutory waiver of sovereign immunity for government agents who act in bad faith or in a wanton manner does not abrogate absolute immunity of public officials who make statements within the scope of their duties

On January 2, 2020, in Quintero v. Diaz, No. 3D18-2545, the Florida Third DCA affirmed a trial court ruling that the former mayor of Sweetwater, Florida had absolute immunity from a defamation lawsuit based on statements made in his official capacity. The mayor had been sued by the city’s former Parks and Recreation director based on derogatory statements the mayor made in the director’s termination letter. The plaintiff had argued that the mayor was not entitled to absolute immunity because section 768.28(9)(a), Florida Statutes (2014), abrogated the common law immunity afforded to public officials in defamation per se claims. The Third DCA rejected this argument, concluding that while the statute provides a limited waiver of sovereign immunity for government agents who act in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, it does not abrogate the absolute immunity provided by common law to public officials who make statements within the scope of their duties. The Court cited a Fourth DCA case, Weeks v. Town of Palm Beach, 252 So. 3d 258, 261 (Fla. 4th DCA 2018), which approvingly quoted from Blake v. City of Port Saint Lucie, 73 So. 3d 905, 906 (Fla. 4th DCA 2011): “[n]othing in the . . . language [of the sovereign immunity statute] suggests that the legislature intended to abrogate or limit the absolute immunity which the common law provides to public officials who make statements within the scope of their duties.”

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