Thomason's slander suit dismissed

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Judge gives fired police chief chance to file amended complaint against Tish

By Rich Bauer, Managing Editor

A judge said on Wednesday that if St. Elmo’s former police chief wishes to sue that town’s mayor for slander, he needs to be more specific.

In a short hearing in Fayette County Circuit Court, Judge S. Gene Schwarm dismissed Ken Thomason’s lawsuit against Larry Tish, but gave Thomason three weeks to file an amended complaint.

Tish fired Thomason in November, and Thomason filed a lawsuit in February in which he alleged that Tish “made comments that are slanderous and defamatory per se to one or more third person(s) who is/are resident(s) of St. Elmo.”

Thomason alleges in the suit that the mayor made “false and untrue statements and comments,” calling him incompetent as both a police officer and police chief.

Thomason claims that Tish said that he was “so lacking in professional ability that he is working in St. Elmo only because he cannot get a job elsewhere.”

Thomason also alleged in the suit that Tish made derogatory statements about him “for the purpose of ‘evening an old score’ arising out of an occasion when Tish was previously arrested by (him).”

In response to Thomason’s suit, Tish claimed that the former police chief’s suit lacked “particularity and precision,” thus failing to meet the requirements of a lawsuit alleging “defamation per se.”

Tish’s response also claimed that Thomason’s allegations are merely “statements of opinion which are not actionable.

“These alleged statements, even if defamatory, are privileged. Mayors have an absolute privilege regarding communications made within the scope of their official duties,” Tish’s response states.

He classifies Thomason as “a disgruntled former employee … who now brings this suit especially to spite his former boss.”

At Wednesday’s hearing, Tish’s attorney, Chuck Pierce of Belleville, argued that one factor in the case is “whether (Thomason’s) statements have precise meaning. There is no context.

“What is defamation in one context may not be defamation in another,” he said.

Pierce argued that Thomason’s claim that Tish called him “incompetent” is “not precise, readily understood,” and “it is opinion-protected.”

Also, Pierce said, the court has to consider whether Thomason’s statements are “objectively verifiable,” and that Tish, as mayor, “has absolute privilege to say things as part of his job.”

Pierce further argued that Thomason fails to show actual malice in his suit.

For Thomason to say that Tish allegedly slandered him “to settle an old score is not enough for actual malice. You have to make more than a fair assertion of malice.”

Even if Thomason were to file an amended complaint, Pierce argued, his allegations are based on “only opinions.”

Thomason’s attorney, Lee Barron of Alton, told Schwarm that he believed that the lawsuit was specific enough to warrant the case moving forward.

“I don’t know how more specific I could be,” Barron said.

About the allegation that Tish had made the statement that Thomason had not solved one case while serving as police chief, Barron said, “that is a specific allegation.

On the allegation that Tish had made the statement that the St. Elmo Police Department was “the laughing stock of Fayette County, Barron said, “He is saying that (Thomason) is incompetent.”

Thomason alleges in the suit that Tish called him “an idiot,” and Barron argued, “This is discussing his professional ability.

“This is clearly defamation per se,” Barron said.

As to actual malice, Barron said that the lawsuit is “very specific,” in that Tish made statements about Thomason “for the purpose of causing embarrassment.”

In granting Tish’s motion for dismissal of the suit, Schwarm said, “We need to have a little bit more (information).”

Schwarm agreed with Pierce that if Thomason is going to sue Tish because of statements that he allegedly made, the court needs to know “where the statements were made and whom they were made to.”

He also agreed that several of the allegations “wouldn’t be objectively verifiable and couldn’t stand.

“I’ll give you an opportunity to do that,” Schwarm said in telling Thomason that he could file an amended complaint.

If Thomason does file an amended complaint, Tish would have three weeks to file a response to that complaint.

In the complaint, Thomason was seeking compensatory damages of more than $75,000 and punitive damages of more than $75,000.

In addition to the suit filed in Fayette County Circuit Court, Thomason has filed suit against Tish in federal court.

In that suit, filed recently in the Southern District of U.S. District Court, Thomason claims that Tish violated his civil rights and also violated the state’s Whistleblower Act.

Thomason claims in that suit that Tish made “clear and certain promises and offers of continued employment.”

He also alleges that Tish failed to provide to the city council “the honest, authentic and real reasons” for his termination.

In doing so, Thomason claims, Tish violated his “procedural and substantive due process rights.”

He contends that Tish voluntarily testified against the city in an ordinance violation case, and that Tish began the process of terminating him after he challenged the mayor on that issue.