Former Moab City Manager Rebecca Davidson’s lawsuit against two local residents faltered last week, when a district court judge dismissed her defamation claims against them.
Davidson and co-plaintiffs Tara Smelt and Tayo, Inc., are seeking nearly $5.5 million in damages from Annie Tueller Payne, Janet Buckingham and four other defendants. The plaintiffs claim that they suffered damages to their personal and professional reputations, based on past statements the defendants made about Davidson’s ties to Tayo, a computer consulting firm that the city previously hired on a short-term basis.
Seventh District Judge Lyle R. Anderson said he “thinks” he understands the plaintiffs’ allegations that the defendants’ statements were not true. But he ultimately rejected those arguments.
“I think that (the defamation claim) amounts to parsing the statements of citizens to a degree which the law should not do,” he said during a court hearing on Wednesday, Nov. 9. “When the citizens are talking to their governing bodies, they need to be able to speak about facts using words – sometimes colorful words – and they shouldn’t have to tone it down to such an extent that we take all of the life out of the process.”
At the same time, though, the judge made it clear that he was making his decision in a “garden-variety context,” without invoking Utah’s Anti-Strategic Lawsuit Against Public Participation (Anti-SLAPP) Act. The act, which the defendants cited in their counter-claims, is designed to protect citizens from costly lawsuits that aim to intimidate, silence or “chill” their involvement in government.
“I do not think I can find by clear and convincing evidence that the plaintiffs have filed this action with the primary purpose of chilling participation by these defendants in government,” the judge said. “I think there is a plausible theory that what they’re really after is what they say they’re really after, which is, they would like to clear their names.”
That’s not to say that the Anti-SLAPP Act is out of the equation in this case, the judge said.
“It just means that it’s not the basis for my decision here today,” he said.
Moving forward, Judge Anderson said he may end up ruling on the defendants’ motion for summary judgment, which asks the court to rule that the plaintiffs don’t have a case.
The Nov. 9 hearing was the latest development in the lawsuit that Davidson and Smelt also brought against Grand County Council member Chris Baird; Kemmerer, Wyoming, resident Connie McMillan; Canyon Country Zephyr Publisher Jim Stiles; and the Zephyr itself.
The plaintiffs filed their suit in response to comments that the defendants and others posted on social media sites, including Citizens for Transparency in Local Government’s Facebook page, about the relationship between Tayo and Davidson. Payne, Buckingham and others reiterated their concerns in other public venues, including a city council meeting last summer.
At Davidson’s recommendation, Moab City Recorder Rachel Stenta hired Tayo to resolve major computer security flaws at city hall. Stenta did so under an “emergency situation” exemption that allowed the city to authorize expenditures without having to advertise and solicit sealed bids.
The city ultimately spent about $99,000 on hardware and software, plus more than $56,000 on consulting services, to address the flaws that Stenta raised.
At the time of the company’s formation, Davidson and Smelt were housemates, and Niyo Pearson – a past associate of Davidson’s – performed the bulk of the consulting work.
A city-hired accountant later found no evidence of procedural wrongdoing when the city hired Tayo. But the accountant noted that the scope of the report was very limited, and its findings did little to quell a growing number of local residents’ questions, concerns and criticisms about the hiring decision – and Davidson’s management style.
In early September, Mayor Dave Sakrison placed Davidson on paid administrative leave while an outside counsel reviewed unspecified “internal issues.” The city council subsequently voted 3-1 on Sept. 30 to terminate Davidson’s contract “without cause,” or for reasons that are not related to misconduct.
Davidson claims $5 million in lost income due to defendants’ actions
The damages that the plaintiffs are seeking include at least $495,000 in business that Smelt and Tayo, Inc., say they will lose, and $5 million in income that Davidson claims she’ll lose.
The purpose of the suit, plaintiffs’ attorney Gregory R. Stevens said, is to hold the defendants accountable for their statements about his clients.
“They brought this case to stop the false and defamatory information from being posted,” Stevens said.
It should further serve as a reminder that “decency and civil discourse” require people to make statements of fact that are either true, or – at a minimum – not knowingly or recklessly false, he added in court documents.
Stevens has alleged that those statements caused Davidson personal humiliation, mental anguish and emotional distress, while damaging Tayo’s reputation and its ability to find work in the community.
Stevens said the defendants’ conduct was not aimed at achieving a “favorable government action.” Instead, he said, it’s clear that their main motivation and interest was to retalitate against Davidson and “bash her integrity” because they’re angry and unhappy with her role in the termination of former city employees Ken Davey and David Olsen in September 2015.
“In fact, the primary purpose of this civil action is to prevent them from bashing or bullying plaintiffs in public forums by means of knowingly or recklessly false statements of fact,” Stevens wrote.
Payne may have launched the Facebook Citizens forum to draw attention to issues related to the city and the city council, he wrote, but it became a forum, in part, for the publication of false information about the plaintiffs. Facebook commenters – including Payne and Buckingham – would “blindly accept” false information as the truth, with no effort to learn the actual facts, he said in court documents.
Defense attorney Juliette P. White countered that the “extraordinary” $5.5 million figure is intended to intimidate Payne and Buckingham into silence.
The main purpose of the lawsuit, she wrote, is to “prevent, interfere with, or chill” their constitutionally protected right to political speech.
“It’s because they were the public face, and in suing them, (Davidson and Smelt) would stop others,” White told the court.
If the plaintiffs truly believed that Payne’s and Buckingham’s statements were false and defamatory, she said, they would have acted immediately to prevent further harm.
Yet Davidson and Smelt never sent the defendants a “demand letter” outlining any information they believed to be false, nor did they ask Payne or Buckingham to remove their comments from the Citizens’ Facebook page. Instead, she said, they allowed the comments to stand unchallenged for months, even though Smelt and Tayo hired legal counsel as early as May 2016.
“Why didn’t they say something sooner?” White asked the court. “Why did they leave these statements out there for so long? I don’t think that question has been answered.”
Stevens said that Davidson never directed anyone to do anything in regard to the Tayo contract, while White countered that under the city’s municipal code, the city manager has ultimate authority over those kinds of decisions.
“She was the city manager,” White said. “This happened under her watch.”
Attorneys for the two sides also disputed whether Davidson adequately disclosed her ties to Tayo and Smelt.
“(Payne and Buckingham) said she did this without disclosing her relationship, which is actually false,” Stevens said.
But White said Davidson did not tell anyone at the city that Tayo was her housemate’s company until after the city hired it and began to pay the consultant for its services.
What’s more, she said, Davidson initially disclosed her relationship with Smelt only to Stenta and Moab City Attorney Chris McAnany – and not to any members of the public or the city council.
Judge denies claims of intentional harm
In ruling against Davidson’s allegations of defamation, Judge Anderson ultimately dismissed the plaintiffs’ “tortious interference” claim, which is based on allegations that a person has intentionally damaged a plaintiff’s contractual or business relationship.
Likewise, the judge dismissed her claim that the defendants intentionally inflicted emotional distress on the plaintiffs, based on his finding that there are no allegations of “outrageous conduct” in the case.
When all was said and done, the judge found that the defendants’ statements are true. In instances where they simply stated matters of opinion, he ruled, the defendants were not acting maliciously.
“They were not made with the purpose of harming the plaintiff, but with the purpose of influencing the government,” he said.
Case continues as court reviews further allegations
When the citizens are talking to their governing bodies, they need to be able to speak about facts using words – sometimes colorful words – and they shouldn’t have to tone it down to such an extent that we take all of the life out of the process.
