Rebecca Davidson, Tara Smelt, & Tayo, Inc. v. Baird

• Decision Date: 10 January 2019
• Docket Number: No. 20170200-CA,20170200-CA
• Citation: 438 P.3d 928
• Parties: Rebecca DAVIDSON, Tara Smelt, and Tayo, Inc., Appellants, v. Chris BAIRD, Connie McMillan, Jim Stiles, and the Canyon Country Zephyr, Appellees.
• Court: Utah Court of Appeals

438 P.3d 928

Rebecca DAVIDSON, Tara Smelt, and Tayo, Inc., Appellants,

v.Chris BAIRD, Connie McMillan, Jim Stiles, and the Canyon Country Zephyr, Appellees.

No. 20170200-CA

Court of Appeals of Utah.

Filed January 10, 2019

Gregory W. Stevens, Salt Lake City, Attorney for Appellants

Russell C. Fericks, Barry Scholl, Salt Lake, and Kendall Moriarty, Attorneys for Appellees

Judge Ryan M. Harris authored this Opinion, in which Judges Kate Appleby and Diana Hagen concurred.

Opinion

HARRIS, Judge:

¶1 A free democracy is often messy and, in our country, those willing to serve in public positions and who are entrusted with appropriately spending the public’s money must be "[individuals] of fortitude, able to thrive in a hardy climate," and willing to put up with robust, even sharp, criticism of their actions by members of the public whom they represent. See New York Times Co. v. Sullivan , 376 U.S. 254, 273, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (quotation simplified). The First Amendment to the United States Constitution affords a level of protection even for "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Id. at 270, 84 S.Ct. 710.

¶2 In this case, we are called upon to consider the legality, under state defamation law, of certain comments—made by a citizen, a reporter, and another public official—expressing criticism of actions taken by Rebecca Davidson while she was employed as the City Manager of Moab, Utah. Faced with the choice of suffering her critics' slings and arrows in silence, or taking action against her sea of troubles,¹ Davidson (and two other related plaintiffs) chose the latter course, and filed a lawsuit accusing her critics of defamation and other torts. The district court dismissed the lawsuit on summary judgment, and Plaintiffs appeal. We affirm.

BACKGROUND

¶3 Davidson came to Moab with some experience—and some experience with controversy—in municipal government. Prior to accepting employment in Moab, Davidson worked in the city governments of Kemmerer, Wyoming and Timnath, Colorado. Timnath is a small town, and while the record contains little information about Davidson’s duties there, it appears she worked as an "engineer" or as "town manager." Davidson acknowledges that, during her time in Timnath, criticism was leveled against her related to her work, but she characterizes those allegations as "false" and claims that the Timnath Town Council cleared her "of any wrongdoing ... [and] issued a press release expressing that fact."

¶4 Following her departure from Timnath, Davidson next took a job as the City Administrator of Kemmerer, Wyoming. While working there, Davidson became acquainted with plaintiff Tara Smelt, who had been hired as Kemmerer’s Director of Communications and Events, as well as another individual (Consultant) who had been hired by the city as an IT consultant. Among other things, Smelt’s duties included serving as a "channel of communication" with Consultant. While Davidson worked for Kemmerer, a concern apparently arose that the town’s IT system was not sufficiently secure and might become a target for foreign hackers, and the town hired Consultant to investigate and address these issues.

¶5 While in Kemmerer, Davidson also became acquainted with defendant Connie McMillan, a Kemmerer resident who came to believe that Davidson was "creating a horrible work environment" for city employees and was thereby causing good employees to leave. McMillan acted on this conviction by repeatedly voicing her concerns at city council meetings, and by organizing like-minded citizens of Kemmerer into vocal public opposition to Davidson.

¶6 In April 2015, Davidson left Kemmerer to take the City Manager position in Moab. Smelt had already relocated to Moab, and Smelt moved into Davidson’s house in Moab soon after Davidson arrived. The City of Moab assigned Davidson goals for 2015 and 2016, including evaluating city employees and departments to ensure they were accountable and productive. In response, Davidson devised and implemented a reorganization plan that included the firing, in September 2015, of two popular longtime city employees.

¶7 Also early in her tenure in Moab, Davidson asked her assistant city manager (Assistant) to hire someone to assess the city’s IT system and determine the extent of its cybersecurity issues. Davidson suggested that Assistant speak with Consultant, with whom she had worked in Kemmerer, and the city eventually hired Consultant. In May and June 2015, Consultant conducted a "security assessment" of the city’s computer system and determined that it was not sufficiently secure, and that significant work was required in order to secure it. Soon thereafter, Davidson, Assistant, and Moab’s mayor (Mayor) met in an executive session with the Moab City Council and determined that, because of the "danger" presented by the IT system’s vulnerability, there was "no time to present the work for competitive bidding," and concluded that the city should retain Consultant to perform the necessary work without following the usual competitive bidding process. Ultimately, the city agreed to pay Consultant more than $40,000 for this work. In late June 2015, shortly after the city hired Consultant, Smelt and Consultant formed a company called Tayo, Inc. (Tayo), which received the balance of the money owed to Consultant for the work he performed for the city. At the time, Davidson informed Mayor and the city attorney that Smelt lived at her house and was involved with Tayo, but did not at that time disclose those facts to the Moab City Council.

¶8 A few months later, certain individuals—including each of the defendants in this case—began making public statements questioning the propriety of some of Davidson’s actions in Moab. The first of these occurred in late October 2015, when an independent online newspaper known as The Canyon Country Zephyr (the Zephyr) published an article written by reporter (and defendant here) Jim Stiles, entitled "Upheaval at Moab City Hall: For its new City Manager, REBECCA DAVIDSON, ‘It’s DÉJÀ VU all OVER again.’ " In this article, Stiles stated that "Moab/Grand County citizens" were upset by Davidson’s decision to terminate two city employees as part of her restructuring plan. Stiles also stated that "upheaval ... seems to be a pattern for Ms. Davidson. Wherever she goes, dissension and turmoil follow." Stiles then discussed Davidson’s previous employment in Timnath and Kemmerer.

With regard to Kemmerer, Stiles stated that Davidson had fired employees there in a manner similar to the two terminations in Moab, and that these firings had prompted several Kemmerer residents, including McMillan, to speak out in opposition to Davidson. With regard to Timnath, Stiles reported that Davidson had clashed with public officials and had been suspended and eventually resigned from her position as part of a settlement. Stiles noted that "Timnath officials would not publicly discuss the matter," and quoted another news report on the subject as stating that " ‘both sides [of the Timnath settlement] signed a non-disparagement clause.’ " Stiles concluded the article by stating that "[t]he Moab City Council must have been aware of Davidson’s background at both Timnath and Kemmerer before they selected her" to be Moab’s city manager, and that it must have "expected ... that kind of baggage" when it made the decision to hire her.

¶9 According to an affidavit he submitted before the district court, Stiles based his assertions regarding Davidson’s experience in Timnath on news reports and other sources. According to the news reports upon which Stiles relied, Davidson was employed by Timnath as its "town manager," a role which gave her some influence over construction and engineering projects occurring in the town. The reports also indicated that while serving as "town manager" Davidson simultaneously ran an engineering firm that was paid "hundreds of thousands of dollars a year" by Timnath. Those same reports indicate that during Davidson’s tenure Timnath was sued twice regarding conduct that the complainants attributed at least in part to Davidson. Eventually, according to the same news sources, the town council began an investigation of Davidson’s involvement with the town’s "contracting processes," and suspended Davidson while the investigation was conducted. Ultimately, per the news reports, Timnath reached a settlement with Davidson in which she agreed to resign and each side agreed to sign non-disparagement agreements. The news reports quote Timnath town officials as stating publicly, after the settlement, that there was no evidence of "intentional wrongdoing" on Davidson’s part.

¶10 Soon after the article was published, in November 2015, McMillan posted a comment on the Zephyr’s online comments page, stating that "[t]he citizen[s] of Moab need to demand the removal of Rebecca Davidson as city administrator. What is happening will be just the beginning you have no idea what the person is capable of."

¶11 In February 2016, Stiles wrote a follow-up article for the Zephyr entitled " ‘What’s Past is Prologue’: Three Small Towns & Their Common Bond–City Manager Rebecca Davidson." In a preface, Stiles asserted that the article was based on information gathered from many sources, including government records he obtained from the City of Kemmerer, the Wyoming Division of Criminal Investigation, and the City of Moab, as well as interviews conducted with individuals who were aware of Davidson’s activities in Timnath, Kemmerer, and Moab. In the article, among other things, Stiles discussed Davidson’s termination of the two longtime Moab city employees, explored whether Davidson acted improperly with respect to Consultant’s hiring, and examined Davidson’s previous work for Timnath and Kemmerer, concluding that her previous employment had been "marked by heated controversy, angry public debate, and even litigation."

¶12 More specifically, in the article...