Rebecca Davidson defamation lawsuit now in appeal
Case is one of two making its way through various Utah courts
by John Hales
The Times-Independent
Jan 25, 2018 | 1378 views | 0 0 comments | 43 43 recommendations | email to a friend | print
The Utah Court of Appeals is being asked to decide whether a judge overstepped his bounds when he dismissed a defamation lawsuit brought by former Moab City Manager Rebecca Davidson against three people, including a former Grand County Council member and the publisher of the online news blog Canyon Country Zephyr.

The case is one of two lawsuits currently making their way through various courts, both stemming from Davidson’s time as city manager. On Wednesday, Jan. 17, attorneys for the three defendants filed a brief in state appellate court defending Seventh District Court Judge Lyle Anderson’s summary judgment in the case last February, which essentially dismissed the charges alleged in Davidson’s lawsuit.

Davidson appealed that decision. Her attorney, Gregory Stevens, filed his brief with the Court of Appeals last November.

Meanwhile, Anderson has put on hold a countersuit brought by the defendants until the appellate judges weigh in on the original suit. Anderson is also overseeing a separate lawsuit Davidson filed against the city and former Mayor David Sakrison, alleging that her termination as city manager was an act of discriminatory retaliation for blowing a whistle on alleged misdeeds in the city’s police department.

Davidson originally filed that suit in federal court, but it came under state court jurisdiction when U.S. District Court Judge Dee Benson ruled that a clause in Davidson’s employment agreement with the city required the case to be filed in Seventh District Court.

Defamation lawsuit

Davidson filed suit on Sept. 16, 2016, against five individuals and the Canyon Country Zephyr, claiming they had all made defamatory statements about her, her domestic partner Tara Smelt, and the company Tayo, Inc., which had been formed by Smelt and another individual, Niyo Pearson.

Named in the suit were Chris Baird, who was then a Grand County Council member; Annie Tueller Payne and Janet Buckingham, administrators of the “Citizens for Transparency at Moab City Hall” Facebook page (now “Citizens for Transparency in City Government”); Connie McMillan, a resident of Kemmerer, Wyo., where Davidson had worked as city manager immediately prior to her moving to Moab; and Jim Stiles, owner of Canyon Country Zephyr (which was also named in the suit).

Payne and Buckingham were later dismissed from the case after having reached a settlement, according to court documents.

All five individuals, Davidson alleged, made statements in various venues (online posts, letters to the editor, Moab City Council meetings, etc.) that were critical of Davidson’s handling of city matters, particularly a decision to pay Tayo, Inc., for technology services provided to the city, and later for the decision to fire longtime city employees Ken Davey and David Olsen.

Davidson came to work for the city in April 2015. In May, at a suggestion from Davidson, the city signed an information-technology services contract with Niyo Pearson. Shortly after that, Smelt and Pearson formed Tayo, Inc., and the amount the city still owed to Pearson was then paid to Tayo. According to court documents, Smelt and Davidson were in a domestic-partner relationship at the time.

As part of a reorganization effort undertaken by Davidson per the direction of the Moab City Council and Sakrison, she fired Davey and Olsen in September 2015, an act widely publicized locally.

Comments from the lawsuit’s defendants decrying those actions began appearing in October, alleging she had committed violations of law and ethics in pushing for a contract with Pearson/Tayo, which would have funneled money to her partner, Smelt. Davidson came under fire for her handling of Davey and Olsen, with online comments suggesting it was a type of purge so that Davidson could put friends into city positions. Criticism of Davidson reached a peak when Stiles, in February 2016, published, “What’s Past is Prologue: Three Small Towns & Their Common Bond — City Manager Rebecca Davidson,” in the Canyon Country Zephyr.

The 14,000-word exposé described an alleged history of similar funneling of contracts for either her own benefit or that of friends, and of seeming arbitrary or vindictive treatment of employees she supervised in Kemmerer and in Timnath, Colo.

Several months later, Davidson filed the lawsuit claiming defamation, that her and Smelt’s reputations had been damaged and their integrity impugned, and that they had suffered emotionally and economically.

After several months, Anderson ruled that the statements made by the defendants in the case could not be considered defamatory. He said either the statements were essentially true (if not completely factual), or that they were stated as opinion, or that they were protected under public-interest privilege, which is the right of individuals to speak out about the performance of public officials and the government.

But Davidson’s attorney, Gregory Stevens, said it is up to a jury to determine whether or not defamation took place, not a judge.

“He got it wrong,” Stevens said to The Times-Independent this week.

Stevens declined to comment much further. “Other than what’s in the brief there’s not a whole lot to say at this point,” he said. “The extent of what I could say was what was said in the brief.”

In the initial suit, the defendants countersued under a statute that prohibits “strategic lawsuits against public participation,” or SLAPP, which makes it illegal to file a lawsuit for the purpose of intimidating, censoring or silencing participation or speech regarding the public’s business. The defendants alleged that Davidson’s lawsuit was intended to do precisely that.

While Anderson dismissed Davidson’s defamation claims, he left open the claims of the defendants under Utah’s anti-SLAPP statute. However, since the decision of the appeals court could have bearing on the anti-SLAPP case, Anderson postponed further action on that case until appellate judges issue their ruling.

In the defendants’ appellate court brief filed last week, attorneys said that judges in defamation cases play a “gatekeeper” role; that, yes, juries are to decide if a statement is defamatory, but according to previous court decisions, those juries should only consider statements that are “capable of defamatory meaning” in the first place. Judges, they asserted, have a responsibility to weed out, prior to trial, any statements that do not meet that standard.

“The district court properly turned to the assigned question of law: Were the specific complained-of statements capable of sustaining a defamatory meaning?”

Judge Anderson answered that question “no” in every instance, relying heavily on the “public interest” principle.

“Facing public criticism for performance is the risk any public official accepts when assuming a public role,” the brief states. “… Ms. Davidson applied and obtained the job of city manager in a small town. Her actions were reasonably scrutinized by citizens and other officials like the defendants, and, given the nature of our democracy, her actions were reasonably criticized.”

Stevens, Davidson’s attorney, has 30 days from Jan. 17 to file a response to the defendants’ brief. He does not expect a quick resolution to the case.

“Civil cases take kind of a leisurely pace,” he said, unless there are exigent circumstances requiring haste. “It can take months. If we have oral argument, it can take a very long time.”

He said it is likely Davidson’s whistleblower lawsuit against the city will be resolved first.

Whistleblower lawsuit

In the summer and fall of 2016, Davidson became embroiled in a controversy involving the Moab Police Department. Reports of misconduct of several officers came down the pike. The department and its officers were the subject of no fewer than five internal affairs investigations opened by several entities, including the FBI, between April and September of that year.

At one point that August, Grand County Attorney Andrew Fitzgerald dismissed all criminal cases in which two officers in particular had played significant roles. Fitzgerald declined to file other criminal cases for the same reason.

On Sept. 13, 2016, Davidson was placed on administrative leave. (It was three days later that Davidson filed the defamation lawsuit). On Sept. 30, she was dismissed from her position by a 3-1 vote of the Moab City Council. Stevens, sometime later, said the reason given to him for the action was Davidson’s “management style.”

But he and Davidson thought otherwise. Davidson had spoken to the FBI regarding police-misconduct allegations. She voiced similar concerns to Sakrison.

“At the time she was placed on leave, she did believe that a motivation for her termination was her whistle-blowing efforts,” Stevens said to The Times-Independent in a Jan. 12, 2017 article.

Davidson filed suit in federal court

Upon dismissal by Judge Benson in August of last year, the case was immediately re-filed in district court, though it is now attorney Jason Haymore who represents Davidson in the case.

Last November, attorneys for both sides agreed to a gag order on certain information that is likely to come up during the case, particularly as attorneys prepare to take depositions in coming weeks.

“You want to have confidential information remain confidential,” said current Moab City Manager David Everitt on Tuesday, speaking about the status of the case. Everitt said the discovery phase of the case would likely involve city personnel records and other classified information.

According to a proposed timeline in court records, the case should be ready for trial by next September, though that is subject to change.

Editor's note: This story has been edited to reflect a change in wording related to information from Jim Stiles' article in the Canyon Country Zephyr.

Copyright 2013 The Times-Independent. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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