Cases dismissed for final three in Davidson defamation lawsuit
by Molly Marcello
The Times-Independent
Feb 16, 2017 | 2636 views | 0 0 comments | 106 106 recommendations | email to a friend | print

Seventh District Judge Lyle R. Anderson has dismissed the defamation charges brought by former Moab City Manager Rebecca Davidson, Tara Smelt and Tayo, Inc. against defendants Connie McMillan of Kemmerer, Wyoming, Moab resident Chris Baird, and former Moab resident Jim Stiles and his online news blog the Canyon Country Zephyr. In issuing his decision, Anderson spoke of the importance of the right to open speech in a “free society.”

Statements made by the defendants on social media and in public meetings, he said, are “not only the kind of public comment that is allowed by the law but which we must permit in this society if we are to have a free society ... I know that that means that sometimes people say nasty things about us, and people have said nasty things about me and it’s a matter of opinion whether they’re true or not. But in my view that goes with the territory.”

In his concluding statements, Anderson said he could find no statements made by the McMillan, Baird or Stiles that “moved beyond what is appropriate to say when commenting about what the public does.”

The lawsuit filed by Davidson and Smelt alleged defamation of character, intentional emotional distress, and the intentional interference with the economic relationships of Smelt and information technology and communications company Tayo, Inc., of which Smelt is a co-founder.

During the court hearing, attorney Steve Russell, representing Stiles, Baird and McMillan, filed a counter-claim against Davidson, Smelt and Tayo, Inc. under Utah’s Anti-SLAPP (Strategic Lawsuit Against Public Participation) Act, claiming that the defamation claim was intended to “prevent, interfere with, and/or chill” the defendants’ participation in government and restrict freedom of speech.

Although Anderson dismissed the case, he said he would not invoke the Anti-SLAPP Act in making his decision because he could not be convinced that Davidson, Smelt and Tayo, Inc. actually filed the defamation lawsuit to restrict the defendant’s participation in government.

The Feb. 14 trial was the second time Anderson has ruled in the lawsuit. On Nov.9, the judge dismissed a portion of the lawsuit filed against local residents Annie Tueller Payne and Janet Buckingham, finding that statements made by the two women during Moab City Council meetings and on social media were not made with malice or the intention of harming Davidson and Smelt.

After Davidson and Smelt’s attorney, Gregory Stevens, appealed Anderson’s Nov. 9 decision to the Utah State Supreme Court, that appeal ended in a “remittitur” — the appellate court’s transfer of the case back to 7th District Court — issued Feb. 6.

“All we can say is that, as to my clients Ms. Payne and Ms. Buckingham, the matter has been settled,” said their attorney Juliette White. “As a result of that settlement, the plaintiffs withdrew their appeal and the case was remitted back to the district court.”

When asked by The Times-Independent whether the settlement involved a non-disclosure agreement on behalf of both parties, Stevens replied “no comment.”

However, he did say that his clients plan to appeal Anderson’s Feb. 14 ruling regarding McMillan, Baird and Stiles.

Davidson first faced criticism from community members in the fall of 2015, when a decision to reorganize city staff resulted in elimination of positions held by Ken Davey in economic development and David Olsen in community development. Moab City Council members at the time repeatedly said they supported the reorganization effort and the decision to eliminate the positions.

Davidson also faced criticism due to an alleged conflict of interest after Moab City Recorder Rachel Stenta hired Niyo Pearson of Tayo, Inc. to analyze and upgrade the city’s computer systems and software.

At the time, Smelt, who co-owns the company with Pearson, resided with Davidson in Moab. Davidson, Stenta, and Mayor Dave Sakrison told The Times-Independent in June 2016 that Davidson disclosed the connection to Moab City Attorney Chris McAnany, Stenta and the mayor prior to Tayo’s hiring. Davidson was told she did not need to file a conflict-of-interest form because she had no financial interest in Tayo, Inc., Stenta and Sakrison said.

A city-requested examination of city expenditures and procurement policies in June 2016 found that the city’s policies at the time were followed. However, in October 2016 the city later refined its polices and procedures, specifically as they relate to conflict of interest disclosures and procurement.

The issues surrounding Davidson led to an uproar of public comment. At the time, the three defendants used social media, editorial columns, and in Stiles’ case, a 14,000-word article on his online news blog, to state their opinions and raise questions regarding Davidson, Smelt, and Tayo, Inc.

Categorizing McMillan, Baird and Stiles as “the voice of many people,” Russell told the court that the world has changed along with social media, creating a “free for all” of opinion.

“If you’re going to be a public official in modern times doing controversial things, then you better have thicker skin than these plaintiffs apparently do,” Russell said.

But Stevens argued his clients have been harmed “substantially” by the conduct of the defendants. Stevens said Smelt lost a job after one week once her employer learned of Stiles’ Canyon Country Zephyr article, and he argued that the article demonstrated “a reckless disregard for the truth.”

“The hyperbolic statements that are false and demonstrably false do actually harm other people, and in this case they’ve harmed Ms. Smelt and Ms. Davidson,” Stevens said. “The fact that the internet has normalized behavior like this doesn’t make it lawful, doesn’t make it right.”

Anderson spent a significant amount of time during the two-hour hearing attempting to determine the actual falsehoods the defendants may have intentionally waged against the plaintiffs.

“As I’ve tried to zero in on each one of these things with respect to what Mr. Baird said and Mr. Stiles said in his article, each time I actually get to what they say I think they were careful enough to either just express their opinion or make fair comment on what public officials ... are doing,” Anderson said.

In addition to the defamation lawsuit, Davidson, it appears, is likely to be involved in additional legal action. On Dec. 13, Stevens sent a “notice of claim” to Moab city threatening to sue the city and Mayor Sakrison for wrongful termination. The documents sent to the city claim Davidson was a whistleblower and the city retaliated against her and fired her for raising concerns about misconduct within the Moab Police Department.

On Sept. 13, 2016 Davidson was placed on paid administrative leave from her position as Moab City Manager due to “internal issues that the council determined needed to be evaluated,” city recorder Stenta said at that time. The Moab City Council then voted 3-1 on Sept. 30 to terminate Davidson’s employment contract “without cause,” resulting in Davidson receiving a buyout of more than $90,000 as part of her employment agreement.

The notice of claim seeks a settlement of $1.9 million in damages to keep the matter out of federal court. Local officials said Moab city considers the claim a “precursor” to a lawsuit, and say that the city is preparing for future litigation.

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

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