City seeks to limit Davidson evidence

By Doug McMurdo • The Times-Independent

Was former Moab City Manager Rebecca Davidson a bad boss who created a toxic work environment at City Hall, or did a former mayor and certain city council members conspire to drum her out of her position in 2016 for blowing the whistle on an allegedly out-of-control police department?

It doesn’t appear an answer to that question will arrive anytime soon.

Davidson and her attorneys will be in District Court Oct. 23 for a closure hearing, which can be scheduled when a litigant seeks to redact or make private any evidence or other material related to a lawsuit.

In this case, attorneys for the city want 7th District Court Judge Don Torgerson to classify as protected more than 100 pages of testimony Davidson delivered in depositions, as well as certain exhibits. The hearing was initially scheduled for Sept. 25, but Torgerson on Wednesday rescheduled the hearing for Oct. 23, at which time he will hear arguments on the city’s request, as well as hear two motions for summary judgment, which, if approved, could bring the case to a close one way or the other.

Davidson filed a civil rights lawsuit against the City of Moab and former Mayor David Sakrison – one of two that was filed following her dramatic ouster. The second lawsuit is for defamation and includes as defendants Chris Baird, Annie Tueller Payne, Janet Buckingham, Connie McMillan, Jim Stiles and the Canyon County Zephyr.

The lawsuit against the city and its former mayor filed by Davidson’s Salt Lake City attorney Gregory Stevens claims the “wrongful conduct of the defendants” caused her to lose more than $305,000 in lost salary, damaged her ability to find comparable employment as a city manager elsewhere, and that has cost her an estimated $2 million in lost compensation, and that she suffered emotional pain and suffering for “being subjected (to) an unlawful retaliatory discharge.”

She lodged one formal count against Sakrison, alleging he deprived her of her First Amendment rights under the Constitution. She alleges the city also deprived her of her constitutional rights, as well as violated the Utah Whistleblower Act, and that her termination violates “clear and substantial” public policy.

Lawyers for the city in its request for summary judgment argue Davidson was not deprived of a constitutional right, arguing instead she would have been fired for her allegedly hostile management style whether or not she raised concerns regarding the police department.

Attorneys for the city from the Salt Lake City firm of Parr Brown Gee & Loveless P.C., claim Sakrison has “qualified immunity because (Davidson) cannot show that she was deprived of any constitutional right – given that she has no competent evidence her speech was a motivating factor in her termination, and because the undisputed facts show that defendants would have taken the same action even absent Davidson’s speech.”

In fact, attorneys in court documents claim Davidson has no evidence to support her claim that raising concerns regarding the police department was a factor.

They point out the decision to terminate Davidson was largely dependant on a report from a third-party investigator, who looked into allegations that Davidson publicly berated employees in front of the public – including department heads – and that, among other things, she allegedly once swung a baseball bat in a threatening matter in front of an employee, commenting on possibly hitting the employee with the bat, along with the employee’s child, who was not present when the alleged event occurred.

The investigator told the city Davidson’s employment with the city was “not salvageable,” and that is what led to her termination.

Torgerson will have to determine if the city’s argument in support of making evidence private outweighs Davidson’s right to have that evidence remain public. Just what that might be is not known as the testimony and exhibits in question are unavailable to the public.

While neither lawsuit is close to nearing the trial phase, it is certain that if and when it does, jurors will have to decide who has the more believable argument. The burden of proof in civil cases is a “preponderance of evidence,” a much lower standard than the “beyond a reasonable doubt” required for a criminal conviction.