Sunday, August 14, 2016

Fate of local news operation on Calif Central Coast may rest on libel suit outcome

Chronology


A small, digital news operation focused on California's Central Coast is facing a libel trial that may determine the fate of its eight-year-long experiment to offer local news coverage amid the trend of shrinking news staffs among traditional media outlets.

The news operation -- CalCoastNews (CCN) -- failed to have a libel suit over a hazardous waste article dismissed based on California's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. That effort reached a dead-end in 2015, following the unanimous judicial ruling of a three-judge panel of the Second District of the California Court of Appeals.

That appeals opinion confirmed the 2013 decision by a San Luis Obispo County Superior Court judge. A tentative trial date for the libel suit has been set for Nov. 7, 2016. CCN has launched an online Legal Defense Fund campaign to cover the costs of the libel trial. Ironically, the judicial opinions offer journalists in general, some specific guidelines on how to better protect themselves against libel actions.

In the beginning was the article about hazardous waste disposal

 

On November 14, 2012 CalCoastNews (CCN) published an investigative article, "Hazardous waste chief skirts law," focused on what its news sources alleged were irregularities and possible illegal activities that had occurred in the city and county of San Luis Obispo (SLO).

According to the article:
"A contractor paid more than $400,000 annually by San Luis Obispo County’s Integrated Waste Management Authority (IWMA) illegally transports hazardous wastes and has exposed taxpayers to huge fines by encouraging member public agencies to ignore state law, a CalCoastNews investigation shows.
"Charles Tenborg, the IWMA’s hazardous waste disposal site manager, also owns ECO Solutions, a private waste disposal and management company recommended as a hazardous waste transporter by the IWMA."

Subject of article files libel suit

 

One of the primary subjects of that article, Charles Tenborg, filed a complaint for libel on May 10, 2013. Page 13 of this legal filing, describes Tenborg as an environmental scientist and the owner of ECO Solutions. The filing said that:
"Over the course of many years, Eco Solutions provided hazardous-waste removal and related services to private and public entities, as well as other services such as spill cleanups, contaminated-debris removal, and pressure washing. "Eco Solutions was a small company with only 10 employees statewide and Tenborg was its public face in the relatively tight-knit waste management community, both in San Luis Obispo County and throughout California.
"Over sixteen years in business, Tenborg earned his hard-fought reputation as a premier and trustworthy provider of such services through Eco Solutions, and neither he nor his company was ever once the subject of an enforcement action by the state entity regulating such businesses."


CalCoastNews files SLAPP motion to halt libel suit

 

On Sept 13, 2013, CalCoastNews filed a motion to strike (dismiss) the libel suit. According to the CalCoastNews anti-SLAPP motion:
"During the fall of 2011, Cal Coast News reporter Karen Velie began to investigate issues with illegal dumping based on tips she had received. "Over the course of a year, she learned about the process for handling hazardous waste in California.
"She read a large volume of City and County of San Luis Obispo documents; analyzed records on the County of San Luis Obispo IWMA website; studied manifests from the City and California Department of Toxic Substances Control ("DTSC"); reviewed records at the IWMA office that included audits, budgets, contracts, and meeting minutes; and interviewed about a dozen individuals, including officials at the DTSC, IWMA and the City and County of San Luis Obispo and other individuals who are knowledgeable about the handling of hazardous waste.
"She also interviewed Plaintiff, William Worrell, head of the IWMA, and employees of Eco Solutions, Plaintiff's company. As her investigation unfolded, she discovered numerous acts of wrongdoing by Mr.Tenborg and his company, Eco Solutions.
"Ms. Velie interviewed a variety of people, including Douglas Dowden, a top employee at the City of San Luis Obispo with oversight responsibilities for hazardous waste management at the City. He told her that starting in 2005, he led the effort to get the City into compliance with state and federal hazardous waste regulations. "He selected Eco Solutions and Charles Tenborg to transport hazardous waste based on the recommendations of Mr. Worrell, head of the IWMA."
On pages 30-37 of this legal filing, CCN offers a point-by-point description of CCN's sources -- city and Tenborg employees, public meeting minutes and other documents. In that document, CCN addresses each of the disputed defamatory statements that appear in the original article and the attributions for the statements.

CCN's facts challenged by Tenborg

 

In his original libel libel complaint filing, Tenborg charged that CCN had falsely stated that:
  1. Tenborg had been fired from a related job in the mid-1990s
  2. Eco Solutions, at the direction of Tenborg, illegally transports hazardous waste.
  3. Eco Solutions, at the direction of Tenborg manage [the hazardous waste], pack it in drums and then transport it to the appropriate facility.
  4. Tenborg "encourag[ed] member public agencies to ignore state law."
  5. Eco Solutions or Tenborg have "exposed taxpayers to huge fines...."
  6. Tenborg "encourages municipalities to ignore reporting protocols...."
  7. The "city of San Luis Obispo does not haul its own hazardous waste and regularly utilizes Eco Solutions as a transporter."
  8. "Charles Tenborg, the IWMA's hazardous waste disposal site manager, also owns Eco Solutions."
  9. IWMA Manger Bill Worrell improperly awarded Mr. Tenborg a contract for the transportation of hazardous waste.
  10. Because this contract, above, was a "no bid contract" for more than $15,000, it was therefore in violation of state law.

Factual dispute prominent in SLO County Superior Court's Initial Ruling Against CCN

 

A key element of California's anti-SLAPP law requires that there be no factual disputes presented to the court which should be heard during a trial. That played a prominent role when Superior Court Judge Martin J. Tangeman issued a tentative ruling against CCN.

Of the 10 items cited as defamatory in Tenborg's libel filing, most of CCN's article was based on the minutes of a meeting of the San Luis Obispo Stormwater Management Team (SMTM), on a statement from an employee present at that meeting and on a former Tenborg employee.

However, Tenborg called those facts into question by offering evidence that damaged the credibility of that former employee and with statements from other employees at the Stormwater meeting who said they were at the same meeting and did not remember hearing the statements that were relayed to CCN.

 According to a CCN filing (Appellants Brief on Appeal, last paragraph of pdf, page 22[document page number 13 at bottom]), they requested and received the recording of the full meeting, but that the portion with the disputed conversations was missing:
For reasons that were never explained, however, the relevant portion of the recording was not included. Thus, while the Minutes track the tape recording in the issues that were addressed in the SMT Meeting, the recording inexplicably ends just before the part of the Meeting at which Plaintiffs company Eco Solutions is discussed.

Factual conflicts played role SLAPP request denial, but so did the issue of attribution

 

After a hearing on December 11, 2013 and after accepting supplemental information from CCN and Tenborg, Superior Court Tangeman made CalCoastNews's SLAPP request denial final.

In his final eight-page decision, the judge explained that he found CalCoastNews's SLAPP evidence unconvincing because there were disputed questions of fact that could not be resolved in a SLAPP hearing, and which were more suitable for a libel trial.

 Among the points in his decision, the following extended quotation explained Tangeman's reasoning why he felt the case should go to trial rather than be halted by CCN's anti-SLAPP action. (NOTE: this quote is complete and unedited but has additional line breaks for readability and the identification of the opposing parties in [brackets] to avoid confusion.)
"The [CCN] article states that in the mid-1990s, Plaintiff [Tenborg] was fired for undisclosed reasons from his job with the San Luis Obispo County Environmental Health Certified Unified Program Agency (Agency).
"Plaintiff, in his declaration, states that he resigned from his position in order to start his own business and left the Agency on good terms. "Plaintiff [Tenborg] also provides a declaration from Curtis Batson, the Director of Environnental Health Services, who affirms that Plaintiff voluntarily left the Agency and was not fired.
"The article also declares that Plaintiff illegally transported hazardous waste and has exposed taxpayers to huge fines by encouraging public agencies to ignore state law.
"According to Plaintiff [Tenborg], he was properly licensed and registered with the State to transport hazardous waste. "Plaintiff provides evidence that he possesses a driver's license with a hazardous materials endorsement, that he has passed the Transportation Security Administration background check, and that he is registered with the Department of Toxic Substances Control to transport hazardous waste in California.
"In reply, Defendants [CCN] attempt to discredit Plaintiffs statements by providing a declaration from Aaron Wynn (Wynn), a former Eco Solutions employee.
"Wynn states that while he was employed with Eco Solutions, he observed on several occasions instances of company employees illegally transporting waste. "According to Wynn, he was transporting hazardous waste on behalf of Eco Solutions without the required endorsement on his driver's license. Defendants then scrutinize Plaintiffs evidence and, in turn, cite to evidence that they believe negates the truth of Plaintiff's [Tenborg's], assertions. "In reply, Plaintiff [Tenborg], submits a supplemental declaration in which he attaches his registrations for the years 2009 through 2013.
"Plaintiff and William Worrell (Worrell), Manager of San Luis Obispo County's Integrated Waste Management Authority (IWMA), distinguish the types of "hazardous" waste and differing regulations applicable to each type.

"Plaintiff [Tenborg], also discredits the statements made by Wynn. In fact, Worrell states: 'The Article gets facts regarding these waste streams wholly wrong, and in the process of doing so makes inaccurate factual statements regarding Tenborg and his company's handling of them'."
"As to the statements related to Plaintiff [Tenborg], exposing taxpayers to huge fines by encouraging public agencies to ignore state law, and specifically, encouraging agencies to fill out IWMA forms that allege the municipality is a small generator that self-transports, Plaintiff asserts that IWMA and other pick-up services require that the agencies sign a declaration in which they self-certify that they meet the CESQG requirements.
"Additionally, Plaintiff contends he was not transporting for CESQG in early 2010, thus it is false to claim he was encouraging the municipalities to ignore reporting protocols and transporting the loads himself in violation of state law.
"The parties have provided the Court with numerous declarations and exhibits in support of their respective sides and counter evidence to each one of their claims. The evidence discussed above is a portion of the evidence that relates to certain defamatory statements.
"There are represented to be ten separate statements in the article that are allegedly defamatory. The Court need not address the falsity of each and every statement.
"Rather, the evidence cited above clearly establishes that there is substantial admissible evidence on each side to create triable issues of fact as to the falsity of certain statements.
"In other words, contrary to Defendants' [CCN'] assertion, it is not undisputable truth that Eco Solutions unlawfully transported hazardous waste. There is substantial evidence to support Plaintiffs allegations which, if believed, would support a finding of liability.
"The Court cannot therefore determine, as a matter of law on this motion, that all the alleged defamatory statements are true."

Tentative ruling made final, CCN Appeals & loses again

 

On September 12, 2014 -- nine months after Judge Tangeman made his tentative ruling final -- CalCoastNews filed for an appeal. Appellants Brief on Appeal.pdf
 
Charles Tenborg filed his response to the CCN appeal on December 15, 2014. A three-judge panel of the Second District of the California Court of Appeals heard the appeal on June 30, 2015. A month later, on July 29.
The appeals court agreed with Tangeman and ruled in an unanimous opinion that Tenborg's libel lawsuit may continue to trial.

Tangeman was appointed by Gov. Jerry Brown as an associate justice to the California Second District Appellate Court on Dec. 23, 2015. He was confirmed by the state Commission on Judicial Appointments on Feb. 22, 2016.

Journalists take note: Appeals Court decision reemphasizes value of specific attribution in articles

 

[NOTE: For readability, additional line breaks have been added and most reference citations in the following excerptshave been omitted. Those can be found in the full text of the judicial ruling.]
"The trial court found that the article was not protected as a matter of law by the privilege for fair and true reports of a public proceeding because "the . . . article makes no reference to or report of what transpired during the [public meeting at issue]" and there is a factual dispute about what was said there.
"[A]ppellants are not entitled to section 47 privilege as a matter of law because their article in no way conveyed that they were reporting on a public meeting. To the contrary, the article suggests in its opening paragraph that it is the product of "a CalCoastNews investigation."
"See Hawran v. Hixson: [privilege did not apply where publication did not "report on, summarize or describe the SEC proceeding or investigation, the history of the SEC proceeding or investigation, or any communications made 'in the course of' that investigation" but rather "report[ed] the results and consequences of [the defendant's] own internal investigation"].)
"'The fair report privilege is required because of the public's need for information to fulfill its supervisory role over government. Thus, reports of official proceedings are not privileged "merely to satisfy the curiosity of individuals," but to tell them how their government is performing. . . .'"
"Here, however, the article neither mentions nor references the Stormwater Management Team meeting. As the trial court found, "a reader of the article would have no understanding that the article was a report on what took place at the meeting."
"The privilege for fair and true reports is inapplicable. ["[I]n order to qualify as privileged . . . an article must state the source of its information"].)"

Denial of SLAPP request not a determination of guilt in libel action but opens door to trial on the facts

 

The parallel rulings by both the county and appellate courts do not mean that CalCoastNews is guilty of libel or that it cannot find shelter in other areas of libel law that provide privilege to journalists, especially in matters of public interest.

While that law is complicated by many nuances, libel can be protected speech. The perfect defense is truth that is provably true in a court of law. In addition, articles which report on the meetings, records or official proceedings of a governmental body are generally privileged.

In some cases, the privilege may extend to an article even when facts may be inaccurate. This is often found when a matter is of public interest and the defamed party is a public figure even in matters limited to the subject mater of the article.

 In those cases, the defamed party must prove deliberate intent and actual malice by the writer, along with and reckless disregard for accepted journalistic practices.

The U.S. Supreme Court has even ruled that a journalist's "state of mind" may properly be the subject of court proceedings (Herbert v. Lando).

8 comments:

  1. This comment has been removed by a blog administrator.

    ReplyDelete
  2. Hello Lewis,

    Cool blog, and I notice that you have an "Attribution FAIL! of the day" (AFD) section.

    1) That's hilarious, and 2) I'd like to nominate the CCN article at the heart of the lawsuit, mentioned in your excellent post above, for an "Attribution FAIL! of the day."

    First, I want to point out what a BEAUTIFUL job you do in your blog, on linking directly to primary sources.

    I mean, am I right, or, am I right?: For a journalist, THE best thing about online journalism is the ability to link directly to sources, and that's exactly why I actually prefer online journalism over print journalism, because the attribution level is so much tighter. [Hey, sorry print peeps, but ya can't link to a document in newsprint.]

    Now, let's take a look at the CCN story in question, at this link:

    http://calcoastnews.com/2012/11/hazardous-waste-chief-skirts-law/

    Notice how there's not ONE link in that entire story. Not one.

    Already an AFD candidate, but it gets worse.

    Again, without one link to a source in the story, CCN then writes things like this:

    "City employees said Tenborg encourages municipalities to ignore reporting protocols by filling out IWMA forms that allege the municipality is a small generator because it self-transports; then, Tenborg transports the loads himself in violation of state law. He charges the city $2,000 to $3,000 for each load, and takes them to one of IWMA’s five household hazardous waste facilities — all managed by Tenborg."

    "City employees said?" That's an "Attribution fail!" whopper.

    Now, I do my share of investigative journalism, and I would never use this phrase, "City employees said," as a source.

    IF "city employees" actually did tell me something important, and they won't allow me to name them by name, then I go dig out the documents that show it, and then I'd link to those documents in my story.

    In your excellent piece above, you write:

    "Tenborg called those facts into question by offering evidence that damaged the credibility of that former employee and with statements from other employees at the Stormwater meeting who said they were at the same meeting and did not remember hearing the statements that were relayed to CCN."

    See? THAT's what happens when a reporter simply relies on an anonymous source for a critical fact.

    Had CCN simply dug up the documents that showed the "ignore(d) reporting protocols," and then simply linked to them, Tenborg wouldn't have been able to "call those facts into question," and, almost certainly, this case woulda been tossed long ago.

    And for those reasons -- how CCN failed to utilize THE best thing about online journalism, the ability to link directly to sources, in their article that spurred the lawsuit -- I nominate that article for an "AFDy Award" ; -)

    In one of his AFD articles, Lewis writes:

    "However, the article suffers from an epic failure of attribution... This article, its author and the (Washington) Times have set themselves up to be dismissed."

    It appears CCN's "epic failure of attribution" set themselves up to be sued.

    ReplyDelete
    Replies
    1. In the end, it is truth that matters. Attribution is needed for the reader to assess credibility. But attribution on a defamatory statement is no defense.

      I agree CCN attribution could improve. But so could statements made by its enemies. Some of which could also be triable defamation.

      It's up to the court to decide. But it's also vital to know that public statements made by everyone in a public forum could be introduced as evidence in the trial.

      Delete
    2. This comment has been removed by the author.

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    3. This it not the venue to try and influence the case. That is up to the court.

      In the end there is only whether the CCN statements can be proved true in court.

      The comments so far have been a rehash of previous blog posts elsewhere along with a heavy dose of innuendo and other inappropriate comments that have added no new information.

      All comments like that will be deleted unless there is new, substantiated information .

      Delete
  3. It's up to the court to decide. But it's also vital to know that public statements made by everyone in a public forum could be introduced as evidence in the trial.

    ReplyDelete
  4. Comments will not be moderated before publication.

    To reiterate: The comments so far have been a rehash of previous blog posts elsewhere along with a heavy dose of innuendo and other inappropriate comments that have added no new information.

    All comments like that will be deleted unless there is new, substantiated information .

    ReplyDelete