Determination
125
Minnesota
News Council
In the Matter of the Complaint of
Roy Carlson, mayoral candidate in Savage
against the Savage Pacer
Participants included the complainant, candidate Roy
Carlson, and his campaign adviser, Doug Friedline, and responding
for the Savage Pacer, Laurie Hartmann, publisher, and Nancy Huddleston,
editor.
Background:
In February 1998, Mary Carlson, daughter-in-law of Roy Carlson and
co-worker with him in the family-owned business, Budget Towing, filed
a civil suit against him alleging sexual harassment. In September
1998 the two parties reached an out-of-court settlement with an agreement
not to discuss the specifics of the case.
In 1999, Roy Carlson became a candidate for mayor
of Savage. Tom Gould, former campaign manager of Carlson's opponent,
the incumbent mayor Rob Fendler, began investigating Carlson. He uncovered
the civil complaint and brought it to the attention of the Savage
Pacer editor, saying he was concerned about potential costly liability
to the city of Savage if Carlson, as mayor, acted toward city employees
in the manner Mary Carlson described in her complaint.
Complaint:
Carlson charged that the article was unfair to him because it was
necessarily one-sided. Carlson said he could not comment on the lawsuit
because an out-of-court settlement precluded it. At the hearing, Carlson
emphasized that the story was unfair because of its "extreme
detail... I'm not arguing that the article is not a matter of fact,
but I've never seen such a severe article in a paper that makes such
an accusation. It leaves the voters and the public with a one-sided
notion."
The civil suit also alleged that Budget Towing was
a workplace hostile to women. Carlson said: "It misrepresents
the company I represent, a company that is rated in the top 1% in
the country."
He said that the editor, in a brief conversation with
him prior to the hearing, said the mayor had pressured her to publish
the story.
As a result of the story, Carlson said, when he campaigned
door-to-door, women slammed the door in his face.
Response:
The Savage Pacer denied that the story was unfair to Carlson. Publisher
Laurie Hartmann questioned Carlson's definition of the word fair,
and asked whether it was fair of him to have entered into a voluntary
agreement to seal the public record relating to the lawsuit and settlement,
thereby depriving voters of information. "We'll never know their
reasons for doing so," Hartmann said, "but we do know it
is a tactic frequently used by those who wish to hide their past from
the future."
Hartmann said the article was fair because it was
accurate: it was based on a publicly available court document and
the paper had sought a response. She said the paper gave Carlson numerous
opportunities to present his side (which he had declined) and the
offer was still open.
Hartmann said that the paper did not offer a retraction
or apology because there was no inaccuracy to retract and the kind
of apology the candidate was seeking -- to help him reach the voting
population to change their opinion -- was his job, not hers. "It's
up to Mr. Carlson to explain to the voters why his public record is
sealed," she said.
Hartmann denied that the editor had been pressured
or used by anyone. She said the editor had identified Gould as the
source of the court documents despite his request for anonymity. "That
automatically gives our readers a heads-up that this should be considered,
given a competitive election campaign."
In her closing argument, Hartmann said: "By Mr.
Carlson's standards of fairness, all future politicians, if involved
in a legal matter, should make certain they ask the courts for a closure
order so they are protected from public discussion. How convenient
for those portraying themselves as public servants. How detrimental
to the voters who will never be allowed to hear the truth... Good
journalists pride themselves on being accountable to their readers.
Politicians should do the same for their voting public."
Discussion:
Members asked Carlson about who initiated the confidentiality agreement
and what it covered. Carlson said the two attorneys arranged for the
confidentiality agreement and both parties had agreed to it. He said
he was not free to discuss either the contents of the agreement or
the process of arriving at it.
Huddleston said that she understood Roy Carlson couldn't
respond to the charges in the complaint, but that she had asked him,
through his attorney, if he could say something about himself, how
he felt about it, what kind of person he was. Carlson declined that
as well.
Media member Elizabeth Costello asked Huddleston if,
when she found the record had been sealed, she had tried to talk to
other employees at the company, or to neighbors or friends, people
not bound by the legal agreement who could give her an idea about
the validity of Mary Carlson's charges. Huddleston said she had not.
She had called the court to verify the complaint, had tried to talk
to both parties and their attorneys (but received no comment), and
then had gone to the courthouse to look at the documents herself.
When asked why she hadn't talked to co-workers of the Carlsons, she
gave two reasons: 1) she thought it wouldn't be productive because
Roy Carlson wouldn't want his employees to talk about it and 2) Mary
Carlson is a private person, not a public figure running for office,
and the company, Budget Towing, is not part of the story, Roy Carlson
is.
Media member Nancy Conner asked Carlson if he thought
the paper would have been more or less fair if it had asked co-workers
and friends for their perceptions. Carlson said he wouldn't have opposed
the paper examining his character. He said it was fair for the paper
to say that there had been a complaint, but "not to do a death
mission on this campaign." He said the paper could have contacted
the Minnesota Department of Labor, which issued a decision of unfounded
facts. [Actually, it was an investigation by the Minnesota Department
of Human Rights, which closed its case with a finding of no probable
cause, according to Department employee Darlene Johnson.]
Public member Ann Barkelew asked the paper why it
didn't explain in the story that the complaint is merely one person's
charges, that it may not be true. Huddleston said she defined it accurately
as a civil complaint filed in Ramsey County. She didn't think it was
necessary to explain to readers how the legal system works, or that
a complaint wasn't necessarily true. But she agreed that, in hindsight,
she could have explained it more.
Public member Julie Tilley asked Huddleston if she
considered not including so many details of Mary Carlson's charges.
Huddleston said she didn't - and couldn't - put in all the details
available in the 22-page court document but that she had to choose
what details to include. "There are many levels of sexual harassment,
from a pin-up in a cubicle to sexual advances. We had to define it."
Public member Kelly Sagmoen Scales asked the editor
if she felt pressured to print the charges. Huddleston said she did
not feel pressured by the mayor's office, but that Tom Gould, the
man who brought her the documents, had asked her not to mention his
name or the mayor's. "We're not the National Enquirer,"
Huddleston said. "I cannot do a story without identifying where
it came from."
Media member Brandt Williams asked Huddleston if she
knew why Gould had brought her information from a case settled a year
earlier. She said Gould told her he became suspicious of Carlson because
he had no record of public service. Gould said he found several small
things, including something from an insurance company about Carlson
not paying on a sexual harassment claim, which led him to the complaint.
Costello pointed out that in the previous election,
Gould had dug up information about another opponent of Fendler, Rick
Swatek, and asked the paper if it had printed the information Gould
provided them then. Huddleston said, yes, they had printed it.
Costello asked if the paper had ever investigated
the mayor. Huddleston said, "No. If I do a check on Fendler,
then I have to do a check on all seven (city officers)." Hartmann
explained that it was the paper's policy not to investigate candidates.
She said that she expected that, in such a competitive election, the
candidates had investigated each other.
Public member Ray Reister asked if the paper had consulted
with an attorney before publishing Gould's legal and psychological
opinion of what Carlson's behavior might be in the future. Huddleston
said she had talked to the attorney for the Minnesota Newspaper Assocation,
Mark Anfinson, and printed little of what Gould had said because she
thought it was libelous. But she felt it was not her responsibility
to examine the spin Gould may have put on it: "We didn't seek
out this complaint, it was brought to us. I think the responsibility
of framing it was on the person who brought it to us." Hartmann
said it was not the paper's job to determine whether Carlson was guilty
or innocent.
Media member Don Shelby asked the paper if it had
ever learned the terms of the disposition of the case. Huddleston
said it had not.
Shelby presented a possible scenario of the settlement
process: "You know how this happens, the give and take of it.
You may have published a claim made in the original complaint, say,
that he unzipped his pants, and during the settlement she may have
said, 'Well, it may not have happened exactly like that...' but now
you've published it and you don't know (what happened to that particular
complaint during the settlement process)."
"We don't know," agreed Huddleston.
"That's the point," said Shelby.
Shelby asked Carlson if there was any monetary penalty
for either side if they broke the confidentiality agreement; Carlson
said there was, somewhere between $50,000 and $250,000. Shelby asked
if all counts in the complaint had been settled at the conclusion
of the settlement agreement; Carlson said they had been and he was
not free to discuss that further.
Conner asked if he had considered going back to court
to renegotiate the settlement to gain permission to defend himself.
Carlson said no, absolutely not, that both parties had agreed that
it was not in their best interest to go on with this matter.
Public member Rachel Quenemoen asked the paper if
it had a policy about publishing unproven allegations. Hartmann said
it had no written policy, but it does ask a series of questions before
making such a decision: 1) Is it from a public document? 2) Can it
be verified? and 3) Does the public have a right to know this information?
Deliberation:
"It's hard to argue against publishing information from the public
record," said media member Monika Bauerlein, "but there's
something about the level of detail, the degree of graphicness, that
makes me queasy, and that's saying something, coming from me who works
for a paper that carries four-letter words. There's a point a third
of the way through the story where I felt, 'I know enough now.'"
Groeneveld concurred: there was too much detail and
the wrong kind. "I wanted to hear from people who work at Budget
Towing, from neighbors. You can't go wrong quoting from court documents,
that's easy journalism. But it shoves the responsibility (for the
fairness and accuracy of the story) onto the court."
Shelby said: "I think we can agree that this
story needed reporting, but there was precious little reporting. It
fails my test of trying to determine what was true or false; if you
do that, you might have to back down on (the level of detail) ....
Talk to friends of Mary Carlson. They might say 'She went through
hell, she was afraid to go to work.' Maybe all of these allegations
are true, but don't rely on public documents, unchallenged. This was
not reporting, it was publication."
Shelby continued: "A complaint is a skeleton
upon which you hang the flesh of your reporting. You took the whole
complaint and didn't put anything on it, didn't do any work and just
hung it out there. We have no idea if it's a diseased body or not.
No work was done."
Media member John Kostouros said, "Sources have
every right not to answer questions. It's not justified to assume
that means they're guilty. But there are some pretty serious charges
here (about the working environment at Budget Towing), way beyond
Mary Carlson. I think if you're going to publish them, you owe it
to your journalistic standards to go out and do some reporting. To
say, 'We don't do investigations' is a cop-out."
"When people read things in the paper,"
said Barkelew, "they assume it's true. By and large people believe
what they read in the paper. I read through the story five or six
times to see if the paper was telling me this was only a complaint,
an allegation, but it wasn't there. I did some research and looked
at other newspapers' stories. Most say that a complaint was filed
and give a general paragraph about why, but not the details."
Bauerlein pointed out that not every paper is in a
position to do the kind of reporting that a larger paper might be
able to do, and suggested that recognition of limited resources might
mean that a paper chooses to report fewer details.
"One message we don't want to send (to journalists),"
cautioned Hage, "is that when we have sealed records, journalists
should stay away. The parties entered into that settlement agreement
voluntarily. It binds the parties, but not journalists and not the
public."
"It's very common to have to figure out how to
cover a story where people can't, or won't, speak," said Conner,
giving the example of juveniles in court.
"Three quarters of my stories are one-sided because
someone wasn't talking," said Shelby. "Absent that side,
we have an obligation to find the side of facts ... We want to encourage
you to do this kind of work, and to do it better. This is a story
that belonged in your paper, at this time, before the election, but
your readership deserves better."
The Vote
1. On the question of whether the Savage Pacer was unfair to Roy Carlson
in its news story of October 9, the Council voted 11-3 to uphold the
complaint:
Upholding the complaint: Barkelew, Bauerlein,
Conner, Costello, Kostouros,* Quenemoen, Reister, Scales, Shelby,
Tilley, Williams
Denying the complaint: Groeneveld, Hage, Neddermeyer,
Presiding: Stringer
Recused: Stauffer
October 26, 1999
* This hearing was scheduled on short notice in order
to address an election-related complaint before the election on November
2. As it was not a regularly scheduled meeting date, many Council
members could not attend. In such cases, former Council members may
be invited to participate in order to maintain a sufficient number
and balance of members at a hearing. John Kostouros is a former member
who served six years on the Council.
Dissenting Opinion: Groeneveld, Hage, Neddermeyer
Given the wording of the question before us, we found
this decision extremely difficult.
Could the Savage Pacer have handled the Carlson story
more fairly? Yes. The story should have noted that a civil complaint
is just one side of a case, unproven and untested in court. The story
also could have been shorter and less detailed, though we assume that
the length and level of detail reflected an effort by the editors
to address the credibility question. Finally, we wish the Pacer had
interviewed friends and co-workers of the parties in an effort to
test the complaint's veracity.
Having said that, the Pacer did several things right
-- things that journalists often do wrong, and things that got short
shrift in the News Council hearing. First, the editors were astute
enough and brave enough to tackle a difficult story; many small papers
would have run away from it or pretended it wasn't news. Second, they
framed the story correctly: not as their definitive scoop on Carlson,
but as an issue raised by a political opponent. Third, they took some
time -- both to examine the court record and to give Carlson repeated
opportunities to respond.
We fear that by simply calling the story unfair, the
News Council will send two destructive messages. One is that journalists
should avoid stories, courthouse stories or otherwise, in which one
side stonewalls. The other is that parties to litigation can sign
a confidentiality agreement and expect it to bind journalists as well
as themselves.
We know that our colleagues on the News Council intended
to send a more nuanced and constructive message, but we're not sure
the nuances will come across to our contituents in newsrooms and the
public arena.
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Determination 126
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