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Withdrawn city letter accused website of libel

Managing Editor

A previously mysterious December closed-session action of the Lincolnton City Council turns out to have been a threat to sue a local website for allegedly libeling City Manager Jeff Emory, according to public records the Times-News obtained last week.
A newly released draft of the letter the council had prepared to send to Jon Mayhew, owner of The Carolina Scoop, may raise more questions than it answers.
“I have been asked unanimously by the Lincolnton City Council to address your recent article entitled ‘City manager plays politics on the job, violates City policy,’ ” City Attorney T.J. Wilson writes to Mayhew in the draft.
“Your article states City Manager, Jeff Emory, handed a list of telephone numbers to a Democratic candidate for a Lincolnton City Council seat. The article included other ‘facts’ that were not true as well. This inaccurate reporting will not be tolerated any further.
“By this letter, be advised that if future falsehoods are reported … legal proceedings for libel shall be instituted to remedy past and current transgressions.”
Contacted by the Times-News about the text of the letter last week, Mayhew said he stands by his past statements. He said he cannot reveal the sources who gave him the information on which he bases the allegations about Emory.
It’s no secret that Mayhew has been a staunch critic of Emory, going back to at least December 2008 when “The Scoop” vigorously criticized former Mayor David Black and council members Larry Mac Hovis and Dr. John “Les” Cloninger for approving a substantial raise and bonus package for the city manager.
The item currently drawing city leaders’ condemnation included Mayhew’s claims that Emory had provided improper support to the re-election campaigns of Hovis and Cloninger, both Democrats.
However, the draft letter’s assertion that the decision to send it was unanimous implies that Republican city leaders also supported this condemnation of “The Scoop.” However, with no record of the discussions that took place in closed session, the validity of that claim isn’t verifiable.
Libel cases involve written statements of fact, not opinion, that are found to be false and damaging to a living individual. In order to be found libelous, the person writing the statement must be found to either have known that it was false or to have be negligent in trying to determine its validity.
If that person is a public figure like Emory, there must also be evidence of actual malicious intent on the part of the writer.
In order to win a libel case over the issue in question, a key legal requirement for the city would be to prove that Emory never did as Mayhew claimed.
The city’s burden of proof would also include showing that this assertion, in addition to being false, was personally damaging to Emory. If the perception that Emory might have done such a thing was found to be beneficial to the advancement of his career, even if damaging to the city’s reputation, then the statements from Mayhew could not be considered libelous regardless of whether they were true or false.
The typical result of a successful libel case is the award of monetary damages. For that reason, pursuing a libel suit against a very small media outlet, like the Scoop, is usually seen as a waste of time and lawyer’s fees.
On the other hand, media companies that try to fight libel suits can find themselves severely burdened by the legal costs involved, even if they ultimately win their case.
Closed-session issues
Whatever the city’s letter had intended to threaten, it was never delivered.
Following criticism of its closed-session activities last month, the council conducted a special meeting and rescinded its plan to send the letter to Mayhew. But that reversal failed to erase concerns about the circumstances in which the letter was first drawn-up.
Amanda Martin, lead counsel for the North Carolina Press Association and a specialist on North Carolina media laws, told the Times-News last month that the board acted improperly by conducting its discussion of the matter in closed session and any records of its activities should be open records.
Also in question was a vote during the same closed session on a contract for City Manager Jeff Emory, which was later approved unanimously in open session. Martin advised that the city may conduct its discussion of such a personnel matter in closed session, but motions must be made and votes on them must be carried out in open session.
The Times-News issued a public records request Dec. 5, asking for any draft letters, a full record of the closed session discussion of the Mayhew matter, and a breakdown of the original votes on both this issue and Emory’s contract.
The draft letter was released last week but the city handed over unrelated meeting minutes instead of the records the newspaper was seeking.
The Times-News re-issued and clarified its request for those records late last week.

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