By Dan Kennedy • The press, politics, technology, culture and other passions

Dialing up outrage in New Haven

Michele Kearney

Now, here is an interesting ethical dilemma.

Last Friday morning, the New Haven Independent posted its final revision of a story reporting that the city’s police union had approved a “no confidence” vote in Chief Frank Limon by a margin of 246-21.

The New Haven Police Department has been beset by controversy since Limon’s arrival last spring over accusations of police brutality and over incidents involving officers’ confiscating cameras from people trying to record their actions. Last week, a group of African-American activists demonstrated in favor of Limon, claiming that the chief is working to reform a troubled department.

But I digress. The story closes with a quote from and a photo of a custodian who works at police headquarters. The custodian, Michele Kearney, says:

There’s been a lot of tension ever since he’s [Limon] been here. There is not a lot of morale here. The last chief [James Lewis] was more understanding of what needs to be done. From what I have seen he wanted to hear their opinions and try to work with them. This one here [Limon] seems like he is working against them and not with them.

The story drew 108 comments — a very high number for the Independent. On Thursday at 3:23 p.m. (in response to an earlier version of the story) a commenter who goes by “da hill” criticized the Independent for quoting “unrelated entities” such as Kearney. Editor and publisher Paul Bass responded:

Thanks for the input. Our feeling was that someone who’s in the building cleaning the floors every day, talking to officers, and watching what’s going on, does in fact have a valid perspective to offer on morale and the overall feeling in the building.

At 5:21 p.m., “NO CONFIDENCE” wrote: “I am so happy to see a civilian like Michele, pictured above, tell the citizens of New Haven how Chief Limon treats his officers.  She works in the police department and is definitely well qualified to make those statements.”

A short time later, “Our Town” posted this: “I sure hope ole Michele is in a union, becuase I have a feeling she might not have a job tomorrow for speaking up.”

Then, at 11:06 p.m., there was this, from “Ken”:

The maintenance girl was fired immediately and we heard it came from, you guessed it, the chief. This is his MO if don’t agree with or lie for him you’re in trouble. City Hall has demanded she be re-hired by O,R&L.  I guess the The Chief never heard of the First Amendment. OR&L should be questioned about it and if they lie they should lose the city contracts. If it came from the Chief he should be terminated.

O,R&L is a private contractor hired by the city to maintain its buildings.

On Friday at 3:49 a.m., “unbelievable” wrote: “She was FIRED and escorted out of the building like a CRIMINAL! and you talk about wanting to do your best for this city!? … Well New Haven Independent, what are you going to do now??”

What the Independent did was post a story by Bass reporting on Kearney’s situation. The events of the day were convoluted. Kearney was fired; no, she’d been placed on leave. Mayor John DeStefano’s outgoing spokeswoman said the mayor had asked O,R&L to reinstate her. DeStefano said he’d done no such thing. The mayor’s incoming spokesman then said the company had informed the city that Kearney had been reinstated.

And, most controversially, the Independent posted the cell-phone number of the O,R&L supervisor assigned to police headquarters, urging readers to make their feelings known. “Members of the public can call him there if they want to express their opinions on the matter directly,” Bass wrote.

For Kearney, the story had a reasonably happy ending. According to the final version of Bass’ story, posted on Friday at 1:59 p.m., she was reinstated with no loss of pay. For Bass, though, the experience was not quite so happy. A sampling:

From “Unreal”: “Reported [sic] gets dissed so they retaliate by publishing a cell phone number?! Completely unprofessional. I don’t agree with the firing the employee however, I will refuse to support the Independent after that juvenile reaction!”

From “Steve B”: “Bush league. At least respectable journalistic ventures make an attempt to appear objective. Would you care to publish your personal cell phone number, Mr. Bass? You do yourself no favors with this kind of trashy behavior. It’s stuff like this that gives readers a reason not to take the NHI seriously.”

From “ricky perwood”: “so lets get this straight. NHI asked a woman who was in no way part of the story and she gave her opinion. Ok that happens, but why did they publish her quotes and her picture ? and now they publish someones cell phone number to try and get out of their major mistake ? This site and its editor have no journalistic integrity. NONE. I cant believe how vindictive whoever write this article is.”

On the other hand, “ASL” wrote: “I am not sure what the uproar is over the publication of the cell phone number. Is there some sacred right to keep your cell phone number private? I don’t take issue with privatization but if you are a private contractor paid with public dollars, you should expect to be held accountable to the public.”

Still, as Bass himself acknowledged, far more commenters thought he’d erred by publishing the number.

Here is what Bass wrote in the comments to explain why he published the supervisor’s cell-phone number:

Thank you for the feedback on the cell phone number. I knew it was an extraordinary measure. Here’s my thinking:

What the company and that manager did to Michele Kearney was so far beyond the pale of any legal or ethical or moral behavior, a lukewarm “please don’t do that again” response from the press would be pathetic.

I did not burn anyone or violate any confidential information in publishing that number. His cell phone number is widely available. That’s why I got it.

It is common practice to publish phone numbers for people to call to register dissatisfaction. Especially numbers of public entities. I think it’s a canard to pretend a company hired to do a public job is not privy to the same demands put on government. I have personally been up to the state Freedom of Information Commission to fight this question. I have never lost.

We feel very good about quoting a custodian about conditions in a public building. She has as much right to have her voice heard as does a paid corporate flack or high government official. The Independent is dedicated to letting everyone’s voice be heard.

If anybody tries to mess with people who choose to exercise that right, we will stand behind that person 1000%. You’re all on notice.

Now, before I go any further, I want to point out that Bass is wrong about Kearney’s having the “right to have her voice heard.” Although the Independent deserves praise for seeking out non-traditional sources, no one has a First Amendment right to talk about his or her employer’s clients. O,R&L’s reaction to Kearney’s comments was outrageous, and I’ve got no problem with the Independent putting heat on the company in order to reverse the injustice that had been done to her. But she did make a mistake.

On Friday, Bass and I got on Gmail chat to discuss the ethics of his decision to publish the supervisor’s cell-phone number. What I wanted to know was whether Bass had obtained the number as a reporter with the understanding — tacit or explicit — that he would use it to get a comment, not to publish it for all his readers to see.

I’m satisfied that Bass didn’t do that. He told me he called the company as though he were simply a member of the public, not a reporter, and was given the number with no restrictions. Moreover, Bass said, the cell-phone numbers of government employees are a matter of public record in Connecticut, and O,R&L is performing a government function.

“I felt he had the same role as any government supervisor — they just happen to call him a private contractor and deal with him that way to bypass the union,” Bass told me.

Emphasizing the point he’d made in the comments, he added, “What really galls me is this idea that news reporters shouldn’t quote custodians and let them speak in articles. I feel there’s an important principle at stake here about who gets to talk.”

And again, I agree — except that Kearney did not have the right to endanger her company’s relationship with the city.

So, did Bass do the ethical thing in posting the cell-phone number? I’d say yes, based mainly on the fact that he got it just as any member of the public would. If he’d identified himself and said he was a journalist when he called the company and asked for the number, he’d have a problem.

Did Bass do the smart thing? Here I have to say no. I have no problem with his decision to pressure O,R&L to reinstate Kearney. The Independent engages in advocacy journalism, and I think that’s one of the things that makes it interesting.

But Bass could have posted the company’s phone number (it’s got two offices in Connecticut) or the mayor’s number. And he probably would have accomplished just as much.

Our online chat ended with Bass telling me, “Hey, the company just called — she got her job back! They promised me on the record she faces no threat of dismissal, and she will lose no pay. I have no idea if the cell was a factor. I do think we sent a message.”

Bass had a tough call to make, and he didn’t have the luxury of thinking it over for a few days. A woman was on the verge of losing her job because she spoke to one of his reporters. I think he got it partly right and partly wrong.

Not sure how much conversation I can generate about this story, but I’d love it if this were just the beginning. I’d especially like to hear from O,R&L, the mayor’s office and any media ethicists who happen to be reading this.

Photo by Melinda Tuhus for the New Haven Independent. Republished by permission.

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  1. Bob Gardner

    I think you have it about right with one exception. The custodian’s first amendment rights certainly apply here, in my opinion. This whole mess is public business, and commenting on public business goes right to the core of the first amendment.

    • Dan Kennedy

      @Bob: Even government employees do not have the right to speak publicly about work-related matters unless they have the permission of their supervisors. It’s pretty routine for reporters calling government agencies to be told they have to deal with the flack, because no one else has permission to speak.

  2. Paul Bass

    Dan — In those cases, it makes sense not to quote a government employee by name, lest the employee get fired. But I do believe that employee has rights, and can sue if disciplined for speaking out, or file a labor grievance.

  3. Aaron Read

    Thinking broadly, it does seem like the press used to be feared a lot more in days gone by. Which is all “respect” really is: fear that someone can destroy you, so you better play nice with them lest they do so.

    Nobody in power really fears traditional, objective journalism anymore. That would require a populace capable of being outrages merely by facts and those days are long gone. So maybe the profession needs a little more advocacy journalism of the down-n-dirty type to put a little fear back into those in power?

  4. Martin Callaghan

    I am certainly no media ethicist, but do represent workers.

    Dan you are correct, most people are surprised to learn that there is absolutely no first amendment right for employees in the workplace. In fact, there are new cases everyday regarding employees being terminated outside of work for commenting on Twitter or Facebook.

    Absent a labor contract, employees are considered “at-will” and can generally be discharged for any reason provided it is not discriminatory. Unfortunately, being fired for speaking one’s mind is not discrimination.

    It seems to me that when the paper learned what had happened as a result of its reporting, they reacted in a fashion so as to maximize the pressure to get the employee returned to work.

    The paper should have been aware that this employee was at risk when they published her name and picture. All media should be aware that any time they quote an employee, that employee is at risk.

  5. Unfortunately, First Amendment law has evolved at the Supreme Court level in a direction such that a public employee does not have the right, under the First Amendment, to make public statements that are contrary to his or her employer’s rules and restrictions governing employee speech. Such employees may speak on un-work-related issues (e.g., what should the nation’s foreign policy be), but may not speak freely on subjects related to his/her job (e.g., may not complain about work conditions, or about what a bad job his/her boss is doing, etc). This is why public employees almost always speak — or should speak — without name attribution.The nation is poorer because of these restrictions — after all, it is the employee who best knows the weaknesses of his/her own department — but currently the Supreme Court has spoken (unwisely). HARVEY SILVERGLATE (First Amendment lawyer)

  6. Steve B

    As the “Steve B” quoted in the comments above, I’d like to clarify my objection to what Mr. Bass did with that article.

    You call the Independent’s product “advocacy journalism” but I can’t help but feel that the traditional journalistic principle of objectivity in the news pages, accompanied by editorials and opinion pieces that are labeled as such, is far more logical and builds a much stronger credibility with the readership. When I read the Independent, I do so with the absolute understanding that it is NOT unbiased journalism. Every article I read, no matter how matter-of-fact the subject matter is presented, is interpreted as primarily reflecting the opinions and biases of the author. This article was a perfect example of that.

    I think the Independent would be a stronger publication if they endeavored to present a story objectively and have enough faith in their readers to draw their own conclusions. And as many commenters stated in response to the article about the firing, if “just the facts” isn’t good enough to satisfy your conscience, then publish an editorial. I really think the mixing of opinion and fact hurts the overall credibility of the NHI enormously.

    • Dan Kennedy

      I want to explain why I posted the above comment by @Steve B without requiring him to use his full name in accordance with Media Nation policy. I quoted extensively from the Independent’s comments yesterday, and very few commenters there use their real, full name. It seems to me that in the interest of fairness, if I’m going to quote pseudonymous commenters from another site, I’ve got to let them respond here without forcing them to reveal their identity. I must say I hadn’t anticipated this might happen when I wrote yesterday’s post. I will continue to screen comments for taste and civility.

  7. Dan Hamilton

    Most interesting to read the back and forth on this with today’s news story about Dawnmarie Souza in mind. She is the employee of a CT ambulance company who was fired for comments she posted about her supervisor on Facebook.

    THE NLRB said the company’s policy of banning comment on work conditions violates federal law.The company settled with her just in advance of an NLRB ruling.

  8. Rick Peterson

    In a previous life, I was involved with worker’s compensation and other types. of commercial insurance. In every single instance, we required an employer to have an “Employee Handbook”, specifically articulating rules of the road re sexual harassment, substance abuse, etc. so no one could claim ignorance of corporate policy and the laws that trump that policy. In most (but not all) instances, the subject of who represents the company in public was also addressed both in general and relative to the public media. (Basically, when in doubt, don’t comment.This was pre-Facebook). Each employee would sign a form acknowledging receipt of the handbook. Had “OR&L” been operating in a less-enlightened venue, say Milwaukee or Jacksonville, Ms. Kearney’s First Amendment rights would never have been part of the discussion, IMHO. She would have been gone in a flash. Not to say that’s the way it should be, but New Haven and Cambridge are not exactly typical. If an “at-will” employee was laboring under the misconception that she had more latitude than her public-sector colleagues that DK so accurately described above, shame on the employer. It’s tough enough trying to get out a cohesive corporate message without every employee in the organization “helping”.

  9. Marge

    Couple of points/questions:

    Mr. Silverglate: Are you aware that Connecticut has a pretty recent, rather unusual law regarding the First Amendment rights of private and public employees? It has not been tested much yet, still really new. But the argument would be that her speech was especially protected in Connecticut under this new law. Would be interested in what you think, once you review it, or what you think having already reviewed it.

    cell phone: I probably would have posted the OR L office phone, but I remain rather detached under pressure.

    Advocacy Journalism: On issues of First Amendment, lots of journalists feel strongly that the conflict of interest almost disappears and that a newspaper that confines itself to advocacy in this area shouldn’t be characterized as advocacy journalists in general, in the categorical sense. I know there is disagreement on this issue in the profession.

    Paul as defender of the gagged: I appreciate his passion, but his final statement was false “If anybody tries to mess with people who choose to exercise that right, we will stand behind that person 1000%. You’re all on notice.”

    It simply isn’t true. I know people who have suffered far more serious,First Amendment retaliation in New Haven on issues that have far more at stake and he has refused to cover it, apparently because of competing interests. So, independence and consistency of principle is an absolute necessity if one is to serve this role.

  10. Jerry Ackerman

    I’m thinking that this sequence of events played out as it did largely because of the lightning speed of the Internet. Time constraints, either real or perceived, forced decisions to be made on the fly. If the medium had been print, on a 24-hour or even 12-hour (AM/PM) cycle, responses would have been more measured – both for good and for bad.

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