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Jack O'Dwyer
Jack O'Dwyer is editor-in-chief of the J.R. O'Dwyer publications. He can be reached at jack@ odwyerpr.com

June 21, 2005
PRSA ACTION COULD SET
DANGEROUS LEGAL PRECEDENT
 

PRSA leaders are trying to place the responsibility (blame?) for the legal pursuit of the e-mailer who criticized COO Catherine Bolton on PRSA's law firm, Moses & Singer. But the law firm is not buying it. Clients alone are responsible for taking legal action, M&S said.

President Judy Phair told us via phone that she and 2004 president Del Galloway "followed the advice of counsel" in initiating the action last Nov. 16.

Janet Troy, PRSA PR director, sent us this e-mail:

"We are not suing anyone. The court has found for Catherine in the pre-action disclosure. The action was initiated on the advice of counsel to the Society and Catherine as the action was viewed as interfering in the governance of the Society. It also presented a safety concern."


Abelman

Arthur Abelman, of counsel at M&S who handles PRSA, said he "gives advice" but that PRSA, like all his clients, "makes the decision."

"I don't take the responsibility for starting any legal action, I give advice," he said.

Having started this expensive, embarrassing legal action, Del and Judy should end it now before there is further horrific cost to the image and purse of the Society.

Do we really want to hear the 50 or so staffers of PRSA questioned in court under oath on their opinion of the management skills of Bolton?

Especially missing in this debate is president-elect Cheryl Procter-Rogers, whose own company, Time Warner, got hit with two legal actions. She feels it's a legal dispute and she can't comment.

But it's far more than that.

As far as we know, Procter-Rogers has raised no objection whatever to this "outing" that is of supreme concern to PRSA members and the general public. This case is the first one of its type in New York and could set a dangerous legal precedent.

Also unheard from is Gerard Corbett, who represents the other major corporation on the PRSA board, Hitachi. We urge both companies to take a close look at the use of their brands by PRSA.

There are huge PR First Amendment and other considerations here besides legal ones.

A good part of the country is running these days on information posted anonymously on blogs, websites, finance/yahoo and similar chat rooms, letters-to-the editor, etc. Almost all the postings on the O'Dwyer website by PR people are anonymous because contributors don't want to be hit on for expressing an opinion. People will worry about saying "boo" about anything if they think an e-mail provider will "out" them at the drop of a legal petition.

Time Warner Cable, by the way, put up no fight when M&S came to it with a subpoena demanding that its Road Runner brand give up the owner of an e-mail address and list of people e-mailed to by this address. As is its practice, TWC did not even show up at a court date for this. TWC told the owner of the address that it was his/her problem to respond.

"John Doe" hired law firm Quarto Dunning which crafted a 13-page reply to the court with numerous legal arguments and citations of relevant decisions. M&S had started the legal action with a two-page, one-paragraph petition that QD called "threadbare."

QD's best argument was that Bolton had suffered no "economic harm" and that this was essential for a finding of possible defamation.

The QD rebuttal resulted in Judge Kibbe Payne writing a decision of thousands of words that ran in the New York Law Journal after it front-paged a previous story.

TWC was hit with another "legal action" ordering it to turn over CH’s e-mail records and it complied.

We wonder if PRSA and M&S were anticipating such a hub-bub? Maybe they thought the mere "outing" of CH would end the e-mails and thus warn other potential critics without the need for a public defamation lawsuit in which many PRSA staffers and others would have to testify under oath.

PRSA, whose last press conference was in 1993, has a record of not liking to air matters in public.

Who's running PRSA anyway, the board or Moses & Singer?

Abelman was on the governance task force named by Galloway last year (whose work is finished). He is remains on the 2005 nominating committee, also in an "ex-officio" capacity.

How many associations allow someone from their law firms such influence? Governance at PRSA needs an overhaul but it’s not going to be done by the very people who are not sharing power.

H.q. turned its back on PRSA/New York and the rich New York PR/communications market, as evidenced by the record $580,000 profit PRSA made on the 2004 national conference in New York.

Bolton’s managerial abilities have been questioned by the anonymous e-mailer. But is that so far-fetched?

It can be argued that she is a "limited interest public figure" in the PR community and defamation charges are harder for public figures to prove.

Bolton joined PRSA on Sept. 3, 2000 as "chief PR officer" from the Int'l Copper Assn. where she was VP-communications. By December she was acting president and COO and the next month was named president and COO, heading a staff of about 50. Predecessor Ray Gaulke quit those posts suddenly in October 2000. He had been picked in 1993 after a lengthy search by a committee of six and a fee of $40K to Korn/Ferry.

We question some of the actions made at h.q. including the sudden departure in July 2004 of Rob Levy (without explanation) after he boosted training income 61% in the first half to $1.28 million. The move of h.q. downtown was championed by Bolton and we think it was one of PRSA’s worst decisions ever. We also question this legal action in which she is a complainant.

 
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Responses:
 

Brian Kilgore -- Toronto, and a PR guy who has worked with a lot of lawyers (6/22):
Seveal stories up the page in O'Dwyer's today is a report on Bob Dilenschneider's book, A Time For Heroes, where whistleblowers are heroes, not slandered as repuitational rapists by someone hiding behind a false identity.

What if most of the e-mail to the PRSA board is accurate, if perhaps a little hyperbole-laden?

PRSA's board might like to run itself though the best-practices machinery touted at its meetings, and see if the accurate assessments of performance overpower the naughty language.

Mr./Ms. Cryrape hits the nail on the head -- how is some defendant going to afford to hire lawyers and get the PRSA's staff and members to testify honestly and openly, when PRSA can use its members dues to stall things and pound the guy into the ground?

Reputational Injury Opponent (6/22):
Libel is reputational rape and an employer should protect employees against this happening as a consequence of the employment.

Abelman, a distinguished attorney, says he gave advice and I believe him. Phair, respected PRSA President, says she followed his advice and I believe her.

As you quoted Del Galloway as saying in your excellent "FALSE STATEMENTS NOT PROTECTED" story with comments that interestingly compared what happened to Bolton with other sleazy activities that may hurt hundreds of others in PR: "PRSA will not tolerate anyone or any communication that threatens the livelihood of its staff and volunteers."

Phair, Galloway and PRSA are doing what I'll bet the J. R. O'Dwyer Company would do promptly and gladly: protect, by legal means, employees against a self-identified "hater" making hateful accusations.

And I'll bet the O'Dwyer firm would gladly protect not only top O'Dwyer people but also those lower down and less valuable to the company. Will 50 PRSA people really be deposed? Who'd pay for those depositions including the lawyer time, the stenographer and the transcripts--the hater? The lawyer?

It costs something for an employer to protect its people. It costs for locks on the doors and it costs for lawyers but it's what a decent employer does.


 

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