A federal jury on Friday evening cleared state Treasurer Dennis Milligan of a discrimination claim and his former chief of staff of a defamation claim.
The jury deliberated 3½ hours after hearing four days of testimony on whether Jim Harris, the recently retired chief of staff, defamed a former employee by publicly releasing a confidential email in which Harris questioned the employee's sanity.
The jury also had to decide whether Milligan believed, based on the email or conversations with his executive staff, that former employee David Singer was mentally ill, and fired him April 27, 2015, because of that -- in violation of federal disability law.
Harris, who retired in January, faced the defamation claim and potential monetary damages in his individual capacity only, after Chief U.S. District Judge Brian Miller dismissed an official-capacity claim against him months ago. Milligan was accused in his official capacity of violating Singer's rights.
Both men were represented by attorneys Byron Freeland and Kathyln Graves of the Mitchell-Williams firm, though the treasurer's office has said that Harris was paying for his own representation.
In closing arguments Friday that lasted about two hours, jurors heard first from attorney Lucien Gillham of Benton, who along with attorney Matt Campbell of Little Rock had done most of the courtroom lawyering for Singer this week. Attorney Luther Sutter, who is a law partner of Gillham's and took the lead in a previous trial in August that ended in a mistrial, had been absent for much of the trial.
Gillham told jurors that the case was before them because "David Singer needs the truth. There's never been an admission of responsibility or an apology, ever."
But Freeland told jurors that neither Harris nor Milligan had anything to apologize for and that they were both doing their jobs when they scrutinized M̶i̶l̶l̶i̶g̶a̶n̶'̶s̶ Singer's* work and behavior and then defended the office against his televised complaints after he was fired.
Freeland also said Singer exemplifies why people often complain that public employees don't do their jobs. He was referring to testimony from Singer's supervisors indicating that they went out of their way to make sure they had legal grounds to fire him despite his failure to adequately perform any of three jobs he was assigned in a four-month period.
In an email that Harris sent April 6, 2015, to Jason Brady, then his deputy* chief of staff, Harris expressed concerns that Singer had become mentally ill in the past year, after his wife died of breast cancer in 2014. Harris included his own observations of Singer's behavior and of what Harris considered indications that women in the office were being bothered by Singer. Freeland said Harris had a duty to be on the lookout for problem behavior that might eventually constitute sexual harassment.
But Gillham said Harris' written observations, as well as the testimony of Grant Wallace, Harris' other deputy* chief of staff, and other defense witnesses, constituted "lies." He said that when Harris personally delivered the email in late April or early May to KATV, Channel 7, which had aired Singer's remarks about the treasurer's office, he was trying to retaliate because of the televised interview.
Harris testified that he believed the email had already been distributed to the station through a Freedom of Information Act request after Singer's termination. He also testified that he believed, through conversations with other members of the management staff, that its release had been ordered by the attorney general's office. He said he wanted to direct the station's attention to it, in the jumble of other emails, to shed light on what really led to Singer's termination.
Freeland reminded jurors of Wallace's testimony, in which Wallace said he had included the email in a large delivery of emails to Channel 7 in response to the Freedom of Information request, after consulting with an assistant attorney general who was a liaison to the treasurer's office.
Wallace testified that he consulted the attorney after discovering the email in a compilation of requested emails between Harris and Brady because he worried that the public release of a document mentioning mental health concerns could violate a federal privacy law.
At the same time, Wallace testified that he delivered the email within the three-day required time period for complying with Freedom of Information requests because he knew he could be sued if he didn't comply. He said the station and other news organizations made Freedom of Information requests April 28, the day after Singer's firing, though he said documentary evidence of the requests was lost when he began using a different computer.
Amy Ford, the former assistant attorney general who regularly worked with the treasurer's office, testified in August that she didn't recall approving the release of the email during a harried phone conference, but she testified this week that she didn't authorize its release and would never have done so.
Singer had acknowledged asking some news outlets to request his file so that he could determine why he was fired, but he said he was unaware of Harris' email at the time and was shocked and humiliated when it was publicly disclosed.
Freeland said that despite the fact several news organizations had a copy of the email in late April or early May as a result of Freedom of Information requests and Ford's approval, it was never published anywhere until after Singer filed his wrongful termination lawsuit May 28, 2015. Freeman suggested that Singer or a friend of his who regularly alerts reporters about news events are the ones who made it public.
The friend posted it on the Arkansas Times blog May 24. No evidence was presented at the trial from either side to indicate that it had been published anywhere else before that date. A reporter for the TV station testified in August that she thought the email was made available through a link on the stations' website in early May, but couldn't be sure because the website was being updated during that time period and no records were available.
Miller told jurors that to find that Harris defamed Milligan and award damages, they must find that his visit to the station caused the email to be published, that he knew it was false at the time and that he had malicious intent.
To prove the disability discrimination claim, Miller said, jurors must find that Milligan believed Singer had mental problems and terminated him as a result without determining first whether Singer could have nevertheless performed the essential parts of his job. Miller said that to find Milligan liable, jurors also had to find that he would not have terminated Singer except for the perceived mental impairment.
Metro on 02/04/2017
*CORRECTION: Attorney Byron Freeland said state Treasurer Dennis Milligan and his former chief of staff, Jim Harris, were doing their jobs in scrutinizing the work of David Singer, the plaintiff. A previous version of this article incorrectly used Milligan’s name instead of Singer’s. Also, Grant Wallace and Jason Brady were then deputy chiefs of staff for the treasurer’s office. Their former titles were incorrect in a previous version of this article.