Saturday, May 28, 2011

DA looks into Channelview complaints | Houston & Texas News | - Houston Chronicle

DA looks into Channelview complaints | Houston & Texas News | - Houston Chronicle
I don't know much about John Carona's businesses or how they conduct their affairs. Everything I have to say in this post is about Texas State Senator John Carona, human being. The man is a public figure who is actively making and influencing public policy in the area I have specialized in since 1985, and I have an obvious and legitimate reason to comment on his activities.

This article from the Houston Chronicle back in 2009 details some of the things that people were saying about Carona. I was quoted in the article on the general issue, although I was (and still am) unfamiliar with the details of these Texas incidents.

The picture that is shaping up is something like this. John Carona is a state senator who had a lot to say about the content of Texas laws on HOAs and the businesses that serve them. He is also a powerhouse in the property management field, being the principal in a complicated network of management firms in multiple states, that has expanded rapidly in recent years. These management firms are also connected with other businesses that serve HOA in other ways. As the article says,

"Carona, a five-term senator who chairs the Homeland Security and Transportation Committee, is Associa's founder, president and chief executive officer. He serves on the boards of dozens of other companies that provide banking, insurance, Web sites and other services to homeowners associations, according to his latest personal financial disclosure statements filed with the Texas Ethics Commission. Carona authored legislation in 2001 that preserved and modified homeowners associations' controversial authority to foreclose on homes based on delinquent assessments. He said he sees no conflict of interest in his involvement with legislation affecting the industry that provides much of his livelihood."

So--he is a public official, and he has a lucrative career. He has become a legislative specialist in the field where he has his business interests. These are all public facts and in and of themselves don't create any impropriety. The reporter raises the potential of a conflict of interest, and asked Carona about it, and he denies it. One can see how that could potentially happen with specific pieces of legislation, but no legislative-business conflict of interest is spelled out in the article as nearly as I can tell.

But here's the problem: when somebody, such as the homeowner/BOD member in this article, Sam Campbell, raises questions about the details of practices engaged in by Carona's firms, they get threatened by Carona's attorneys. Back to the 2009 article:

"In April, Campbell began sending information to the district attorney's office, which issued subpoenas for four Sterling Green South bank accounts. Assistant District Attorney Kelli Johnson said it will take months to analyze the records. Johnson declined to say whether the subpoenas were issued to PMG or to the banks. Carona said no one at his companies had received subpoenas related to Sterling Green South. Campbell also has sent numerous e-mail and written correspondence to PMG employees and attorneys detailing accusations that the company used Sterling Green South funds improperly. On July 31, PMG fired back. Benjamin D. Wood, a Washington, D.C., attorney representing the company, threatened to sue Campbell for defamation and business disparagement if he continues his campaign."

Now, I have no sympathy for people who maliciously libel people on the internet or anyplace else. People should be able to earn a living or serve in public office without having their character impugned. But where is the evidence that there was any defamation? It appears from the story that all Mr. Campbell did here was try to get to the bottom of some complicated transactions that he thought raised some questions about how his association's money was handled and spent. As a BOD member or even an ordinary HOA member, what is wrong with that? Isn't that an appropriate activity for somebody who has a fiduciary duty to the members? Nothing in that Houston Chronicle article looks like defamation to me. Why wouldn't Carona simply have his company or companies produce the records and explain the transactions?

And what about this new suit against Bill Davis? I have now read the petition that Carona's lawyers filed in the new case that led to the subpoena for my blog records. Again--where is the evidence of defamation? There is not one single specific act of defamation spelled out in the entire complaint. It just claims that between 2008 and 2010 Davis defamed Carona's companies (and Carona's name doesn't even appear in the entire complaint!) on "various news and information web sites," including the Dallas Morning News and The petition says that Davis claimed these firms "engaged in illegal behavior and unethical business practices," but there are no quotations of what was supposedly said. That's right: a defamation suit that fails even to quote a single allegedly defamatory statement...and that also fails to mention that the actual human being behind all the corporate plaintiff entities is a public figure. Why does that matter? Because in the USSC case of New York Times v. Sullivan, the court said that public officials and other public figures can't recover for libel unless they can prove "actual malice," which requires that the defendant either knew the statement was false or acted with reckless disregard for whether it was true or not. The petition pleads the elements of actual malice, but again--doesn't say what facts support the claim that Davis knew his unspecified statements were false.

I don't know Texas law, but here in Illinois I am confident that wouldn't be enough to state a valid claim.

Three questions for you:

1. Does the case against Bill Davis sound like a viable defamation suit to you? Where's the beef?

2. Is Carona using his lawyers to prevent people like Mr. Campbell and Mr. Davis from raising issues of public concern? Issues that relate directly to the very things he works on in his capacity as a legislator? If so, why is he doing that?

3. And isn't that a question that should be addressed to him, as a public official of the State of Texas, by the press?


Da Judge said...

The defendant's demurrer and motion to strike is hereby granted with prejudice.

seashell said...

The Texas legislature just passed HB 2973, captioned as "Relating to encouraging public participation by citizens by protecting a person's right to petition, right of free speech, and right of association from meritless lawsuits arising from actions taken in furtherance of those rights."

In the Wikipedia SLAPP entry you linked to, Texas was one of the states with no statutory SLAPP protection.

Notably, one or two HOA Reform Coalition members were on the Act's House witness lists.

So does this mean that Carona's suit against Davis is anti-SLAPP proof? How convenient.