The third retraction demand from NCTD, and our response

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Dear Mr. Karlo,

We represent the North County Transit District (NCTD) and its Executive Director,
Matthew Tucker.

Taxpayers and KPBS’s readers are entitled to accurate, unbiased reporting of facts
with respect to public agencies and their conduct. NCTD respects and welcomes such
reporting. Unfortunately, that is not what anyone got with Brad Racino’s October 23, 2013
article provocatively entitled: “War on Women Over 40′: Lawsuit Claims Age, Gender Bias At NCTD.”

It has become increasingly apparent that Mr. Racino has some personal animosity
toward and agenda regarding NCTD and its Executive Director, Matthew Tucker. That
animosity and agenda have manifested in a new low in the October 23 article and an
October 24, 2013 related piece in which Mr. Racino blatantly misrepresents and
manipulates the facts and insults and offends various female NCTD employees as part of
his apparent campaign to vilify Mr. Tucker and NCTD.

In the October 23 article, Mr. Racino includes photographs of two groups of women
that are clearly intended to create the impression that female employees older than forty
were replaced by younger female employees and that Mr. Tucker had something to do with
this supposed replacement. Both implications are blatantly false. Mr. Racino labels the
first group of women as “[w]omen, older than 40, who held the highest positions at NCTD
and who: were laid off or demoted under Matt Tucker or resigned as a direct result of his
tenure.” Immediately under that group of photos, Mr. Racino has placed for obvious
contrast photographs of what he describes as “[w]omen recently hired by NCTD.” The
reader is tempted (and no doubt intended) to assume that each of the younger women
were hired to directly replace each of the older women identified above them. However,
this is certainly not true. Moreover, in his October 24, 2013 attempted defense of his
selection of the seven photographs of women in the second group, Mr. Racino claims that
he selected women with “top managerial positions.” That statement is blatantly false.

The top managerial positions at NCTD, from the top down are the: (1) Board of
Directors; (2) Executive Director; (3) General Counsel; (4) Deputy General Manager; and
(5) Chiefs. Only one of the seven women in the group of “recently hired” women has or
ever had a top managerial position at NCTD, and she is a Chief. Under the Chiefs are the
Deputy Chiefs, and then, Managers and Directors. Three of the seven “recently hired”
women Mr. Racino claims have “top managerial positions” have or had (because one is no
longer with NCTD) management positions at that lowest level (i.e. as managers). The
other three of those seven women do not have any kind of managerial position at NCTD,
having instead lower-level staff positions. Also, despite Mr. Racino’s implication to the
contrary, one of the women in the group he contrasts with the “over 40” group is herself
over 40. It is obvious to anyone familiar with the NCTD staff that Mr. Racino, in his zeal to
tarnish the reputations of Matt Tucker and NCTD, has falsely and misleadingly represented
the facts.

It is particularly disturbing that Mr. Racino apparently trolled through the Internet to
identify a few individuals whose photographs he could use to support his personal agenda
(including, based on the photo credits, a cite known as smittenbypretty.com), while
ignoring the majority of persons employed by NCTD whose photographs would not serve
Mr. Racino’s purpose. A preliminary review indicates that of NCTD’s current female
employees who were hired after December 2008 (and thus after Matt Tucker’s hiring)
approximately half are females over the age of 40. Moreover, the majority of NCTD’s
current female employees who were hired before December 2008, and thus retained after
Matt Tucker’s hiring and after the lay-offs, are 40 or older. In addition, nearly half of
NCTD’s total current workforce are female.

Not only do the article and companion piece misrepresent the facts and falsely
claim that the “recently hired” women depicted in the article have “top managerial
positions,” they also falsely imply that Matt Tucker had anything to do with the hiring of
those seven women or that he personally singled out women “over 40” for layoff. The fact
is that Mr. Tucker was only directly involved in the hiring of one of the seven recently hired
women shown in the article (the one who actually does have a top management position)
and the women who were laid off were laid off as part of a lay-off of over 400 employees.

Moreover, none of the lay-off decisions described in the article were unilaterally made by
Mr. Tucker. All of those decisions occurred with the Board’s full approval.

There also is something disturbing about the fact that none of the seven supposed
“top management” recently hired employees whose photographs Mr. Racino and KPBS
used are African American, whereas Mr. Tucker is African American and is happily married
to his African American wife with whom he has two children. Mr. Tucker has been
personally hurt by the subtle undertones and smears of this article and others by Mr.
Racino and KPBS.

Nor is the article insulting only to Mr. Tucker. The implications made by Mr. Racino
concerning the seven recently hired employees he chose to depict are very demeaning not
only to those women but to women in general. Mr. Racino apparently made no effort to
determine their qualifications for the positions they hold or to determine the process utilized
by NCTD in the hiring of those women. KPBS and Mr. Racino owe an apology to those
women as well as to the current employees who were identified in the article as ”older than
40.” Those women did not want their photos or their names posted and were shocked to
be labeled by Mr. Racino and tagged with misleading and inappropriate references from
the article with which they now must live.

The October 23 article also states that NCTD had not yet reported updated
compensation information for the positions of the seven women Mr. Racino selected for his
group of “older than 40” women. The fact, however, is that NCTD had timely submitted
current employee compensation information to the California State Controller on October
13, 2013.

As for the litigation and personnel matters mentioned in that article, KPBS is clearly
aware that NCTD cannot comment on such matters related to current or past employees.
We do, however, note that NCTD will vigorously defend its actions and business practices
related to Ms. Moeller’s lawsuit and is confident that the factual record will show that Mr.
Tucker has conducted himself in a professional manner and performed well in dealing with
all employees of the District during very difficult fiscal times. We also note that the article
utterly failed to report that the positions of both of the employees mentioned in the article
who filed lawsuits were eliminated as part of the transition from public to private operations
of the bus system. Over 400 employees — a majority of the NCTD work force — were laid
off as part of this transition and the vast majority of all employees who were laid off were
offered positions with the private firm that provides bus service for NCTD. Similarly, Mr.
Racino’s article failed to report on the fact that NCTD hires qualified persons across all
demographic categories.

Mr. Racino also stated that NCTD did not respond to a request for a copy of the
settlement of a lawsuit filed by Kim Stone, although he neglects to note that KPBS
published his article before the ten days had expired in which NCTD was permitted to
respond to Mr. Racino’s Public Records Act request, nor did he note in any follow-up that
NCTD did timely respond to that request within that ten-day period.

Zealous, unbiased reporting of facts of legitimate public interest is applauded. Mr.
Racino and KPBS, however, have fallen sadly short of that standard in the October 23
article and October 24 follow-up. The First Amendment does not give journalists or
publishers carte blanche recklessly or intentionally to misrepresent or mislead in order to
serve a journalist’s personal agenda.

KPBS should assume its responsibility for publishing Mr. Racino’s writing of biased,
factually incorrect and intentionally misleading articles. NCTD strongly urges KPBS to take
the first step by removing this article from all sources to which it has been distributed and
by issuing an apology to Matt Tucker and the women who were identified in the
photographs as part of Mr. Racino’s apparent effort to smear the reputations of Matt Tucker
and NCTD.

Very truly yours,

William Archer of

LEWIS BRISBOIS BISGAARD & SMITH LLP

Dear Mr. Archer,

This letter responds to your October 28, 2013, letter. Consider these responses to each of your points raised and please respond if there are any further questions or concerns.

Points You Raised:

1. “It has become increasingly apparent that Mr. Racino has some personal animosity toward and agenda regarding NCTD and its Executive Director, Matthew Tucker…”

Mr. Racino has no agenda regarding NCTD or personal animosity toward Mr. Tucker. Mr. Racino’s job is to report newsworthy information about taxpayer-funded government entities including NCTD.

The issues that have arisen out of NCTD since we began covering the agency in February 2013 warrant public discussion and transparency. NCTD is a taxpayer-funded government entity responsible for the safety, security and oversight of millions of yearly passengers and more than 100 employees. Serious concerns regarding the agency’s safety practices, security issues, internal human resources allegations, deficiencies in oversight and lawsuits resulting in settlements funded by taxpayer dollars are important to our readers, and to all San Diegans who ride NCTD’s buses or trains or fund its operations with their tax dollars.

2. “…Mr. Racino includes photographs of two groups of women that are clearly intended to create the impression that female employees older than forty were replaced by younger female employees and that Mr. Tucker had something to do with this supposed replacement. Both implications are blatantly false.”

Neither inewsource nor KPBS created this impression. Instead, inewsource and KPBS are accurately reporting charges made by others.

Virginia Moeller’s lawsuit, paragraph 10: “Specifically, Mr. Tucker would prefer certain employees for hire, transfer or promotion, based on whether they were of a particular racial group, their age and/or their gender.”

Virginia Moeller’s lawsuit, paragraph 11: “Specifically, Mr. Tucker, and others acting in concert with him, chose older employees, and at times, older female employees for layoff…”

In Kim Stone’s lawsuit, paragraph 34: “…Defendant, through its managing agents, including but not limited to Tucker, has made discriminatory comments and has engaged in discriminatory practices concerning female employees over the age of forty (40).”

In addition, Mr. Tucker is the Executive Director of the agency and, according to Policy 19, has nearly unlimited power to hire, fire, demote, promote and create employee positions. Saying he had nothing to do with the “supposed replacements” is in direct opposition to Policy 19. It is also counter to everything we’ve been told by multiple high-level sources both inside and outside the agency; sources whose accurate and verified information has helped inform the bulk of our stories about NCTD.

3. “Mr. Racino claims that he selected women with “top managerial positions.” That statement is blatantly false. The top managerial positions at NCTD, from the top down are the: (1) Board of Directors; (2) Executive Director; (3) General Counsel; (4) Deputy General Manager; and (5) Chiefs.”

Mr. Racino clearly indicated that the women pictured held positions in the top 10 percent of the agency by salary. NCTD’s salary data was taken from the California State Controller’s website. NCTD supplies that salary data to the Controller’s office. If the data supplied by NCTD to the State of California is inaccurate, please let us know and we will amend our story.

Furthermore:

(1) Board of Directors: According to NCTD Policy 7, any position on the Board of Directors is an unpaid position, aside from the $75 travel stipend paid to each for attending board meetings. Those positions are not staff positions and are irrelevant to the story.

(2) Executive Director: The Executive Director is the subject of the story.

(3) General Counsel: According to the data supplied by NCTD to the State of California, the position of “General Counsel” did not exist in 2009, 2010, or 2011. That position is therefore irrelevant to this story. If the data supplied to the State is inaccurate, please let us know and we will amend our story.

(4) Deputy General Manager: According to the data supplied by NCTD to the State of California, the position of “Deputy General Manager” did not exist at the agency in 2009, 2010, or 2011. That position is therefore irrelevant to this story. If the data supplied to the State is inaccurate, please let us know and we will amend our story.

4. “Despite Mr. Racino’s implication to the contrary, one of the women in the group he contrasts with the “over 40″ group is herself over 40. It is obvious to anyone familiar with the NCTD staff that Mr. Racino, in his zeal to tarnish the reputations of Matt Tucker and NCTD, has falsely and misleadingly represented the facts.”

According to the graphic’s headline in the inewsource and KPBS story, those are photos of women who were “recently hired.”

To the extent that you’re referring to Manager of Administration Vira Villarreal, we do not know her age but we have been informed that she recently turned in her three-week notice to the agency and was terminated on the spot by Mr. Tucker. Please provide us with documentation with respect to her hiring and resignation or termination.

In addition, a recent hire leaving NCTD so soon appears to be consistent with the turnover problem we’ve previously reported.

NCTD could have notified inewsource and KPBS in advance of publication that one of the employees had left, had either Matt Tucker or Bill Horn agreed to comment. However, both refused to comment while the story was prepared.

5. “It is disturbing that Mr. Racino apparently trolled through the Internet to identify a few individuals whose photographs he could use to support his personal agenda (including, based on photo credits, a cite known as smittenbypretty.com), while ignoring the majority of persons employed by NCTD whose photographs would not serve Mr. Racino’s purpose.”

The photos that we used of recent hires and former employees came from the widely used social business website Linkedin.com.

As you noted, the remaining employee’s photo was taken from the website smittenwithpretty.com.

Smittenwithpretty.com is a publicly-accessible blog published by one of NCTD’s own employees. It has since been wiped of all content, but you are free to use the Wayback Machine to verify.

Mr. Racino also did not ignore the majority of persons employed by NCTD, but rather was led to these seven women through research, interviews and data.

6. “There also is something disturbing about the fact that none of the seven supposed ‘top management” recently hired employees whose photographs Mr. Racino and KPBS used are African American, whereas Mr. Tucker is an African American and is happily married to his African American wife with whom he has two children. Mr. Tucker has been personally hurt by the subtle undertones and smears of this article and others by Mr. Racino and KPBS.”

There is nothing in our article that indicates the women recently hired were in “top management” positions. The photo array of older women indicates that they had “highest positions” and clarifies that description by using the definition of 90th percentile by pay rate from the State Controller’s website.

For the recently hired women, inewsource and KPBS accurately reported that there were no current pay rates posted on the State Controller’s website for those positions. The state’s website says the information will be posted in 2014. By the point of publication, NCTD had refused to provide comment or provide that information when requested to do so for this story.

Further, inewsource and KPBS included the job titles of the women recently hired, so readers could assess for themselves their organizational positions.

Also, to the extent that you are now alleging racism and prejudice in our story, we see no basis for your allegation and find such an assertion offensive to us as a well-established, well-regarded public broadcasting agency with supporters and fans of all races, creeds and colors.

inewsource staff and KPBS management are offended by these accusations.

7. “KPBS and Mr. Racino owe an apology to those women as well as to the current employees who were identified in the article as “older than 40.”

Mr. Racino has it on very good authority that many of the women pictured are in no way hurt by this article.

8. “The October 23 article also states that NCTD had not yet reported updated compensation information for the positions of the seven women Mr. Racino selected for his group of “older than 40″ women. The fact, however, is that NCTD had timely submitted current employee compensation information to the California State Controller on October 18, 2013.”

NCTD states it reported that information in a timely fashion on Oct 18, 2013 and the state Controller’s website says the information won’t be published until 2014.

To the extent that we implied that NCTD had not timely submitted the data —  we regret the implication and will clarify that section.

9. “KPBS is clearly aware that NCTD cannot comment on such matters related to current or past employees.”

KPBS is not clearly aware that NCTD cannot comment on such matters. We are unaware of anything that prevents you from commenting on employee terminations or other litigation.

In fact, NCTD’s attorneys have made a lot of comments in this letter.

To do our job as thoroughly and accurately as possible, we must ask for comment. Ms. Moeller’s lawyer, William Woodson, commented for our story. We asked NCTD and Chairman Bill Horn to comment, and they declined. We accurately reported as such.

10. “Mr. Racino stated that NCTD did not respond to a request for a copy of the settlement of a lawsuit filed by Kim Stone, although he neglects to note that KPBS published his article before the ten days had expired in which NCTD was permitted to respond to Mr. Racino’s Public Records Act request…”

In his article, Mr. Racino wrote, “The district did not respond to a request for a copy of the settlement.” As of the date of publication, October 23, 2013, NCTD had not responded to a request for a copy of the settlement.

The “ten days” mentioned in your statement refers to the time period allotted each agency by state law — California Government Code §6253(c) — to determine whether a Public Records Act request “in whole or in part, seeks copies of disclosable public records in the possession of the agency.” Since Ms. Stone’s lawsuit was settled with taxpayer money, there should have been no question whether or not the records were disclosable, and therefore no delay in handing over those records, according to the previous two sections of the state law:

California Government Code §6253(a) clearly states, “Public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record…”

California Government Code §6253(b) clearly states, “each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person.”

In summary,

-On October 18, 2013, Mr. Racino submitted a Public Records Act Request through NCTD’s website for Ms. Stone’s settlement agreement with NCTD.

-On October 21, 2013, Mr. Racino followed up on that request with an email to Mr. Byll Shelton, who upon last check was responsible for handling PRA requests.

-By publication on October 23, 2013, Mr. Racino had not received a response of any sort from NCTD or Mr. Shelton.

NCTD delivered the five-page settlement agreement by email seven days after Mr. Racino requested the information, at 3:58pm on Friday, October 25.

11. “…nor did he note in any follow-up that NCTD did timely respond to that request within that ten-day period.”

For the reasons set forth in response to point 10, Mr. Racino does not feel that NCTD did respond in a timely fashion.

12. “The First Amendment does not give journalists or publishers carte blanche recklessly or intentionally to misrepresent or mislead in order to serve a journalist’s personal agenda.”

The First Amendment protects freedom of speech and freedom of the press to report the news.

We at inewsource and KPBS hold that right in the highest regard and with the utmost respect, and never recklessly or intentionally mislead, misrepresent or serve our own personal agenda. We follow the facts, the research, and the data to the best of our abilities to better inform the public. We did so in the previous 24 articles, we did so in this article, and we will continue to do so in future articles.

In this case, inewsource and KPBS accurately reported information from two separate lawsuits, Angela Miller’s resignation letter distributed to NCTD Board members, statements from former employee Heidi Rockey, as well as statements from other sources.

The article was a factual representation of that information.

To the extent that NCTD has any documentation that contradicts anything in our news story, please forward that on or before Friday, Nov. 1, at 5:00pm and we will be happy to review it.

13. “NCTD strongly urges KPBS to take the first step by removing this article from all sources to which it has been distributed and by issuing an apology to Matt Tucker and the women who were identified in the photographs as part of Mr. Racino’s apparent effort to smear the reputations of Matt Tucker and NCTD.”

For the reasons we have set forth, we are unaware of any basis to remove any articles or issue any apologies. To the extent that you have any documentation or other responses to correct any errors, if they exist, please forward it to us on or before Friday, Nov. 1, at 5:00pm and we will be happy to review it.

If you have any additional information you wish us to consider, please provide it to us on or before Friday, Nov. 1, at 5:00pm and we will be happy to review it.

inewsource & KPBS

 

NCTD response, Oct. 30, 5:38 p.m. 

Dear Mr. Karlo:

This is in response to your October 30, 2013 letter regarding the above–referenced
article. We already have provided our substantive response to that article and the October
24, 2013 companion piece. It is obvious from your letter that it would be fruitless to
perpetuate this exchange. We are not going to engage in a “letter war” with KPBS nor
litigate any pending cases in the media. Our refusal to engage in any such ongoing
exchange shall not imply any agreement with any positions taken by KPBS nor constitute a
waiver of any of NCTD’s rights or remedies.

Very truly your

William Archer of
LEWIS BRISBOIS BISGAARD SMITH LLP

shadow-ornament

We'll let you know when big things happen.

About Brad Racino:

Brad Racino is a senior reporter and assistant director at inewsource. To contact him with tips, suggestions or corrections, please email bradracino at inewsource dot org.
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