Rep. Doty complained to the News Council after the paper published a March 2 story, “Local GOP objects to Doty’s support of gas tax hike.” The Record’s editor and general manager, Tom West, approached Doty for comment “on the gas tax,” but did not tell him it would be used in a news story about Doty’s support of a transportation bill. In an effort to balance a press release issued by Republican leaders in the district, West rewrote the press release to include comments from Doty and the county engineer, as well as additional background information.

Doty complained he was misled by the paper because he did not know the context in which his comments would be used. West argued that he did not have a responsibility to tell Doty what the story was about in advance. Doty “gave good answers to the questions I asked him,” said West, “and they were reported accurately in the printed article.”

The News Council affirmed the paper’s position, voting 12-4 that the paper’s actions were appropriate.

“[If I were in West's position], in hindsight I would have told Rep. Doty that I was calling for a response to the Republican press release,” said media member Jim Pumarlo. “Having said that, I’m fine with the story, I think it’s balanced. Readers were clearly aware that Republicans were leveling this charge and Doty was responding to that.”

News Council members agreed that the information added by West was accurate, and added to the overall balance of the story. “Rep. Doty came off as the real good guy of that story, he seemed well informed and statesman-like,” said public member Heather Harden.

Media member Jeremy Iggers disagreed. “[The press release] was a partisan attack on Doty,” said Iggers. “How could you not tell him what he was responding to?”

Doty also complained that an editorial written by West was inaccurate to commend both Doty and a Republican colleague for work on a zoo funding bill. Doty said he was “on his own” this past year in seeking funding for the Pine Grove Zoo in Little Falls, Minn. and felt it was unfair to include Sen. Paul Koering (R-Fort Ripley) in the praise. West said that before publishing the editorial, he called Koering, who acknowledged less involvement in the bill, but said he helped get it through the state Senate.

The News Council denied Doty’s complaint, and voted 12-4 that the paper had an appropriate basis for giving both politicians praise in the editorial.

“In order to uphold this complaint,” said media member Dave Beal, “you would have to prove that Sen. Koering played absolutely no role in the passage of this bill, and I don’t think there is evidence to prove that.”

A majority of Council members agreed. “I am satisfied Mr. West fulfilled his responsibility to check the facts in his editorial when he called the senator,” said public member Harden. “After the editorial appeared, those who disagreed with Mr. West’s editorial wrote great letters to the editor explaining their viewpoints.”

The following news outlets ran the above news release or cited an Associated Press summary: Morrison County Record, Hometownsource.com (ECM Publishers), KSTP-TV, WKBT-TV, WCCO-TV, and Grand Forks Herald.

Glass, who was elected to the school board in November, complained that an editorial column, “Beware of dirty tricks during the campaign season,” unfairly mischaracterized his campaign as “nasty and misleading,” and included comments he made prior to becoming a declared candidate for school board. Glass also complained that the timing of the publication was unfair – the paper was published the weekend prior to the election – because he could not offer a rebuttal before Duluth citizens went to the polls.

“Newspapers have a basic right to express political opinion, provided they label it as such,” Duluth Budgeteer News editor Jana Peterson told the News Council. “The column did not introduce any new information, something that newspapers try to avoid immediately before an election – that’s part of the reason we don’t allow any political letters to the editor that week.”

The News Council voted 10-3 to deny a complaint that it was unfair for theBudgeteer News to publish an opinion column accusing a candidate of dirty tricks, without giving him a chance to respond.

On the question of whether it was unfair for the paper to publish a column that included statements that Glass made prior to becoming a declared candidate for school board, the News Council unanimously responded it was not unfair.

The News Council also voted 12 – 1 to deny a complaint that it was unfair for theBudgeteer News to publish a column that characterized Glass’ campaign as “nasty and misleading.”

“All newspapers, weekly or daily, editorialize right before elections,” said media member Reed Anfinson, owner and publisher of the Swift County Monitor-News, a weekly paper in Benson. “Our columns provide a summary of what’s happened during the campaign season – we have the opportunity to say ‘here’s why we support this candidate.’”

Media member Karen Boros was concerned about the timing of the publication. “There was no chance for the attacked person to respond,” noted Boros.

“It felt unfair when it happened to me,” said public member Tom Forsythe recalling an experience similar to Glass’, “but, I do think it’s appropriate for a paper to editorialize prior to an election.”

Glass said the News Council’s discussion of the issues was interesting. “I just wish there would have been time to respond to the column,” he noted.

Vote:

All three complaints were denied by a majority vote.

1. Was it unfair for the Duluth Budgeteer News to publish a column accusing a candidate of dirty tricks without giving him a chance to respond?

The Council voted 10-3 that the column was not unfair on this count. 

Concurring: Anfinson, Bahan, Beal, P. Berg, Fladung, Forsythe, Johnson, Pastner, Wyatt, Zdon 

Dissenting: Boros, Schild, Sokolowski

2. Was it unfair for the Duluth Budgeteer to publish a column that included statements that Mr. Glass made prior to becoming a declared candidate for school board?

The Council voted 13-0 to deny the complaint with the feeling that it was fair to use earlier statements. 

Concurring: Anfinson, Bahan, Beal, Boros, P. Berg, Fladung, Forsythe, Johnson, Pastner, Schild, Sokolowski, Wyatt, Zdon

3. Was it unfair for the Duluth Budgeteer News to publish a column that characterized Mr. Glass’ campaign as “nasty and misleading?”

The Council voted 12-1 to deny the complaint.

Concurring: Anfinson, Bahan, Beal, P. Berg, Fladung, Forsythe, Johnson, Pastner, Schild, Sokolowski, Wyatt, Zdon

Dissenting: Boros

News Council Reflections:

Tom Forsythe, a public council member, wrote:
It was a bit unfair, but that is something we have to accept to protect and defend the right of the newspaper to editorialize. I would hope that the newspaper does not interpret my vote as a full vindication of their decision to editorialize precisely the way they did, but I defend their right to do it.

Al Zdon, a public council member, wrote:
It was well within the boundaries of fair comment.

Steve Schild, a media council member, wrote:
This was a tough case. I’m not voting to dictate what a newspaper cannot write, but I cannot fully endorse a process that makes it hard for any party to respond to criticism or attacks. Having said that, I too fear any decision that could have a chilling effect on a paper’s content.

Ely School Superintendent Thomas Bruels and Ely High School Principal Joselyn Murphy complained after the Echo published a photo of local children at a Halloween party that included a caption in which the children described themselves as a “dead superintendent,” “a superintendent and principal killer and victim,” and a “dead principal.”

Bruels and Murphy said the Echo should not have published the photo and caption, which referred to them directly, in light of recent national incidents of school violence. The Echo did not attend the hearing, but Editor Anne Swenson wrote in a Nov. 11, 2006 editorial that “the significance of publishing this photo and caption was to bring awareness to the community of the potential for violence which exists in the world and this community.”

News Council members voted 9 to 1, with one abstention, to deny the complaint.

Several members said while not unfair to Murphy and Bruels, the photo and caption were published in poor taste. “The paper acted in poor judgment using the quotes,” said public member Cathy Kennedy.

Media member Larry Werner was the lone dissenter. “There is no question in my mind that it is ‘unfair’ to the only superintendent and [high school] principal in Ely to run a picture depicting children dressed as a dead superintendent and principal.”

The news story focused on current hostility between elected officials in the City of Maplewood. The Star Tribune eliminated two other complaints by Kysylyczyn, acknowledging that it should have called him for comment in stories that criticized him.  The newspaper also said it has told its staff to call Kysylyczyn whenever a future story casts him in a negative light.

Representing the Star Tribune, Kevin Duchschere, team leader for the paper’s St. Paul bureau, justified the use of the word “antics” to characterize Kysylyczyn’s time in office by noting that the newspaper used the word in the past to describe the behavior of former Governors Rudy Perpich and Jesse Ventura, former Minneapolis City Council Member Barbara Carlson and form U.S. Senator Paul Wellstone.  The newspaper said the word applied to “colorful, controversial and unorthodox behavior by a political figure.”

Most council members found no fault in the Star Tribune’s use of the word “antics” given several examples the newspaper offered at the hearing.  At a rally criticizing him, the newspaper said, Kysylyczyn paraded through the crowd with a sign that read: “The mayor is a bard” and “Death to the mayor.”  He also tried, the newspaper said, to have himself appointed editor of the Roseville newsletter, so that more news of the city council would be published.News Council member Jane Berg, a public relations specialist, said she thought the Star Tribune should have published one such example, to support the use of “antics.”  The story offered none.

The Star Tribune used Kysylyczyn’s name in the story, said Jeff Rush, editor of the newspaper’s north suburban section, to reflect a time when Roseville’s city government was in turmoil.  Duchschere said that three years after Kysylyczyn left office, his name is still synonymous with controversial leadership, and Roseville is an easy reference point for reporters writing about contentious suburban politics.

Todd Peterson, the city’s development coordinator, said that columns by Jeff Olsen, a freelance reporter and opinion writer for more than 20 years at the newspaper, were inaccurate, misleading to the public and unfair to city officials. Peterson noted that Olsen writes about city business without attending meetings or checking with officials on verifiable facts.

The News Council majority applauded the newspaper’s inclusion of a strong opinion column, and they urged the newspaper to seek out vigorous rebuttals. They also urged Peterson and other city officials to more aggressively seek to get their views published in the newspaper.

Council member Reed Anfinson, editor/publisher of the Swift County Monitor-News in Benson, lamented the fact that so few rural weeklies run editorials or other opinion pieces. He said readers need lively exchanges to inspire them to participate in local public affairs.

Olsen, the columnist, apologized for having mistakenly written that the city ought to occupy office space in a new building. Peterson pointed out that funding for the building was intended for commercial development and did not allow governmental use.

But Olsen insisted that he has never written maliciously about anyone and that he uses what he considers misguided city actions as a basis for offering his readers civics lessons. And he said he does not attend meetings because he hears news about city activities on the radio and reads official minutes.

“I don’t have to be physically present to write about Mr. Bush in Washington,” Olsen said, claiming his right and ability to do the same in Roseau. He said he lives out in the country, teaches school during the day and uses the phone at night to gather material for news articles and columns.

Peterson and the publisher, Jodi Wojciechowski, appeared to have resolved the matter recently when she said she would require Olsen to talk with city officials before writing about them in his column, though he could choose to disregard their views when expressing his opinion.

But the agreement unraveled when the very next Olsen column appeared without the publisher’s having discussed the settlement with him. Peterson reinstated his complaint.

The publisher said she had no time after the agreement and before the newspaper’s deadline to confer with the columnist, and so his next column appeared without his having consulted city officials. Several News Council members said the publisher should have at least called Peterson to advise him that the agreement would go into effect the following week.

Another .council member suggested that the publisher could have held Olsen’s column that week and run it the following week, next to a counterpoint from a city official.

“Every paper should have at least one curmudgeon,” said media member Benno Groeneveld. “Every paper should have an Olsen.”

Public member Jane Berg said she was concerned about Olsen’s use of a radio news report as the basis for his opinion: “It’s possible [using a secondary source instead of going to city officials themselves] to perpetuate misinformation. Facts can and should be verified.”

Olsen agreed, but he said he did not make up facts, he wrote opinions based on the facts as he understood them.

Media member Mollie Hoben, founder of the Women’s Press, said none of the participants was taking a strong initiative to improve the quality of information: The columnist should be checking his facts, Hoben said; the publisher should more actively solicit responses to Olsen’s columns, and city officials should write their own views for publication instead of waiting for someone else to write in their behalf.

Publisher Wojciechowski said she runs almost all letters to the editor. Peterson said he thought a letter from a city officials taking issue with an opinion piece was not an effective way to combat misleading information. Council member Lorin Robinson, a former communications professor, agreed: Information that is published first, he said, stays uppermost in readers’ minds.

Peterson said the newspaper did not cover enough news about city government. The publisher said she welcomes any story ideas, which she said are often hard to generate in a small town.

The complaints grew out of news articles and editorial comments about the former officials, who the Minnesota Supreme Court ruled had violated the state’s open meeting law.

Former Mayor Wes Mader and council colleagues Mike Gundlach and Jim Ericson contended that the newspaper had published false statements that it had never sought to recover legal fees and have fines imposed on them in the lawsuit that reached the supreme court. They also complained that the American showed bias against them by portraying their executive session in 2000 as a “secret meeting” and the current city council’s more recent executive session as a “closed session.”

The News Council voted 11-6 and 13-3 for the newspaper on the two complaints concerning legal fees and fines, and 15-2 for the paper on the complaint about bias.

Publisher Laurie Hartmann wrote in an April 2005 editorial column that the newspaper had never sought fees and fines against the three officials. Mader pointed to official court documents that said the paper did seek such remedies.

The American’s attorney, Mark Anfinson, persuaded the News Council majority that the paper’s request for fees and fines was a technical filing that the newspaper never pursued when the case was resolved. Hartmann said that she could have phrased her column differently, to make it clearer that the paper never filed a motion in the end for fees and fines.

News Council member Pat Berg, a journalism instructor at the University of Wisconsin-River Falls, asked, “What is more important for a community newspaper: to be precise in what it means by ‘never’ or to hold public officials accountable? The far greater good is that the news media hold officials’ feet to the fire, and if the media make a mistake once in a while, well, democracy is messy.”

As to bias, Mader objected to what he called the newspaper’s treatment of the current city council’s conduct of an executive session, compared with the paper’s treatment of his council’s decision. He said his council voted to close a meeting to consider a threat of litigation against the city. The current council, he said, closed a meeting without taking a vote, facing no threat of litigation. Hartmann said the newspaper has also objected to the recent closed session.

Susan Ihne, editor of the St. Cloud Times, applauded the American’s position: “They pursued an illegal closing the first time [in Mader’s case], and they’re pursuing it the second time. They are protecting the First Amendment.”

Public member Karen Runyon, a forensics specialist, said, “I’m always uncomfortable when I read something that is someone’s personal opinion. The word that comes to my mind is ‘snarky’ [meaning irritable or short-tempered]— I can see why someone would feel it was biased.”

Media member Karen Boros, a journalism teacher at the University of St. Thomas, said that the opinion pages are the right place for writers to sell their views to the reader: “There’s snarkiness on both sides. I have no problem with ‘secret meeting’ being in a signed column.”

Lindner was roundly attacked by political opponents and rejected by some in his own party for remarks he made questioning the history of Nazi persecution of homosexuals.

Lindner turned down an offer from the Star Tribune last fall to write an opinion piece explaining his views

“I didn’t want to write it myself,” he told the News Council. “My name was already mud out there, and it still is. I didn’t think anybody would pay attention.”

A six-term legislator, Lindner recently failed to get his party’s endorsement for re-election.

The Star Tribune published a news story reported by the Associated Press in March 2003 on DFL critics accusing Lindner of denying the Holocaust. Lindner complained that the news organizations should have asked him to state his position and not just allowed his critics to characterize it.

The newspaper and the wire service both published corrections saying that Lindner had not denied the Holocaust, but the corrections generated another complaint: that they stated inaccurately that Lindner had questioned whether the Nazis had persecuted homosexuals. Lindner told the News Council he had questioned “the extent to which” the Nazis had persecuted homosexuals.

News Council members debated whether news organization should show proposed corrections to subjects of stories who feel wronged by inaccurate reporting. Some media members resisted the idea. But Mike Parta, former publisher/editor of the New York Mills Herald, said:

“Why not take the extra step to see that the correction is enough to solve the problem?”

Lindner also complained that the Star Tribune gratuitously and wrongly inserted the term “anti-Semitic” into an AP story about legislators who wanted Lindner censured for what they called racism and homophobia. The Star Tribune corrected that error. Chris Ison, leader of the newspaper’s investigative team, explained that the staff member who wrote the story mistakenly included the term “anti-Semitic” because she had heard a woman legislator say that, as a Jew and a Lesbian, she was offended by Lindner’s remarks in the House debate.

That term did not appear in the complaint against Lindner that the legislature had drafted. The News Council was satisfied with the Star Tribune’s explanation of how the mistake was made.

But one Council member, former Star Tribune reporter Gwenyth Jones Spitz, was not satisfied with the editor’s stance on why the newspaper had not asked Lindner to state his view of the Holocaust, in response to the DFL accusation that he had denied its existence.

“Would you print anything someone said on the House floor?” she asked Ison. “If someone said a legislator beat his wife?”

Ison said the newspaper would not print such an accusation. Spitz responded:

“But you did print that he [Lindner] denied the Holocaust. What’s the difference? They’re both outrageous charges.”

Media members of the council noted that covering legislative debates is different from covering a single event; they are ongoing. So, they said, balance and context emerge from continuing coverage. But the AP bureau chief, Dave Pyle, said that his agency insists each story must be balanced.

News Council public member Karen Runyon, a forensics specialist, asked the news people why they did not publish passages from a House transcript that would have made Lindner’s position on the Holocaust clear.

“It’s interesting,” she said, ”that something was deleted [from the transcript by Lindner’s DFL critics]. Why wasn’t that a news story?”

The Star Tribune’s Ison and some media members of the council said it was impractical to run long sections of transcripts. Runyon said, “I resent having a reporter interpret what someone said that I didn’t get to hear. Let the public [read the words actually said] and decide for themselves.”

Council member Vicki Gowler, executive editor of the Pioneer Press, said, “We run portions of transcripts that become controversial, and we refer people [who want longer versions] to our on-line service. But our role is to boil it down and give people the news.”

Lindner’s three complaints were denied by votes of about two to one.

Although he declined to write an opinion piece for the Star Tribune months ago, because he was afraid he would appear to be whining, he said he would like to write one now:

“I can’t believe anyone can say anything about another person and have it printed without that person having a chance to reply. It’s hurt me politically.”

Complaint: 1. The headline “MnDOT contracts called illegal” did not fairly reflect the facts of the situation or of the published story. 2. The page-one placement of the headline was sensational, inflammatory and misleading, in that it implied a pattern of wrongdoing that the facts did not justify. 3. The news story listed items and quotes that make serious allegations of wrongdoing are not backed up by facts. 4. The news story is unbalanced, and it unfairly sides with MnDOT ’s critics in the Department of Administration. 5. Reporting on the independent audit was incomplete and did not reflect audit’s findings that MnDOT contracts were made within legal and ethical bounds under both state and federal law.

Response: The Star Tribune says its headline and story accurately reflected what officials charged with exercising oversight of MnDOT activities had alleged. The newspaper says the headline and the story draw attention to “a dispute over the behavior of the state’s transportation department, which spends millions of dollars of public money annually [which] is important and is of interest to the public. The Star Tribune did not raise this dispute. It was raised by the public officials. The community should expect its newspaper to cover it.”

The Star Tribune also said that the audit did not conclude that MnDot’s contract awards were clearly legal and ethical. The newspaper says the audit warned that “there were grounds for further inquiry regarding a number of allegations suggesting that MnDOT, in certain instances, had failed to adhere to best contractor bidding and selection practices, or had failed to exercise adequate management oversight after contracts were awarded.”

Discussion: MnDOT Commissioner Elwyn Tinklenberg criticized the Star Tribune’s reliance on “a few Department of Administration employees with a clearly vested interest” in protecting their power to exercise control over MnDOT contract awards.

Chris Ison, Star Tribune projects editor, said that when MnDOT ‘s Tinklenberg cited the audit’s conclusion that the agency was in the clear, “he left out the opening phrase that said, ‘generally speaking,’” MnDOT’s activities were above board. Ison said the audit went on to cite allegations that needed investigation of serious problems in the awarding of contracts.
Pioneer Press Editor, Vicki Gowler, supported MnDOT’s challenge to the Star Tribune headline: “The Pioneer Press talks a lot about putting both sides in the headline [and the sub-headline]. I would have done it differently [from the StarTribune].” MnDOT’s view did not appear in a headline until the continuation of the story on an inside page.

Many News Council members said they felt that readers were quite able to sort out the various contentions in the story. Tony Carideo, a former Star Tribune staff writer now in public relations, said, “The state’s customers are taxpayers and citizens. The oversight responsibility of the media for an agency spending so much money and dealing with public safety is the overriding factor in my thinking when I look at this story.”

Reed Anfinson, publisher of the Swift County Monitor-News said if the outcome of the story was to get two state departments to clean up their process, it is a public service.

Vote:
Complaint 1: not upheld (9-3)
Complaint 2: not upheld (11-1)
Complaint 3: not upheld (11-1)
Complaint 4: not upheld (10-2)
Complaint 5: Not upheld (8-4)

[Note: The News Council stressed the point at the hearing that this case was not about the legality or illegality of the meeting, but rather about the journalistic and ethical standards used in the reporting of the meeting.]

Complaint: The city then brought a complaint against the newspaper claiming:

1. that the paper unethically violated the confidentiality of a client/attorney conversation by publishing the story.

2. that the news story unfairly implied that the meeting was illegal by using language such as “hastily called [meeting];” “city officials huddled with attorney Larry Klun to plot their next move;” and “Another contentious point in city circles is the process that led to Tuesday’s closed meeting.”

3. that the article inaccurately suggested that the city was not threatened with a lawsuit, and that the city was not currently complying with EPA regulations.

City Council member Paul Kess also raised the question at the hearing about the methods used in accessing the information reported in the article and the newspaper’s rationale in keeping that information secret under Minnesota’s shield law. He claimed that the reputation of City Council members was harmed by the article, as was the case with the EPA.

Response: The Ely Echo responded that “journalists are under no legal, moral or ethical obligation to keep the secrets of government.” Tom Coombe, a reporter from the Echo, and the author of the article, said that the City Council’s decision to hold a closed meeting should not preclude reporters from doing their job and “to find out what the Council is doing behind closed doors.” He also questioned the City Council’s claim that confidential information was revealed.

The Echo also stood behind the language used in the article did not imply illegality or wrongdoing on the part of the City Council, but rather, Coombe said the meeting was in fact hastily called and there was a “contentious” disagreement in regards to the issues at hand.

The Echo said that it did not imply in the article that the city was currently in violation of the EPA regulations.

Q & A: In News Council questioning, public member Larry Kuusisto asked if the City Council found anything in the article inaccurate. Kess said he didn’t find inaccuracies, but rather bias in the article. Public member Cathryn Kennedy asked the Echo whether it normally would qualify quotes from an unnamed source, like those in the article, which were not attributed to a source. Coombe said it is judged on a case by case basis how to attribute the source of the quotes.

Media member Benno Groeneveld asked Kess if he would have quashed the story if given the opportunity. Kess said he didn’t know.

Media member Don Shelby asked Coombe if he could rewrite the story whether he would revise the statement that council members were “refusing to answer questions.” Coombe said he would say instead that a public statement was expected at the end of the week.

Deliberation: Media member Walker Lundy opened the deliberations saying he thought the story was terrific and a story that any paper would have run on its first page. “It’s stories like this that is precisely why the 1st Amendment is the 1st Amendment and not the 3rd, the 5th or the 8th.”

Media member Mike Parta said he was satisfied when Kess agreed that the story was accurate, while public member Tom Keller said he had some trouble with the language used, saying he did consider the EPA’s intent to litigate a real threat that the paper did not fairly acknowledge.

Public member Paras Shah asked Lundy what reasonable expectation of privacy the City Council should expect when they close a meeting to the public. Lundy responded, “if we can find it out and it’s the public’s business, then we should report it.”

Kennedy said she was troubled that the article quoted from a meeting the reporter did not attend without qualifiers.

Vote:

Complaint #1 was denied (14/0)

Complaint #2 was denied (13/1)

Complaint #3 was denied (11/3)

Background: In early 1999, WCCO began investigating a story on deficiencies in the state Health Department’s ability to monitor complaints about the quality of care in nursing homes. The series focused, initially, on the complaints of a niece of an Alzheimer’s patient; the niece contended that St. Therese nursing home neglected her aunt’s care and that the Department of Health failed to investigate her complaints promptly and adequately.

WCCO took an undercover camera into the nursing home and videotaped residents in a common area of the dementia unit. One resident, Charlie Winkler, drew the attention of the reporter because he had a bruise on his face as a result of an accidental fall days earlier. The photographer documented his injuries on video that was later used in the broadcast series, which aired July 22 and 23.

Winkler’s daughters were upset to see their father on television, without their knowledge and approval. Winkler’s daughters sent a letter to the Council in support of the position of the nursing home, but did not join in the complaint. 

Complaint: Bredenberg charged that WCCO:

1. Entered the nursing home (a private residence) and photographed a (vulnerable adult) resident without permission, thus invading his privacy.

2. Produced a story that was inaccurate and misleading and resulted in a picture of the nursing home as providing inadequate care:

a) Presented the complaints of the niece without mentioning the results of Health Department investigations that denied the accuracy of those complaints;

b) Created the impression that two residents had died as a result of neglect when they had, in fact, died from natural causes;

c) Reported that a 96-year-old resident had had a significant weight loss without reporting that weight loss often accompanies the dying process and that the nursing home had taken steps to minimize her weight loss.

Response: WCCO responded:

1. The station appropriately reported on Winkler’s condition after discovering that the state had cited the home for negligence in connection with his fall. The producer of the series had extensive phone conversations with one of Winkler’s daughters. The station says the daughter told the producer she believed her father’s fall contributed to his death and said she thought all nursing homes should have surveillance cameras to document such incidents. The station did not, however, report this opinion, but instead relied upon the documented findings of the state.

2. The series was not inaccurate or misleading and did not create a misimpression of the nursing home, despite Bredenberg’s refusal to grant an on-camera interview (he did participate in off-air phone interviews):

a) The niece brought to the station many complaints about her aunt’s care, but the station broadcast only those in which a public record supported her claims. The story accurately reported results of several state investigations and included statements that St. Therese Home does not have a history of serious violations and that the state did not consider the nursing home to be a “chronic poor performer.”

b) The series did not characterize the deaths of the two residents as caused by inadequate care, but only reported the complaint process in chronological order and the fact that both residents in question died shortly after the Health Department investigative reports came out.

c) There is ample documentation to support the niece’s contention that her aunt experienced a significant decline in body weight, including an April 2 Health Department report. While the nursing home now says this weight loss was the result of the dying process, in April it denied a significant weight loss had occurred and then attributed the problem to incorrect calibration of scales. 

Addenda: The daughters of Winkler responded to WCCO’s response by sending a letter, dated October 20, to the News Council in which they wrote, in part:

“[The News Director] stated that WCCO did not violate Mr. Winkler’s privacy by taping him. Mr. Winkler was not in a public place. He was at his home! Your reporter was not given permission to take pictures inside St. Therese. She would not make it known [that she was there videotaping] before the report aired because she knew it would not be allowed by the family.

“We want to make it clear that we believe the incident [that was reported] about our father was an unfortunate accident. We never had any intention of filing a complaint against St. Therese. We were not told about or asked about filming our father by anyone from WCCO-TV. We are greatly offended by this invasion of privacy.”

Discussion: Bredenberg took issue with WCCO’s statement that it videotaped Winkler in a public space within the nursing home. He said the nursing home is a private residence and there is no public space within a private residence. While visitors are welcome, he said, all are asked to sign in and out (though it is not mandatory) and neither the reporter nor producer signed in. He said the home would have asked the reporter to leave the premises if it had known she was there.

Bredenberg said residents have a legal right to privacy in long-term care facilities and it is part of St. Therese’s mission to protect the privacy and dignity of its residents. Jim Williams, Director of Communications for the Minnesota Health & Housing Alliance, speaking on behalf of the nursing home, said a vulnerable adult (a legal designation) has rights that a nursing home has a duty to protect, including a right to privacy. He said that no one can film within a facility without permission.

Bredenberg said negative stories about nursing homes are common and follow a pattern that the WCCO story also followed. They typically employ a visual analogy to a prison: grainy, out-of-focus, black-and-white images; shots down long corridors; images shot through fences or closed doors or with fences in the background (chosen to suggest prison bars), repeated shots of wheelchair wheels. He pointed to one scene in which the reporter is holding a copy of the Health Department report that for no apparent reason has shadows like bars falling across the page. He pointed out that all positive statements made by the reporter during the report were immediately followed by rebuttals.

Bredenberg said that Winkler’s accident was an unfortunate incident that the nursing home had itself reported to the Health Department (as part of mandatory reporting procedures); the daughters had not made a complaint. As such, it was unrelated to the purpose of the news story, which was to examine lax investigation of complaints to the Health Department.

Gary Gilson, the Council’s executive director, summarized the position of WCCO, that the story was not about St. Therese home, in particular, but was really about the state’s inability to adequately monitor all facilities, which is clear from the many quotes the station gathered from state officials admitting as much. The station says that it did not sensationalize the story, but eliminated opinion from the piece and relied purely upon documented reports of lapses of care that led them to question some of the nursing home’s contentions. Further, WCCO said, its reporting of the story was hampered by the fact that Bredenberg declined to be videotaped.

Bredenberg said he refused to go on camera because he didn’t trust the station and he thought the producer would bring in a hidden camera to videotape the facility when she came to interview him. He said he did spend 20-30 minutes on the phone with the producer and tried to put the incidents in question into context. He said when the producer initially called to tell him she was doing a piece on the Health Department and wanted a local perspective he said no. She called three or four times, giving him different reasons why he should appear on camera, and he would not agree. At no time did she tell him she had entered or would enter the building to videotape. Bredenberg said he never spoke to a reporter, only to the producer.

After the series aired, the nursing home checked the logs and did not find any WCCO sign-ins. No one on the staff or in the dementia unit knew when the station’s staffer might have been there. Some Council members found it troubling that the nursing home did not know who was in the facility. Bredenberg said the staff does not scrutinize visitors, that the nursing home is a home and they want it to have a comfortable, welcoming atmosphere. He said there had been times when people had acted inappropriately and had been asked to leave, but a reporter’s mere presence on the premises does not constitute inappropriate behavior.

Media member Nancy Conner asked if camera use, per se, was allowed. Bredenberg said the home had written guidelines: taking pictures of relatives is not a problem, but when taking pictures of anyone outside the family the photographer would have to get permission and a signed release form and have to explain how the photograph would be used.

Bredenberg was asked if Winkler was capable of communicating his consent. Bredenberg said Winkler was on the dementia unit and no one on that unit is in a position to give informed consent.

Williams was asked how St. Therese home compared with other nursing homes in Minnesota. Williams said that there have been well publicized cases of troubled homes, but that St. Therese is not among them. Media member Dave Hage pointed out that the Health Department had upheld three complaints against St. Therese home in a short period of time. He asked if this was unusual. Williams said no, it depended upon the deficiencies, that some are more significant than others. Bredenberg explained the Scope and Severity Scale by which every deficiency is measured and said that the St. Therese home deficiencies were not severe.

Media member Pia Lopez asked Bredenberg and Williams to step outside their own experience for a moment to consider how, if a news organization wanted to do a report on nursing homes and state regulations, it might do such a story and get images.

Williams said he has 10 years of experience working extensively with the media, but this was the first time he’d known of a station “violating people’s rights… If a person with decision-making authority says, ‘Come on in and film,’ then they have the right to do so. It’s no different from a private home under the law.”

Bredenberg said he had worked with two film crews at previous nursing homes doing different kinds of stories and that they had had good working relationships, so he had allowed them to come in.

Council members asked Bredenberg to clarify aspects of the three Health Department reports. Bredenberg said the reports were quoted accurately in the news story, but that the findings were not as significant as they might seem to someone who did not understand the complex and legalistic language used by the Health Department. For example, he spoke to the producer at length about the definition of “significant weight loss,” which state regulations define as a loss of five percent within one month or ten percent within six months. The resident had a seven percent weight loss in three months, which the surveyor decided to judge as a violation, although the nursing home contends that it was legally in compliance and it had documented efforts to help the resident maintain her weight.

Public member Rachel Quenemoen asked if a delay in the Health Department’s investigation was an issue in any of the cases cited in the report. Bredenberg said it was not (Bredenberg disagrees with the niece’s belief that her 96-year-old aunt died from poor care; the death certificate lists the cause of death as natural causes).

Public member Jon Schroeder asked Bredenberg and Williams to comment on WCCO’s contention that this story had a different purpose from the typical nursing-home exposé: to help people with vulnerable relatives who need to move into a nursing home decide on a home, and explain to them how to file a complaint if there are problems with care.

Williams said the station got that aspect of its story right: complaints to the Health Department do take too long to be investigated and resolved. There are new federal mandates to shorten that period but the Department simply does not have the number of people it needs to conduct investigations within the time the new legislation requires. Williams agreed that there was some public service value to the series and said he could understand why the station needed examples to illustrate its story.

Bredenberg said he had no doubt that the story had public service value and he had no complaint with the second part of the series, except that many people didn’t see it and focused on the first part, the St. Therese portion.

Bredenberg said the impact of the story increased over time. Within an hour of the report airing on July 22, the nursing home received a bomb threat from a person who mentioned seeing the WCCO story, and the residents had to be evacuated. A few days later, a doctor told Bredenberg that a family had decided to place an elderly member at a different home, one that the doctor had not recommended, because they saw the report. Later, when the nursing home engaged in fundraising for the dementia unit, it received several angry responses to its appeal, all mentioning the WCCO story.

Bredenberg said he brought the complaint on the part of the family of Mr. Winkler, the staff of the nursing home and the other residents. “It’s our duty to protect our patients. I’m just trying to do the right thing.”

Deliberation: Media member Elizabeth Costello, a television reporter, questioned the use of a hidden camera: “I’m not saying the story shouldn’t have been done… but the hidden camera is different… Using a hidden camera in a nursing home is much different than in a Food Lion case. A nursing home is someone’s private home. I know, as a journalist, that you can’t take a camera into someone’s home. That’s what concerns me.”

WCCO’s contended that it did not create an impression that the incidents in the complaints against the home caused the residents’ deaths. Costello disagreed. At least in one incident, she felt the report did imply that was the case. She also said it was clear to her that the family did not give permission for their father to be taped.

Media member Tony Carideo asked if it was possible to invade the privacy of a dead man. Monika Bauerlein, another media member, pointed out that while privacy is a new right in Minnesota, that is a legal discussion and the News Council is concerned with the ethics of the case, not the law. “Our decision is made on our own moral judgment and our professional standards, which may be different from what the courts would say.”

Bauerlein said she did not feel the story was sensationalized: it had no scary music behind it and it did not show people in embarrassing private moments.

Pia Lopez asked if the images couldn’t have been gathered in another way, for example, as Williams suggested, by asking the Winkler family for permission. But Rachel Quenemoen wondered what the point was in seeking the images [of Winkler] in the first place. The focus of the story was on tardiness of investigations of complaints, but there had been no complaint filed in the first place, only an incident report.

Public member Tom Keller was concerned that the nursing home’s deficiencies were not put into context within the nursing home industry or within the context of that one facility.

Media member Kathleen Stauffer believed WCCO was justified in examining Winkler’s case: “I’m troubled that he was a vulnerable adult. The community needs to look out for vulnerable adults… For someone to be in the visiting room and not be asked who they were or why they were there, that’s a problem. They could be there to do damage.” She also thought that Winkler was portrayed in a dignified way.

Public member Neil Neddermeyer thought it made a difference that Winkler was filmed in the dining room or day room and not in his bedroom or bathroom. “An argument could be made that because the people coming in to film were not stopped, that they might have felt it was a public place.”

Neddermeyer said, “WCCO was not unfair or inaccurate. They pointed out some things that can happen. The hidden camera was used respectfully and he was not victimized.”

The Vote:
1. On the complaint that WCCO invaded the privacy of a nursing home resident, the Council split event, 10-10. the complaint was not upheld.

To uphold the complaint: Bailey, Cleary, Costello, Diaz, Hage, Neddermeyer, Quenemoen, Reister, Schroeder, Shulstad 
To deny the complaint: Bauerlein, Carideo, Conner, Groeneveld, Johnson, Keller, Lopez, Scales, Stauffer, Williams
Presiding: Stringer
Recused: Shelby

2. On the complaint that WCCO created an inaccurate and misleading impression of the nursing home, the Council voted 13-6 to deny the complaint.

To uphold the complaint: Bailey, Diaz, Keller, Quenemoen, Reister, Shulstad 
To deny the complaint: Bauerlein, Carideo, Cleary, Conner, Groeneveld, Hage, Johnson, Lopez, Neddermeyer, Scales, Schroeder, Stauffer, Williams
Presiding: Stringer
Recused: Shelby