ANDREW TIPENE AGAINST CRUX PUBLISHING

Case Number: 3356

Council Meeting: DECEMBER 2022

Decision: Upheld

Publication: Crux Media

Principle: Accuracy, Fairness and Balance
Headlines and Captions
Photographs and Graphics
Corrections

Ruling Categories: Defamation/Damaging To Reputation
False Accusation

Overview

[1] Andrew Tipene complains about an article QLDC engineer writes own $448,000 consulting deal published by Crux on 10 August 2022. It falls to be decided under Media Council Principles (1) Accuracy Fairness and Balance, (6) Headlines and Captions, (11) Photographs and Graphics and (12) Corrections. The complaint is upheld in relation to the complaints under Principles (1) and (6).  

 

The Article

[2] The central points of the story occur in the first sentence where it is noted that “… an engineer who spent 18 months at the Queenstown Lakes District Council [QLDC] as an employee then wrote his own consulting terms that resulted in $448,861 being paid without the council going through an initial procurement or bid process.”

[3] The article then provides some details about the engineer in question (the complainant Mr Tipene) and his reasons for leaving the council. It states “as he was leaving Mr Tipene drafted terms for the QLDC to sign that …” would allow him to use a consultancy he had set up to finish work on some QLDC projects. This statement was accompanied by an email between Mr Tipene and a QLDC staff member, which is replicated in full in the article.

[4] There are two aspects of the email that deserve comment. In the ‘from’ line of the email Mr Tipene’s name and ‘Gmail’ address are reproduced. Underneath Mr Tipene’s name (typed at the bottom of the email) is a mobile phone number, and underneath this appears a Queenstown Lakes District Council logo.

[5] Relevantly, the article also states:

  • that the contract between Mr Tipene and the council was signed without any formal procurement process, contrary to the QLDCs procurement guidelines; and
  • that Crux had approached Mr Tipene via LinkedIn for comment and that “no other public contact details for him are available”. 

The Complaint

[6] Mr Tipene complains about several aspects of this article:

  • That he was not contacted for comment prior to publication and that Crux claims it could find no contact details for him beyond his LinkedIn profile. This was clearly not correct given the email reproduced in the article contained his personal email address. Moreover, although he had attempted to contact Crux via LinkedIn a month before the article was published, that request was not accepted until after the article was published.
  • That the article states that “as he was leaving” the council Mr Tipene drafted terms of a contract. However, his last day as an employee with the Council was 15 March 2019. The contract was not sent to QLDC until 21 March 2019. In Mr Tipene’s view, the language used by Crux was disingenuous and intended to mislead readers into thinking he had negotiated a contract while working at the QLDC.
  • That the article states that Mr Tipene “wrote his own consulting terms”, drafted the terms for QLDC to sign and was headlined “QLDC engineer writes own $448,000 consulting deal”. However, Mr Tipene notes that the email relied on contained only an ‘Offer of Service’ (basically a CV with rates, which the QLDC could accept, amend, or negotiate in relation to). It is common practice for councils to source specialist professionals in this way. The language used here was also disingenuous and intended to mislead readers into thinking that he had written his own contract.
  • The article also incorrectly asserts that the email containing the offer of service was sent to Mr Tipene’s former manager. This was intended to lead the reader to conclude that Mr Tipene had an existing relationship with the person responsible for the contract.

 [7] Mr Tipene also complains about the presence of the QLDC logo under his typed name and mobile phone number at the bottom of the email. Mr Tipene states that this logo is not present in his own email record, nor is it present in the email provided to Crux by the council under official information legislation. Mr Tipene suggests that Crux has manipulated this email in order to mislead readers into believing he was discussing a consulting relationship with the QLDC while still employed by it.

[8] Mr Tipene considers that this article, and its inaccuracies, has impacted on his personal and professional relationships. The story incorrectly suggests that he may have breached his professional code of ethics as an engineer. He considers that Crux’s other assertions regarding his behaviour (noted below) are both unsubstantiated and of no relevance to his complaint about the content of this story.

The Response

[9] In its formal response to the Media Council, Crux suggests that Mr Tipene’s complaint is driven by other matters Crux has been investigating. However, the Media Council does not consider those matters relevant to this complaint, which is about the specific matters raised in this story. 

[10] Crux considers that Mr Tipene has misunderstood the point of the story and that it was primarily about QLDCs ongoing failures in relation to procurement (allegations of this have formed the core of several Crux articles in recent years). It considers that the details about Mr Tipene were not material to the story. It appears to agree that the ‘Offer of Service’ represents the contractual terms on which Mr Tipene would be prepared to work (but not the finalised contact), but Crux suggests that that point is not material to the story and it not a damaging accusation against Mr Tipene. 

[11] In relation to the presence of the QLDC logo on the email it published Crux expresses frustration at what it claims are false claims by Mr Tipene that Crux has altered the email in some way.

The Discussion

[12] The Media Council has little difficulty in upholding the majority of this complaint. Principle (1) Accuracy Fairness and Balance states that:

Publications should be bound at all times by accuracy, fairness and balance, and should not deliberately mislead or misinform 
readers by commission or omission. In articles of controversy or disagreement, a fair voice must be given to the opposition view.

[13] Mr Tipene ought to have been given an opportunity to comment on this story before it was published. We do not agree that the focus of the story was primarily on procurement failures by the QLDC, or that this would excuse Crux from seeking comment. Mr Tipene, his personal circumstances and his conduct were a central part of this story and serious attempts should have been made to contact him. Crux does not address this in its response, but the assertion that Crux could only find Mr Tipene’s LinkedIn details was clearly wrong, as Crux also had access to his personal email address, which they in fact published in the article. In any event, reliance only on social media seems a paltry effort at attempting to find Mr Tipene. 

[14] We also agree with Mr Tipene that the statements that “as he was leaving Mr Tipene drafted terms …” and “wrote his own … consulting deal” are inaccurate. It is clear from the email that it attached an ‘Offer of Service’, which QLDC could “accept or propose changes to”. This was the start of a process of negotiation not a completed contract and it was incorrect to present it as so or to suggest that Mr Tipene had written “his own consulting terms”.

[15] However, we are not persuaded that the statement “as he was” leaving was necessarily inaccurate. It could be inferred from the fact Mr Tipene was emailing the council an “Offer of Service” about a week after he had ceased to be an employee that some discussion regarding this had taken place before he left, even if the terms of that agreement were yet to be negotiated.

[16] A further inaccuracy stems from Crux’s failure to point to anything which would confirm that the person to whom this email was addressed had been Mr Tipene’s former QLDC manager. Mr Tipene states that person was never his manager and worked in a different department (and in a different location) to him. The Media Council is prepared to accept Mr Tipene on this point as Crux has pointed to nothing that would suggest Mr Tipene is wrong.

[17] We uphold the complaint under Principle (1) Accuracy Fairness and Balance. It flows from this that the Headline was also inaccurate, and we would also uphold on Principle (6) Headlines and Captions. As no correction has been made Principle (12) corrections is not engaged.

[18] The Media Council has more difficulty regarding the presence of the QLDC logo under Mr Tipene’s typed email signature. Mr Tipene has provided the council with a copy of his own version of this email (sourced from his Gmail account). The information provided by the QLDC (and available to the Media Council) under the Local Government Official Information and Meetings Act 1987 (LGOIMA) also contains a version of the email. Neither of these contain the logo at the bottom of the email. Crux provided a pdf. correspondence file that appears to include a version of the email used in the article (ie, including the logo) and which it says comes from the LGOIMA request. There is no explanation as to how the version Crux states comes from the LOGIMA request is different from that the Media Council was able to download. 

[19] Nevertheless, on balance the Media Council considers that it has insufficient information before it by which it could judge how the logo came to be present on the version of the email reproduced in the story. There are, potentially, a range of explanations. In these circumstances we are unable to reach a conclusion and we do not uphold this aspect of the complaint.

[20] Decision: The complaint is upheld on Principles (1) and (6). It is not upheld on Principles (11) and (12).

[21] The Media Council accepts that it is legitimate for Crux to raise questions about QLDC’s procurement practices. Indeed, it appears there are questions to be answered. However, as we have previously noted in doing so Crux must ensure that it meets journalistic standards. The Council notes that it has previously been critical of Crux’s conduct in relation to some of the stories it has published regarding QLDC’s procurement practices. We were therefore disappointed by Crux’s conduct in relation to this complaint. Many of Crux’s responses to Mr Tipene, and to the Media Council, have focused on other matters it is pursuing. Indeed, Crux suggested that this complaint was a form of ‘smoke screen’ to discredit Crux. Perhaps because of this view, Crux does not appear to have seriously engaged with Mr Tipene in relation to his specific complaints about particular aspects of this story. Indeed, much of the correspondence file appears to show Crux consistently trying to elicit further information from Mr Tipene regarding these other matters, and not engaging with him on his specific complaints. The Council reminds Crux that even if the other matters it is pursuing are verifiable and important that does not detract from its obligations in relation to the other stories it publishes.

Council members considering the complaint were Hon Raynor Asher (Chair), Rosemary Barraclough, Hank Schouten, Jonathan Mackenzie, Scott Inglis, Tim Watkin, Ben France-Hudson, Jo Cribb, Judi Jones, , Marie Shroff, Alison Thom and Richard Pamatatau.

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