Candidate Bob Kelly Threatens Lawsuit Against Church and City

In a series of emails that began late last Friday, former West U Mayor Bob Kelly has threatened to file a “slander” lawsuit over an endorsement letter written by Councilman Ed Heathcott.

In his letter to members of West U Baptist Church, Heathcott, a deacon at the church, endorsed Susan Sample, who is running unopposed in her bid for mayor, as well as candidates Bruce Beneke, a church deacon, former councilman and Mayor Pro tem Steven Segal and Philip Snyder.

By supporting those candidates, Heathcott wrote “We can uphold existing laws granting churches the right of religious freedom.”

Healthcott’s letter also mentions the candidates running as “a slate,” including Kelly, Brennan Reilly, former Mayor Burt Ballanfant and Mardi Turner. He said that the Pastor of West U Baptist “has been keeping the church family informed of some of their activities and statements that are of concern to WUBC.”

In his letter, Heathcott urged members of the church to participate in the May 9 municipal election.

Ed Heathcott endorsement letter.

Ed Heathcott endorsement letter.

“Let’s maintain our current good relationship between our church and our City while we continue to support the church as an institution,” Heathcott wrote.

In an e-mail to Heathcott, sent at 10:47 p.m. Friday, April 24, Kelly wrote: “Have you lost your mind. No one is pushing illegal activities, I demand a retraction.

A few minutes later, at 11:15 p.m., Kelly sent another email, to Mayor Bob Fry, all of the current members of the City Council, City Manager Michael Ross, and City Attorney Alan Petrov.

In that email, Kelly wrote: “You are put on notice of possible slanderous statements by one of your City Council Members. Please put  the West University Baptist Church of the actionable conduct of one of their Deacons. (sic)  They should put their insurers on notice.”

Heathcott said Wednesday that his letter was an endorsement of Sample.

“As is evident, there is nothing actionable in the letter.  It is simply an endorsement of who Susan Sample is and that she maintains high ethics and would do nothing illegal,” Heathcott said.

In an exchange of emails this week with managing director George Boehme, Kelly refused to discuss what part of the Heathcott endorsement letter was “actionable.”

Kelly’s response was: “The email stands as written and is self explanatory.”

Kelly is an attorney, but has possibly confused the difference between slander and libel.

According to NOLO.Com, a legal website: “Libel and slander are types of defamatory statements. Libel is a written defamatory statement, and slander is a spoken or oral defamatory statement.”

Cases of libel are very hard to prove, especially if the claimant is a public figure.

In 1964, in the case of New York Times V. Sullivan, the U.S. Supreme Court unanimously ruled that “the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (defined as knowledge that they are false, or in reckless disregard of their truth or falsity). The Court also held that a public official suing for defamation must prove that the statement in question was made with actual malice. Later, the  U.S. Supreme Court ruled that candidates for public office are considered “public officials” in defamation cases.

Claimants in defamation cases face another hurdle in Texas, since the 2011 state Legislature passed the Texas Citizen Participation Act.

In an article for the legal blog,, attorney Jeffrey Elkins explained that the new law allows a defendant in a defamation suit to file a motion for dismissal within 60 days, if the defendant was “exercising freedom of speech on a matter of public concern.”

In the article, Elkins explained that the Texas Legislature “made the determination that democracy works only if people are involved; meaning sharing information, exchanging ideas, writing about public issues, commenting on the quality of a business or assembling to support a cause. The TCPA is meant to protect citizen participation.”