concurring.
I cannot agree with the reasoning of the majority opinion in this matter, but I do concur in the result.
Although I come out at the same place as does the majority opinion, I feel that the reasoning of the majority opinion sets a precedent which can open the door for its application in other situations in which the logical result would be unfortunate law.
I part company with the majority opinion in its determination that Rule 56, W.R.C.P. does not mean what it says when applied to defamation cases. If there can be such exception, why limit it to defamation cases? The language of the majority opinion carefully skirts full confrontation with its holding. Regardless of the careful language, the thrust of the opinion is to have the court weigh the evidence at the summary judgment stage to determine if the standard of “convincing clarity” has been met. This is contrary to the right of a party to have a determination of factual issues be made on evidence which is presented with all of the evidentiary safeguards and re*841strictions1 incident to a judicial trial. Such weighing of the evidence at the summary judgment stage as authorized by the majority opinion is patently contrary to the provisions of Rule 56(c), W.R.C.P. relating to summary judgments which provide in part:
“(c) * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *”
If there is a “genuine issue as to any material fact,” a trial should be had to resolve it. The plaintiff ought not be required to prove his case at the summary judgment stage. He need only establish that there is an issue of a material fact.
By weighing the facts to determine if the element of “actual malice” is sustained with “convincing clarity,” the majority opinion, in effect, rejects — or at least holds to be of no consequence — the following oft-repeated and regularly-applied position of this court:
“In reviewing an appeal from the granting of a summary judgment and in determining the existence of a genuine issue of material facts, the court must inquire from the viewpoint most favorable to the party opposing the motion, Timmons v. Reed, Wyo., 569 P.2d 112 (1977). Facts asserted by such party and supported by affidavits or other evidentiary material must be taken as true, Trautwein v. Leavey, Wyo., 472 P.2d 776 (1970), and be given every favorable inference, which may be reasonably and fairly drawn from them, Bluejacket v. Carney, Wyo., 550 P.2d 494 (1976).” Reynolds v. Tice, Wyo., 595 P.2d 1318, 1319-1320 (1979).
The majority opinion accepts the position that there exists here an issue of fact as to the presence of “actual malice.” It then purports to weigh the evidence on that issue to determine if it is sufficiently established with “convincing clarity.” I cannot agree with this majority opinion treatment of the plain language of Rule 56(c), W.R.C.P. and with the resulting reversal of established precedent in applying such rule.
Turning, then, to that which I believe to be the correct disposition of this matter, I would hold that the summary judgment was proper inasmuch as a careful review of the record does not reflect the existence of any genuine issue as to the controlling material fact.2 Defendants do not contest plaintiffs’ status as public figures. The query is whether or not there existed the element of “actual malice”3 on the part of defendants. This is a controlling fact in this case inasmuch as plaintiffs’ action must fail if “actual malice” does not exist as a fact. It is an essential element of plaintiffs’ claim for relief.
Before considering the record as it pertains to this factor, reference is made to the following extensive quotation from Widener v. Pacific Gas & Electric Company, 75 Cal.App.3d 415, 142 Cal.Rptr. 304, 313-315 (1977), which orients “actual malice” in the context of a defamation action:
“Appellant contends that the trial court erred in granting respondents’ motion for a judgment notwithstanding the verdict, on the ground that appellant had failed to produce sufficient evidence that the defamatory statements were made with ‘actual malice,’ as required by New York Times Co. v. Sullivan, supra, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. In New York Times, the United States Supreme *842Court held that, in order for a public official to be able to recover for defamation, the First Amendment required the public official to prove, with convincing clarity, the defendant’s ‘actual malice,’ at the time of the publication. ‘Actual malice’ can be shown by proving either that the defendant knew of the falsity of the statement or that the defendant uttered the statement in reckless disregard for the truth. * * *
* * * * * *
“Actual malice must be proved with convincing clarity. (New York Times Co. v. Sullivan, supra, 376 U.S. 254, 285-286, 84 S.Ct. 710 [728-729], 11 L.Ed.2d 686; Goldwater v. Ginzburg (2d Cir. 1969) 414 F.2d 324, 341, cert. den. 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695; see also Field Research Corp. v. Patrick (1973) 30 Cal. App.3d 603, 608, 106 Cal.Rptr. 473, cert. den. 414 U.S. 922, 94 S.Ct. 218, 38 L.Ed.2d 157.) Whether there was ‘actual malice,’ as required by the New York Times standard, is, of course, a question of fact for the jury. (See St. Amant v. Thompson (1968) 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262; Time, Inc. v. Hill (1967) 385 U.S. 374, 394, 87 S.Ct. 534 [545], 17 L.Ed.2d 456.) This court has a duty to closely examine the record to determine whether it could constitutionally support a judgment in favor of the plaintiff (see New York Times Co. v. Sullivan, supra, 376 U.S. 254, 285, 84 S.Ct. 710 [728], 11 L.Ed.2d 686), but this does not involve a de novo review of the trial court proceedings wherein the jury’s verdict is entitled to no weight. (See Alioto v. Cowles Communications, Inc. (9th Cir. 1975) 519 F.2d 777, 780, cert. den. 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 259; Guam Federation of Teachers, Loc. 1581, A. F. T. v. Ysrael (9th Cir. 1974) 492 F.2d 438, 441, cert. den. 419 U.S. 872, 95 S.Ct. 132, 42 L.Ed.2d 111; Fopay v. Noveroske, supra, 31 Ill. App.3d 182, 334 N.E.2d 79, 87.)
“ * * * Reckless disregard ‘cannot be fully encompassed in one infallible definition’ ; rather, ‘its outer limits [must] be marked out through case-by-case adjudication, . . . ’ (St. Amant v. Thompson, supra, 390 U.S. 727, 730, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262.) It is clear, however, that it involves a stringent and subjective standard. It is not measured by whether a reasonably prudent person would have published, or would have investigated before publishing. Rather, there must be sufficient evidence to permit an inference that the defendant must have, in fact, subjectively entertained serious doubts as to the truth of his statement. (St. Amant v. Thompson, supra, 390 U.S. at p. 731, 88 S.Ct. 1323 [at p. 1325]; Alioto v. Cowles Communications, Inc., supra, 519 F.2d 777, 779; Montandon v. Triangle Publications, Inc. (1975) 45 Cal.App.3d 938, 947, 120 Cal.Rptr. 186, cert. den. 423 U.S. 893, 96 S.Ct. 193, 46 L.Ed.2d 126.) Actual malice, under New York Times, concentrates on the defendant’s attitude toward the truth or falsity of the material published, and does not focus on the defendant’s attitude toward the plaintiff. (Cantrell v. Forest City Publishing Co. (1974) 419 U.S. 245, 251-252, 95 S.Ct. 465 [469-470], 42 L.Ed.2d 419; Carson v. Allied News Co., supra [7 Cir.], 529 F.2d 206, 214.) Where the defamatory statements made by the defendant do not involve an element of ‘hot news’ and the need for expeditious release is not present, reckless disregard for the truth may be evidenced in part by failure to investigate thoroughly and verify the facts. This is particularly true where the substance of the defamatory statements, which the defendant was publishing, were such that substantial danger to reputation was apparent. (Curtis Publishing Co. v. Butts, supra, 388 U.S. 130, 87 S.Ct. 1925 (sic) [1975], 18 L.Ed.2d 1094; Goldwater v. Ginzburg, supra, 414 F.2d 324, 339; Carson v. Allied News Co., supra, 529 F.2d 206, 211; Fopay v. Noveroske, supra, 334 N.E.2d 79, 88.) ‘[W]hen the story is not “hot news,” the investigation must be more thorough, and “actual malice may be inferred when the investigation . . . was grossly inadequate in the circumstances.” ’ (Vandenburg v. Newsweek, Inc. (5th Cir. *8431975) 507 F.2d 1024, 1026.) ‘[Evidence of negligence, of motive and of intent may be adduced for the purpose of establishing, by cumulation and by appropriate inferences, the fact of a defendant’s recklessness or of his knowledge of falsity. (See, e. g., Curtis Publishing Co. v. Butts, supra.’ Goldwater v. Ginzburg, supra, 414 F.2d 324, 342; emphasis added.) In Curtis Publishing Co., the Supreme Court found that a muckraking intent, the absence of any ‘hot news’ element, and an inadequate investigation, were all significant factors in determining actual malice. “The mere profession of a defendant that he believed in good faith that his statements were true does not automatically entitle him to a verdict in his favor. (St. Amant v. Thompson, supra, 390 U.S. at pp. 732-733, 88 S.Ct. 1323 [at p. 1326].) ‘As in all cases, civil or criminal, turning upon the state of an individual’s mind, direct evidence may be rare; usually the trier of facts is required to draw inferences of the state of mind at issue from surrounding acts, utterances, writings, or other indicia.’ (Herbert v. Lando (S.D.N.Y.1977) 73 F.R.D. 387, 395.) As the court stated in Goldwater v. Ginzburg, supra, 414 F.2d 324, at p. 343: ‘Recklessness is, after all, only negligence raised to a higher power. To hold otherwise would require that plaintiff prove the ultimate fact of recklessness without being able to adduce proof of the underlying facts from which a jury could infer recklessness. It would limit successful suits to those cases in which there is direct proof by a party’s admission of the ultimate fact, certainly a situation not intended by the Supreme Court. See St. Amant v. Thompson, supra, 390 U.S. at 732-733, 88 S.Ct. 1323 [at 1326].’ ” (Emphasis supplied.)
Although the record in this case is viewed from the standpoint most favorable to plaintiff, and although his position is given every favorable inference, and although all of the required caution is applied, the record does not reflect the existence of a genuine issue on the underlying material facts relative to the controlling factor of “actual malice.” Completely lacking is an indicia of evidence reflecting “knowledge” or “reckless disregard” on the part of defendants. Of course, the mere assertion that defendants had such “knowledge” or “reckless disregard” will not suffice. Categorical assertions of ultimate facts, without supporting evidence, is not sufficient to defeat a summary judgment. Maxted v. Pacific Car & Foundry Co., Wyo., 527 P.2d 832 (1974); Cantonwine v. Fehling, Wyo., 582 P.2d 592 (1978); Keller v. Anderson, Wyo., 554 P.2d 1253 (1976).
The definitions of terms having distinct legal meanings and the determination of the standards under which such terms are applied to the facts in a given case are questions of law for the court. The determinations as to whether or not such standards are met and whether or not the facts of a given case fall within such definitions are questions of fact for the jury or other fact finder. Miller v. Reiman-Wuerth Company, Wyo., 598 P.2d 20, 23 (1979).
In this case, “knowledge of falsity” and “reckless disregard” are terms with distinct legal meanings in relation to the context in which they are used. 23 Words and Phrases 446, et seq. and 36 Words and Phrases 799, et seq. The definition of “reckless disregard” in the context of a libel action is set forth in the quoted portion of Widener v. Pacific Gas & Electric Company, supra. A definition of “knowledge of falsity” in the context of a libel action is set forth in Hutchinson v. Proxmire, D.C.W.D.Wis., 431 F.Supp. 1311, 1328 (1977):
“ ‘Knowledge of falsity’ presumably means just what it says: subjective awareness by the defendant that his statements were false. * * *” (Emphasis supplied.)
Keeping in mind that the evidence of “knowledge of falsity” and of “reckless disregard” must be subjective as it relates to defendants, i. e., not objective such as it might relate to that which a “reasonable” or “average” person would know or disregard; and keeping in mind that we are not concerned with the actual truth or falsity of *844the statements in this respect or with the animosity or prejudice of defendants toward plaintiffs, if any, or with the way in which defamation, if any, is accomplished, Kapiloff v. Dunn, 27 Md.App. 514, 343 A.2d 251 (1975), a search of the record does not reveal the potential for any evidence relative to “knowledge of falsity” or “reckless disregard.” There is no reference to the existence of evidence on this issue. There is no indication of an improper motive for publishing the material alleged to be false. The recitation of the statements here alleged to be defamatory may be interpreted to show animosity, but such is not a material issue. The recitation of such statements does not in itself establish the falsity of them, let alone the “knowledge” of such falsity, or a “reckless disregard” with reference thereto.
In summary, the record does not show a potential for evidence reflecting that defendants had “knowledge of the falsity” or a “reckless disregard” of the truth of the statements alleged to be false. These material items, therefore, were not genuinely placed in issue and a summary judgment was proper as a matter of law.
APPENDIX A
TRANSCRIPT OF EDITORIAL — K-2 July 13, 1976
As the result of inquiries which began in February into certain business dealings of the Natrona County Airport Board, K-2 has learned that the large twelve thousand square foot hangar # 1 at the county airport is being leased to a private corporation called Natrona Service, Inc. Records of the Wyoming Secretary of State reveal that the Company is controlled by the very same person who is a member of the Airport Board and up until yesterday served as President — John MacGuire. Rentals charged to that corporation are far below what would be asked for comparable space elsewhere in the community. The hangar is being used primarily for a mineral claim staking business rather than as a public aircraft flying service, the intended purpose of the building, and the latest lease acknowledges this.
Even after it became known to the Airport Board and the Natrona County Commissioners that K-2 was investigating an apparent conflict of interest, a new ten-year lease was granted MacGuire’s personal corporation, though his previous lease would not have expired until January 31, 1977. Despite the fact that the Airport Board is desperate for income, the new lease does not increase the rental charges over the previous term. Mysteriously, for rent computing purposes, Mr. MacGuire’s hangar shrunk from 12,570 to 9,760 square feet from one lease to the next.
Further, we found that the Airport Board failed to advertise the space to other prospective renters, and that such space was available at the bargain basement rate of 3 cents per square foot per month. The rental for the massive hangar # 1 is only $292.80 per month. Many apartment dwellers in Casper pay more than that.
Member MacGuire in a June meeting of the Board participated in and actually led a discussion which could result in the expenditure of $179 M in taxpayer funds for the improvement of his and other airport hangars, even though his lease says that such improvements are his private responsibility. If the Airport Board were to spend $179 M on the five hangars proportionately, the cost of the work of the (MacGuire hangar would be $36,000. Under those circumstances, the $3,500 per year rental fee) MacGuire pays would barely cover the. interest, and would not pay off the investment. Therefore, if the taxpayers were to invest further into the board member’s private business through the improvement of his leased hangar, it would be the same as giving him free rent at the taxpayer’s expense.
An examination of the lease also reveals that Mr. MacGuire is not required to pay the Airport Board the same additional rental of 4 cents per gallon for aviation fuel as do the lessees of the other four hangars. Other lessees pay 4 cents on all gallonage sold to others or used by themselves.
*845MacGuire signed other hangar leases as President of the Airport Board but signed his own lease as President of Natrona Service, Inc. In the case of MacGuire’s personal lease then Board Vice-President Jan Wilking signed representing the Airport Board.
K-2 also has learned that the Airport Board in the past has permitted the use of county employees labor for the repair of buildings under lease at no charge to the lessees, and that the CPA firm which examined the airport books last year said that the Board’s bookkeeping was at variance with generally accepted accounting principles.
Although Mr. MacGuire and his buddies on the County Airport Board made it so difficult to gain access to the public records in their possession, that our attorneys had to threaten suit under the Wyoming Open Records Law, K-2 has enough information now to conclude that the operation of the Airport Board is shabby and disgraceful and must be cleaned up. If what Mr. MacGuire and others are doing at the airport in mixing their personal business with that of the public is not against the law, it ought to be. County Attorney Burke’s investigation certainly is justified. The airport does not belong to the County Commissioners nor does it belong to their appointees on the Airport Board. It belongs to the taxpayers of Natrona County, who received the former Air Force base as a gift from Uncle Sam in 1952.
At least two of the three County Commissioners have been aware of aspects of MacGuire’s dealings for several months yet they still reappointed him to a new 5 year term, starting July 1. K-2 believes that the County Commissioners, by reappointing Mr. MacGuire, in any capacity have contributed to a situation which is nothing short of self-dealing and conflict of interest.
Coupled with the news of the illegal award of haying contracts and the grant of special water privileges to members of “The Airport Club”, the message should be loud and clear, that those who serve on the Airport Board and those who appointed them should be told that government is not a vehicle for the support of a select few at the expense of the many.
The people of Natrona County are entitled to county boards that are operated in an open and clean manner. They should not be packed with buddies and business associates of the County Commissioners.
K-2 believes that by any moral, legal or ethical standard, no person holding public office by election or appointment has the right to mix his personal pocketbook with that of the public.
APPENDIX B
TRANSCRIPT OF EDITORIAL — K-2 July 28, 1976
On July 13, KTWO charged in an editorial, that a member of the County Airport Board, John MacGuire, was mixing his personal business with that of the public by leasing a 12,000 square foot hangar from his own board at rates far below the local market. The editorial exposed the fact that Mr. MacGuire was enjoying the use of the nearly three thousand square feet of space for his business at absolutely no charge. The lease was granted without advertising the availability of the building to other potential renters. A number of other serious deficiencies were pointed out, and K-2 is prepared to document all of its contentions.
Every member of the Airport Board and each of the County Commissioners was mailed a copy of the editorial along with written notice of the availability of free time to respond to the editorial. K-2 took other steps to encourage a reply, but after two full weeks, there has been no such request from those in positions of authority. Perhaps the Commissioners and the Airport Board members have been too busy issuing votes of confidence in each other to tell the public how county business is being conducted.
As the result of further investigation, K-2 now is prepared to state that the new ten year lease the Airport Board granted in *846April to its then President MacGuire would seem to be depriving the taxpayers of Na-trona County of at lease $12 thousand dollars a year in potential income, or a total of $120 thousand dollars if conditions remain unchanged.
The lease is written at the rate of 3 cents per square foot per month, and MacGuire uses the building for offices and operation of his mineral claim staking business. Elsewhere in the Casper area, the going rate even for dead storage space is more in the area of 20 cents per square foot. That is more then 600 percent higher than MacGuire is paying on his sweetheart deal. The Airport Board will never know precisely how much it is giving away until it voids the defective lease and offers the space on a competitive basis.
The problem here goes well beyond that of a county board member engineering himself a good deal at the public’s expense. The ethics and morality of such transactions quickly become known to others who say, “If somebody can do it, why can’t I?” It spreads like a cancer throughout government if allowed to go unchecked and unchallenged. The press has a public responsibility to see that it doesn’t, since one politician generally will not police another.
K-2 believes that by issuing a blanket endorsement of MacGuire’s actions, the County Commissioners have set an ethical standard that is too low for the people of Natrona County to accept.
APPENDIX C
TRANSCRIPT OF EDITORIAL — K-2 August 16, 1976
The Natrona County Airport Board will have an opportunity Tuesday to restore some of the public’s lost faith in the quality of its county government. The Board is meeting primarily to act upon airport leases which were issued illegally behind closed doors. With its own attorney and a full-time paid manager and staff, K — 2 is surprised at how far the Board has strayed from the path of propriety.
The big bone of contention is the conflict of interest involving the hangar lease of Airport Board member John MacGuire, the lease having been awarded while MacGuire served as President of the Board, without giving others the opportunity to bid on the space. A previous K — 2 editorial pointed out that MacGuire’s “sweetheart deal” would cost the taxpayers of Natrona County at least one hundred thousand dollars in lost potential income based upon the going rate for such space in Casper.
The Airport Board has tried to save face for its 3 cents per square foot giveaway to MacGuire by saying the price is in line with what some other airports in the region are charging. K-2 is not particularly concerned about what is being charged in Grand Junction or in Timbuctu. We are interested that the taxpayers of Natrona County receive fair rental income based upon the going rates in Casper, Wyoming in the year 1976. Anything less than that is a breach of public trust on the part of the Airport Board. If there is any question in their minds, let them go out and try to lease space and find out on an open competitive basis what the Casper rental market is like.
Then there’s the matter of MacGuire’s space being 12,570 square feet rather than 9,760 square feet for rent computing purposes. When K-2 revealed that the Airport Board President was not being charged for nearly 3,000 square feet each month, MacGuire wrote a check to repay the county for three months arrears. However, K-2 has learned that MacGuire’s payment was a mere token since he has been receiving the benefit of the free space not just for three months, but actually for a number of years. As of last week, the bulk of his rent underpayment had not been collected by the Airport Board.
Many Natrona County residents have complimented K-2 for the investigative reporting which unearthed the Airport lease irregularities. Actually, it was a lot simpler than it appeared. All we had to do was read paragraph 4 of the old lease and paragraph 4 of the new lease and there it was! It makes us wonder how Airport *847Manager George and his boss, Mr. MacGuire didn’t catch it, too. MacGuire signed it and George must have presented it. If K-2 had not reported it, it would have cost the taxpayers another ten thousand dollars over the term of the lease.
This leads us back to the matter of mixing one’s personal business with that of the public and the conflict of interest that results. As for the miscalculated rent, one can see how terribly, awfully awkward it must be for Airport Manager George to put the arm on the man who signs his paycheck. When serving two masters, it’s usually the public master which gets the short end of the stick.
There is on file in the office of the Natro-na County Clerk on page 84, Book 141, a Transfer Deed dated May 12, 1952. This document conveys from the United States of America to the people of Natrona County, Wyoming, 29 tracts of land totalling some 2,000 acres, nearly 120 buildings and supporting equipment which had been an Air Force base. The pricetag from Uncle Sam to the people of Natrona County for the multi-million dollar facility was exactly zero. Not a dime.
K-2 is determined to see that the property is operated in the best interests of the general public, not just for a special few. We hope there are enough men of conscience serving on the Airport Board Tuesday to outvote those whose shameful disregard of ethical conduct has evoked the public’s indignation. Airport leases must be granted openly and cleanly with an equal opportunity for all.
APPENDIX D
TRANSCRIPT OF EDITORIAL — K-2 August 27, 1976
Any remaining doubt as to whether the public was being ripped-off as the result of hangar rental irregularities by the Natrona County Airport Board should have been settled by last week’s meeting. It is ironic that at the same time the board was ratifying a 10 year lease under which Airport Board member John MacGuire will receive more than $100 thousand dollars in taxpayer subsidy for his private business, the members had the gall to make it known that they may ask the County Commissioners to cut the airport in for a share of the next 1% sales tax package. Won’t it be swell to have that to ponder while standing in line at the supermarket check-out counter. It means some of the extra 1% tax you pay on groceries may be going directly into the Airport Board member’s personal pocket.
A reporter asked Mr. MacGuire a question regarding his accountability to the public. The response of this public servant was “screw ’em”. Well indeed he has, and the answer merely confirmed an attitude that hardly is in keeping with open and clean government. Sadly, the County Commissioners and their cronies have chosen to “circle the wagons” and “stonewall it” in the face of a loss of public confidence in the quality of county government.
By refusing to collect the years of back rent owed the county by Mr. MacGuire and refusing to charge prevailing rates for space in the fact of conflict of interest questions, the Airport Board is burning the public’s money in the streets. If they insisted upon a fair price for Mr. MacGuire’s building rental, it might not be necessary to ask the taxpayers to pony up that amount.
Airport Board members are appointed by the County Commissioners and therefore cannot be voted out of office. But the people who appointed them and condone their actions certainly can be booted out on election day.
By stubbornly defending Mr. MacGuire’s abuse of an appointed position for his own personal gain, the County Commissioners are saying to the public, “If you don’t like it, do something about it! ”
Two of the three County Commissioners will be appearing on the General Election Ballot this year. County Commissioner Chairman John Burke, Mr. MacGuire’s staunchest ally, is seeking another four year term. Commissioner Vern Rissler, without giving up his present commissioner’s posi*848tion, has decided to make his talents available to the State Senate. Both of these candidacies can serve as a referendum as to whether the people of Natrona County want public officials to intermingle their personal pocketbooks with the public cash drawer.
K-2 has presented hard, cold evidence to prove that this is exactly what has happened. Not a single fact that we have presented to the public has been refuted. Repeatedly, we have offered freetime to those involved, but to no avail.
The situation must be cleaned up and it’s up to the people.
APPENDIX E
TRANSCRIPT OF EDITORIAL — K-2
September 15, 1976
K-2 feels obligated to respond to County Commission Chairman John Burke’s statement on news media criticism. We have purposely delayed this response a few days so that it would not come on the eve of the Primary Election.
There was a practice among the ancient tribes that when a messenger was the bearer of bad news, he was summarily executed. Surely, Commissioner Burke was not suggesting that we revert to that practice when he charged the news media with “half-truths, mud-slining and innuendoes.” His statement simply is not true.
It is hardly an innuendo when K-2 states flatly, in a simple declarative sentence, that there has been self-dealing practiced by a member of the Airport Board. It is hardly mud-slinging and half-truth when we have provided names, dates, dollar amounts and the provisions of lease documents. It’s all a matter of public record.
So, Mr. Burke’s wrath should more appropriately be vented upon those who have used their public position for personal gain rather than against the messenger who has the responsibility to bring him the bad news.
The Commissioners were told of the situation at the airport fully seven months ago. Forming a powerless committee to look into the matter at this date is like locking the barn door after a very large horse has escaped.
Mr. Burke’s statement raises another question. Should the County Commissioners speak out only when criminal acts are committed? As the highest elected officials in the county, shouldn’t they speak out when unethical practices are exposed? If Mr. Burke is as concerned about “the entire fabric of local government” as he says, he should set a high moral and ethical standard for County Government by speaking out against those who are making a bad name for the many public spirited citizens who give freely and unselfishly of their time, serving on city and county boards in the best interests of the community.
County Commission Chairman John Burke’s statement reads as follows: September 8, 1976
To: The Citizens of Natrona County From: John P. Burke
For many weeks the Casper Star-Tribune and KTWO have almost daily criticized certain County Boards, and Commissioner Ris-sler and myself. Up to now, I have elected to ignore these criticisms because a certain amount of it should be expected by any elected official. Recently, however, these two self-appointed guardians of the conscience of Natrona County have seen fit to publicly indict my family name and my Irish ancestry.
Whether or not I am elected a County Commissioner is not of this moment important — win or lose — I will still be John Patrick Burke and I will still be an American of Irish ancestry. Important to me however, as I am sure it is to every citizen of this county, is my personal reputation, creditability and integrity.
During my almost forty years of adult life, I have endeavored to serve Casper, Natrona County and Wyoming in many civic ways. I have done so in the belief that each of these: Casper, Natrona County, and Wyoming have been good to an Irish immigrant family that settled here in 1901, the *849first of whom was my father who started his dream of becoming an American citizen as a sheep herder on the plains and mountains of central Wyoming. He came with nothing and asked nothing, as did so many other immigrants of that time, except the opportunity to work hard as a free man. Work hard he did and with perservance and good fortune he succeeded. In succeeding, however, he instilled in his children the obligation to be active in the affairs of Casper, Natrona County and Wyoming— not for personal gain, but as some partial repayment of a debt of gratitude.
Never, in all the years that I have served this county, have I been so simple as to believe that everyone always agreed with my decisions. I have fully believed the old saying that “show me a man who has no enemies, and I’ll show you a man who has done nothing.” On the other hand, I have believed that I had certain obligations to the people of Natrona County, in whatever position I held and in whatever decision was before me. The obligation was to perform my duty as I believed it to be, in the best interests of the citizens of this county, without regard for my own personal interest and without advantage to me or my family. This I have done.
As County Commissioners, Vera Rissler and I have been criticized for appointing “cronies” to certain administrative boards of the county. Cronies means “intimate friends”. Fortunately for this county many of our friends have accepted appointments to various boards. We are proud of our appointments, for we have been able to prevail on some of the most responsible and successful men and women in this county to serve, not for pay, but for personal gratification in helping to make this county a better place in which to live and work. Sure — we don’t agree with every decision each of these boards has made during our terms of office but we do respect the integrity of these boards and of their members. Every thinking person must realize that were we to discharge every board each time the commissioners disagreed with their decisions we would soon have no boards because no responsible citizen would be willing to serve on them. These boards are not “rubber stamps” for the County Commissioners, and let’s hope they never are.
Let’s look at the accomplishments that have accrued to the people of this county over the years — mostly due to the dedicated service of responsible citizens serving gratuitously on these boards. We have today—
A — One of the finest public supported hospitals in the Rocky Mountains. This has enabled Casper to attract some of the finest specialized medical talent available in our nation to practice here.
B — One of the finest municipal airports to be found for a community our size — anywhere in the nation. Jack Rosenthal, General Manager of KTWO is regarded as one of the more extensive air travelers living in our county. He knows that overall our airport facilities are something to be proud of — for he — far more often than most of our citizenry has had the opportunity to compare them first hand.
C — One of the largest and best attended County Fairs in the Rocky Mountains is our own Natrona County Fair and Rodeo. This is not by accident, but rather the result of years of trial and errors, sweat and anguish, on the part of many in our county who have served unselfishly on the Fair Board.
I could go on about each of our boards, but the conclusion is the same, namely, that we have much to be proud of in this county that is the direct result of dedication and hard work on the part of our boards.
Now — what is at stake for Natrona County? At stake is that should unfounded and unreasoned personal attack continue the entire fabric of local government will suffer. The citizens of the county will be deprived, because in the course of time with repeated innuendos by KTWO and the Casper Star-Tribune the people will lose faith in their government — not because of lack of performance, but because of baseless criticism. Our responsibility as County Commissioners is to assure good management for and to the affairs of this county. We believe the record shows that good management has in fact been supplied. We believe that investí-*850gation, initiated at our request, by the elected County Attorney has not resulted in any basis for filing civil or criminal charges against any of our board members or county employees.
It appears that our attackers are resorting to the rule that continually stated, unfounded allegations become “facts.” This is accomplished only if the readers and listeners are gullible enough to be unable to distinguish fact from fiction.
I submit that if the Casper Star-Tribune and KTWO have evidence of graft, corruption or criminal activity on the part of any elected official, any member of any county board, or any county employee, they owe an obligation to the citizens of the county to submit the documented, concrete evidence to the County Commissioners and the law enforcement agencies. This is the proper way to handle their responsibility — rather than the nebulous method of guilt published and editorialized by both the Casper Star-Tribune and KTWO in press innuendos designed to make conclusions in and for the public, without due process of law.
In conclusion I state, without reservation, that the affairs of Natrona County are in an excellent status, free of corruption, and that the real disservice to the people of Natrona County is not in the performance of the County Commissioners, their appointed boards and county employees, but rather in the half truths, mud slinging and innuendos of KTWO and the Casper Star-Tribune.
/s/ John P. Burke
John P. Burke
APPENDIX F
TRANSCRIPT OF EDITORIAL — K-2 December 9, 1976
The report of the Grand Jury investigation of the Natrona County Airport contains much interesting matter for those who read the entire text with care. For example, it says:
1.That contracts and leases had been acted upon illegally in executive session, closed to the scrutiny of the public and the press. There are at least four separate references to such acts in the Grand Jury report.
2. That public supplies and equipment have been improperly used for private purposes.
3. That the good business practice of public bidding on major transactions has not generally been observed.
4. That county employees on county time have been used to perform maintenance on a private water line at no charge to the owner, a former Airport Board member.
5. That at least one board member was not maintaining sufficient “arms length” in his personal transactions with the board.
6. That a hangar was occupied by an Airport Board member under a “verbal sublease”, a poor business practice.
7. That this Airport Board member had been underpaying the county to the extent of 2,810 square feet of leased space.
These Grand Jury findings must sound very familiar to many people since they are, point by point, what K-2 has been saying editorially since July. These findings are also somewhat in contradiction with the general laudatory conclusions of the report.
The blanket criticism of the news media seems to be unwarranted on the basis that the report confirms what the press has been charging. To chastise the media for telling the truth should not take place in a free society under the First Amendment. If the Grand Jury wishes to raise the cry of “half truth and innuendo” let them specify exactly what they feel falls into that category. The day should never come when the press should be immune from criticism. This, too, is healthy in a free society.
There need be no despair about the cost of the airport investigation. The monies that will be recovered from airport lease underpayments by one Airport Board member and other recoveries underwrite a major part of the cost. This underpayment was not uncovered by the public officials charged with that responsibility, but rather it was first revealed in a KTWO Editorial.
*851We respectfully take exception to one other major area in the report and that is the jury’s finding that “the rental rates are competitive taking into consideration the location and types of structures and facilities”.
K-2 believes that a through study would reveal that the going rate for warehouse space in the area is 20 to 25 cents per square foot per month rather than the 3 cents being paid by one Airport Board member.
It should be very apparent as a result of the Grand Jury investigation that public boards in Wyoming need stronger and clearer guidelines for the conduct of the public’s business than they have presently.
We are pleased that the Airport Board already has taken action to correct many of the deficiencies that we have pointed out. The public will benefit from the charges and investigation by a more open and businesslike operation of this board and others.
. As distinguished from affidavit allegations, discovery purpose depositions, etc.
. There is a fundamental difference between a determination, as I here make, that there is no genuine issue as to a material fact, and a determination, as made by the majority of the court, that such issue exists but that the evidence on one side is not sufficient for “convincing clarity.”
.Part of the difficulty in analyzing cases of this nature arises from use of the term “actual malice.” As defined, it is knowledge that the published statement was false or that it was published with reckless disregard of whether or not it was false. New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Under this definition, the mental element is properly “scienter” rather than “malice.”