The People's Hired Gun
Nearly two years after it began, a federal lawsuit filed by a Denver police captain against Mayor Wellington Webb and other city officials has been all but buried in a blizzard of paperwork and legal maneuvering, with no end in sight. The suit, which alleges sexual discrimination and political retaliation against Miriam Reed, at one point the Denver Police Department's highest-ranking female officer, has become so complex that it may be another two years--or more--before the case goes to trial.
The protracted legal battle isn't exactly good news for Reed or for Denver taxpayers, who are footing the bill to defend Webb, Chief of Police David Michaud, Manager of Safety Butch Montoya and the city against Reed's claims. But it's been a six-figure windfall for Anne McGihon, a private attorney hired by the city to represent its interests in the suit. City records indicate that her law firm, McGihon & Associates, has been paid more than $350,000 over eighteen months for its work on the case.
In fact, McGihon's aggressive defense of the city has already exhausted the city funds budgeted for the case through the end of next year; to continue to pay McGihon's legal bills, city officials will have to amend their contract with her firm, which has already been upped from $50,000 to $70,000 to $361,965.
City Attorney Dan Muse says he's satisfied with the job McGihon is doing. "I don't care what it costs," he says. "I'm not concerned that Westword may be concerned that the bill is $350,000. I have no apologies for spending whatever I need to spend to adequately defend the city's interest."
Muse notes that his office has relied on outside attorneys in a number of cases--usually complex environmental or securities matters in which staff attorneys may lack expertise, or when his office may be shorthanded or facing a possible conflict of interest. The most notable example is probably the $4 million the city coughed up for private legal help in defusing a Securities and Exchange Commission investigation into the sale of bonds to finance Denver International Airport, which Muse describes as "a well-spent investment."
"My strategy in that case saved the city millions and millions of dollars," the city attorney boasts. "The media always wants to jump on these stories about outside counsel at the front end and make sensational headlines, but nobody tells what a great job we do when we win."
The decision to hire an outside firm in the Reed case--at a cost now approaching four times Muse's own annual salary--is a clear signal that the city is treating the matter quite differently from a run-of-the-mill personnel dispute. Muse says the suit was filed at a time when his office's employment-law division had just lost two of its attorneys, but the McGihon contract lists several reasons for seeking the hire, including the "sensitivity" of the case as well as short staffing.
"I know of three other lawsuits against the police department and the city by current or former female police officers," says Reed attorney Ann Frick, "and in all three, the defense is being handled by staff attorneys at the city attorney's office. This is the only one I'm aware of that has outside counsel, being paid by taxpayer dollars."
Reed's lawsuit charges that she was passed over for the job of deputy chief because Chief Michaud and others in the Webb administration disapproved of her politics, from her outspoken crusading on domestic-violence issues (at one public forum, she reportedly claimed a 40 percent rate of spouse abuse among male police officers) to her support of Mary DeGroot in the 1995 mayoral election. Shortly after Webb's re-election that year, Reed filed a civil-rights complaint with the U.S. Equal Employment Opportunity Commission; the next day she was demoted from her position as division chief, a move she claims was retaliation for exercising her right of free speech. She now heads the department's records section.
City officials say Reed's claims are unfounded, and they have brought in McGihon to defend what they consider to be a crucial issue in the case: the police chief's right, under the city charter, to select his own management team. "This is not an issue about one particular female police captain," says McGihon. "This is an issue of the public safety of Denver."
A forty-year-old veteran of prestigious law firms in Florida and Washington, D.C., as well as Denver's Holland & Hart, McGihon has worked with the city on other cases involving environmental issues and affordable housing. She's also been active in Democratic Party circles as an organizer and fundraiser; last spring she finished second to Phil Perington in a bid to become the state party chair.
Although her firm's promotional materials don't claim a specific expertise in employment law, Muse says McGihon was chosen to handle the Reed case because "she's an excellent complex civil litigation attorney" with considerable federal court experience. And while the $157.50 per hour she's charging the city for her time (less for work performed by associates and law clerks) may seem steep, McGihon says it represents a substantial discount over her usual rates.
"That's not the rate I charge the general public, and I'm going to have pissed-off clients if you publish it," she says. "I billed a lot more as an associate at a D.C. law firm than I do now."
McGihon says she's had "ongoing discussions" with Reed's lawyers about streamlining the case, but after twenty months, the case still hasn't reached the discovery stage. It now encompasses two court actions; after several of Reed's claims were dismissed from federal court, her attorneys refiled them in Denver District Court.
Predictably, both sides have blamed the other for what McGihon calls "this enormous procedural morass," a boundless bog of complicated motions and counter-motions accompanied by not-so-brief briefs. (The legalese has waxed so thick that it's almost a parody of the form; one McGihon filing is captioned, "Defendants' response in opposition to plaintiffs' substituted motion and second motion to strike and/or dismiss defendants' setoff claims, or alternatively, to reconsider the dismissal of plaintiffs' breach of contract and promissory estoppel claims, including motions to strike under Rule 12f.")
"They have tried to bury me in paper," Reed attorney Frick says of the city's defense team. "I've never had a case where the complaint was filed a year and a half ago and the case has gotten nowhere. The case needs to get over these procedural battles and get into the substance."
Frick says McGihon's hardball tactics have included sending a letter to various current and former police officers directing them to not talk to Reed's investigators without the city's attorneys being present. Last fall, after Frick filed a motion complaining about the stonewalling, Magistrate Judge Bruce Pringle ordered McGihon to send another letter rescinding that directive.
But city officials say the case's mounting delays and costs are primarily due to the actions of Reed's own lawyers, who have made massive requests to obtain documents and interview witnesses and have repeatedly amended her complaint. "The reason the billings are five times higher than they ought to be is because Miriam Reed and her attorneys couldn't get their complaint straight and filed it five times," Muse snaps. "This is most extraordinary."
"They're pretty much driving the litigation, because they're generating the issues that have to be responded to," adds Wallace Wortham, supervisor of the city attorney's employment-law and risk-management section. "Every time my people have found a flaw in their complaint, we've asked the court to dismiss the complaint, and the court has permitted them to amend the complaint time and time again."
McGihon says she's had to respond aggressively to Frick's filings in order to protect her clients. "You can't play dead when you have a plaintiff's lawyer who's doing the exact opposite," she says. "I get something from her at least three times a week. What am I supposed to do? Roll over and not respond?"
McGihon notes that progress has been made in some areas, including the dismissal of several defendants and the narrowing of Reed's claims. Once the court decides whether Webb, Montoya and Michaud can be sued as individuals--a key ruling that both sides have been awaiting for months--the case should proceed more quickly, she says.
Yet a review of the court file suggests that some of the most costly wrangling in the case has involved peripheral issues. In the months of June and July of this year, during which McGihon & Associates billed the city more than $75,000 for its services, one major skirmish involved McGihon's attempt to file counterclaims against Reed, charging that she'd defamed the mayor and shown "disloyalty" to the police department. Reed quickly fired off a letter to Muse arguing that, since she was being sued in her capacity as a police officer, the city attorney's office should pay for her defense of the claims--in effect putting the city in the position of paying for both sides of the litigation.
McGihon then withdrew the counterclaims and refiled some of them as "affirmative defenses," but Frick maintains that the city should still indemnify her client for responding to them. (Muse, of course, disagrees.) In a letter entered in the court file, Frick also chided Muse for sending Reed's letter to McGihon, claiming that both Muse and McGihon have a conflict of interest in the matter. McGihon has since filed a motion objecting to the "scandalous and impertinent material" in the letter and demanding that it be removed from the court file.
Copies of McGihon's billings to the city, heavily redacted by the city attorney's office on the grounds of protecting attorney-client privilege, indicate that she charged the city for the time involved in sending a paralegal to the courthouse to see if the file had been removed. Her firm is now seeking to recover fees and costs in the matter from Reed, arguing that it was the plaintiff's responsibility to remove the letter. (Frick says the letter was filed with the court inadvertently and she thought it had been removed prior to McGihon's motion.)
"This is a pending motion before the court, and I hesitate to comment on it," McGihon says of the letter brouhaha. "But yes, the city should be billed for this, because it's a letter designed by the plaintiff's counsel for what I view as a kind of press feeding frenzy. It is inflammatory and impugns the credibility of the defendants and their counsel."
Despite the growing cost of the litigation, Muse says he has no hesitation about renewing McGihon's contract, which will have to be done before her August bills can be paid. "She's done an excellent job to this point, and I see no reason to change that," he says. "She'll continue to handle the lawsuit for the next five years if necessary. Miriam Reed is raising questions about the integrity of this mayor and this administration. These are issues of public policy that are worth fighting for, whatever it takes."
If Reed prevails in her lawsuit, the city will be on the hook for her legal fees as well as those of its outside attorney. But Muse says there's no chance of that happening.
"We will win this case," the city attorney declares, with the bravado of Joe Namath circa 1969. "It's a slam dunk. It won't even be close. I look forward to trying this case. I can hardly wait.
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