As hinted at this past March, the attorney representing former City of Denver employee Wayne McDonald, who was paid $200,000 in 2016 to settle a lawsuit over his firing, has filed a notice of claim that foreshadows a potential new complaint focusing on Denver Mayor Michael Hancock and Denver City Attorney Kristin Bronson.
Among the claim's arguments: Hancock broke the 2016 suit's non-disparagement agreement in his apology to Denver Police Department Detective Leslie Branch-Wise, a onetime member of the mayor's security team, over inappropriate, sexually themed texts dating back to 2011-2012, including one in which he asked her if she'd ever taken a pole-dancing class.
When we reached out to Hancock spokesperson Amber Miller, who was also a defendant in the 2016 suit, she offered the following comment from City Attorney Bronson: "No lawsuit has been filed, and I am confident that nothing I've said, nor anything the Mayor has said about Mr. McDonald, constitutes defamation."
The document, which is accessible below and alludes to previous Westword coverage, was obtained by KNUS talk-show host and attorney Craig Silverman, the man who broke the latest development during his August 25 radio show. He's been working on the story in conjunction with a media consortium that includes Denver7, Fox31, 9News, the Denver Post and his station.
Corresponding via email, Silverman notes that this amalgam, christened the Group for Transparency and Openness, was "put together to deal with the costs (approximately $2,000) the city wanted for production of documents."
Should McDonald prove successful in a new lawsuit, the amount of cash taxpayers might have to pony up would be considerably higher. According to Silverman, Anne Sulton, the now-retired lawyer who originally sued on McDonald's behalf, and the mother of his current legal representative, William Sulton, "told me on the radio that the City of Denver has a chance now to settle for $300,000, but that the demand will go up if and when they actually have to litigate."
The aforementioned apology video was released in late February after Branch-Wise, who's precluded from suing Hancock and the city by language in a $75,000 settlement she accepted in 2013, told Denver7's Tony Kovaleski about the aforementioned texts.
At the outset of the video, Hancock says, "Six years ago, Denver police detective Leslie Branch-Wise was a member of my security team. In May of 2012, she called me. She let me know she had requested a transfer out of the unit because a member of my staff had sexually harassed her. I listened, and what I heard greatly disturbed me. I apologized that this had happened. We reviewed the matter and took immediate action. The employee was fired within days."
The Post reported that the video had been deleted, but it remains online at this writing. Here it is:
In Silverman's view, "it appears the Denver Mayor’s office may have repeated its prior mistake. Mayor Hancock, on his YouTube channel, threw Wayne McDonald back under the bus and re-ran him over right after Leslie Branch-Wise came forward to Tony Kovaleski with sexy mayoral text messages at the end of February 2018."
Now, he adds, "the city has a problem. Denver and the mayor and the city attorney have qualified governmental immunity, which shields them from some forms of liability. To bring a lawsuit, this kind of notice of claim is statutorily required within 182 days of the offending acts, and the Sultons have now met that deadline."
The document maintains that "for decades, settlement agreements between the City and current or former employees typically or usually do not contain non-disparagement clauses. McDonald's does."
The clause reads:
Non-Disparagement and Agreement Not to Disseminate: Mr. McDonald, for his part, and Mr. Hancock, [mayoral spokesperson Amber Miller] and [former Denver Manager of Safety Stephanie O'Malley], for their part, agree that they will not make disparaging statements regarding one another. In addition, Mr. McDonald, Mr. Hancock, Ms. Miller and Ms. O'Malley agree that they shall neither publicize, nor disseminate, either directly or indirectly, any of the factual matters or discovery material developed in connection with this lawsuit.
The claim goes on to state that "for decades, settlement agreements between the City and current or former employees typically or usually specifically contain provisions" that exempt the entities and individuals making the pact from future liability, by way of the following language:
_____, individually and on behalf of his/her personal representatives, successors, heirs and assigns, does hereby fully release and discharge the City, all other related persons and entities, both past and present, including but not limited to the City's departments, divisions (including but not limited to the Department of ____, and the City Attorney's Office), successors, predecessors, assigns, attorneys, agents, employees, representatives, administrators, officers and directors, from any and all actions, causes of actions, claims, demands, losses, damages, attorney's fees, interest, costs and liabilities whatsoever, known or unknown, suspected or unsuspected, past or present, arising from or relating to matters asserted in or that could have been asserted in ____.
In his case, however, "McDonald's settlement agreement does not contain this provision," the claim points out.
The document goes on to maintain that the defendants of a possible lawsuit were guilty of defamation, breach of contract and fraud.
This last element stands out for Silverman, who reveals that Denver is accused of "hiding the $75,000 settlement with Leslie Branch-Wise from Wayne McDonald and his attorneys. Leslie Branch-Wise told Kovaleski she received hush money. The problem there is, the $75,000 came from taxpayer money."
These actions "all occurred in the context of McDonald’s suit against Hancock, Denver and Leslie Branch-Wise," Silverman goes on. "Here, one defendant (Denver) paid a co-defendant (Branch-Wise) $75,000 while the lawsuit was pending, and Wayne McDonald, through his attorneys, claim they should have been told all that before they settled with city for $200,000 shortly before the trial was set to begin. More than anything, the Sultons claim fraud because of the non-disclosure of the sexy mayoral text messages, which they credibly claim would have changed the price of the resolution of the prior litigation."
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The dollars-and-cents portion of the notice reads: "McDonald seeks $300,000 for the defamation, breach of contract and fraud he suffered, as well as the reputational and emotional distress damages he has suffered, or an amount deemed just by a court of competent jurisdiction."
To Silverman, the potential repercussions of the action could be enormous, particularly in light of Hancock's vigorous fundraising for a reelection bid.
"Denver thought this matter was dead and over," Silverman believes, "but it is now revived and dangerous as the Mayor seeks a third term. And Wayne McDonald has strong out-of-state lawyers in Anne and William Sulton."
Click to access the Wayne McDonald notice of claim.