Attorney Anne Sulton says she's calling for a review of all lawyers involved in Denver's $75,000 settlement with Detective Leslie Branch-Wise because of concern that the cash may have been intended to pay for the latter's services as a witness in a trial over a lawsuit filed by fired city employee (and Sulton client) Wayne McDonald that never actually took place.
"All of it is hearsay at this point," Sulton concedes, "but the hearsay is so troubling that I have an obligation as a member of the Colorado state bar to ask the court to take a look at it — because we don't want our system undermined by the improper payment of witnesses in cases that are still pending. That upsets our whole system."
The latest development flows from Branch-Wise's late-February revelations of inappropriate text messages sent to her by Mayor Michael Hancock during the 2011-2012 period when she was on his security detail. Branch-Wise has asked that Hancock be investigated for sexual harassment, which the mayor denies committing. Last week, however, Denver City Council decided against launching such an inquiry, and the detective is precluded from suing by the aforementioned settlement, which was finalized in 2013, a year after McDonald was pink-slipped for what Hancock spokesperson Amber Miller described as "serious allegations of misconduct" against Branch-Wise; he was accused of making comments similar in tenor to those in the mayor's texts.
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By then, McDonald had already sued Branch-Wise, Hancock, Miller and the City and County of Denver over his dismissal, as well as for "disclosing confidential personnel information" in violation of the Colorado Open Records Act. In 2016, weeks before the matter was scheduled to be heard in federal court, Denver paid McDonald $200,000 to settle the dispute. But lawyer William Sulton, Anne's son, who took over as McDonald's counsel in January 2015 following his mother's retirement, is now talking about filing a new complaint prompted by Hancock's allusion to McDonald in his video apology to Branch-Wise and the city's failure to disclose the mayor's texts to her, including one in which he asked if she'd ever taken a pole-dancing class..
Anne Sulton's letter calling for information about the lawyers who worked on the Branch-Wise pact (it's accessible below) is separate from any new suit, but it's potentially just as damaging. After all, Anne's requests could produce evidence that the $75,000 was intended to protect the mayor from future litigation over the texts, which weren't disclosed during the discovery process for the McDonald complaint — and William believes they should have been.
Prior to taking on McDonald's cause, Sulton says, she had "a very positive impression" of Hancock during the period when he headed the Urban League, before he was elected mayor: "I worked with him in my capacity as legal counsel for the Denver NAACP. We were pushing civil-rights and social-justice issues, and sometimes it wasn't easy to get people to join on a particular issue. But every time [NAACP executive] Minola Uphsaw went to the Urban League and asked for support, we got it. We knew we could always count on them, because he was supportive of the broad-based civic issues we were concerned about."
Nonetheless, she was open-minded when McDonald told her his story. "I don't know if Wayne McDonald knew, but I had actually represented several women on sexual-harassment complaints. So I had a professional history of litigating these kinds of cases, and I know what the legal definition of sexual harassment is — and what Ms. Branch-Wise described didn't fit the legal definition. There's a really big difference between flirtatious conduct in the workplace and sexual harassment — a huge difference."
According to Sulton, "the only evidence Ms. Branch-Wise had to support her claim was a secretly tape-recorded conversation. I then did a timeline, and there was nothing about her conduct that led me to believe there had been any sexual harassment, or that the nature of the language in the workplace was unwelcome."
The McDonald lawsuit was filed in 2012 and was still winding its way through the system in October 2014, when Sulton began a retirement process that culminated the following January. From that point forward, William was in charge of the case and she kept an eye on its progress from afar; she spent a substantial portion of the next eighteen months traveling internationally.
When asked if the City of Denver should have provided Hancock's text messages to Branch-Wise as part of the lawsuit's discovery process, Sulton replies, "I can't give you an answer to that because I haven't seen William's discovery request. But I trained him, and part of my training was to show him how to do a broad-based deep dive for everything, including what color socks someone is wearing — and if there's a picture of that sock, that's a document we want."
This process is illustrated by Sulton's letter, addressed to Kirsten Crawford, legislative counsel for the Denver City Council. The term "document" is said to include but is not limited to dozens of different formats, including papers, emails, text messages, videotapes, audiotapes, WAV files and more.
The letter asks the city council to provide this material on or before April 16, and Sulton says, "Whether or not I get the response does not affect whether or not I ask the court to review the conduct of these lawyers. What I'm looking at is simply my affirmative ethical obligation as a member of the Colorado bar to alert the court when I suspect that another attorney has engaged in unethical conduct."
Prompting the inquiry was a comment made by Denver7 investigator Tony Kovaleski during an appearance on a KNUS radio program hosted by Craig Silverman, a former chief deputy district attorney with the Denver District Attorney's Office who's currently in private practice. During the conversation, Kovaleski said he was told by the City of Denver that Branch-Wise had been paid the $75,000 because she was going to be a key witness in the McDonald case. "When I heard that, I was like, 'Whoa!'" Sulton recalls.
Payments are allowed for expert witnesses, such as auto-accident reconstructionists called to share their knowledge in car-crash cases, Sulton says, and they're also allowed in a de facto sense for confidential informants who testify in exchange for immunity or a lesser sentence. "But these are really narrow exceptions," she stresses. "If there's a crash and a person says, 'I'm not certain if the light was yellow or red,' we can't ask them, 'Would your memory be a little better if I gave you some money?'"
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Granted, Sulton doesn't have independent knowledge to confirm Kovaleski's statement — "but Tony is a good journalist with a good reputation." Furthermore, she goes on, there's no indication that the $75,000 was paid in response to a claim Branch-Wise made against the city.
"Every settlement agreement I signed with the city since 1994, when I first started suing the city, always contained the case number and case action, so you'd know what claims were being released," Sulton says. "You have to include them. But in Ms. Branch-Wise's settlement agreement, that's not mentioned. If it's not there, it leads me to believe she never filed an EEOC [Equal Employment Opportunity Commission] complaint — and if you don't file an EEOC complaint, you can't bring that claim into court. So I know of no situation where the city would pay her money. And when Tony said she'd been paid to be a witness, that was a huge red flag."
In her view, "the only way to figure out if this is true or not is to let the court know I heard this. And the court should look at this because it's such a serious statement. I hope it didn't happen, but if it did, and lawyers were actively facilitating the payment of money to a witness for testimony, I think their license should be revoked."