Denver Public Schools quietly paid school board Vice President Auon’tai Anderson a $3,500 settlement earlier this year to help cover legal fees he incurred when the Board of Education investigated anonymous and unsubstantiated allegations of sexual assault made against him.

The settlement was never intended to be made public, according to the legal agreement, which specifies Anderson and DPS can’t acknowledge its existence or release the document — even under Colorado’s public records act — unless required by law or court order.

With Anderson’s consent, DPS released a copy of the settlement agreement Monday after The Denver Post and Chalkbeat Colorado published stories detailing the transaction and the district’s repeated refusal to release the settlement.

“It is unfathomable that any public school district would include a provision in a settlement agreement by which it commits to withhold that public record from disclosure under the Colorado Open Records Act unless ordered to do so by a court,” said Steve Zansberg, an attorney representing The Post and Chalkbeat Colorado through the Colorado Freedom of Information Coalition. “Colorado’s appellate courts have declared, unequivocally, on several occasions, that such contractual commitments are unenforceable because they are contrary to the state’s public policy.”

The settlement was signed in March and came out of the school board’s budget, which was more than $232,900 last fiscal year, according to expense transactions reviewed by The Post.

“I was reimbursed for the out-of-pocket expenses I paid for representation during the ILG investigation,” Anderson said in a statement, referring to Investigations Law Group, the firm hired by the school board to conduct the 2021 investigation.

That months-long investigation found all of the sexual assault allegations to be unsubstantiated.

DPS Board President Xóchitl “Sochi” Gaytán said she was unaware of the settlement until recently and noted that the school board did not take a vote to approve the payment.

“The state statute allows for a school district to reimburse a Board of Education director for expenses incurred as a result of their duties,” DPS spokesman Scott Pribble said in a statement. “The amount that was reimbursed was under the threshold that requires Board approval.”

Denver’s school board hired outside firm ILG  in April 2021 after Black Lives Matter 5280 circulated an allegation on behalf of an anonymous woman alleging she had been sexually assaulted by Anderson. The investigation was later expanded to look at additional allegations.

Though the ILG investigators concluded the sexual assault allegations were unfounded, they did report that Anderson had flirted online with a 16-year-old student and made intimidating social media posts, actions that led the school board to publicly censure Anderson.

The $3,500 settlement, agreed upon in October 2022 and signed March 17, represents only a portion of the legal fees Anderson incurred during the investigation. He said they totaled more than $40,000.

Anderson also filed a defamation lawsuit in 2021 against BLM 5280 and others who made allegations of sexual assault. Most of Anderson’s claims were dismissed, but the Colorado Court of Appeals last week revived part of the lawsuit by reversing the dismissal of his claims against a parent over a comment she posted on social media after testifying before state legislators.

By signing the settlement agreement, Anderson waived any claims and demands for damages, costs or expenses that he might have against DPS and board members related to the ILG investigation, including expenses he incurred himself, according to the document.

The claims he waived included any under Title VII of the Civil Rights Act and the Colorado Anti-Discrimination Act, as well as any based on wrongful discharge, defamation, or invasion of privacy, according to the settlement.

Anderson also agreed in the settlement that he would not seek further reimbursement or any other payment via the school board or state statute.

Repeated refusal to release document

The Post first requested a copy of the settlement agreement in May under Colorado’s open records law after seeing the payment listed as a line item among the school board’s expenses. That list was posted publicly last month.

But district officials repeatedly denied the request — offering varying justifications — including as recently as Monday, before finally releasing the document.

The settlement included a stipulation that its existence would not be made public, including “the circumstances or facts that led to this agreement” — even if it was requested under the Colorado Open Records Act, or CORA, unless required to do so under court order.

The district initially denied The Post’s requests by citing a provision of CORA that allows officials to withhold personnel files. But courts repeatedly have said personnel records only pertain to employees’ personal information, such as addresses, and that settlement agreements are public records, said Jeffrey Roberts, the executive director of the Colorado Freedom of Information Coalition.

“Auon’tai Anderson is not an employee of the school district; he is a school board member who is not paid,” he said, adding, “So that makes you wonder how they can claim a settlement is a personnel file that cannot be disclosed under CORA.”

DPS last week provided The Post with a copy of the invoice that Anderson submitted for reimbursement. It shows the school board director made a $3,500 payment to the law firm Decker & Jones in April 2021.

On Monday afternoon, DPS general counsel Aaron Thompson said in an email that the invoice shows Anderson paid the attorney who represented him during the ILG investigation.  But he once again denied access to the actual agreement, saying the document is “akin to a record of sexual assault or harassment protected from disclosure” under state statute.

Settlement agreements rarely go into detail about such claims, said Zansberg, who represented The Post and Chalkbeat in their efforts to obtain the document.

“I don’t think under any fair reading that this can be considered a record of a sexual harassment investigation,” he said.

Two hours later, with Anderson’s consent, the district released the settlement agreement.

Public interest in settlement

There is legitimate public interest in why a school district reached a financial settlement agreement with one of its elected board members, Roberts said, adding, “There’s a question about why the board would agree or decide to pay a school board member.”

Gaytán said DPS paid Anderson the settlement without a vote by the board and that she did not know about the settlement until she requested a copy of the board’s transactions after receiving media requests for the records.

Anderson said board approval was not needed for the settlement because it was under $1 million.

But Gaytán said members should have been given a chance to vote on whether to approve the settlement given it was related to a previous board’s decision to conduct the 2021 investigation.

“We deserve that opportunity to have a discussion whether or not there was a majority or consensus,” said Gaytán, who has called for a new policy on directors’ expenses after members spent more than $40,000 traveling to conferences this past year.

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Updated 6:15 p.m. Oct. 2, 2023: This story has been updated to clarify that while the settlement between Auon’tai Anderson and Denver Public Schools was reached in October 2022, the agreement wasn’t signed until March of this year.