Defamation aspect of Sayre civil suit against EDA executive director to proceed

A photo Tom Sayre had taken of himself with Jennifer McDonald on June 18, 2018 celebrating the ITFederal groundbreaking behind EDA headquarters. Social Media File Photo

A June 2019 civil trial date was set in the defamation lawsuit of Warren County Supervisor Tom Sayre against Front Royal-Warren County Economic Development Authority Executive Director Jennifer McDonald on Wednesday.

An estimated four-hour trial was slated to start in Warren County General District Court at 1 p.m. on June 21. Substitute Winchester Judge Ian Williams scheduled the trial as the last of three dates set on the filing of first, an amended plaintiff’s complaint; then defense motion responses to that filing; preceding the trial seeking $25,000 in damages Sayre asserts resulted from a McDonald effort to implicate him in a vandalism of her home property on June 15, 2017.

During the one-hour-and-20-minute hearing Wednesday afternoon the judge dismissed the malicious prosecution aspect of the Sayre lawsuit and narrowed the scope of defense subpoenas regarding the defamation aspect of the case.

A two to three-month time frame between May 1 and July 31, 2017, was established as the framework for plaintiff subpoenas for evidence involving McDonald communications regarding Sayre and criminal incidents alleged to have occurred at the EDA office on May 18 or on or around June 15 at McDonald’s home.

The court also ruled that the plaintiff could subpoena a financial statement indicating McDonald’s net worth. Sayre attorney Timothy Bosson worried that a defense response contained the disclaimer “if such a document exists”. Judge Williams noted that such a financial statement could be created if necessary and ruled it be provided.

Following the hearing Sayre attorney Bosson indicated he was not surprised by the dismissal of the malicious prosecution aspect of the suit. As McDonald attorney Lee Berlik pointed out to the court, no prosecution of Sayre ever resulted from McDonald’s alleged actions connecting Sayre to a June 15, 2017 vandalism at her home in which a landscaping stone was thrown through a front-door window.

However during the hearing Bosson countered that it was an unresolved fact as to how far a potential criminal investigation into Sayre’s suggested participation in a conspiracy to terrorize McDonald may have gone – that it could be a matter of ongoing police interest,” Bosson reasoned. However, the court did not agree.

One piece of evidence not available to the plaintiff’s attorneys at the time Sayre’s defamation suit was filed on September 21 was a note entered into evidence in the October 31 misdemeanor criminal trial of McDonald for filing a false police report regarding the reported vandalism. That note discovered near McDonald’s front door during the Warren County Sheriff’s Office response to her call reporting the vandalism around 9 p.m. the evening of June 15, 2017, contained instructions on terrorizing McDonald at her home; Sayre’s legal office phone number; and instructions “not to call Tom during business hours”.

McDonald was acquitted of the false police report misdemeanor after Judge W. Dale Houff granted a defense motion to dismiss, noting the prosecution had presented no evidence as to motive that would lead her to create a false criminal narrative. However, as Royal Examiner has reported the prosecution left several key investigative or corroborating witnesses uncalled as part of its case. See Related Story

The note was a debated part of potential evidence that Judge Williams ruled could be introduced in the plaintiff’s re-filed defamation complaint. Defense attorney Berlik argued there was no evidence the note was written by his client, but appeared penned by an unknown third party. Defense counsel also argued that the inclusion of Sayre’s phone number and first name did not rise to the level of defamation anyway.

Plaintiff counsel countered that it did not matter whether McDonald was proven to have written the note because its content implied his involvement in a crime Sayre contends McDonald staged to counter his criticism and scrutiny of the EDA’s workforce housing or other projects.

Defense counsel also told the court that it remained a matter of contention as to when McDonald told a local reporter, yours truly, details about the vandalism.

This reporter told police during an interview about the EDA office break-in around 10:30 a.m. on June 16, 2017, that the EDA executive director told him details of the landscape stone vandalism at her home around 3 p.m. the previous day during a meeting at her EDA office. The crime was not reported until 9:02 p.m. that evening.

During cross examination of this reporter McDonald criminal case attorney David Crump insinuated to the court that an EDA desk calendar indicated this reporter had a scheduled meeting with McDonald at her office at 9:30 a.m. the morning after the vandalism incident was reported, about an hour prior to the FRPD interview during which he cited the previous afternoon as the time the incident was described to him.

Uncalled by the prosecution during McDonald’s criminal misdemeanor trial was EDA Public Relations official Marla Jones. Jones told FRPD investigators she talked with McDonald most of the morning of June 16 after being informed of the vandalism incident; and that McDonald had no meetings at the EDA office that morning.

In the end the defense did not contest an evidentiary subpoena for communications between McDonald and “Mr. Bianchini” related to Sayre because it had already been responded to prior to Wednesday’s hearing.

Also at issue was the admissibility of communications from a private investigator, Kenneth Pullen, regarding his inquiries into crimes targeting EDA headquarters and McDonald’s home.

Defense counsel Berlik argued that Pullen’s work was protected as “work product” contracted by McDonald. Plaintiff attorney Bosson countered that in a written statement then EDA Board Chairman Greg Drescher stated the EDA had hired Pullen after requesting that FRPD put its criminal investigation of the May 18, 2017 EDA office break-in on hold.

“I’d like to know who hired him,” Bosson told the court.

Sayre’s original civil filing cites Pullen as grilling him in a phone interview “as if he was a suspect”. While Pullen’s whereabouts in order to serve a subpoena have been a question for the plaintiff, other than determining who hired the PI appears to be a moot point as the judge sustained the defense motion to quash any subpoenas related to Pullen’s communications with McDonald.

Noting complications from his and Judge Houff’s having to switch court duties between Winchester and Front Royal due to the plaintiff’s motion that Houff recuse himself from the case after having heard McDonald’s criminal case, Judge Williams commended both counsel for their efforts on their clients’ behalf and urged them to agree to resolve as many outstanding elements of the amended plaintiff filing prior to hearing dates as possible.

In urging counsel cooperation on establishing subpoena parameters during the hearing Judge Williams pointed to the varying perspectives of counsel from “fishing expeditions” on the defense side to “there are smoking guns all over the place” on the plaintiff’s.

Things were a little chillier between McDonald, left, and Sayre, right, during an early October board of supervisors work session – Royal Examiner File Photo