IN THE THIRD JUDICIAL DISTRICT COURT, KANSAS
DIVISION FOUR
State of Kansas, ex rel. )
Robert D. Hecht, District Attorney, )
Third Judicial District, )
)
Plaintiff, )
)
v. ) Case No. 03-C-1458
)
Harry (Butch) Felker, III, )
Mayor, City of Topeka, Kansas, )
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Defendant. )
)
MEMORANDUM DECISION AND ORDER
The above-captioned matter comes before the Court on Plaintiff’s Petition for Declaratory Judgment seeking to determine whether certain acts committed by Defendant constitute: (1) misconduct in office; (2) failure to perform a legal obligation; (3) violation of Kansas statutes involving moral turpitude; and (4) violation of fiduciary obligations to the City of Topeka, its taxpayers, and the electorate thereof. Ultimately, this Quo Warranto action seeks a finding that Defendant, by virtue of said acts, has forfeited the Office of Mayor of the City of Topeka and accordingly must be removed from office. Pursuant to K.S.A. 60-1207, Plaintiff seeks Defendant’s suspension from office.
While an ouster proceeding is pending, “[i]t is in the public interest that actions to declare a forfeiture of public office for official misconduct be tried and determined as soon as possible consistent with fairness and justice.” Miller v. Richardson, 229 Kan. 234 (1981). Therefore, while this decision whether to suspend Mayor Felker is more succinct than usual decisions by this Court, the conclusions herein were made after careful consideration of all the evidence and applicable law presented by both parties. Whereby, having a full hearing conducted and concluded on the application for suspension, this matter is ripe for ruling.
K.S.A. 60-1205 provides that a person holding an office of trust or profit, under and by virtue of any law of the State of Kansas, except persons subject to removal only by impeachment, who shall (1) willfully misconduct himself or herself in office, (2) willfully neglect to perform any duty enjoined upon him or her by law, or (3) who shall commit any act constituting a violation of any penal statute involving moral turpitude, shall forfeit his or her office and shall be ousted.
K.S.A. 60-1207 states that upon application for ouster, an officer may be suspended from performing any of the duties of his or her office pending a final hearing and determination of the matter. No suspension shall ensue unless a finding of good cause is made.
Ouster is not designed to remove an officer merely for improvement of public service because he has been inefficient or acted with bad judgment. State v. Wilson, 108 Kan. 641 (1921). Not every oversight or omission within the strict letter of the law will entail forfeiture of office. Ouster is to prevent persons from continuing to hold office whose inattention to duty, either because of its habitualness or its gravity, endangers the public welfare. Hopkins v. Corwine, 113 Kan. 192 (1923). The neglect contemplated must disclose either willfulness or indifference to duty so persistent or in affairs of such importance that the safety of the public interest is threatened. Id. Ouster is a drastic action, one that should be invoked only where the evidence is clear and convincing and the misdeeds flagrant. Tomasic v. Cahill, 222 Kan. 570 (1977).
An analysis of nearly all applicable ouster cases discloses that the misconduct of the ousted public official either extended over lengthy intervals and involved numerous acts of misconduct or the misconduct was particularly grievous and involved an evil motive of personal gain for the ousted public official.
Based upon the extraordinary nature of ouster relief, the presumption is that public officials conduct affairs honestly and in good faith. With this principle and the others mentioned above, the Court has considered the evidence presented on each allegation, and the law gleaned from other ouster cases to find and conclude as follows:
Campaign Finance Act Violations
The most salient of all the alleged violations by Plaintiff, is the one that occurred primarily before Defendant even took office, the one that did not occur as a result of his actions as Mayor, the one that seemingly has little impact on his ability to function as Mayor of the City of Topeka. It is alleged that Defendant violated multiple provisions of the finance act statutes as well as several criminal code provisions. In weighing the evidence presented at the suspension hearing, viewed in the light most favorable to Defendant, the Court finds the evidence presented by Plaintiff to be the most credible and accurate presentation of the actual facts regarding the alleged campaign finance violations.
There is substantial and compelling evidence that, at least during 2000 and 2001, employees of the Topeka Convention and Visitors Bureau (“TCVB”), including its director, conspired and engaged in the theft of TCVB funds. Without specifically outlining the details of the illegal transaction, the evidence shows that cash derived from one of the thefts was given directly to Defendant from the director of TCVB and Defendant then deposited the money into his campaign account.
Then, after initially reporting the cash contribution to his treasurer, Defendant altered the reporting form by deleting the origin of the contribution and knowingly substituting names of individuals who did not contribute to his campaign, which resulted in essentially hiding the theft of funds. Defendant’s actions of willfully altering his campaign reporting form covered up the theft and allowed stolen taxpayer dollars to funnel into his campaign account. Whether Defendant was aware of the theft, his actions aided and resulted in a cover up of the corrupt activity at the TCVB. Defendant’s acts defeat the intent of what campaign reporting laws are enacted to prevent.
In summary, the evidence shows that:
1)On February 19, 2001, Defendant submitted expenditure report that contained evinced certain campaign contributions listed on “Schedule A.”
2)On this report, Defendant’s treasurer inserted W. Bennett of 1448 S.W. Oakley, Topeka, Kansas and identified this person as “Agency Dir” who contributed $300.00 in cash to Defendant’s campaign. Defendant’s treasurer also inserted the names J.R. Thompson and L. Bryden, both marked as contributing $100.00 each.
3)Defendant then used “white out” to redact: the above names, the dates of contributions — all originally identified as February 1, 2001 — the checkmarks identifying the contributions as cash, and the amount of the cash contribution. Defendant then substituted for W. Bennett the name L. Desch and changed the date of contribution from February 1, 2001 to January 29, 2001. Defendant left the occupation redacted, reinserted the checkmark for cash, and identified the amount of the contribution as $100.00, rather than $300.00.
4) For J.R. Thompson and L. Bryden, Defendant substituted the date of January 29, 2001 as the date of contribution, rather than the original date of February 1, 2001 and substituted the name of Mark Allshouse for J.R. Thompson and Susan Allshouse for L. Bryden. Defendant again inserted checkmarks as cash contributions and reinserted the amounts of $100.00 for each contribution. Then Defendant inserted F.P. Zinga, the husband of his campaign treasurer, as having made a contribution by check on February 13, 2001 and inserted a January 29, 2001 entry asserting that J.R. Thompson, “Tour Dir.” had contributed $500.00 in cash. Defendant also redacted — again using white out — the words “Tour Dir.” and the number “5" on the amount of cash contribution and in turn substituted a “l.”
5)Next, Defendant inserted an entry for February 9, 2001, asserting that N.P. Davis had contributed $200.00. Subsequently, when the Kansas Ethics Commission letter of March 9, 2001 notified him that a $200.00 cash contribution exceeded the legal limit, he filed an amended Schedule A on March 26, 2001, and asserted that N.P. Davis contributed $100.00 in cash and that a Tina Davis, of the same 1735 N.W. Lymon Road address, had contributed $100.00.
6)Neither N.P. Davis nor Tina Davis have ever lived at 1735 N.W. Lyman (or Lymon) Road. Regarding the cash contribution, N.P. Davis only contributed $100.00 and Tina Davis contributed nothing. The second $100.00 originally attributed to N.P. Davis was contributed by Thomas Flanagan at the same meeting where N.P. Davis contributed his $100.00, which occurred at the Village Inn in Topeka, Kansas.
7)Defendant has never identified in a required “Schedule A” report with the Shawnee County Election Commissioner or the Kansas Ethics Commission that Thomas Flanagan contributed $100.00 in cash to his campaign.
8)A Norman Davis does live at 1735 N.W. Lyman Road, Lot 26. He
has lived at that address since 1999, and his former wife, Patricia Davis, lived there until their divorce in 2001. Neither of them ever contributed to Defendant’s campaign. No one by the name of Tina Davis has ever resided at that address but this Norman Davis does have a sister named Tina Davis who lives on N.E. Ohio Street. She has never contributed to Defendant’s campaign.
Even though Defendant's campaign violations may have initially occurred when he was a candidate and not yet in office, his actions continue to impact the public. The purpose behind the campaign finance act is to ensure that those who seek public office are free from the insinuation of corruption or improper influences, and that when one becomes a candidate he or she implicitly agree to run an honest and ethical campaign. The actions a candidate takes have consequences that carry over if they are elected to office and can affect the officeholder's credibility and their ability to carry out the duties of the office. If candidates are less than honest and forthcoming about who is contributing to their campaigns, it suggests corruption, violates the trust between candidate and the public, and seriously injures the public interest in having accurate information about who is potentially influencing officeholders. The trust the public has placed on an elected official is damaged if the public learns that such person has acted unethically or illegally.
If proven by clear and convincing evidence, the above conduct constitutes violations of the campaign finance act, as well as corresponding criminal statutes. Plaintiff has presented overwhelming evidence, pursuant to K.S.A. 60-1207, to support this Court’s finding of good cause that Defendant acted in a manner constituting a violation of penal statutes involving moral turpitude. However, this finding is only applicable to the suspension hearing. Defendant will have an opportunity to supplement the record prior to this Court issuing a decision on the ouster petition.
Severance Agreements
Plaintiff alleges Defendant improperly negotiated and signed severance agreements with John Arnold, former city chief administrative officer, Judge Neil Roach, former Chief Municipal Court Judge, and David Mask, former zoo director. Plaintiff contends Defendant did not have the authority to enter into such arguments.
Based on the evidence presented at the hearing on this matter, viewed in the light most favorable to Plaintiff and based on the law as it pertains to these alleged violations, the Court finds and concludes that Defendant did have the authority to enter into such agreements, did have the power to bind the city, and did, on some occasions, inform the city council of the severance agreements when not technically required to do so. The city attorney, Brendon Long, or one of his associates drafted the final agreements and approved of them as to form and legality. Mr. Long testified before this Court that under the City’s form of government, Defendant acted within his powers.
Plaintiff contends Defendant acted beyond the scope of his authority and in conflict with the City’s Home Rule Charter Section A2-19 which states in paragraph nine that “All contracts binding the city must be approved by the council before being signed by the mayor. The council may, through ordinance, authorize the mayor to sign specific types (or dollar amounts) of contracts without the express approval of the council.” However, what Plaintiff failed to realize is that the council did authorize Defendant to sign these types of contracts when they subsequently adopted Section 2-386 of the Topeka City Code, essentially nullifying A2-19. Section 2-386 clearly states that “the mayor is hereby authorized to sign all contracts binding the city . . . .” (emphasis added). There are three potential situations that would limit the mayor’s ability to sign contracts. Plaintiff failed to produce, and this Court failed to locate, evidence indicating this type of agreement fit any of the limiting classifications. As such, pursuant to Section 2-386 of the Topeka City Code, Defendant had the authority to bind the city to these severance agreements.
Plaintiff also suggested that Defendant violated laws regarding contributions made to John Arnold’s KPERS retirement account. The testimony presented at the hearing by Laurie McKinnon, General Counsel for KPERS, was that there are provisions to correct errors in contributions. Ms. McKinnon testified that KPERS can unravel the transaction and any incorrect addition to Mr. Arnold’s account. There was no showing by Plaintiff that Defendant intentionally acted in violation of statutes regarding KPERS and Ms. McKinnon’s testimony clearly showed that any errors made could be easily corrected.
While it is the Court’s finding that Defendant did not violate any laws and that he did act within the scope of his authority, even if the Court were to find in Plaintiff’s favor on this issue, the alleged violations would not rise to the level of ouster. There is no dispute that Defendant was acting with the advice of counsel and doing so in what he viewed as being in the best interests of the City of Topeka.
These actions by Defendant, viewed in the light most favorable to Plaintiff, do not constitute grounds for forfeiture of public office, pursuant to K.S.A. 60-1205. There was no evidence presented that Defendant willfully acted in violation of any city code or state statute or his actions resulted in any material gain for himself. To the contrary, the only evidence presented was that Defendant acted within the perimeters of the law and in compliance with past and present practices of the City of Topeka. As such, Defendant shall not be suspended from office for the alleged improper severance agreements. The Court finds no basis for these claims and thus dismisses these allegations from the ouster petition.
Plaintiff contends, and Defendant admits, providing $5,000 to the Kansas International Museum, a private not-for-profit corporation, from Defendant’s City of Topeka credit card. In addition, Plaintiff argues, without dispute from Defendant, that Defendant provided the funds to the museum without a promissory note, a security agreement, collateral or any other written documentation reflecting such transaction or any obligation on the part of Kansas International Museum to repay the amount. Plaintiff claims this act involved public money being provided to a private corporation without prior knowledge, approval, or authorization by resolution or ordinance adopted by the City Council, and, as such, in violation of Defendant's fiduciary obligations and in violation of K.S.A. 21-3910, Misuse of Public Funds.
The evidence presented at the hearing on this matter, viewed in the light most favorable to Plaintiff, and based on the law as it pertains to this alleged violation, clearly shows that Defendant acted within the scope of his mayoral authority. While Defendant most certainly should have obtained written documentation of the transaction, there is no requirement to do so or violation for failing to do so. Defendant was acting on his belief that this transaction would ultimately reap great rewards for the City of Topeka.
Plaintiff failed to present any evidence that Defendant willfully acted in violation of any city code or state statute. The only evidence presented showed Defendant acted within the perimeters of the law and in compliance with past and present practices of the City of Topeka. He was acting on a good faith belief that his actions were in the best interests of the City of Topeka. Even assuming Plaintiff’s arguments are correct, there has been no showing of willful misconduct or willful neglect nor did this action result in any material gain for himself. In fact, the City was paid back in full from the Kansas International Museum. As such, Defendant shall not be suspended from office for the alleged improper credit card cash advance. The Court finds no basis for this claim and thus dismisses this allegation from the ouster petition.
The evidence clearly establishes that Defendant executed a Power of Attorney purporting to extend to Betty J. Simecka, a private citizen, as President of Cultural Exhibitors and Events, Inc., a private for-profit corporation, the power to enter into negotiations and determine the terms and conditions of a contract on behalf of the City of Topeka. While Defendant did not have the authority to issue the Power of Attorney, the evidence presented at the hearing, viewed in the light most favorable to Plaintiff, clearly shows Defendant executed the Power of Attorney on his belief that it would lead to commerce and trade for the City of Topeka. Defendant was unaware he lacked the ability to convey authority in this manner. His actions were not willful, his actions resulted in no harm to the City, and because the Power of Attorney was void, his actions could not bind the City to any agreement.
The document was only utilized to demonstrate the City’s interest in holding the Treasurer’s of the Czars exhibit. The testimony presented at the hearing clearly showed that the document was never intended to bind the City. It was merely a way to show the Russians that Topeka was serious about hosting the exhibit. There has been no showing of willful misconduct or willful neglect. To the contrary, the evidence presented at the hearing shows Defendant acted in what he believed to be the best interests of the City. As such, Defendant shall not be suspended from office for the alleged improper Power of Attorney conveyance. The Court finds no basis for this claim and thus dismisses this allegation from the ouster petition.
CONCLUSION
At the outset of the hearing, the Court stated the object of removal of a public officer for official misconduct is not to punish the offending official, but to protect and preserve the office, and to free the public of an unfit officer. State v. Schroeder, 199 Kan. 403 (1967). Based upon the reasoning set forth above, the Court must consider whether the Mayor’s continuance in office pending the ultimate disposition constitutes an impediment to the effective governance of our city. Without judging the ultimate outcome of whether to remove Defendant from office, the question remains whether the city can most effectively be governed by a person under a cloud of credible suspicion of criminal violations involving moral turpitude. Accordingly, the Court grants Plaintiff’s Application For Suspension. The Court reminds all parties concerned in this matter that the decision to suspend Mayor Felker during the pendency of these ouster proceedings in itself no way presupposes his guilt or innocence of the allegations which have been brought against him. The decision to suspend is made in order that the governance of this city may proceed unencumbered by the suspicion of serious wrong doing on the part of its chief executive. Such leaves-of-absence during the resolution of major issues affecting tenure in office are in wide practice in the business, academic, and governmental worlds.
It is the opinion of the Court that the interests of effective governance and public trust are best served by the temporary suspension of Defendant pending resolution of the final determination of the ouster action. The Court hereby orders the appropriate appointing authority to appoint a successor to fill the responsibilities of the Office of Mayor of the City of Topeka commencing by no later than 5:00 p.m., Monday, October 20, 2003 until this matter is fully and finally determined.
In addition, the Court dismisses from the ouster petition the allegations relating to the Severance Agreements, the Credit Card Cash Advance, and the Power of Attorney. The Court will allow Plaintiff to proceed on the allegation relating to the alleged Campaign Finance Act violations. The parties are ordered to submit to the Court a written brief on the legal issues pertaining to the Campaign Finance Act violations by October 31, 2003. This brief should specifically address whether or not these allegations, if true, constitute grounds for forfeiture of public office. Consistent with the aforementioned need for a prompt determination of this matter, the Court will be in contact with counsel to determine future trial dates.The preceding Memorandum Decision and Order shall serve as the Court’s final entry of judgment, no further journal entry being required.
Dated this 17th day of October 2003.
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Eric S. Rosen
District Court Judge