IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS
THE STATE OF KANSAS,ex rel., ) CARLA J. STOVALL, Attorney General, ) ) Plaintiff, ) ) Case No. 99-C-686 v. ) ) DAVID MENELEY, ) Defendant. ) _____________________________________)
The case has been tried to the Court and evidence has been presented over several days of trial by both sides. The State and Defendant through counsel have presented written Suggested Findings of Fact and Conclusions of Law. The Court, having thoroughly considered all matters before it, unanimously decides that Defendant David Meneley has committed acts of willful misconduct in office by testifying falsely under oath and concealing evidence of a crime. By committing these acts, David Meneley has violated the public trust and has irreparably contaminated and compromised the integrity of his Office as Sheriff. Judgment of ouster is entered.
On May 24, 1999, the State on the relation of Carla J. Stovall, Attorney General, filed a Petition in Quo Warranto for Ouster of David Meneley, the Sheriff of Shawnee County, Kansas. The Attorney General seeks to oust Sheriff Meneley alleging that Meneley: willfully concealed evidence of a crime; willfully provided false testimony under oath on April 11, 1996 during an Attorney General inquisition and on February 22 and March 9, 1999 during hearings in State v. Hernandez; knowingly permitted criminal investigation cases to be forwarded for prosecution and conviction without revealing that the evidence in the cases had been compromised; willfully failed to adequately investigate missing drug evidence; and willfully failed to preserve the integrity of evidence collected by members of his department to ensure a fair prosecutorial system.
The Court finds that by June and July, 1995, Sheriff David Meneley knew that Deputy Timothy Oblander had used cocaine obtained during his duties as an undercover narcotics officer, was addicted to illegal drugs, was being treated for addiction and was responsible for stealing cocaine evidence from the Sheriff's Office in 1994 and 1995. The Court further finds that Sheriff Meneley lied under oath about his knowledge of Oblander's drug usage and treatment on two occasions and concealed Oblander's theft of drug evidence from officials investigating the crime.
The State has proven three charges by clear and convincing evidence. First, during the 1996 investigation by the Kansas Bureau of Investigation and the Attorney General, Sheriff Meneley willfully concealed from investigators Deputy Oblander's theft of drug evidence. Second, on April 11, 1996, Sheriff Meneley willfully gave false testimony under oath before an Attorney General's inquisition by denying knowledge of Deputy Oblander's illegal drug use and treatment for drug addiction. Third, on March 9, 1999, Sheriff Meneley willfully gave false testimony under oath before District Judge Eric S. Rosen in the Hernandez hearing by denying that he had any knowledge of Deputy Oblander's illegal drug use and treatment for drug addiction. The Court concludes Sheriff Meneley has committed acts of willful misconduct within the meaning of K.S.A. 60-1205.
The State has produced insufficient evidence to prove Sheriff Meneley gave false testimony under oath on February 22, 1999 in the Hernandez hearing, willfully failed to properly investigate missing drug evidence discovered in 1996, willfully failed to properly preserve evidence in the Sheriff's Property Room, or willfully and knowingly sent cases with tainted evidence to the District Attorney for prosecution. The Court previsouly dismissed allegations that Sheriff Meneley misused the Interstate Identification Index.
The Petition to oust David Meneley from the Office of Sheriff of Shawnee County, Kansas, is granted.
1. Defendant David R. Meneley is the duly elected Sheriff of Shawnee County, Kansas. Meneley was first elected in November, 1992, and took office on January 11, 1993. Meneley was elected to a second term in November, 1996, and continues in office to this date.
2. During his service, Meneley has made improvements to the Sheriff's Department. These improvements include increasing the number of officers assigned to patrol the streets, decreasing the response time to citizen calls for help; insisting that citizen complaints be handled thoroughly and expeditiously; adding a drug interdiction unit and K-9 component to the Special Services and Narcotics Divisions; enhancing training; enhancing the vehicles and reducing the average number of miles on the vehicles; implementing a School Resource Officer program; improving the quality of uniforms and equipment assigned to officers; and overall improving the responsiveness of the agency to the public.
3. The Sheriff's Department may rightfully boast of significant achievements in the war on drugs. The drug unit of the department has increased the number of new cases from 59 in 1994 to 218 in 1999. In 1999, the Special Services and the Drug Interdiction Unit removed 43.02 grams of crack cocaine, 4,099.12 grams of methamphetamine, 938.5 grams of mushrooms, 12,978.60 grams of cocaine, 34,488.47 grams of marijuana, and 16 ounces of PCP from the streets, for a total street value of $1,814,656.00. The same unit recovered stolen property with a value of $184,415. During this same period the division worked eight methamphetamine labs. The Department has been able to establish a forfeiture fund from its drug work, making funds available for equipment for the unit without requiring the use of tax dollars. The unit has made a number of large drug cases.
4. Aside from the controversy and scandal involving Sheriff Meneley which is the subject of this ouster, the Sheriff's Department has a reputation in the community for providing excellent service, for professionalism, and for responding to the needs of the community.
5. The ouster charges arise from two circumstances. In July, 1994, the Sheriff's Department discovered drug evidence had been stolen from the Caldwell case. Despite investigation, the crime was not solved until Sheriff's Deputy Timothy Oblander confessed November 23, 1999. The other circumstances involve drug evidence in criminal investigations discovered to be missing between December, 1995, and April, 1996. Some of the missing drug evidence has never been located. Whether the evidence was lost or stolen remains an unsolved mystery.
6. The effort to oust Sheriff Meneley grows out of alleged willful misconduct attributed to his handling of stolen and missing drug evidence. As to the theft of the Caldwell and other drug evidence in 1994 and 1995, Meneley is accused of lying about Deputy Oblander's drug use, addiction and treatment. Meneley is further accused of concealing his knowledge about Oblander's role in the Caldwell theft from the Attorney General during the Attorney General's 1996 investigation. With regard to the 1996 missing evidence, Meneley is charged with failing to properly investigate, failing to properly preserve evidence and knowingly sending cases with tainted evidence to the District Attorney for prosecution.
7. The State alleges violations of K.S.A. 60-1205 (1) and (3), claiming Sheriff Meneley committed the acts of giving false testimony under oath on:
a. April 11, 1996, during the Attorney General's inquisition, regarding his knowledge of illegal drug use and treatment for drug addiction of Oblander;
b. February 22, 1999, during the Hernandez hearing by
i. denying knowledge of Oblander's illegal drug use, addiction and treatment; and,
ii. denying he had knowledge of evidence unaccounted for that had been seized and/or collected in 1995 drug cases; and,
c. March 9, 1999, during the Hernandez hearing, by denying knowledge of Oblander's illegal drug use, addiction and treatment.
8. The State further alleges violations of K.S.A. 60-1205 (1) and (2), claiming Sheriff Meneley engaged in willful misconduct or willfully neglected to perform his duties by:
a. a. concealing evidence of Deputy Oblander's theft of drug evidence from the Sheriff's Department;
b. permitting criminal investigation cases to be forwarded for prosecution and conviction without revealing that the cases had been compromised;
c. failing to investigate missing drug evidence; and
d. failing to insure the integrity of evidence for prosecution.
9. The State also asserts Sheriff Meneley violated K.S.A. 54-106, which is the oath of office to be taken by all officers elected or appointed under any law of the State of Kansas, to support the Constitution of the United States and the Constitution of the State of Kansas and to faithfully discharge all duties of office.
10. The State contends that Sheriff Meneley has not faithfully performed statutory duties governed by K.S.A. 19-801, et seq.
11. The State also contends that Sheriff Meneley is liable for the actions of his deputies pursuant to K.S.A. 19-805.
12. The story begins in 1993 in the Sheriff's Special Services Unit.
13. After taking office, Sheriff Meneley increased the number of positions in Special Services. The Special Services division includes detectives, narcotics, criminal intelligence, and surveillance services. Captain Roger Lovelace was the division commander of both the Special Services and the Narcotics Unit. Between January, 1993 and May, 1994, members of the Narcotics Unit included Detective Daniel Jaramillo, Detective Scott Holladay, Deputy Timothy Oblander and Deputy Phil Blume. In May or June, 1994, Detective Jaramillo and Deputy Blume were assigned to the FBI Federal Drug Task Force, a multi-jurisdictional task force engaged in undercover narcotics operations. The assignment required relocation of Jaramillo and Blume to the FBI offices. In the fall of 1994, Frank Good was transferred to the Narcotics Unit. Frank Good and Deputy Oblander were former partners in the warrants division. Good and Oblander were also best friends who socialized and vacationed together outside of work.
14. Deputy Timothy Oblander became a member of Special Services on January 21, 1993.
15. Oblander's initial duties involved training a drug dog. Oblander regularly trained his dog with drug training aids checked out from the Shawnee County Property Room for that purpose. Oblander's narcotic training aids included marijuana, methamphetamine and cocaine.
16. In late 1993 or early 1994, Deputy Oblander started using cocaine and methamphetamines, taking the drugs from the evidence packets used to train the dog.
17. Drug evidence was checked out to Oblander. The drugs were weighed, when checked in and out. On two occasions there was a weight discrepancy in the drugs. This discrepancy was noted on a report, signed by Sergeant Richard Warrington, the Property Room Officer and Oblander.
18. Warrington asked Oblander for a report explaining the discrepancy. Oblander never submitted any report. Warrington did not follow up on his request of Oblander. Warrington did not report the discrepancy to any supervisor.
19. In late 1994 or early 1995, Oblander began making drug buys on the street. On occasion Deputy Oblander consumed some of the drugs that he bought on the street. Oblander stole the drugs before he turned the evidence into the property room.
20. In July, 1994, Detective Scott Holladay was involved in a federal prosecution, the Caldwell case.
21. On or about July 19, 1994, it was determined that four packets of cocaine evidence were missing from the Caldwell case.
22. The Caldwell evidence consisted of a paper bag with items in it, including a larger plastic bag with twelve small bags of cocaine. The larger plastic bag had been secured with evidence tape placed on the bag by the Kansas Bureau of Investigation. When the evidence was discovered missing, it was found that the evidence seal had been torn open, and four of the small bags of cocaine removed.
23. At the time of discovery, it was believed that the evidence was removed from the evidence locker located in the Sheriff's Department at the Shawnee County Courthouse.
24. When the drugs were discovered missing, an internal investigation was immediately ordered by Sheriff Meneley. The investigation was assigned to Detective Mike Ramirez.
25. During the investigation Detective Holladay told Ramirez that he had checked the drugs before putting them in the evidence locker, that they were all in the bag and the bag was intact. Therefore, the investigation centered on the evidence locker. Holladay's office was located in a separate area of the Sheriff's Department from where the evidence locker was located. No attention was focused on Holladay's desk or office during the 1994 investigation by Ramirez because it was believed the evidence was intact when it was placed in the evidence locker.
26. Detective Ramirez identified three possible suspects. The three persons were interviewed, and given polygraph examinations as to whether they had taken the drugs. Those three persons were J. D. Sparkman (the property room officer who retrieved the evidence from the evidence locker), Detective Holladay and an employee of a local cleaning company who had cleaned in the area of the locker. The results of the polygraph indicated the three suspects were truthful in their denials of any involvement in the theft of the cocaine.
27. At one point during the investigation Detective Ramirez questioned whether the drugs could have been taken out of the bag from the evidence locker. Ramirez reported: "After reviewing the one gallon baggie containing the cocaine, it is obvious to me at this point that it [is (sic)] highly unlikely that someone removed the one gallon bag from the locker and ripped open the bag, then replaced the bag back into the paper sack without tearing the sack. It is quite possible that the tear occurred prior to the bag being placed in the paper sack."
28. Ramirez was unable to determine who took the Caldwell cocaine evidence. On August 14, 1994, Ramirez closed the case due to lack of leads.
29. Deputy Oblander was never questioned in the investigation. There appeared to be nothing linking Oblander to the evidence locker. Ramirez stated he would have had a different focus on his investigation had he suspected the drugs were taken from Holladay's office rather than from the evidence locker.
30. On May 12, 1995, Oblander was reported missing by his partner, Deputy Frank Good. Meneley ordered an extraordinary search effort, calling in several officers who were off duty. In the early afternoon on May 12 Deputy Oblander was found in his county truck near Silver Lake, Kansas, by Officer David Gowan, an employee of the Sheriff's Department who also worked for the Silver Lake Police Department. Oblander told Gowan he had a fight with his wife and had stayed out all night. Gowan did not detect the odor of alcohol on Oblander.
31. Oblander went with Gowan to the Silver Lake Police Department.
32. Sergeant Scott Baker, Deputy Frank Good and Detective Tim Byers met Oblander and Gowan at the Silver Lake Police Department. Oblander was described as being quiet, red eyed, and disheveled. Byers did not detect an alcohol odor on Oblander. Baker thought Oblander had been drinking alcohol.
33. Frank Good spoke privately with Deputy Oblander. Thereafter, Gowan and Byers left Good and Baker with Oblander at the Silver Lake Police Department. Both Gowan and Byers suspected something more was going on than what they were being told.
34. Detective Byers returned to the Sheriff's Office where he received a call from Baker. Baker asked for the name of a counselor who Baker and Good could take Oblander to see that evening. Byers made the arrangements for Oblander to meet with a counselor.
35. Oblander was absent from work for about two weeks.
36. On May 24, 1995, Oblander was released to return to work. In his letter of May 24, Dr. Stephen H. Blum of Behavior Consultants said he had treated Oblander for "mild depression." Dr. Blum wrote, "Tim has not reported any symptoms over the past two weeks and I feel that he is ready to return to work. I have recommended that he see me on a weekly basis for now, and that he begin taking the medication as soon as possible." This letter was delivered to Meneley.
37. Oblander returned to work in Special Services. No disciplinary action was taken against Oblander because of his disappearance.
38. By this date Oblander was using drugs, but claims he had not told this fact to any person, including his wife. The Court does not find this claim by Oblander to be believable or credible.
39. Oblander continued to steal and use drugs after his return to work in late May, 1995. In early June, Oblander misappropriated crack cocaine from a buy, got high, and called his wife to come get him. His wife contacted Oblander's brother who picked him up at work. Two weeks later Oblander again smoked crack cocaine and was unable to continue at work. Deputy Good took him home. Finally, June 27, Oblander again got high on drugs. This time Good drove Oblander to Valley Hope for drug treatment.
40. On June 27, 1995, Oblander entered Valley Hope Treatment Center in Atchison, Kansas, for treatment. At admission, Oblander gave as his reason for seeking treatment -- crack cocaine abuse. Oblander did not notify his wife or the Sheriff's department he was going to Valley Hope. Frank Good told Oblander he would take care of everything.
41. Within the first week of Oblander's treatment, Sheriff Meneley, Scott Baker and Mickey Brokaw went to visit him at Valley Hope.
42. The visit lasted less than an hour. During the visit Oblander said very little. Baker said he told Oblander about his father's alcoholism and encouraged Oblander to work the treatment program for the sake of his relationship with his children. According to Baker, Meneley told Oblander he would sponsor him after treatment at Valley Hope. Oblander said no mention was made of cocaine or drugs during this visit. Oblander testified that Meneley did not bring up the subject of drugs, so he did not bring it up either. Oblander believed Meneley knew about his drug addiction.
43. Sheriff Meneley kept Oblander on regular pay status during his Valley Hope treatment. Oblander continued to receive his standard pay during his four or five week absence from work. Oblander was never asked nor required to give any reason for his absence.
44. In late July, 1995, Sheriff Meneley attended a back-to-work session with Oblander and Oblander's counselor. It was agreed that Oblander would transfer to the warrants division. Apparently in accordance with Shawnee County personnel policy, Oblander was required to make a written request to the Sheriff for a transfer into warrants. Within days of his release from Valley Hope, Oblander reported to the warrants division for his new assignment.
45. During Oblander's absence, Sheriff Meneley ordered Captain Lovelace to remove Frank Good from all drug investigations and raids. Meneley specifically instructed Lovelace that Good was not to handle any drugs. Captain Lovelace asked Meneley why, and Meneley responded that he had reliable information he was looking into. The prohibition lasted approximately one month, but was rescinded by Sheriff Meneley after Lovelace went back to Meneley and told Meneley that Frank Good had been hounding him about when he could go back to narcotics work. Meneley told Lovelace that Good could return to narcotics work. In November, 1995, Frank Good was promoted to Corporal and received a delayed transfer back into the warrants division. Good continued to work in narcotics for several months. Once transferred to warrants, Oblander and Good were reunited as partners.
46. In July, 1995, while Oblander was at Valley Hope, Sheriff David Meneley met with Detective Jaramillo and Deputy Blume regarding their activities at the Federal Drug Task Force. While with the Task Force, Jaramillo and Blume reported periodically to the Sheriff. They met with Meneley in November 1994, February 1995 and July 1995.
47. During the July, 1995, meeting, Sheriff David Meneley told the officers that he had confidential information he wanted to share with them. Meneley first warned that if any information he was about to disclose was discussed outside of the meeting he would know that Jaramillo or Blume had leaked the information. Meneley then asked both men if they were aware of any drug evidence missing from any of their drug cases. Both Jaramillo and Blume responded that they were unaware of any evidence missing from their cases. Sheriff Meneley explained that the reason he was asking was that Deputy Oblander had been using cocaine and methamphetamine during the time he was in Special Services. Sheriff Meneley then told Jaramillo and Blume that Oblander had become addicted to cocaine and was currently in drug rehabilitation.
48. According to Jaramillo and Blume, Sheriff Meneley further disclosed that Oblander had stolen the cocaine evidence the previous year. Meneley explained that Oblander told him that Oblander first started using drugs in 1993 when he was assigned to Special Services. However, Meneley told Jaramillo and Blume that he, Meneley, did not believe that. Meneley stated that he believed Oblander's drug use started or intensified after Jaramillo and Blume went to the Federal Task Force. Meneley said he believed Frank Good was responsible for Oblander's drug problems. According to Jaramillo and Blume, Meneley said Frank Good was a bad influence on Oblander.
49. Sheriff Meneley further disclosed that Timothy Oblander had been taking drug evidence he purchased as a narcotics officer. According to Jaramillo, Meneley thought that Oblander had tampered with drug evidence by removing some of the drugs and substituting other substances. According to Blume, Sheriff Meneley stated that Scott Baker had been told about Oblander's drug problems. Meneley commented that Baker was upset because Baker was unaware that Oblander had been using drugs while in Special Services.
50. According to both Jaramillo and Blume, at some point during the dialogue, Detective Jaramillo asked Sheriff Meneley about the status of Oblander's drug cases. Jaramillo expressed concern that Oblander's cases would have credibility problems. At that point, Meneley stated words to the effect that Oblander's drug cases were fine and would be forwarded to the District Attorney's Office for prosecution.
51. In October, 1995, Detective Jaramillo conversed with Detective Scott Holladay about Oblander's drug use. Jaramillo testified that Detective Holladay relayed to him information that Holladay had received regarding the subject matter. Detective Jaramillo disclosed to Holladay the information that Meneley had shared with Jaramillo and Blume in the July, 1995 meeting.
52. Between October, 1995 and December, 1995, Jaramillo, Blume and Holladay discussed with one another the information they had learned regarding Oblander's drug use, Oblander's misappropriation of drug evidence, and Oblander's treatment for addiction to cocaine. Jaramillo, Blume and Holladay discussed disclosing the information they had learned to outside agencies.
53. Deputy Blume testified that in November, 1995, he discussed the information with another deputy and then sought out the advice of a private attorney as Blume was concerned that Meneley was covering up Oblander's drug use, addiction and theft of evidence. Blume testified that he was concerned about his personal liability for not disclosing this information to an outside agency.
54. In late December, 1995, or early January, 1996, Detective Jaramillo told FBI Agent Ron Elder about Sheriff Meneley's July, 1995, disclosure.
55. In early January, 1996, Jaramillo also told Assistant District Attorney Tony Rues about the July, 1995, conversation that he and Deputy Blume had with Sheriff Meneley regarding Tim Oblander. Rues served on the Task Force with Jaramillo and Blume.
56. Sometime in January, 1996, Rues reported Jaramillo and Blume's disclosures to District Attorney Joan Hamilton.
57. In mid-January, 1996, the U.S. Attorney's Office and District Attorney Hamilton discussed the information received from Detective Jaramillo.
58. On February 13, 1996, District Attorney Hamilton wrote a letter to Carla Stovall, Kansas Attorney General, requesting that the Attorney General investigate missing drug evidence from a 1994 federal case [the Caldwell case] involving Deputy Oblander in which evidence was used, tampered or destroyed. Hamilton asked for assistance from the Attorney General because of the Attorney General's and KBI's investigatory resources and because of the damage that could occur to the working relationship between the District Attorney's personnel and the Sheriff's personnel if Hamilton's office launched an investigation against them.
59. On February 23, 1996, an article appeared in the Topeka Capital Journal stating that an "unspecified allegation about a Shawnee County sheriff's deputy" and missing drugs had been referred to the Attorney General's office for investigation. The article recounted that the allegation involved contraband that disappeared several months earlier and that a subsequent investigation had been done within the Sheriff's Department about the disappearance of the drugs. The article reported that the "allegation surfaced last week when [Hamilton] was called by a member of the Capital Area Strike Force, an inter-agency unit focused on drug trafficking, gangs and violence."
60. As a result of reading this article, Sheriff Meneley ordered Major Ken Pierce and Captain Lovelace to interview four individuals to determine if any of them were responsible for leaking information to the Task Force or the press. Meneley identified the four individuals he wanted interviewed as Jaramillo, Blume, Baker and Tim Cochran. Jaramillo and Blume were the only two employees of the Sheriff's Department who were assigned to the Task Force.
61. As instructed, Captain Lovelace and Major Pierce interviewed Detective Jaramillo. Jaramillo was asked if he had leaked information contained in the story. Detective Jaramillo denied that he had leaked this information. Jaramillo then told Lovelace and Pierce that he had information about the allegations which he had learned from Sheriff Meneley in July, 1995. Jaramillo then told Lovelace and Pierce about the July, 1995 conversation with Sheriff Meneley.
62. Captain Lovelace decided not to interview Phil Blume, Scott Baker or Tim Cochran. Lovelace was concerned that such interviews could be construed as interfering with a pending investigation.
63. As a result of Hamilton's letter, Attorney General Stovall asked the Kansas Bureau of Investigation to conduct an investigation into the stolen drug evidence.
64. On March 25, 1996, KBI Director Larry Welch met with Sheriff Meneley to advise him that the KBI was going to investigate the theft of drug evidence from the Sheriff's Department.
65. The focus of the KBI investigation was Deputy Timothy Oblander.
66. On or about March 26, 1996, Sheriff Meneley met with KBI investigators in his office. Meneley pledged his cooperation in the investigation. At the conclusion of this meeting, he arranged for KBI investigators to meet with Jaramillo and Blume.
67. Between March 25, 1996 and August 21, 1996, the KBI investigated the allegations against Timothy Oblander. During that same period, the Attorney General's Office conducted a criminal inquisition into the allegations. Sheriff David Meneley, Timothy Oblander, Frank Good and J. D. Sparkman were some of the individuals who were subpoenaed to testify at the inquisition. Oblander and Sparkman took the Fifth Amendment and refused to testify at the inquisition. Frank Good also initially refused to testify but later did so. Sheriff Meneley testified but denied having any knowledge or having ever been told that Oblander was using drugs while a deputy or that any drug evidence had been compromised.
68. On April 11, 1996, after being duly sworn, Sheriff Meneley testified as follows in the matter styled In Re Inquisition Into the Theft of Cocaine from the Shawnee County Sheriff's Department, Case No. 96-CR-1096, Transcript 23:20-24:2 and 35:8-19. (State's Exhibit 4) The State has identified these excerpts as the alleged false testimony by Sheriff Meneley.
Q. Okay. Do you know whether Officer Oblander was at Valley Hope for drug dependence?
A. It is my understanding it was alcohol.
Q. Okay. Do you have any knowledge that Officer Oblander has had a
problem with drugs while he's been associated with the Shawnee County
Sheriff's Department?
A. I don't.
A. No.
Q. And by "compromised, perhaps a portion of the cocaine had been taken out and substituted with a different substance?
A. Never.
Q. You were never given that information?
A. No.
69. In December, 1995, Deputy Good contacted the property room and advised he needed to pick up the drug evidence under Sheriff's Department Case No. 95-04479 for court. This drug evidence involved a suspect named Quincy Ford. Good worked an investigation regarding Mr. Ford, and made several buys from him. One of those buys resulted in a prosecution being filed against Ford. The docket sheet in State of Kansas v. Ford, Case No. 95-CR-1796, reflects a preliminary hearing was scheduled for December 5, 1995, and that the defendant appeared and waived the preliminary hearing.
70. Property room employees were unable to locate the Ford drug evidence requested by Good. When they searched for the Ford evidence, they also discovered that the drug evidence in two others cases - No. 95-06813 and 95-05338 (both involving a suspect named Scales) - was also missing. A search ensued but the drug evidence was not found on that day. Several days later, J. D. Sparkman reported that he found the missing Ford and Scales drug evidence in an area where recovered stolen property was held. No prosecution was ever commenced against Scales related to the two pieces of evidence that were misplaced in the property room. Ford entered a plea February 9, 1996.
71. Since these missing drugs were found, no investigation was conducted in December, 1995. There is no indication in this record that Sheriff Meneley was notified in December, 1995 about this evidence being temporarily misplaced. There is no evidence in this record that there was any weight discrepancy, tampering or substituting of foreign substance related to the Ford or Scales drug evidence.
72. In March 1996, Property Room Officer Ken Smith was subpoenaed to bring several items of drug evidence to court on April 1, 1996. In gathering the items of evidence subpoenaed, one was found missing, in Sheriff's Department Case No. 95-17552.
73. On April 1, 1996, Sergeant Richard Warrington, Supervisor of the Sheriff's Department Property Room at Forbes Field, was notified that a subpoena requesting the production of cocaine evidence for trial in Sheriff's Case No. 95-17552 could not be located in the property room. The one gram of cocaine evidence which was missing had been collected by Frank Good on a suspect named Yousif on December 18, 1995 and turned in to property room officer J. D. Sparkman on January 3, 1996. Frank Good was notified that evidence in Case No. 95-17552 could not be located. Good told a property room officer to look under another case number, the last number of which he could not remember, to see if the evidence in Case No. 95-17552 was with the other case. Good stated the other case number started with the digits 95-1754? and was a case that he also collected on December 18, 1995, the same date as he collected Case No. 95-17552. Warrington found that Case No. 95-17541 was a case collected by Frank Good on the same date as Case No. 95-17552. When Warrington checked for Case No. 95-17541, he discovered that the cocaine evidence associated with that case number was also missing. Thereafter, Case No. 95-16526, a third case of cocaine evidence collected by Frank Good on a suspect named Newton was also discovered missing. Case No. 95-16526 had been collected by Good on November 29, 1995 and was turned into property room officer J. D. Sparkman several weeks later on January 3, 1996.
74. Following the April 1, 1996 discovery, Sergeant Warrington notified Captain Lovelace that he wanted to meet with the Sheriff about missing drug evidence from the Forbes Property Room. On the afternoon of April 1, 1996, Sergeant Warrington met with Lovelace and Sheriff Meneley in Meneley's office. Warrington informed the Sheriff that there were three cases of missing drug evidence at the Forbes Property Room and that he, Warrington, was going to do an inventory of the property room to try to locate the missing drugs. Sheriff Meneley told Warrington to continue the inventory of the property room and also to notify the KBI of the missing evidence.
75. As directed by Sheriff Meneley, Warrington notified KBI Agent Duane Robert that there was evidence missing from the property room in three cases involving Frank Good and J. D. Sparkman.
76. Agent Robert told Warrington to continue his inventory of the Forbes Property Room.
77. Of these three pieces of evidence, only one case was sent for prosecution. This was the evidence in Case No. 95-17552, which related to a suspect named Yousif. The other five pieces of evidence in question, three of which were temporarily misplaced in December, 1995, and two of which were found as a result of the inventory, did not involve cases sent for prosecution.
78. In State of Kansas v. Yousif, Case No. 96-CR-480, Assistant District Attorney Rues made an appearance on April 1, 1996. The case had been set for a preliminary hearing that date, and a subpoena was issued for Good to appear at the preliminary hearing. On April 1, 1996, Rues requested and received a continuance of the preliminary hearing.
79. On April 4, 1996, Deputy Attorney General David Debenham wrote District Attorney Hamilton notifying her that there were additional pieces of missing evidence. Debenham focused on J. D. Sparkman as a suspect, stating in his letter that he understood that the victim in State v. Sparkman (a case filed against Sparkman for alleged rape) "may have received information from J. D. Sparkman as to his possible involvement in missing evidence from the custody of the Shawnee County Sheriff's Department."
80. Deputy Attorney General Debenham conducted an inquisition from April through July, 1996, following the KBI's investigation in March and April, 1996. Debenham sought the testimony of Sparkman through the inquisition. Sparkman took the Fifth Amendment. Because Sparkman asserted his the Fifth Amendment privilege, Debenham was unable to examine Sparkman.
81. Although Warrington reported to the KBI that additional drug evidence was missing from the Sheriff's Property Room, the KBI never formally expanded its investigation to focus on the missing drug evidence in the cases collected by Good and handled by Sparkman during December, 1995 and January, 1996.
82. The Attorney General, other than seeking to question Sparkman, did not expand the inquisition to focus on evidence discovered missing in April, 1996. The primary focus of the Attorney General's investigation remained the 1994 theft of the Caldwell evidence.
83. The Sheriff's Department conducted an internal investigation concerning the drugs found missing in 1996.
84. Sergeant Mark Wanamaker handled the investigation in July, 1996. Wanamaker contacted KBI agents and specifically asked that they question Sparkman when his inquisition statement was taken. Also, as part of his investigation, Wanamaker interviewed Good and Sparkman. Before the interview, Wanamaker read Sparkman his rights. During the interview with Sparkman, Sparkman told Wanamaker that during the KBI investigation he had taken and passed a polygraph examination about the theft of any property from the Sheriff's Department. At one point in the interview, Sparkman refused to answer further questions.
85. Later in 1996, at Meneley's direction, further investigation was done. Meneley directed that an inquiry be made to determine whether Sparkman had, in fact, passed a polygraph examination administered by the KBI. He also directed further investigation into who had taken the drugs from the property room. This further investigation was assigned to Detective Ramirez. Ramirez learned by talking to KBI agents that Sparkman had not taken a polygraph, and had instead taken the Fifth Amendment when called into the inquisition.
86. Ramirez raised the possibility of having Good take a polygraph exam, saying he was out of leads. Captain Lovelace disagreed with the suggestion. The property custody sheets reflected an amount of drugs consistent with what Good turned into the property room. In Lovelace's opinion, the issue was not shortage in the drugs, but the fact some drugs completely disappeared. At Ramirez's request, Lovelace raised the question of whether Good should be asked to take a polygraph exam with Meneley. Lovelace stated that Meneley responded by asking the same questions Lovelace asked Ramirez. After Lovelace related Ramirez's position, that he was out of leads, according to Lovelace, Meneley responded by saying that the KBI was investigating the matter, and the KBI could have Good take a polygraph if that was deemed appropriate.
87. Ramirez did not question Good and did not ask him to take a polygraph.
88. On December 10, 1996, Ramirez closed his investigation because he could not identify a suspect.
89. By the close of Ramirez' investigation, J. D. Sparkman had left the employment of the Shawnee County Sheriff's Department. Sparkman had received custody of the subject drugs in the property room, had lied about taking a KBI polygraph test, and had invoked his Fifth Amendment privilege in the Attorney General's inquisition.
90. On August 21, 1996, Attorney General Stovall wrote a letter to District Attorney Hamilton stating that the KBI's investigation had been completed concerning the drugs found missing from the evidence locker in 1994. The letter stated that the KBI had been unable to establish who had taken the drugs from the evidence locker and that the investigation had failed to produce sufficient evidence to prove guilt beyond a reasonable doubt in order to prosecute the individual or individuals responsible for theft of the Caldwell evidence in July, 1994.
91. District Attorney Hamilton did not communicate with Attorney General Stovall about any further investigation concerning missing evidence from 1996.
92. The letter from Stovall advising that the investigation was complete was not sent to Meneley, nor did Stovall or Hamilton advise Meneley the investigation had been completed, the findings of the investigation (or lack thereof), or any of the information learned during the investigation.
93. The Sheriff's Department never informed the District Attorney's Office about the drug evidence discovered missing in April, 1996. Sergeant Warrington, at Meneley's direction, did report the information to the KBI.
94. The Sheriff's Department never informed the District Attorney's Office that the drug evidence discovered missing in April, 1996, was being investigated by the Sheriff's Department as a theft.
95. District Attorney Hamilton did not ask for a copy of the KBI investigative report. Attorney General Stovall later testified she would have made it available to Hamilton had she made such a request. In December, 1998, Hamilton made a public statement concerning the KBI report, saying, "I suppose it was something I could have inquired about further." concerning the KBI report. The same day, Mary Horsch, the Attorney General's public information officer, stated publicly that if Hamilton had asked, "I'm sure the general would have considered the request." Stovall said, ". . . it would not be our regular practice to turn those investigative reports over since she (Hamilton) would not be making the decision to prosecute or not in that particular case."
96. Assistant District Attorney Rues testified that as early as January, 1996 (based upon disclosures by Detective Jaramillo) he believed Meneley was involved in a cover up of drug evidence tampering by Deputy Oblander. The prosecutor's office referred the matter to the Attorney General for investigation in February, 1996. As of February 13, 1996, when District Attorney Hamilton asked the Attorney General to refer the allegations about Deputy Oblander's possible evidence tampering to the KBI for an investigation, the District Attorney's Office had "some drug cases pending at different stages that would be impacted by any wrongdoings of [Oblander]." Rues suggested that the District Attorney's Office decided to monitor these cases, waiting for the right "vehicle" [case] to be presented where more could be learned. James Brown, a former Assistant District Attorney, testified that although they had no specific evidence, and instead only had little "black clouds," he too was waiting for the right vehicle to find out what was happening with drug evidence at the Sheriff's Department. Hamilton referred the Oblander matter for an independent investigation by the Attorney General. Her office conducted no separate investigation into the question of whether drug evidence was being tampered with, or cases were being referred for prosecution on bad evidence, because she had no investigative power. Clearly, the District Attorney's investigative resources were limited given that the Sheriff's Office, the agency she relied on customarily for assistance in investigations, was the target of the investigation. The "vehicle" that ultimately provided the District Attorney's Office with opportunity to examine the Oblander allegations was the trilogy of cases--Campfield, Boyett, and Hernandez.
97. In February, 1997, Bruce Harrington, a local defense attorney requested a copy of the KBI investigation file in connection with his defense of a defendant in a drug case, State of Kansas v. Wesley Campfield, Case No. 96-CR-1828. During the preliminary hearing, Harrington questioned Good about an internal investigation about drug evidence. Shortly after the hearing, Assistant District Attorney Rues told Harrington that he should be seeking a KBI investigative file, rather than an internal investigation file. Thereafter, Harrington filed a motion requesting production of the KBI file.
98. As a result of his request, Harrington testified that Deputy Attorney General Debenham contacted him by phone, told him that the investigation was ongoing, and that the file would not be made available.
99. District Judge Charles Andrews was assigned the Campfield case. As a result of Harrington's defense motion alleging that the evidence in the case had been tampered with, Judge Andrews contacted counsel for the KBI, and learned that the investigation was ongoing.
100. Judge Andrews ordered the KBI investigation file to be brought to his chambers, where he inspected a portion of the file. Judge Andrews made the file available for inspection to Assistant District Attorneys Rues and Brown. They briefly reviewed the KBI file in Judge Andrews' office.
101. In April, 1997, production of the KBI investigation file was requested in another case. This request was made in State of Kansas v. Boyett, Case No. 95-CR-1880. The docket sheet indicates that the production of the KBI file occurred in this case in conjunction with its production in Campfield.
102. In February, 1998, the docket sheet in Boyett reflects that the KBI file would be ordered produced in that case. Four days later, on February 17, 1998, an entry appears stating, "Per verbal order from Judge Conklin--remove this case from docket."
103. In October, 1998, on the defendant's motion, an order was entered in Boyett setting a preliminary hearing. The defendant had originally waived preliminary hearing.
104. On October 9, 1998, the District Attorney's Office directed a letter to about fifty area defense attorneys, known to be handling drug cases, advising that there may be exculpatory evidence contained in the KBI report.
105. On November 23, 1998, at the Boyett preliminary hearing, Assistant District Attorney Rues called Deputy Timothy Oblander to the stand. On advice of counsel, Oblander took the Fifth Amendment. At this point, Rues moved to dismiss the case, and the motion was granted.
106. After the case was dismissed, defense counsel asked the Court to make the motion to dismiss filed with the Court that same day a part of the record. The motion to dismiss contained excerpts of the KBI file, which Judge Conklin had placed under seal. Judge Theis allowed the motion to be filed. The motion was placed under seal in accordance with Judge Conklin's order sealing the KBI file.
107. The Topeka Capital Journal intervened in the Boyett case, requesting that Judge Conklin open the KBI file to the public. On December 4, 1998, Judge Conklin granted the request, ordering that the file be made available to the public on December 7, 1998.
108. After the KBI report was released to the public in December, 1998, District Attorney Hamilton publicly criticized Attorney General Stovall for how her office handled the investigation. In a public statement on December 15, 1998, Hamilton criticized the KBI for not telling her about the missing evidence beyond the Caldwell evidence in 1994. She also said the Attorney General's Office should have told her there were potential problems with other drug cases being prosecuted in her office. Hamilton also said publicly it would have been nice for Stovall's letter to inform her office "that evidence was missing in these other cases," and she publicly complained, "Are we supposed to ask questions when we don't know to ask questions?"
109. Attorney General Stovall replied to this public criticism by saying her office was frustrated during the investigation and had not been able to establish who had taken the drugs. Stovall further stated publicly that in hindsight she should have made sure there was communication between the Sheriff's Office and the District Attorney. Stovall testified "we should have talked to Joan [Hamilton] about the fact that there were some problems." But, Stovall also stated that if Hamilton had anticipated problems and had asked to see the KBI reports, Stovall's office would have provided a copy.
110. On or about December 9, 1998, as a result of the release of the KBI report, Timothy Oblander made a public statement. In that statement he said that he went on a drinking binge in May of 1995 because of extreme family difficulties. He also said that the only thing that understood his frustration was "the bottle." Further that he was not "a drug-crazed" individual as he had been portrayed in the media, and that he was only "guilty of being an alcoholic, not something I'm proud of."
111. In December, 1998, after release of the KBI report, Sheriff Meneley contacted KBI Director Larry Welch to ask for assistance in conducting a full audit and inventory of the property room. As a result of this contact, Meneley was referred to Keith Coonrod, an expert from New York, who had helped the KBI improve the procedures in its evidence lab. Meneley hired Coonrod to review the Sheriff's Department Property Room and evidence-handling procedures. Coonrod worked with Sergeant Curtis Wagers to implement several changes.
112. Meanwhile, the Sheriff's Department relocated from the Shawnee County Courthouse to a new facility. When this relocation occurred, the property room was conjoined with the rest of the department, so it is closer and more accessible for supervision and control.
113. In addition to consulting with a property room expert, the Sheriff's Department developed new policies to address evidence handling and control. The changes implemented included a requirement that all drug evidence be handled by one officer in the presence of another, a requirement that property be sealed in a self-sealing package that is more tamper proof, and increased record-keeping checks and balances for drug evidence handling.
114. In addition, Sheriff Meneley has continued attempting improvements in the property room, including procuring funds to purchase a machine to set up a bar coding system for all property. In the near future this bar coding system will be implemented, which will involve hiring two additional civilian employees to enter data and track property.
115. In addition, Sheriff Meneley assigned all narcotics and special services staff, including supervisors, and all crime scene and property room staff, to conduct a full inspection and audit of narcotics evidence, all property in the property room, and narcotics files. This process involved several weeks, and two long sessions, of more than a dozen employees spending full time inspecting this property. In this process, no additional pieces of missing drugs were discovered.
116. In February and March, 1999, a hearing was conducted in State of Kansas v. Hernandez, Case No. 95-CR-1809, on a motion to dismiss filed by the defense. The Hernandez case was based on the discovery of marijuana in Hernandez's home when an arrest warrant was being served. Deputy Oblander played a part in the case. The motion was filed as the result of discrepancy in the weight of marijuana evidence.
117. On February 22, 1999, after being duly sworn, Sheriff Meneley testified as follows before the Hon. Eric S. Rosen in proceedings in State of Kansas v. Carlos A. Hernandez, In the District Court of Shawnee County, Kansas, Fourth Division, Case No. 95-CR-1809, Transcript, Vol. II, 226:25-227:14, 245:21-246:13 and 253:12-20. (State's Exhibit 1) The State has identified these excerpts as the alleged false testimony by Sheriff Meneley.
Q. So what you are telling us basically is the reason you didn't contact the District Attorney's office about this bunch of cases that were going through with tampered evidence was because you didn't know of it?
A. Yeah, I didn't know. The only one I knew of was the missing cocaine case and I was made aware that Ms. Buck had been looking for some drugs I thought for the KBI and couldn't find them. I thought that was turned over to the KBI.
Q. So as far as anything missing other than the cocaine between then and the end of 1996, you didn't know what was going on?
A. No, I had no idea there was anything missing and still don't.
Q. Wasn't going to ask but since you volunteered, did you offer to become a sponsor for Tim Oblander?
A. Yes, I did and let me say the reason I did that, I couldn't have been his sponsor if he was a drug addict. Alcoholics can't be sponsors for drug addicts. You can only be a sponsor for an alcoholic.
Q. Drug addicts, when you say drug addicts you are talking about---
A. Hard drugs are sponsors for drug addicts, so my assumption all along was that he had a drinking problem and that's as far as I knew, that's what his problem was.
Q. What was that assumption based on?
A. Because he had been found drunk during that period of time that he disappeared and he had apparently had a drinking problem before. I wasn't aware of it.
Q. So from 1994 until 1998 basically what you're saying is you didn't know anything that was going on in this department as far as the missing evidence was concerned?
A. As far as I knew we had an isolated incident. We had some cocaine missing in one case and that's what was being investigated. So when you say missing evidence, we had-- as far as I knew it was an isolated incident.
118. On February 26, 1999, Oblander resigned from the Sheriff's Department. His letter of resignation of the same date, addressed to Meneley, stated: "I wish to apologize to you and the Department. When I told you of my alcohol problems and need for alcohol treatment, I'll never forget the understanding and compassion you shared with me of your own alcohol problem and treatment. For personal and recovery reasons I feel that I must resign effective today."
119. During the Hernandez hearing, Oblander testified and denied he went to Valley Hope for a drug addiction. Thereafter, on March 1, 1999 he authorized a faxed statement wherein he admitted to having a cocaine addiction for which he was treated at Valley Hope. Oblander's one-and-a-half page statement contained a representation that Oblander had a "dual addiction" to alcohol and cocaine. Oblander testified in this proceeding that the "dual addiction" language was not a phrase he drafted and that the majority of this statement was written by his attorney or other unknown persons. Oblander's faxed statement was marked and admitted in Hernandez as Exhibit 17.
120. On March 9, 1999, after being duly sworn, Sheriff Meneley testified as follows before the Hon. Eric S. Rosen in proceedings in State of Kansas v. Carlos A. Hernandez, In the District Court of Shawnee County, Kansas, Fourth Division, Case No. 95-CR-1809, Transcript, Vol. VI, 241:3-242:21. (State's Exhibit 2) The State has identified the alleged false testimony of Sheriff Meneley at pages 241:3-14 and 242:15-21. To keep testimony in context, pages 241:15 through 242:14 are included in the following passage.
Q. And in the press release or the to whom it may concern, Exhibit 17, release, Deputy Oblander admitted or confessed to having become addicted or a user of cocaine?
A. Yes.
Q. What knowledge--
A. Yes.
Q. What knowledge did you have on March the 1st of Exhibit 17 to whom it may concern that Deputy Oblander was using cocaine during the time he was in your agency?
A. None.
Q. Now, with that knowledge-- well, let me ask you this. Are you now aware that a statement attributed to then Deputy Oblander that he had used cocaine, that he had taken out of evidence, that he had taken out of -- drugs were used but not paid for because they were taken in his work as a police officer. Are you now aware that he's made such a statement?
A. I remember vaguely the statement that you are talking about. I don't remember the exact wording of it but, yeah, I recall that he talked about he had-- he had gotten the cocaine during his police duties or something.
Q. And that he didn't have to pay for it because he had gotten it as a police officer?
A. Yes, something to that effect.
Q. With that knowledge now, does that change anything about what you said last time you were here on the witness stand?
A. In reference to anything in particular?
Q. Well, specifically with reference to-- no, I better not get in specifics.
THE COURT: No, I think that's an awful broad question. You need to narrow that down a little bit.
Q. (BY MR. RUES) Before March the 1st, 1999, has anyone reported to you that Deputy Oblander was using drugs, controlled drugs during the time that he was a sheriff's deputy?
A. No, the first time I knew of it was his written statement or written whatever you would call it.
121. Following the issuance of an order by the Hon. Eric S. Rosen in Hernandez, seven additional convictions, including Yousif, have been set aside by the Hon. Charles E. Andrews, Jr. The rulings were based on the decision in Hernandez in which the Court held that the actions of Oblander, Good and Sheriff Meneley constituted outrageous conduct and that any illegal drugs found in the custody of the Sheriff's Department from January 1, 1994 through December 31, 1996 was tainted evidence, thereby jeopardizing all drug cases in which Oblander would have had the opportunity to convert that evidence for his personal consumption. No evidence was presented and no specific finding was made in any of those cases that the evidence was actually missing, mishandled, tampered with, tainted or compromised in any manner. With the exception of Yousif this Court has been presented no information about any of the cases as to whether evidence was actually tainted. The reason for the reversals was that the evidence, including the testimony of Oblander, Good and Meneley, could not be trusted and that under such circumstances fair trials could not be constitutionally guaranteed.
122. Timothy Oblander said he never went to the property room and stole evidence. Oblander stole the Caldwell evidence from Holladay's work area and misappropriated other drugs before they were checked into the property room. It is doubtful Oblander's actions contributed to the fact that the evidence from one drug buy in Yousif was missing. At the time the Yousif evidence was collected, Oblander was working in warrants and had completed his treatment. There is no evidence or any suggestion from the State that Oblander was suspected of stealing the Yousif evidence.
123. No witness testified in this trial that he or she told Meneley that Oblander was treated for cocaine addiction, or that Oblander had been using or stealing drugs. The circumstances, however, clearly suggest that Sheriff Meneley knew Oblander used drugs obtained through his work as an undercover officer. The Court is persuaded by the circumstances and the following evidence that Meneley knew about Oblander's drug use and treatment. a. Most significant, the Sheriff is an intelligent, experienced law enforcement officer who formerly worked narcotics investigations himself as a police officer. As Sheriff he has significant achievements. Meneley was described as having an assertive management style by Captain Rick Hladky. Meneley required subordinates to keep him informed about events in the Department. Others suggested Meneley had a hands on management style, requiring his approval on most everything decided within the Department. With his law enforcement experience and style of management it is not credible that the Sheriff had no clue, as he claimed, about Oblander's drug use and treatment until Oblander publicly confessed in his March 1, 1999 press release.
b. These clues were available for Meneley and clearly signaled Oblander's possible corruption in 1995. After Oblander was reassigned to Special Services, drug training aids were missing. While this fact may not have been reported to Meneley initially, it certainly came to light during the Sheriff's investigation. Next, in July, 1994, the Caldwell drugs were stolen. The three suspects were cleared in the investigation; the crime remained unsolved. Similarly, Meneley recognized that Oblander and Good were spending a substantial amount of buy money for few prosecutions. He disclosed this concern to Jaramillo and Blume in his meeting with them in February, 1995. Then, Oblander was missing in action in May, 1995 and was located after an extraordinary search effort by the Department.
c. Later, after Oblander admitted himself to Valley Hope for cocaine addiction, Meneley visited him twice, one time to discuss his return to work. Meneley was obligated as Sheriff to make personnel decisions regarding Oblander consistent with county policy. His defense asks the Court to believe he kept Oblander on regular pay status during a nearly five week absence without any confirming information in writing regarding the reason for absence or justification for the personnel action. While Oblander was absent from work, Meneley told Lovelace the absence was for "stress."
d. Then, after Oblander's return to work, the testimony, which Meneley gave in earlier proceedings which he requests that the Court consider, establishes much gossip and rumors about Oblander and his possible drug use. Meneley apparently was not curious enough to check the rumors out in late 1995, but clearly when the KBI began asking him questions about Oblander in March, 1996, he would have had or should have had some incentive to find out whether the information he was supposedly given regarding Oblander's treatment was correct.
e. Further, when the Topeka Capital Journal report was published in February, 1996, suggesting irregularities in drug investigations at the Sheriff's Office, Meneley reacted angrily and stated as reported by Captain Lovelace, whose testimony the Court credits, words to the effect, I'm going to find out who gave or leaked the information, not any denial that what was leaked was not true.
f. Finally, based upon his dealings with Meneley, Oblander believed the Sheriff knew about his drug use, addiction and treatment. Oblander testified Frank Good took care of everything upon his admittance to Valley Hope.
g. All of these circumstances lead the Court to conclude that Meneley knew, before he testified in the Attorney General inquisition on April 11, 1996 and certainly by March 9, 1999 that Oblander used illegal drugs obtained from the Sheriff's evidence and was treated for drug addiction.
124. The circumstantial evidence, and reasonable inferences to be drawn from it, establishes Sheriff Meneley either knew about Oblander's drug use, or he should have known about it. But standing alone, the circumstancial evidence recited above would not be sufficient to meet the demands of the standard of proof to establish knowledge of Oblander's drug use and treatment by clear and convincing evidence. The State's case relies substantially upon the testimony of Daniel Jaramillo, Phil Blume and James Welch, all of whom reported conversations they had with Sheriff Meneley in late May or early June and July of 1995, in which Meneley disclosed Timothy Oblander's drug use and addiction. The defense attempts to discredit Jaramillo and Blume by suggesting they were motivated to lie because Sheriff Meneley removed them from the Federal Task Force in January, 1996 and later transferred them out of the narcotics unit. The defense denies Meneley and Welch ever spoke about Oblander and additionally seeks to discredit details of Welch's testimony by eliciting testimony from Detective Byers and Judge Conklin that Welch did not disclose his conversations with Meneley as he previously believed he had during his interview with the Topeka Police Department.
125. The Court finds the testimony of Daniel Jaramillo and Phil Blume to be true. Both witnesses are found to be credible. The facts to which they each testified were distinctly remembered. The details in connection with their July, 1995, conversation with Sheriff Meneley were reported precisely and coherently. The testimony of Detective Jaramillo and Deputy Blume was clear, direct and weighty. The Court finds their testimony about their July, 1995, meeting with Sheriff Meneley, and the statements they attribute to the Sheriff, which discloses Oblander's drug use, addiction and treatment, to be convincing, reasonable and persuasive.
126. Detective Jaramillo and Deputy Blume each reported an account of their joint meeting with Meneley in early July, 1995. The meeting occurred while Deputy Oblander was in treatment for his drug addiction. Jaramillo's testimony was clear and convincing in its details. After conferring with Meneley about Task Force matters, Meneley told Jaramillo and Blume that he wanted to share information that was confidential and sensitive. Meneley warned that if any information got out he would know that either Jaramillo or Blume was responsible. Meneley then disclosed that Oblander used illegal drugs while working in the Special Forces Unit, that Oblander was in treatment for his crack cocaine addiction, that Oblander had used other drugs and that Oblander had stolen Holladay's Caldwell evidence. Meneley further stated that he believed Good had been a bad influence and was partly to blame for Oblander's addiction. According to Jaramillo, Meneley also said that Oblander would dip into the evidence and then replace it with another substance. Finally, Jaramillo said that he expressed concern to Meneley about compromised evidence. Meneley assured him he was reviewing the matter and that cases would be forwarded for prosecution.
127. Deputy Blume corroborated Jaramillo's testimony on several significant points. Blume repeated the warning that Meneley gave about "information leaving the room." Blume confirmed Meneley's disclosures that Oblander was in drug rehabilitation for a cocaine addiction "up there", that Oblander had taken evidence that was missing the prior year, that Oblander was taking drugs bought through his work and that Meneley blamed Good. Blume added that he recalled Meneley describing that Oblander would put some substance back in the evidence bag. According to Blume, Meneley remarked that he had spoken to Oblander. Blume also recalled some of the dialogue between Jaramillo and Meneley about concern over sending cases for prosecution. Blume also attributed a comment to Meneley that Scott Baker had been told of Oblander's drug use.
128. Jaramillo and Blume consistently repeated their accounts following their July, 1995 meeting with the Sheriff. After more than four years and multiple legal proceedings, the late 1995 and early 1996 revelations of Jaramillo and Blume have proven to be remarkably accurate. They reported the details of Oblander's drug use, drug addiction and theft of drug evidence, which Timothy Oblander did not publicly disclose until 1999 and certainly had never disclosed to Jaramillo or Blume.
129. Further, Meneley's removal of Frank Good during Oblander's treatment absence from all drug investigations, drug raids and all access to drugs also logically corroborates the testimony of Jaramillo and Blume that Meneley was angry with Good and partly blamed Good for Oblander's drug use.
130. In addition, once the Topeka Capital Journal reported on February 23, 1996 the unspecified allegation about a Shawnee County Sheriff's Deputy being connected to allegations of missing drugs and tied those disclosures to the Task Force, Meneley quickly identified Jaramillo and Blume as the individuals who may have leaked information and additionally identified Baker as a potential leak. According to Blume, Meneley commented in July, 1995, that Baker also knew about Oblander's drug use.
131. The defense points out that Jaramillo and Blume should not be believed because part of the alleged disclosures about backfilling evidence with foreign substances and concerns about sending Oblander's cases for prosecution have not been demonstrated by the evidence. While the Court finds that there is no evidence of substituting foreign substances for drugs in this record and that only one case (Yousif) of missing drug evidence was forwarded for prosecution, and that case was Good's case and it had already been filed when the missing evidence was discovered in April, 1996, such findings do not mean the comments on these subjects were not made in the July, 1995 meeting by Meneley.
132. The State also presented the testimony of James Welch to corroborate testimony of Jaramillo and Blume as to Meneley's knowledge that Oblander had used drugs during his undercover duties and was addicted.
133. In late May or June, 1995, James Welch received two phone calls from Sheriff Meneley. In the first call, Sheriff Meneley told Welch that Tim Oblander had used drugs during his undercover duties and was now addicted. Sheriff Meneley stated he was trying to reach a consensus about how to handle the situation. Welch told Meneley that there was no need to re-invent the wheel; Meneley should look at the Woodworth case. A few days later, Meneley called Welch a second time and told Welch that he, the Sheriff, didn't want to handle the Oblander situation that way. The Sheriff wanted to handle the situation as a workers' compensation issue. 134. As stated, the defense attacked Welch's credibility by eliciting testimony from Detective Tim Byers and Judge Conklin that Welch did not disclose his conversations with them as Welch had previously indicated he believed he had during an interview with the Topeka Police Department. Further, the defense elicited testimony from Deputy Assistant Attorney General David Debenham that Debenham did not receive a message allegedly sent by Welch in 1996 regarding the information that Welch had during the course of the KBI and Attorney General investigations.
135. The Court finds that James Welch's testimony is credible and corroborates the State's other evidence, but is not vital to the Court's ultimate findings. Welch's testimony provides insight into Meneley's decision not to prosecute Oblander for stealing drug evidence from the Sheriff's Department. Welch testified that during their second conversation, Meneley stated he did not want to handle Oblander's situation as the Woodworth prosecution case was handled, but wanted to handle it through workers' compensation. Although no evidence was presented to show Oblander received workers' compensation, the State did present evidence that Oblander continued to receive his regular weekly pay during treatment without any use of sick leave or vacation time, and upon the conclusion of his treatment he was transferred by Meneley to a non-narcotics unit assignment which continued until Oblander's resignation on February 26, 1999. Meneley's unusual and generous handling of Oblander's leave and his election not to explore workers' compensation benefits regarding Oblander avoided public disclosure to Shawnee County officials responsible for administering personnel leave policies and workers' compensation claims. These circumstances support the conclusion that Meneley wanted to keep Oblander's drug use and addiction a secret and Meneley took steps to prevent outside agency disclosure.
136. The defense has renewed its Motion to Exclude Testimony of James Welch. Sheriff Meneley has maintained throughout this proceeding that he never spoke with Welch about Oblander. However, the Sheriff argues a contingent position. The Sheriff contends that if the Court believes Welch's testimony it should be excluded through application of the attorney/client privilege. The Court rejected Meneley's argument before trial, overruled his objection to the admission of Welch's testimony at trial and now reconsiders the ruling and still concludes that the testimony should be considered.
137. After Sheriff Meneley testified in the Hernandez hearing, The Topeka Capital Journal reported that Meneley denied knowledge of Oblander's drug use. Welch knew differently. Welch, who by this time was employed as a Deputy Attorney General, reported through his chain of command and ultimately to the Attorney General about conversations he had with Sheriff Meneley in 1995 about Oblander. Welch was concerned that Meneley had given false testimony in the Hernandez case. The Court finds that Welch acted out of a concern that Meneley was attempting to perpetuate a fraud upon the Court.
138. The Court finds, as a matter of fact, that there has never been an attorney/client relationship between Meneley and Welch and further finds that there was not an attorney/client relationship arising out of the communications at issue. Welch has been an attorney since the 1970's. He first became acquainted with David Meneley when Welch was employed as an Assistant District Attorney. Meneley was then a narcotics officer in the Topeka Police Department. Welch has never been in private practice. He has been employed at different times by the city, county or state. Meneley's defense claims there was no attorney/client relationship between Meneley and Welch and that the conversations which Welch relates did not happen. The defense attacks the credibility of Welch's testimony pointing out that there are more than 1,000 attorneys in Topeka. Therefore, Meneley's defense argues it stretches credibility to believe that Meneley would seek legal advice from Welch.
139. Welch also denies that there was ever any attorney/client relationship between himself and David Meneley. The Court finds as a matter of fact that Meneley was not Welch's client. Meneley did not consult Welch as an attorney in his professional capacity to obtain legal advice or service. The contingent claim of privilege is focused on comments made by Meneley about wanting to put Oblander on workers' compensation rather than follow procedures in the Woodworth case. The privilege does not apply unless a client is seeking legal advice. Here the Court finds not only that Meneley is not a client but the substance of the communication was not directed at seeking legal advice. Meneley was seeking a consensus of how to manage a personnel issue. The inquiry which Meneley was making was related to potential personnel or workers' compensation issues for which the county would be legally liable or responsible. As the Sheriff, Meneley is the official responsible for his department and is subject to follow personnel policies of the county in relation to the county employees under his supervision. See K.S.A. 19-805(d).
140. Nothing about this communication suggests that Meneley was seeking any advice in a personal capacity regarding his personal or potential personal liability. Had Meneley posed the question to Welch in the context that he was considering covering up Oblander's drug use, it perhaps could be said that he was seeking legal advice in his personal capacity.
141. Even if the Court were to find that Meneley was a client, Welch was his lawyer, that there was a communication between Welch and Meneley in the course of that relationship and in professional confidence about legal rather than business advice, the Court still finds the testimony to be properly admitted. There is no evidence that Meneley suffers from any mental incapacity. On the contrary, the Sheriff by virtue of his years of law enforcement training and professional experience is more sophisticated than an average layperson regarding the confidentiality that may attach to an attorney/client communication. Notwithstanding, Meneley without any fraud, deception or trickery and of his own volition disclosed to Jaramillo and Blume within a few weeks the same alleged confidences about Oblander's drug use and addiction which were disclosed to Welch. Thus, the Court holds that to the extent any attorney/client privilege ever attached, it was waived by reason of Meneley's voluntary disclosures to Jaramillo and Blume.
142. The Court finds by clear and convincing evidence that by June and July, 1995, Sheriff David Meneley knew that Shawnee County Sheriff's Deputy Timothy Oblander had used illegal drugs obtained during his duties as an undercover narcotics officer, was addicted to illegal drugs, was being treated for cocaine addiction and was responsible for stealing cocaine evidence from the Sheriff's Department in 1994 and 1995.
143. Based upon the above findings of fact, the Court finds the following allegations of the Petition to be true by clear and convincing evidence:
a. During the 1996 investigation of the Shawnee County Sheriff's Department by the Kansas Bureau of Investigation and specifically during the Attorney General's 1996 inquisition, Defendant Meneley knowingly and willfully concealed from the KBI and Attorney General Deputy Oblander's theft of drugs from the Sheriff's Office;
b. On or about April 11, 1996, Defendant Meneley willfully gave false testimony under oath before an Attorney General's inquisition by denying knowledge of illegal drug use and treatment for drug addiction of Deputy Oblander; and
c. On March 9, 1999, Defendant Meneley willfully gave false testimony under oath before District Court Judge Eric S. Rosen during the Hernandez hearing when he denied that he had any knowledge regarding illegal drug use and treatment for drug addiction of Deputy Oblander.
144. Based upon the foregoing findings of fact, the Court has not been persuaded that Sheriff Meneley testified falsely on February 22, 1999 during the Hernandez hearing, that he knowingly permitted criminal cases to be forwarded for prosecution and conviction without revealing that evidence in some of the cases had been compromised, that he willfully failed to adequately investigate missing drug evidence, or that he willfully failed to preserve the integrity of evidence collected by members of his department to ensure a fair prosecutorial system.
a. The Court is not persuaded that Sheriff Meneley gave false testimony in the Hernandez hearing on February 22, 1999. The questions eliciting testimony alleged to be false are not clear and precise; rather they are somewhat broad and confusingly posed. On the subject of missing evidence, Meneley does refer to what he describes as an isolated incident of missing cocaine. The evidence in this record establishes that one of the six cases from 1996 introduced into evidence was prosecuted with missing cocaine evidence. That was the Yousif case. Further, Meneley did have his staff report the missing drugs to the KBI in April, 1996. Taken in context, the Court does not find that the Sheriff testified falsely on this point. Further, the questions directed at eliciting information on Oblander's drug use are not specific enough to elicit direct answers upon whether Meneley knew Oblander was using drugs and was being treated for drug addiction. The questions, which elicit testimony which is later alleged to be perjurious, should be reasonably clear and formulated in a way to place the witness's consciousness and attention on the truth or falsity of a specific answer. These questions were unclear and not direct. The passage at issue appears to be more of a dialogue than a specific question and answer format. Meneley's dialogue about alcohol is misleading, given his knowledge of Oblander's drug use, but the Court is not persuaded that false testimony has been proven as to the February 22, 1999 testimony.
b. This record does not prove that Sheriff Meneley knowingly permitted criminal cases to be forwarded for prosecution and conviction without revealing that evidence in the cases had been compromised. To the contrary, Meneley took no affirmative step to send any cases for prosecution. The evidence offered by the State showed that of the few pieces of evidence that were missing, only one (Yousif) related to a case sent for prosecution. That case was filed in February, 1996, before the evidence was found missing in April, 1996. Further, when the Yousif evidence was found missing, there is no evidence in this record which shows clearly that Meneley was aware of the case status and allowed it to proceed in spite of this knowledge. He did have his staff make a report of the missing evidence to the KBI, which negates any suggestion he was willfully trying to cover up the drugs discovered missing in 1996. The evidence is inconclusive as to whether the Assistant District Attorney had notice of some potential problem with the Yousif evidence. By February, 1996, the District Attorney was aware that Oblander's cases may have been compromised, but did not by that time have any reason to question Good's cases.
c. The State produced no evidence that Meneley willfully failed to investigate missing drug evidence. To the contrary, Meneley directed that an inventory and investigation be conducted immediately upon being informed April 1, 1996 that evidence was missing. The Sheriff further instructed his staff to notify the KBI so that agency would be aware of the missing evidence because the KBI was at that very time investigating the July, 1994 theft of the Caldwell drug evidence. No evidence in this record suggests that there were other avenues of investigation available to the Sheriff's staff investigators, or the KBI for that matter, that were not considered. The State argues Frank Good should have been polygraphed. Captain Lovelace explained he believed the evidence was lost after it was checked into the property room, so Good was not the focus of the investigation. Further, the Sheriff told Lovelace the KBI could polygraph Good, not knowing that the KBI was no longer conducting the investigation. The decision not to polygraph Good was a judgment call. It is also noted that the Faternal Order of Police Memorandum of Understanding gave an employee a right to refuse to take a polygraph. Good could have declined the polygraph test anyway.
d. The State produced insufficient evidence to prove that Sheriff Meneley willfully failed to insure the integrity of evidence for prosecution. It is not possible for any sheriff to absolutely guarantee that no employee will ever mishandle evidence. No law enforcement agency head could make such a guarantee. When Meneley learned that evidence had been mishandled he took action, including investigating the missing evidence, and implementing methods to prevent future problems. The more he learned the more he did, up to and including an elaborate review of all evidence-handling and property room policies, practices and procedures. Considerable resources have been expended to improve procedures used to account for and to protect the evidence.
145. The Court has not been persuaded that the State sustained its burden of proof on the charge that Sheriff Meneley willfully fowarded tainted cases for prosecution and conviction. While the burden of proof has not been met, Sheriff Meneley made an egregious error of judgment by not fully informing the District Attorney about revelations made to him on or about April 1, 1996 that evidence was discovered to be missing.
146. The Court earlier dismissed all allegations relating to misuse of the Interstate Identification Index by Sheriff Meneley. The Court's oral findings and conclusions on those charges are incorporated by reference.
1. The relevant statutory procedures governing quo warranto proceedings became law in 1964. K.S.A. 60-1201, et seq. Quo warranto actions may be brought in the district court by the Attorney General or County Attorney whenever any public officer has done any act which by the provisions of law shall work a forfeiture of his office. (See K.S.A. 60-1202(2) and K.S.A. 60-1206) Statutory grounds for ouster are expressed at K.S.A. 60-1205. The statutes also authorize ouster relief for any cause for which a remedy might have been obtained by a writ of quo warranto at common law. K.S.A. 60-1202(5). Under our statutes cause for ouster for misconduct exists independent of criminal prosecution and liability. State ex rel. Miller v. Richardson, 229 Kan. 234, 240, 623 P.2d 1317 (1981)
2. K.S.A. 60-1206 is the basis of an action in ouster of a public official who has violated any of the provisions of K.S.A. 60-1205.
3. K.S.A. 60-1205 states:
Grounds for forfeiture of public office.
Every person holding any office of trust or profit, under and by virtue of any law of the laws of the state of Kansas, either state, district, county, township or city office, except those subject to removal from office 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 from such office in the manner hereinafter provided.
4. The Office of Sheriff has statutory duties governed by K.S.A. 19-801 et. seq. and K.S.A. 54-106. A sheriff has a duty to investigate crimes, enforce the laws, rules and regulations of the State of Kansas as they apply within his or her jurisdiction, and to preserve the integrity of evidence seized or maintained pursuant to his or her official authority. A sheriff has a duty to keep and preserve the peace in his or her respective county, to support the Constitution of the United States and the Constitution of the State of Kansas, and to faithfully discharge duties as sheriff. K.S.A. 19-813 and K.S.A. 54-106.
5. Ouster is a civil action. K.S.A. 60-1201. Generally, the standard of proof in a civil action in Kansas is proof by a "preponderance of evidence." Preponderance of evidence is defined as evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it. Blacks Law Dictionary 1182 (6th ed. 1990) A "preponderance of the evidence" means that evidence which shows a fact is more probably true than not true.
6. Several actions, however, require proof by clear and convincing evidence. Because there is a presumption of honesty and fair dealing, the clear and convincing evidence standard is applied in actions for fraud. Newell v. Krause, 239 Kan. 550, 722 P.2d 530 (1986) Clear and convincing evidence is also required in guardianship proceedings, K.S.A. 59-1917; in attorney discipline proceedings, Supreme Court Rule 211 and In re Berg, 264 Kan. 254, 955 P.2d 1240 (1998); to determine the existence of an agency relationship, Barbara Oil Co. v. Kansas Gas Supply Corp. 250 Kan. 438, 827 P.2d 24 (1992); to void a written consent to adoption, K.S.A. 59-2114; and to prevail on a claim for punitive damages, K.S.A. 60-3701(c).
7. The United States Supreme Court has observed that "clear and convincing evidence" is an intermediate standard of proof. Santosky v. Kramer, 455 U.S. 745, 756-57, 102 S.Ct. 1388, 71 L.Ed. 2d 599 (1982) The Supreme Court has stated that "[b]ecause the preponderance of the evidence standard results in a roughly equal allocation of the risk of error between litigants, we presume that this standard is applicable in civil actions between private litigants unless 'particularly important individual interests or rights are at stake.'" Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L. Ed. 2d 755 (1991)
8. K.S.A. 60-1201, et seq, does not contain any provision prescribing the appropriate standard for burden of proof in an ouster. The decisional precedent suggests different standards. In The State v. Trinkle, 70 Kan. 396, 402, 78 Pac. 854 (1904) in which the state sought the ouster of a county attorney for nonenforcement of the prohibitory liquor law, it was said that the distinguishing characteristic of every official act must be genuine good faith, and that the law presumes that a public official thus conducts himself, and that "the burden rests upon the state to show the contrary to be true, by a preponderance of the evidence. See also, State ex rel. v. Hurley, 116 Kan. 395, 226 P. 709 (1924); and The State v. Foley, 107 Kan. 608, 614, 193 P.361 (1920). In an earlier case, The State ex rel v. Wilson, 30 Kan. 661, 669 (1883), the Supreme Court wrote: "Quo warranto . . . is . . . a civil action. And in such action all the evidence that is required to prove any particular fact is a bare preponderance of the evidence." But in a more recent ouster, the Supreme Court recognized that ouster is a drastic remedy and should be invoked only where evidence is clear and convincing and misdeeds flagrant. State ex rel. v. Cahill, 222 Kan. 570, 576, 567 P.2d 1329 (1977)
9. Clear and convincing evidence is defined to mean "the witnesses to a fact must be found to be credible; the facts to which the witness testifies must be distinctly remembered; the details in connection with the transaction must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking in confusion as to the facts in issue." In re Berg, 264 Kan. 254, 269, 955 P.2d 1240 (1998), quoting from Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 78, 596 P.2d 816 (1979).
10. Whether Cahill refers to "clear and convincing evidence" in the context of a higher quantum of proof or simply as quality of proof is not clear. In Ortega v. IBP, Inc., 255 Kan. 513, 528, 874 P.2d 1188 (1994), a retaliatory discharge case, the Supreme Court held that:. . . 'clear and convincing evidence' is not a quantum of proof but, rather, a quality of proof. A party having the burden of proving a . . . claim must establish that claim by a preponderance of the evidence, but the evidence must be clear and convincing in nature. It is clear if it is certain, unambiguous and plain to the understanding. It is convincing if it is reasonable and persuasive enough to cause the trier of facts to believe it. Citing Chandler v. Central Oil Corp., 253 Kan. 50, 58, 853 P.2d 649 (1993)
11. One important consideration in an ouster action is whether the actions of the public official bear the distinguishing characteristics of genuine good faith, not whether those acts are technically free from error when viewed under rigid and critical scrutiny. State ex rel. v. Foley, 107 Kan. 608, 193 P. 361 (1920).
12. The purpose of an ouster is to prevent a person from continuing to hold office whose inattention to duty, either because of its habitualness or its gravity, endangers the public welfare. The conduct 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. State ex rel. v. Robinson, 193 Kan. 480, 489, 394 P.2d 48 (1964), quoting from State v. Kennedy, 82 Kan. 373, 108 Pac. 837 (1910). The acts complained must have been willfully and intentionally done. State ex rel. v. Scates, 43 Kan. 330, 23 Pac 479 (1890); State ex rel. v. Trinkle, 70 Kan. 396, 78 Pac. 854 (1904); State ex rel. v. Foley, supra; State ex rel. v. Wilson, 108 Kan. 641, 196 Pac. 758 (1921); State ex rel. v. Duncan, 134 Kan. 85, 4 P.2d 443 (1931).
13. Whether to grant a request for ouster in quo warranto is within the discretion of the Court. The grant or denial of relief rests within the trial court's sound discretion. State ex rel. v. Lane Rural High School District, 173 Kan. 1, 243 P.2d 232 (1952)
14. Quo warranto relief should be denied when another plain and adequate remedy exists. State ex rel. v. Wilson, supra.
15. 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 ex rel. v. Schroeder, 199 Kan. 403, 415, 430 P.2d 304 (1967); State ex rel v. Showalter, 189 Kan. 562, 569, 370 P.2d 408 (1962); and State, ex rel. v. Duncan, 134 Kan. 85, 4 P.2d 443 (1931)
16. Based upon the extraordinary nature of ouster relief, the presumption that public officials conduct affairs honestly and in good faith and because particularly important public interests and rights are at stake, the Court finds that the quantum of proof required to establish grounds for ouster shall be clear and convincing. Thus, Plaintiff has the burden of proving by clear and convincing evidence that Defendant's misconduct is of such nature that ouster is appropriate.
17. K.S.A. 21-3902(a)(5) precludes one from knowingly destroying, tampering with or concealing evidence of a crime. Violation of K.S.A. 21-3902(a)(5) is a felony offense and constitutes official misconduct sufficient for a judgment of ouster. K.S.A. 21-3902(a)(4); State ex. rel. v. Richardson, 229 Kan. 234, 239, 623 P.2d 1317 (1981); State ex. rel. v. McKnaught, 152 Kan. 689, 697, 107 P.2d 693 (1940)
18. Providing false testimony under oath constitutes the felony crime of perjury pursuant to K.S.A. 21-3805(a)(1). Perjury is a crime that interferes with governmental functions and is sufficient to support a judgment of ouster. K.S.A. 21-3801 et. seq. See also State ex. rel. v. McKnaught, 152 Kan.689, 697, 107 P.2d 693 (1940)
19. A duly elected Sheriff who testifies falsely under oath in his official capacity or conceals evidence of a crime from prosecutors engages in willful misconduct that violates the public trust and irreparably contaminates and compromises the integrity of the office of sheriff. 20. In June and July, 1995, Sheriff Meneley knew that Shawnee County Sheriff Deputy Timothy Oblander was using illegal drugs obtained and misappropriated during the performance of his duties as an undercover narcotics officer, was addicted to drugs, was treated for his drug addiction, and was responsible for stealing cocaine evidence from the Sheriff's Office in 1994 and 1995.
21. Based on the foregoing findings of fact, the Court finds the following allegations to be true by clear and convincing evidence, and further concludes that said acts constitute willful misconduct as contemplated in K.S.A. 60-1205(1):
a. During the 1996 investigation of the Shawnee County Sheriff's Department by the Kansas Bureau of Investigation and during the Attorney General's 1996 inquisition, Defendant Meneley knowingly and willfully concealed evidence of Deputy Oblander's theft of drug evidence from the Sheriff's Department.
b. On or about April 11, 1996, Defendant Meneley willfully gave false testimony under oath before an Attorney General's inquisition by denying his knowledge of illegal drug use and treatment for drug addition of Deputy Oblander.
c. On March 9, 1999, Defendant Meneley willfully gave false testimony under oath before District Court Judge Eric Rosen in Shawnee County, Kansas, during the Hernandez hearing by denying that he had any knowledge regarding illegal drug use and treatment for drug addiction of Deputy Oblander.
22. The Court finds and concludes that Sheriff Meneley willfully gave false testimony under oath on April 11, 1996 and on March 9, 1999 on a material matter and willfully concealed evidence of Deputy Oblander's theft of drug evidence from the KBI and the Attorney General. Timothy Oblander was the target of the KBI/Attorney General investigation and his actions were relevant in the Hernandez proceedings. The false testimony on this material matter clearly had the potential for influencing the tribunal in Hernandez and actually influenced the Attorney General's inquisition as the Attorney General closed the investigation. Sheriff Meneley's denial of Oblander's use and concealment of Oblander's misappropriation of drugs from the Sheriff's evidence interfered with the investigation and obstructed the pursuit of justice in the proceedings. Sheriff Meneley's acts of deceit substantially hindered the KBI and the Attorney General's investigations into the theft of the Caldwell evidence and increased the burden on the Attorney General in the performance of the Attorney General's official duties.
23. The defense has raised several affirmative defenses and contends that those defenses preclude ouster.
24. The defense argues that ouster is not appropriate upon any theory of vicarious liability. The State contends that Sheriff Meneley is liable for the actions of his deputies pursuant to K.S.A. 19-805. The statute makes the Sheriff responsible on his official bond for the default or misconduct of his deputies. Contrary to the State's assertion, the Court finds that it would not be appropriate to base ouster upon the theory of vicarious liability. Even if vicarious liability in some factual context could constitute basis for an ouster, this case is not appropriate for such treatment. The Court has concluded that Sheriff Meneley has committed acts of willful misconduct. The theories asserted by the State which raise issues of vicarious liability have not been established factually.
25. The defense also argues that ouster should be barred by the statute of limitations. The defense argues K.S.A. 60-514(c) provides that an action "upon statutory penalty of forfeiture" must be brought within one year. The Court has previously ruled that the one-year statute of limitations has no application to the government seeking to protect a public interest or governmental function as contrasted with a proprietory function. KPERS v. Reimer & Koger Assocs., Inc. 262 Kan. 635, 941 P.2d 1321 (1997). As to the specific willful misconduct found to have occurred in this case, the one-year statute of limitations clearly would not apply to false testimony given March 9, 1999.
26. Sheriff Meneley also contends that the allegations of misconduct from 1995 and 1996 are barred by the doctrine of laches and estoppel. The defense argues that the State had the same information available in 1996 about Meneley's actions in 1995 and 1996 as it had when this action was filed. The defense argues that no substantial change in the evidence occurred, as Jaramillo and Blume had made their accusations in March, 1996, to the KBI and Attorney General. The defense argues further that the Attorney General took no action at that time. Having failed to act timely, the defense asserts that some of these claims should be barred by laches and equitable estoppel.
27. The Court previously ruled that neither equitable estoppel nor laches precludes the State from prosecuting these specific claims. The State has established that Meneley provided false testimony to the Attorney General during the 1996 inquisition and further concealed Oblander's corruption from the KBI and the Attorney General. Contrary to the defense's suggestion, the evidence available in 1999 included one additional critical piece. That was that Oblander confessed to cocaine addiction and treatment. The party asserting equitable estoppel must show that another party by its acts, representations and admissions or silence when it had a duty to speak induced the party to believe that certain facts existed. It must be shown that the party relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. City of Topeka v. Water Place Development Group, 265 Kan. 148, 158, 959 P.2d 894 (1998); Tucker v. Hugoton Energy Corp., 253 Kan. 373, 382-83, 855 P.2d 929 (1993)
28. The doctrine of laches is closely related to estoppel. Laches is sometimes described as a species of estoppel. Laches results from a failure to act. Mere passage of time is not enough to invoke the doctrine of laches. Each case must be governed by its own facts and what might be considered a lapse of time to defeat an action in one case might be insufficient in another case. Laches is not mere delay but delay that works to the disadvantage of another. Steele v. Guardianship Conservatorship of Crist, 251 Kan. 712, 840 P.2d 1107 (1992).
29. The suggestion that Sheriff Meneley reasonably and detrimentally relied on a statement that the investigation was inconclusive when facts in this case establish that he had material knowledge which was withheld from the investigators does not support application of the doctrine of laches or equitable estoppel. Moreover, the Court does not find that an inordinate amount of time has lapsed between the KBI/Attorney General investigations and the filing of this ouster. Even if the doctrine of laches or equitable estoppel had any facial validity in this case, the defenses are unavailable against the State when the State seeks to protect the public rights. Shriver v. Board of County Commissioners, 189 Kan. 548, 556, 370 P.2d 124 (1962); City of Hutchinson v. White, 117 Kan. 622, 625 (1925)
30. The defense has also reasserted its objection to the admission of the testimony of James Welch. The Court has found as a matter of fact that there was no attorney/client relationship nor was there any communication subject to protection. Even if the privilege existed, the disclosures by Sheriff Meneley to Jaramillo and Blume constituted a waiver of the privilege. State v. Andrews, 187 Kan. 458, 464, 357 P.2d 739 (1960)
31. Meneley also asserts that he cannot be ousted for misconduct committed in a prior term. Again, this argument has no application due to the finding that Meneley gave false testimony during the Hernandez hearing on March 9, 1999. The defense is directed at findings that Meneley gave false testimony and concealed evidence of Oblander's theft from the KBI and the Attorney General in 1996 during his prior term of office. The Court previously denied Meneley's Motion to Dismiss on these grounds and still finds that the present term doctrine does not preclude ouster for willful misconduct committed in his prior term.
32. Sheriff Meneley relies on State ex rel v. Henschel, 103 Kan. 511, 175 P.2d 393 (1918). In Henschel, the Supreme Court held that a public officer may not be removed from office for misconduct occurring during a previous term of office. The present term rule has been limited and distinguished in cases decided after Henschel. The rule does not apply when an official's misconduct begun in a prior term of office continues into the current term. State ex rel v. Harvey, 148 Kan. 166, 80 P.2d 1095 (1938). Further, the prior term rule has no application unless the voters have condoned an official's misconduct. State ex rel v. Schroeder, 199 Kan. 403, 430 P.2d 315 (1967). In Schroeder, the Court reasoned that because a public official denied misconduct in the prior term the electorate could not have condoned the prior misconduct. In this case, Meneley has adamantly denied giving false testimony and concealing the crime throughout. Notwithstanding, the continuing viability of the present term doctrine is debatable.
33. The purpose of ouster is to preserve public interest. The recent case precedent measures the official's qualifications for fitness in view of the degree or gravity of misdeed irrespective of when the misconduct occurred. If the misconduct is serious and substantial, the present term rule does not shield the official from ouster. This proposition was illustrated in In re Rome, 218 Kan. 198, 542 P.2d 676 (1975). Rome was an original proceeding in discipline as contrasted with quo warranto. The Supreme Court held that a public officer could be removed from office for misconduct committed during a prior term, where the penalty was justified by the circumstances of the case. The Rome decision emphasized that the purpose of ouster is to protect and preserve the office and to free the public of an unfit officer.
34. Meneley further argues that other adequate remedies exist at law. He points out that he is being subjected to criminal prosecution for perjury. The Court does not find that the criminal prosecution is an adequate remedy at law. The criminal prosecution is directed at imposing personal punishment whereas the ouster is pursued to protect the public interest. The legislature has vested the Attorney General with substantial authority to prosecute civilly or criminally or both in regard to allegations of misconduct against a public official. State ex rel v. Richardson, 229 Kan. 234, 623 P.2d 1317 (1981) The prospect of criminal sanctions is not an adequate remedy at law precluding civil ouster.
35. Even though an official has committed acts of willful misconduct, the Court must still consider whether to exercise discretion to oust. In Gas Service v. Consolidated Gas Utilities Corporation, 145 Kan. 423, 437, 65 P.2d 584 (1937), the Supreme Court provided the following guidance:
An action in quo warranto is addressed to the sound discretion of the court as to whether the particular relief prayed for should be granted. In consideration of such a question the court considers all the surrounding facts and circumstances. The relief prayed for is not always granted even though the questions of law upon which the relief prayed for . . . are decided in favor of plaintiff.
36. The Court has no hesitance in concluding that based upon the demonstrated willful misconduct of Sheriff David Meneley that ouster is justified and necessary. Our nation began with resistance to oppressive official conduct and our traditions, embodied in the national and state constitutions and laws demand that our criminal justice system accord basic fairness to all persons. Because of the power the state wields, our laws impose upon our police special duties to protect the innocent and safeguard the rights guaranteed to all. Sheriff Meneley has taken an oath to uphold the law. He has willfully tolerated the corruption of Deputy Oblander to the detriment of the many honest men and women who faithfully perform their duties. He interfered with and obstructed investigations conducted by other law enforcement agencies into the corruption and, as a result, frustrated the administration of justice. In tolerating the actions of a corrupt deputy, perhaps out of a misguided compassion for that deputy, the Sheriff has violated the trust of the law enforcement personnel he supervises, the prosecutors he must work with and has seriously impaired his credibility with the Court. The deceit he has practiced has negated the hard work of other law enforcement officers, prosecutors, attorneys and judges in their effort to provide justice to the community. The serious consequence of Sheriff Meneley's misconduct has been that convictions have been set aside because evidence and his testimony, could not be trusted and that under such circumstances fair trials could not be constitutionally guaranteed. Sheriff Meneley has violated the trust of his office and has seriously injured the public interest. For these reasons, judgment of ouster will be granted in favor of the Plaintiff and against Defendant David Meneley.
IT IS THEREFORE BY THE COURT ORDERED, ADJUDGED AND DECREED that the burden of proof having been met on grounds stated above, and the remedy of ouster from office being necessary and appropriate, Shawnee County Sheriff David Meneley, Defendant herein, is ousted and removed from public office and shall suffer the consequences thereof. This Memorandum Decision and Order shall constitute the final judgment herein, no further Journal Entry being required. The costs of this case shall be assessed against the Defendant. The office of Shawnee County Sheriff heretofore occupied by David Meneley shall be declared forfeited and he shall vacate such immediately. The office shall then be filled according to law. The Attorney General of the State of Kansas or her designee shall serve a copy of this Order upon the Sheriff of Shawnee County, David Meneley, forthwith and Defendant David Meneley shall immediately surrender his weapon, badge of office, keys and any and all other accoutrements of his Office.
Dated this ____ day of February, 2000.
___________________________________
MATTHEW J. DOWD
PRESIDING DISTRICT JUDGE, DIV. XI
___________________________________
RICHARD D. ANDERSON
DISTRICT JUDGE, DIVISION II
I hereby certify that a true and correct copy of the above and foregoing Memorandum Decision and Order was deposited was deposited in the United States mail, postage prepaid, this _____ day of February, 2000, addressed to the following:
Carla J. Stovall, Attorney
General; Laurie K. Kahrs,
Assistant Attorney General; John
R. Dowell, Assistant
Attorney General, 120 S.W. 10th
Street, Memorial Hall,
Topeka, KS 66612
Jonathan B. Phelps, Esq., 1414
S.W. Topeka Blvd., Topeka,
KS 66612
Fred W. Phelps, Jr., Esq., 3600
Churchill Road, Topeka,
KS 66604
Margie Phelps, Attorney at Law,
3734 S.W. 12th, Topeka, KS 66604
_________________________
Viola B. Stolte
Administrative Assistant