Below, James Meier of Lawrence tells of the trouble (that’s an understatement) he had trying to file an ethics complaint, and of a catch-22 that needs fixing. This story has been told on a Kansas conservative mailing list. Meier prepared this version as a special for Voice For Liberty in Wichita readers.
The subject of the “ethics” of the Kansas Governmental Ethics Commission has surfaced recently. It’s a much more complicated story with many twists and turns that hasn’t been sufficiently explained by traditional media sources. Here is a quick synopsis to better understand my own story of interaction with the Ethics Commission.
In July of 2008, Kris Van Meteren examined the campaign finance records of state Sen. Dwayne Umbarger (R-Thayer). Van Meteren’s mother was challenging Umbarger in the August 2008 primary.
In short, Umbarger had been using his campaign account as a sort of slush fund for his own personal expenses. Van Meteren showed the reports to the Ethics Commission’s Executive Director, Carol Williams. He was looking for an investigation, but after months of inaction by the Commission, Van Meteren finally filed an official complaint. Then he had the audacity to exercise his first amendment rights and speak to the press about his Ethics Commission complaint.
Eventually the Ethics Commission dismissed the complaint against Umbarger. Of course, no one should know this because according to the Commission’s own rules, once a complaint is dismissed neither the person the complaint was filed against nor the person who filed the complaint can even acknowledge it even existed. So it’s still a mystery how the dismissal was leaked to the press.
In any case, it’s easy to see the black hole this rule creates. A politician breaks the law, so a complaint is filed. When this happens no one can even say a complaint exists. As far as the commission and anyone else are concerned, it doesn’t exist. If the commission decides to proceed with the case, at that time it becomes a public issue.
But should the Ethics Commission dismiss the complaint outright, it ceases to exist. So should the Commission be so inclined to protect certain politicians, they can quite effectively use their rules to keep anyone filing a complaint quiet. It’s a dirty politicians dream.
Thus seems to be the case with Van Meteren’s complaint against Umbarger.
After dismissing the complaint against Umbarger, the Commission in turn investigated Van Meteren for speaking about his complaint. They eventually fined him $7,500. The fine was overturned a few weeks ago when the Commission was notified by their own attorneys — the Kansas Attorney General’s office — that the current law violated Van Meteren’s first amendment rights. Thus a light is beginning to shine on the past actions of the Ethics Commission.
In the course of the Ethics Commission investigation of Van Meteren, Executive Director Carol Williams spoke with the Topeka Capital-Journal and wasn’t shy about telling the reporter that the law may have been broken. But she wasn’t referring to Sen. Umbarger. No, she was talking about Van Meteren speaking with the media.
“Williams said Van Meteren might have committed a crime by speaking with The Topeka Capital-Journal about his case. A commission investigator in Topeka is looking into a possible counter complaint against Van Meteren.”
This is where I began to get very interested. According to Williams herself, once a complaint is filed, no one can even acknowledge that it exists. Even though Van Meteren had spoken with the press about his complaint, this didn’t justify Williams also independently verifying that the complaint existed. It was the second source the reporter needed to print that a complaint existed. In other words, Williams had violated the law according to her own interpretation.
Of course, I hardly expected the commission to discipline their own director. So after the Attorney General’s ruling, I saw an opportunity to take matters into my own hands.
So on Monday May 18, I drove to Topeka to file a complaint against Williams for disclosing an open investigation to the press. Even though any citizen can file a complaint with the Ethics Commission, the form is not available on their website and I was unsuccessful at getting a copy mailed to me. I arrived at exactly 4:30pm and found their office tucked away on the fifth floor of an office building a block east of the capital. The hours on their website stated they were open from 8am to 5pm. So I was a bit surprised when I went to open the door and found it locked.
I knocked very loudly. Nothing. I pounded on the door and yelled for a good 10 minutes. Still nothing. I called their office and left a message that I had been there, that their website said the office hours were 8:00am to 5:00pm and that I wanted to file a complaint, then left for home. I later wondered if they thought I meant I wanted to file a complaint about them not being there, but after driving to Topeka for nothing I didn’t really care.
So, Tuesday morning at 7:40am I get a phone call that I didn’t answer. It was from Donna at the Ethics Commission and their hours are 7:30am to 4:30pm. Turns out the hours on their website were wrong. But I could call back and they could help me with my complaint. So I called back at 9:00am and asked if they planned to be there the rest of the day because I wanted to file a complaint. Then I clarified that it wasn’t about their hours but an actual campaign finance complaint.
Then Donna asks me when I wanted to come into the office. I said if I left right away I’d arrive sometime after 10:00am and asked what exactly their hours were. I wanted to know so I didn’t have to phone ahead should I decide I need something from their office. Then she said well, if you’re here this morning then you can meet with our investigator to which I replied, that would be fine but I didn’t need to speak to him to file a complaint, so if I missed him I’d just take the form and fill it out myself. She again said to come in and meet with an investigator and I figured there was little point in arguing about it over the phone. So I said okay and left town.
When I got there, I said I was James Meier, I had called and I was there to get a complaint form. The same gal turned around and walked off without a word. I piped up and said, “That’s okay, I just need the form.” She never said a word, just held up her finger and walked off. I waited a few minutes and Bill Beightel, the ethics investigator, comes up and asks me if I have a few minutes. He has “no problem” giving me a complaint form (good for him since he doesn’t really have a choice anyway) but that he’d like to “explain” a few things to me.
So by this time I’m getting quite curious so I sit down with him. First off I’m told that “normally” people bring a concern to them and then they do an “inquiry.” And then if they think there’s really something there that should be put before the Ethics Commission then they will fill out the complaint form.
Then I’m cautioned that if I choose to fill out the complaint myself (which, I’m reminded, isn’t the “normal” process) then I should be aware that I need to fill it out sufficiently. The commission will only consider what I describe in the complaint and nothing else, so I really need to be sure I know what I’m talking about because, again, normally the “professional” staff takes care of that. That means that I have to be sure I know something about “their statutes.” I’m dead serious here, he referred to state law as “our statutes” at least twice and I think “our laws” once.
In any case, he’s done and he just wanted to let me know about that before, you know, he gave me that golden, technically publicly accessible to anyone, complaint form. And, because he’s such a great guy, he once again offers to look into it “for me” and if he thinks there’s something there then he’ll file the complaint.
It’s about this time that I consider telling him why I don’t want him to file the complaint. You see, I understand the black hole that the Ethics Commission has created by gagging anyone filing a complaint. If they happen to like the politician named the complaint, they dismiss it; notify the offending individual and the one filing the complaint, which as far as I know was always Commission staff until Van Meteren filed his complaint.
So the staff is gagged. The Commission doesn’t talk, and the subject of the complaint certainly isn’t going to speak. The complaint has effectively been stuffed in a drawer forever, never again to be found. Even a state open records request would return nothing because any evidence found is considered confidential because the commission dismissed the case.
But, now that the Attorney General’s office has lifted the gag order on citizen complaints, there’s a twist.
According to state law, once a complaint is filed, it has to be considered by the Ethics Commission, whether they dismiss it or find sufficient evidence. If a citizen files the complaint, staff can’t ride shotgun for them and kill it before it gets to their desk, which was always possible before.
Now, even though they have to look at it they can, of curse, decide there isn’t enough evidence to warrant a hearing. But, even if they don’t find probable cause, they have to notify the person who filed the complaint and the subject of the complaint that it’s been dismissed, thus circumventing the no man’s land where those complaints ended up before. That why I want to sign the form and not leave it to a state bureaucrat.
This is precisely why I have to be talked out of signing my own complaint. If the commission dismisses it, I have to be notified and now that the confidentiality muzzle is off of the public at large. I can tell whoever I want about it. If staff signs the complaint, they’re notified it was dismissed and the public never knows.
Anyway, I thanked him and told him I’ll just take it and fill it out and return it later. Then he asks me if I mind telling him what my complaint is about. I tell him, why yes, I do mind, and leave.
When I get back, I give them the complaint and ask for a receipt, preferably a copy of the complaint with a received sticker on it. I ask them to note the time and the date. I’m told that the stamper doesn’t have the time on it (I must look like a complete idiot to them.) I ask if they would write the time on it. I’m ignored; they make a copy and hand it to me. I asked if I needed a received stamped copy for the attachments and they say no. I now realize that was a mistake to assume they’d give everything to the commission. I should have insisted, but they had seen who the subject of the complaint was by then and I was ready to leave.
And that folks is how the state treats a member of the public exercising their constitutional right to petition their government and seek justice.
I have a completely new found appreciation for what Kris Van Meteren has been through this past year.
If you’d like to know more about the specific allegations against Sen. Umbarger and the case the Ethics Commission brought against Kris Van Meteren, these Kansas Meadowlark articles will be useful:
“Free Speech” May Cost Kansas Citizen $7500
More Info on Van Meteren “Free Speech” Ethics Case
Van Meteren to appeal $7500 Fine for Free Speech in District Court
Kansas Ethics Commission’s Response to Van Meteren’s Request for Judicial Review
Attorney General Says Kansas Ethics Confidentiality Rules are Unconstitutional
Additional supplemental information is available on KansasLiberty.com.
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