Sedgwick County DA launches investigation after Capps, Clendenin, O’Donnell caught conspiring on secret recording

Sedgwick Co. DA investigates 3 officials secretly taped discussing attack ad
Published: Oct. 26, 2020 at 2:18 PM CDT
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You can listen to the entire unedited audio from that secret recording here.WICHITA, Kan. (KWCH) - Update: Monday evening: The Sedgwick County Board of Commissioners released a statement on Monday acknowledging a civil lawsuit that now names Commissioner Michael O’Donnell as one of the co-conspirators behind an attack ad against then Mayoral candidate Brandon Whipple.

“The District Attorney has initiated an investigation into potential ouster proceedings. Commissioners have limited actions available to use on this matter and are in consultation with the County Counselor. Each commissioner is elected by the people and do not have authority over one another,” read the statement.

Commissioner David Dennis released his own statement shortly afterward. He said he strongly supports Sedgwick County District Attorney Marc Bennett’s decision.

“This is a serious issue and am grateful for his quick action. I still personally believe that Michael O’Donnell and anyone associated with the video and the scheme to blame others should resign from public office. Now, with a District Attorney’s investigation underway, I support the legal process and hope the DA’s investigation can proceed quickly because the people of Sedgwick County deserve to have trust in their elected officials.”

The other three commissioners, Pete Meitzner, Lace Cruse and Jim Howell, have all addressed the situation on social media as well.

Commissioner Jim Howell said he considers O’Donnell a friend. He said he’s spoken to him about resigning and he feels all three men should do that immediately.

“You know, I’ve seen enough. I’m convinced that I know enough about this at this point that I don’t, I don’t feel comfortable with him holding the (office). And for someone to sit in that seat, we have to have the highest ethical behavior. And I’m, I don’t think that right now that these three people have demonstrated that they subscribe to the high ethical behavior that’s required,” Howell said.

He said O’Donnell is looking at his options, which include possibly resigning his next term if he’s re-elected, but he has not made a decision.

The district attorney’s investigation will look at whether there are grounds to oust O’Donnell, Clendenin and Capps from office. That would require evidence the men willfully engaged in misconduct while in office or violated any penal statute.

Capps has not responded to us throughout this investigation. Clendenin and O’Donnell on Monday publicly denied their involvement in the plot.

Clendenin released a statement in which he denies involvement in the creation of the false attack ad against Whipple. Clendenin said as this is a pending legal matter, he “won’t be able to make expansive comments for now.” However, he included points that he said he wants to make clear. These included an acknowledgment that he should not have attended the meeting with O’Donnell and Capps and denial of any involvement in the scripting, directing, editing or distribution of the ad.

The attorney for Michael O’Donnell on Monday evening issued a response to the allegations against his client. In the formal legal response to the lawsuit from Wichita Mayor Brandon Whipple, O’Donnell denies direct involvement in the ad and calls for a jury trial to settle the matter.

The response claims, in part, “This suit was filed against this defendant with the principle objective of effecting the results of the Sedgwick County Commission, Second District election.”

You can listen to the entire unedited audio from that secret recording here.

The Sedgwick County District Attorney, Wichita Police Department and the Sedgwick County Sheriff’s Department have launched a joint investigation into the matter of a secretly recorded meeting between Sedgwick County Commissioner Michael O’Donnell, Wichita City Council member James Clendenin and State Representative Michael Capps.

In the audio, released last Friday, the three men discuss how they will handle the fallout from the false attack ad against Mayor Brandon Whipple and how they will shift blame from themselves onto Sedgwick County Republican Party Chairman Dalton Glassock and County Clerk Kelly Arnold.

In a release on Monday, District Attorney Marc Bennett said his office received inquiries regarding the release of the recording which is also related to an ongoing civil lawsuit between Whipple, Capps, Clendenin and O’Donnell. It also comes after several people have called on all three men to step down from public office.

Bennett said his office has no role in and offers no commentary concerning the ongoing civil lawsuit. He said once the investigation into the matter is complete, “a determination will be made by this office as to whether there is a factual and legal basis for further legal proceedings. At that time, any decision will be made public.”

Bennett also released the following information to “simply to explain the various state statutes implicated by this story.”

I. Recall: There are several state statutes that govern the filing of a recall petition, beginning with K.S.A. 25-4318.

K.S.A. 25-4323 is dispositive as to Representative Capps and Commissioner O’Donnell. See as follows:

25-4323 Same; petition; filing, when; limitations. (a) No petition for recall of a local officer may be filed during the first one hundred and twenty (120) days of the term of office of the local officer sought to be recalled or within less than one hundred and eighty (180) days of the termination of the term of office of the local officer sought to be recalled.

(b) Only one recall election may be held to recall a particular local officer in a single term of office, and no petition for a second recall election within a single term shall be approved or circulated.

(c) The number of local officers serving on the same governing body which may be subject to recall at the same time shall not exceed a majority of the members of the governing body minus one, and no petition for recall of a local officer serving on a 2 governing body shall be approved if petitions for the recall of other local officers serving on the same governing body have been properly filed and elections thereon have not been held and the number of such other local officers equals a majority of the members of the governing body minus one.

Because the State Representative lost the primary in August of 2020, and because the County Commissioner is facing a general election next week, neither man is subject to recall under state statute.

II. Ouster Several state statutes address what is referred to as a quo warranto proceeding, to institute the ouster of a local officeholder. See K.S.A. 60-1201 et al.,

60-1205. Grounds for forfeiture of public office. Every person holding any office of trust or profit, under and by virtue of any 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 engage in misconduct while in office, (2) willfully neglect to perform any duty enjoined upon such person by law, (3) demonstrate mental impairment such that the person lacks the capacity to manage the office held, or (4) who shall commit any act constituting a violation of any penal statute involving moral turpitude, shall forfeit such person’s office and shall be ousted from such office in the manner hereinafter provided.

60-1206. Instituting ouster proceedings. (a) On complaint. The attorney general or any county attorney in the county of his or her jurisdiction, upon receiving written notice that an officer covered by K.S.A. 60-1205 has violated any of the provisions thereof, shall investigate the complaint. If reasonable cause is found for the complaint, proceedings shall be instituted to oust such officer, but proceedings may be initiated by the attorney general or the county attorney without complaint having been made. (b) Proceedings against state officers. Proceedings to oust a state officer shall be commenced only by the attorney general. If a complaint is made to a county attorney against a state officer, he or she shall immediately transmit such complaint to the attorney general.

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