Print This Article The Wichita Eagle Back to web version
Thursday, July 10, 2014

Documents give public a look at DA candidates’ job performance

By RICK PLUMLEE
The Wichita Eagle

Marc Bennett and Kevin O’Connor worked side by side as deputy district attorneys, prosecuting cases and helping to run the Sedgwick County District Attorney’s Office under Nola Foulston.

Now both men want to replace Foulston, who is retiring.

Voters can get an unusual view of the former co-workers through their job performance evaluations.

The Eagle obtained reviews of both men through an open records request to Foulston, though Bennett also gave his reviews to the paper earlier. The request covered the latest five years for each candidate – from 2007 to 2011 for Bennett and from 2005 to 2009 for O’Connor. Only three years of reviews were provided for O’Connor.

Foulston, a Democrat who has served as DA since 1989, said she isn’t officially endorsing either candidate in the Aug. 7 Republican primary. But she states support for Bennett on her Facebook page and has a Bennett campaign sign in her yard. Whoever wins the primary faces no opposition in the general election.

The evaluations contain views of the two men’s skills as a prosecutor in the courtroom and as an administrator in the office. Chief Deputy DA Kim Parker conducted the reviews, except O’Connor’s in 2009. Foulston signed them.

Reviews for Bennett were consistently positive. O’Connor’s 2007 review also was positive. His ratings declined the next year, though he still was rated as at least meeting expectations. A “corrective action” review conducted by Foulston in August 2009, shortly before O’Connor left, said he wasn’t meeting some of his responsibilities.

O’Connor, who spent 17 years in the DA’s office, disputes the later reviews and said he received poor evaluations for political reasons, because he wouldn’t help with Foulston’s 2008 campaign.

“All someone has to do is connect the dots,” he said. “They’re bogus evaluations.”

Foulston said, “Political is the last thing that this office is.”

Bennett’s evaluations

Bennett has been in the DA’s office for 15 years, most recently overseeing cases involving sex, domestic violence and financial crimes. He drew praise in his year-end evaluations for his skills as a trial lawyer and leader, ethical standards, judgment and taking initiative.

“His contribution to this office is invaluable,” Parker wrote in 2008. “He has a gentle and experienced manner. When he speaks people listen.”

Over the years, Parker noted that Bennett:

• Handled the most difficult and complex cases in the office.

• Handled multiple priorities well.

• “Has a good relationship with our criminal justice partners and his opinion is well respected both inside and out of the office.”

She said in 2009, his first full year as a deputy DA, that Bennett was tactful and diplomatic but had not fully developed those skills when faced with disagreement with others.

“In the role of supervisor, he is sometimes challenged when faced with marginal or unsatisfactory performance and should develop his ability to deliver constructive criticism,” she wrote.

In 2011, she noted that Bennett was becoming more versed in handling unsatisfactory performances.

O’Connor’s evaluations

In O’Connor’s 2007 review, Parker said he had a serious passion for prosecution, demonstrated high-level courtroom skills and was ethical, sensitive and conscientious in his work in the criminal justice system.

“Kevin is an inspiring example of an aggressive State’s attorney,” she wrote. “He is fun to watch in action.”

She also noted that O’Connor:

• Was a good team player.

• Was courteous and assertive in communications with others, and had worked hard to develop diplomacy and tact.

• Was a good listener and an excellent mentor for assistant district attorneys.

In 2008, Parker praised O’Connor for his work on the Chelsea Brooks case. He and Bennett prosecuted the case, getting two convictions in two separate trials that lasted about five weeks each and the guilty plea of a third person for the 2006 murder of 14-year-old Chelsea.

But Parker also said O’Connor hadn’t performed well as a manager. She said the Brooks case had consumed his time and he hadn’t taken care of his other responsibilities.

“It is clear that Kevin is not able to multi-task and his planning for work suffers as a result in this deficiency,” Parker said.

She said he was told in 2007 his work habits needed to improve and he had shown only marginal improvement in 2008.

“Kevin has functioned as a trial attorney and not as a Deputy,” Parker wrote. “He rarely displays initiative and does not fully perform his responsibilities as a Deputy.”

Deputy DAs are expected to supervise four to seven attorneys, including writing evaluations and planning training sessions, and complete assigned projects. O’Connor had been a deputy since 2003.

In Foulston’s review of the evaluation, she wrote, “On several occasions we have discussed his obligations as a Deputy. Kevin made it clear that he did not wish to participate in administrative duties.”

Despite the comments, the 2008 evaluation said O’Connor met expectations – the middle rating out of five categories – in four of six sections; the other two areas were given higher ratings.

$5,000 raise

O’Connor said he was told by Foulston to focus on the high-profile Chelsea Brooks case in 2008 instead of administrative work because it was an election year.

Foulston disputed that. She said that O’Connor was put on a reduced caseload starting in 2007 so that he would be able to fulfill his administrative responsibilities.

O’Connor said his caseload wasn’t reduced, that he tried seven cases in 2008, including the two lengthy Brooks case trials.

O’Connor said his year-end evaluation declined because he didn’t support Foulston during her campaign in 2008, either financially or by volunteering to take part in events such as parades. Twelve people listed as working in Foulston’s office donated $4,800 toward her 2008 campaign, according to Sedgwick County Election Office records. Bennett donated $250.

“Nola doesn’t like me. Is that a big surprise?” O’Connor said. “I didn’t help in her campaign.”

Foulston said she was disappointed that O’Connor didn’t help with her campaign, but “it wasn’t something I was going to punish him for.”

She noted she gave him and Bennett a $5,000 raise in November 2008 – after the election.

“Does that say I’m mad at anybody?” she said.

O’Connor said he and Bennett were told in May that they would get a $12,000 raise. Foulston said initial discussions about a raise didn’t come up until July when she told them she hoped to give them both a $10,000 raise to get them to $100,000 in 2009.

The actual amount was whittled down to $5,000 because of the economic collapse that fall, she said.

O’Connor said, “If I’m doing half the job, why did I get a $5,000 raise?”

“I was trying to motivate him,” Foulston responded.

Leaving DA office

In August 2009, Foulston conducted what she called a corrective-action evaluation of O’Connor.

“We wanted to assure he understood job requirements were not being fulfilled,” she said in an e-mail.

On the positive side, she said he was ethical, had good writing skills, his cases were well documented and he was an amiable person who generally got along well with staff.

But she also noted he lacked either confidence or willingness to handle his assigned responsibilities as a deputy DA, didn’t manage his time well and didn’t complete projects.

She also wrote:

• “By choice, Kevin does not participate in administrative decisions. He has been trained and mentored, yet fails to fulfill these obligations.”

• On presenting legal and factual arguments, he “can be persuasive when he has full understanding of the material.”

• “Kevin does not accept responsibility for his deficits.”

• “He too often neglects those he supervises, fails to meet and observe his charges and often engages in ‘war stories’ as a teaching tool.”

• “Kevin has an endless need for recognition and adulation, yet does not perform to the degree that such would be warranted. His skewed perspective on his own performance adversely impacts his ability to relate appropriately with administration and attorney/peers.”

On the latter comment, O’Connor said, “Those are ridiculous statements that apply more to Nola Foulston than to me.” He added the 2009 review was “over the top.”

“I didn’t agree with management of the office,” O’Connor said, “but I performed my administrative duties. Some attorneys were asked to do too much, and others were asked to do too little.”

Matt Olson, an attorney who spent about two years in the DA’s office, disagreed with Foulston’s assessment that O’Connor didn’t help develop staff attorneys. He said he was under O’Connor’s supervision from November 2008 until O’Connor left in October 2009.

“Anything I had a question about, Kevin’s door was always open,” Olson said. “He would give me all the time I needed.”

In a notice of disciplinary action dated Sept. 1, 2009, Foulston told O’Connor that his pay had been cut by $5,000 to $90,000 and he was being placed on probationary status until Dec. 31.

O’Connor signed a statement on Sept. 21, 2009, saying he disagreed with the evaluation. He resigned about a month later. Foulston asked him to stay as a chief trial attorney; he declined.

O’Connor’s 2005 and 2006 evaluations weren’t available.

Foulston said no evaluations were done for any staff attorneys in 2005 because a new form was being developed. In 2006, O’Connor and others in a supervisory role were asked to do a self-evaluation review, but he didn’t complete one, she said.

O’Connor said he doesn’t know that to be true because Foulston wouldn’t let him see his personnel file. Foulston said he’s not permitted to see the file because he’s no longer employed by the DA’s office.

Reach Rick Plumlee at 316-268-6660 or at rplumlee@wichitaeagle.com.

© 2012 Wichita Eagle and wire service sources. All Rights Reserved. http://www.kansas.com