County Commission investigated over possible constitutional violation

The Kansas Attorney General’s Office found Sedgwick County’s removal of a public relations company from a project “concerning” and potentially a violation of the owners’ First Amendment rights.

But it said no official should be ousted from office because of it.

Wichita public relations firm Bothner and Bradley was removed from a county road project studying a section of 95th Street South near Derby, Haysville and Mulvane last March. That happened shortly after Commissioner Jim Howell expressed reservations about partners Vera Bothner and Tami Bradley to county staff members.

“There is evidence that a First Amendment violation may have occurred when Commissioner Jim Howell directed county staff to remove Bothner and Bradley from a contract because of their alleged political speech,” wrote Kansas Assistant Attorney General John Wesley Smith in a letter outlining the findings of an investigation of the removal.

“However, any damages from such a violation were soon rectified or mitigated by inviting Bothner and Bradley to rejoin the contract,” he added.

Howell said he thought the firm had participated in a campaign opposing proposed budget cuts.

“I don’t know to what extent they were involved in that,” Howell said this week. “I speculate. I hear rumors. It seems plausible. I developed an opinion about them through that process. And I shared my opinion at the wrong moment. That’s it.”

After its removal, Bothner and Bradley approached Wichita lawyer Jack Focht for advice.

The county restored the firm to the project in April after The Eagle reported the removal. Focht filed a complaint with the Attorney General’s Office in June requesting an investigation of Howell and commissioners Karl Peterjohn and Richard Ranzau.

“I just did it as a citizen that was offended at what I saw when I looked into it,” said Focht, who has since retired.

Focht called the firm’s removal a “blatant attempt by the commissioners to deny citizens their free speech rights” in his complaint. He invoked a part of state law that calls for officials to be ousted if complaints of misconduct have “reasonable cause.”

“Trying to silence criticisms of county policies by bullying or threatening entities and individuals is official misconduct, abuse of power and general action to be condemned rather than approved,” Focht wrote.

The Attorney General’s Office sent a special agent to Wichita to interview Howell, several county employees and members of several nonprofit organizations who had interacted with commissioners and potentially discussed the Bothner and Bradley firm.

The office sent Focht a letter outlining the investigation’s conclusions dated Jan. 20, about two days after The Eagle asked the office about a potential investigation.

Here’s what the investigation found about the firm’s removal, according to the letter sent to Focht:

▪ The county contracted with TranSystems, an engineering firm, for the road project. Bothner and Bradley was a subcontractor to handle the public relations part of the project.

▪ After he learned Bothner and Bradley was involved with the TranSystems contract, Howell “communicated his displeasure to county employees … and instructed them to investigate whether it was possible to remove Bothner and Bradley from the subcontract.”

▪ “Howell admitted that his dislike of Bothner and Bradley was motivated by his belief that it had participated in a campaign opposing county budget cuts.”

▪ Howell’s request was communicated through county and TranSystems employees to Bothner and Bradley, which decided to step aside from the contract.

▪ The Eagle first reported the firm’s removal in an article in April. “After the negative publicity that stemmed from the paper’s report, the county requested that Bothner and Bradley rejoin the project.”

▪ Two people interviewed during the investigation said Peterjohn “had made statements to the effect that it would be hard for the county to support anything with which Bothner and Bradley was involved. However, no written evidence of such statements was found.” Peterjohn, who did not respond to a request for comment, was defeated in the Republican primary in August and is no longer on the commission.

▪ No evidence was found of alleged misconduct on the part of Ranzau, who has said he was not involved in the firm’s removal.

The attorney general’s office declined to initiate ouster proceedings, which can be used to remove an elected official from office after misconduct. Smith wrote that ousting someone from office “usually involves misconduct that is either more egregious or persistent than the individual instance at hand.”

“While the facts presented by the investigation are concerning, any harm may be (and potentially has been) remedied by less extreme means,” Smith wrote.

Bothner and Bradley’s share of the original TranSystems contract was $60,424.

Tami Bradley has since worked to set up public meetings, social media profiles and a website to involve southern Sedgwick County residents in the study. It’s called the ARC 95 Study because it deals with a potential Arkansas River crossing.

She said the project should wrap up in a couple of months. She said her firm did not consider civil action over its removal.

“Ultimately, we just didn’t think it would be in our best interest or in the best interest of our partners on the project,” she said.

This story was originally published March 3, 2017 at 11:35 AM with the headline "County Commission investigated over possible constitutional violation."