Michael O'Donnell can continue to serve indefinitely on the Sedgwick County Commission despite a federal indictment charging money laundering and bank and wire fraud, according to the county counselor.
"He can serve as long as he wishes" because "he's an elected official" and there's no mechanism by which the rest of the county government could remove him from office, County Counselor Eric Yost said Friday.
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So far, only one commissioner, Richard Ranzau, has called on O'Donnell to resign.
Ranzau has publicly upbraided O'Donnell on several occasions, asserting he abused his power as a commissioner to help friends and campaign contributors.
Knowing O'Donnell was under investigation, Ranzau urged fellow commissioners to keep O'Donnell out of leadership roles and from serving as the county representative on the board that runs Wichita Area Technical College.
The crux of the indictment is that O'Donnell unlawfully converted campaign funds for his personal use and payments to friends. It also alleges that O'Donnell filed false reports to the Kansas Governmental Ethics Commission in an attempt to cover up illegal spending.
Both are federal issues because O'Donnell drew checks on federally insured banks and sent the reports to Topeka via Gmail, which meant they would have had to have crossed state lines to Google servers and back, the indictment said.
While the indictment against O'Donnell unsealed Friday dealt only with issues when he served as a state senator, 2013 to early 2017, Ranzau revealed Friday that county commissioners and some senior county staff members had been interviewed by investigators about O'Donnell.
"While the public didn't know it, he was also being investigated for his actions here at the county, and all of the commissioners and some staff members had been subpoenaed," Ranzau said. "So we also knew that investigation was going on behind the scenes. All the commissioners knew it. I knew it.
"It doesn't take a rocket scientist to figure out that at some point he's going to be indicted for something, just if you understand how he operates."
The other three commissioners, David Dennis, David Unruh and Jim Howell, said O'Donnell is innocent until proven guilty and they want to let due process of the courts run its course.
"I don't want to jump to a conclusion here," Howell said. "If he's convicted of something, I'm sure it will affect his service here at some point. For right now, nothing's changed as of this moment. We've got serious work to do."
The county is formulating its annual budget, and "We need somebody in that seat who can sort through that," Howell said. "In terms of his (O'Donnell's) service to the county, I haven't seen any bad judgment."
Dennis said, "No matter what, county government in Sedgwick County is going to go on; people don't need to worry about that."
He also said Ranzau had politicized the O'Donnell investigation.
"Commissioner Ranzau is using this more as a campaign issue, and that's kind of unfortunate, actually," Dennis said. "If Michael's done something wrong, he will answer to the courts, but I would not use that as a campaign issue myself."
Unruh wasn't available for comment but did issue a short written statement through the county's public relations office.
“We are reviewing the information the U.S. District Court provided publicly today,” Unruh said. “Every citizen has the right to express an opinion and every citizen has the right for due process. It’s important to follow the legal process.”
Yost said there are only three ways O'Donnell could be removed from office before his term ends in early 2021: resignation, recall or ouster.
None of those courses involves actions by the county government, said Yost, a former district court judge.
Resignation would be up to O'Donnell, recall would be up to voters, and an ouster proceeding would have to be brought by the district attorney or attorney general and be decided by a judge.
O'Donnell isn't commenting on the case but has given no signal he intends to resign. However, resignation from office could be included as a condition if he accepts a plea bargain in the case.
If O'Donnell were to be convicted of a felony or felonies and didn't resign, it would likely fall to Marc Bennett as the local prosecutor to decide whether to start proceedings to oust him from office.
The DA would gather evidence, such as a judgment of conviction, and present the case to a judge. O'Donnell would have the option to challenge that evidence.
The judge would then decide whether the legal requirements were met and approve or deny the ouster request.
Recall would seem to be the least likely option.
Unlike other states where voters can petition and vote to recall their elected officials at will, Kansas sets a high bar to even start a recall drive.
Here, an official can be recalled only for “conviction of a felony, misconduct in office or failure to perform duties prescribed by law.” Misconduct is defined as “a violation of law by the officer that impacts the officer’s ability to perform the official duties of the office.”
An effort to recall Ranzau two years ago was denied by Bennett, who ruled that the would-be petitioners didn't provide sufficient legal grounds to allow a recall to go forward. In that instance, petitioners alleged Ranzau failed to perform his duties by voting to turn away federal aid for county health programs.
And even if the petition is approved, recall advocates have to collect signatures equal to 40 percent of the voters in the last election, a nearly insurmountable hurdle.