District attorney moves to oust Wichita City Council member James Clendenin

James Clendenin, the longest-serving member of the Wichita City Council, will face ouster proceedings that could remove him from office for his role in a 2019 political smear campaign and an attempted cover-up, District Attorney Marc Bennett announced Wednesday.

If Bennett succeeds, Clendenin would be the first Wichita City Council member removed by ouster in the city’s 150-year history and the first Wichita-area elected official ousted in more than 40 years.

Bennett filed ouster proceedings Wednesday morning against Clendenin, one of three Republican politicians behind a video campaign that falsely accused Wichita Mayor Brandon Whipple of sexual harassment in a bid to boost the re-election chances of then-Mayor Jeff Longwell.

Clendenin appears poised to fight to keep his council seat, unlike former County Commissioner Michael O’Donnell who resigned Nov. 13 rather than face ouster proceedings.

A third member of the smear-campaign team, state Rep. Michael Capps, remains in office but will relinquish his seat in January at the latest, having lost a bid for re-election to fellow Republican Patrick Penn. Last week, Bennett referred the Capps investigation to the state attorney general. State statutes say that only the attorney general can pursue ouster against a legislator.

Clendenin has said repeatedly that he plans to stay in office until the end of his term in 2021. He did not respond to requests for comment and his lawyer sent an e-mail declining to comment.

The ouster effort arose after Clendenin, Capps and O’Donnell were secretly recorded by Matthew Colborn, the young video entrepreneur hired to produce the false ad targeting Whipple. That recording captured the three politicians plotting to lay blame for the false and widely-criticized ad on former Sedgwick County Republican Party Chairman Dalton Glasscock, a close friend of O’Donnell and his former campaign manager.

Clendenin, O’Donnell and Capps also are being sued by Whipple for defamation and civil conspiracy.

Under state law, prosecutors don’t have to prove criminal wrongdoing in an ouster proceeding but do need to show that the official “willfully engage(d) in misconduct while in office.”

The only penalty in an ouster proceeding is removal from office.

Bennett said in his petition to remove Clendenin that he broke multiple laws:

▪ Aiding and abetting criminal false communications — After the video smearing Whipple published, Clendenin knew it was false but denied any knowledge in interviews with reporters and waited 18 days to tell the video producer to take down the video.

▪ Criminal false communications — Clendenin advised Capps to lie on a radio program to shift the blame onto Glasscock.

▪ Soliciting illegal donations — Clendenin and O’Donnell asked donors to write checks to the Fourth and Long Foundation, a 501(c)3 charity founded and controlled by Capps, for the purpose of a political campaign, which is illegal. The money was laundered through the charity to pay Colborn for producing the Whipple attack ad.

▪ Violating the City Council’s Code of Ethics — Clendenin’s role in attacking Whipple and Glasscock with false allegations broke the city’s code of ethics, showing he “willfully neglect[ed] to perform any duty enjoined upon [him] by law.”

Clendenin could be suspended while the case is adjudicated in court, and the City Council has the authority to appoint an interim member to serve in his place for the duration, according to state statute. Bennett is asking a judge to suspend Clendenin.

Bennett announced that he was investigating Clendenin, Capps and O’Donnell on Oct. 26. after the Colborn audio was released by Colborn’s lawyer.

Colborn, who had been linked to the video by Eagle reporting, was the only original defendant in Whipple’s lawsuit.

He was dropped from the lawsuit after agreeing to testify truthfully and providing his evidence that showed Clendenin, Capps and O’Donnell masterminded the scheme. The three politicians went to great lengths to hide their involvement, including the creation of an anonymous shell company in New Mexico to pay the bills and funneling donations through a tax-exempt nonprofit sports charity that Capps controlled to keep contributions anonymous.

On Oct. 27, the City Council voted to censure Clendenin on a 5-0 vote with Clendenin and Whipple abstaining. The council did not ask Clendenin to step down.

The District 3 Advisory Board, which Clendenin appointed to advise him, passed a “no confidence” vote against him, but also did not call for him to resign.

The advisory board would play a key role in replacing him if he does leave office early. The city’s established practice is for the board to interview applicants and recommend who the City Council should appoint.

At least two members of the District 3 board — Cindy Miles and Jared Cerullo — have expressed an interest in the seat.

Clendenin was first elected to the Wichita City Council in 2011 to a two-year term after Jim Skelton moved to the County Commission. A political newcomer at the time, Clendenin received a campaign boost when his opponent, anti-abortion activist Mark Gietzen, was arrested for traffic charges three weeks before the election.

He was elected again to the seat in 2013 and 2017.

Clendenin is the first elected City Council or County Commission member to face ouster proceedings in more than 50 years.

The most recent case was former Sedgwick County Commissioner Floyd Schroeder, a former sheriff who was removed from his seat on the commission in 1967 for selling equipment above cost to the county through a shell company used to conceal his ownership.

As part of a related probe into the county’s finances, Schroeder served time in prison for perjury for lying to a grand jury about his dealings with county vendors from whom he had accepted money and gifts.

A county treasurer, Walter Richardson, was ousted by a three-judge panel in 1979 over a scandal involving sexual harassment complaints by female members of the office staff. He was also found to have given some employees extra paid time off in exchange for sexual favors.

Like the current case, a secretly recorded conversation loomed large in the ouster.

“We need not go into the sordid details disclosed by the evidence,” said the 1981 Kansas Supreme Court case upholding the ouster finding. “Suffice it to say twenty women testified on behalf of the State regarding sexual harassment and false time sheets. One of these women wore a recording device and recorded details of a conversation initiated by Richardson which led to what appeared to be a lovers’ tryst during working hours. The tape recording was played to the court during the trial.”

This story was originally published November 25, 2020 at 9:05 AM.