Kansas AG says he can’t oust Rep. Michael Capps over Wichita political scandal

A decision on whether Kansas Rep. Michael Capps should be removed from office for his role in a Wichita political scandal will be left to the Kansas House of Representatives, Attorney General Derek Schmidt announced Tuesday.

Capps is one of three Wichita Republicans behind a dark-money campaign that falsely accused Brandon Whipple of sexual harassment during the 2019 Wichita mayoral race and then tried to shift blame on former Sedgwick County GOP Chairman Dalton Glasscock.

Capps was first tied to the smear campaign and cover-up by The Wichita Eagle last fall.

The other two officials involved — former Sedgwick County Commissioner Michael O’Donnell and Wichita City Council member James Clendenin — have faced similar removal scenarios at the local level after an audio recording was released in October by Matthew Colborn, the man hired to produce the anti-Whipple video.

The audio showed how Capps, O’Donnell and Clendenin fabricated a story that Capps would later tell on a local talk radio show that blamed Glasscock for the video.

All three officials’ roles had been reported by The Eagle in July: Capps set up a shell company in New Mexico to promote the anti-Whipple ad on Facebook and YouTube while disguising who created it. Money for the campaign was laundered through his sports charity, Fourth and Long Foundation, which shielded the identities of donors and allowed donations to be tax-deductible. O’Donnell aided with the concept for the video and helped Clendenin raise money from real estate and construction interests who do business with the city and county.

Capps has been roundly condemned by state and local Republicans for participating in the video scandal. The Sedgwick County Republican Party called for him to resign in November of 2019 and others have followed suit in the year since. But the Kansas House has not formally censured or moved to oust him.

After the audio surfaced, Sedgwick County District Attorney Marc Bennett investigated whether the three officials could be removed from office for their roles in the video and the cover-up.

Wichita City Council member James Clendenin has refused to step down and will face ouster proceedings in district court.

O’Donnell resigned last month rather than face removal from office. Glasscock will serve the remainder of O’Donnell’s term until Sarah Lopez, a Democrat, who won the Nov. 3 election replaces him on Jan. 10.

Bennett passed his investigation of Capps to Schmidt because state law does not allow a county district attorney to move to oust a state official.

Capps has six weeks left in office, and the Kansas Legislature is not scheduled to be in session until after his term has expired, meaning any decision on whether to oust him would be largely symbolic.

Schmidt, whose office took over an investigation of whether Capps should be expelled last month, said in a written statement that courts have ruled that expulsion of a member of the state legislator can only be initiated by Legislature, not the attorney general.

“Therefore, the attorney general cannot file a lawsuit seeking ouster of Mr. Capps from the House of Representatives because Kansas courts lack jurisdiction to order him removed from office,” Schmidt’s statement said. “The only ways to involuntarily remove a state representative from office are electoral defeat coupled with expiration of the term of office, recall, or expulsion by vote of the House of Representatives itself.”

Capps was defeated in the August primary by Republican challenger Patrick Penn, a political newcomer who campaigned against Capps’ unethical behavior and received 74% of the vote. With fewer than 200 days left in his term, Capps is ineligible for recall.

The only avenue for removal is a vote by the Kansas House, which would require a special session. With that reality in mind, Schmidt said, he forwarded Capps’ case file to House leaders.

“We will refer the file in this case to the leaders of the House of Representatives so they may consider whether expulsion proceedings are appropriate, although we are aware that the Legislature is not currently scheduled to be in session before Mr. Capps’ term of office expires on January 11, 2021.”

This story was originally published December 1, 2020 at 3:11 PM.