State Finance Council complicit in cloaking financial terms of lawsuit settlements

By: - July 22, 2020 7:50 am
Rep. Troy Waymaster, left, a Republican from Bunker Hill, says the COVID-19 pandemic will erode casino and lottery revenue relied on by the state government to invest in economic development programs. (Nick Krug for Kansas Reflector)

Rep. Troy Waymaster, left, a Republican from Bunker Hill, says the COVID-19 pandemic will erode casino and lottery revenue relied on by the state government to invest in economic development programs. (Nick Krug for Kansas Reflector)

TOPEKA — The governor of Kansas and eight of the Legislature’s most influential members routinely approve financial settlement of lawsuits filed against the state without engaging in public debate or comment.

Their approach is to explore complexities of pending litigation behind closed doors with representatives of the Kansas attorney general’s office, who have responsibility for hammering out settlements worth millions of dollars. After sorting through details in executive session, the council’s members reconvene the public meeting for nothing more than a vote to affirm or reject the deal.

The process has diminished the council’s level of transparency with taxpayers to mere reading of the name of each lawsuit.

Discovering how much was paid to plaintiffs now requires a request to the Kansas Department of Administration under provisions of the Kansas Open Records Act. The fine print explanation of legal issues raised in these cases must be found in state or federal district court files.

Critics of the practice contend expenditure of tax dollars warrants more than token transparency, while defenders of the current approach say they are complying with the Kansas Open Meetings Act. In the past 10 years, the council made up of House and Senate members and chaired by the governor has endorsed 29 settlements worth $2.5 million.

Despite the level of secrecy now practiced by the State Finance Council, there are instances in the past 15 years in which council members in public session delved into analysis of litigation, examined merits of claims and debated whether payouts were necessary. Members of the council who recall those exchanges were more likely to tell the Kansas Reflector they would consider reforms to compel real-time disclosure of the settlements.

Lansing death

The council’s process for handling the lawsuits can be illustrated in the case of an inmate at Lansing Correctional Facility who apparently took his own life.

Ricardo Flores-Ramos was transferred to the maximum security infirmary at Lansing after several days on a hunger strike, court records show. At 4:37 a.m. July 7, 2015, Lansing corrections officer Ryon Karpierz found Flores-Ramos on the floor of his room with a bed sheet tied around his neck. He was pronounced dead by emergency medical staff.

It was Karpierz’ assignment to conduct security checks of Flores-Ramos every 30 minutes, but the lawsuit filed in Leavenworth County District Court alleged he failed to perform that duty from 3 a.m. to 4:30 a.m. In addition, Karpierz and corrections officer Carl Foraker were responsible for maintaining video surveillance of Flores-Ramos. They didn’t. Karpierz said in court filings the security camera in Flores-Ramos’ unit wasn’t functioning.

The suit brought in 2017 by Amanda Valdivia, mother of Flores-Ramos’ son, and by Virginia Flores, administrator of the estate, alleged employees of the Kansas Department of Corrections were negligent in the 25-year-old inmate’s death. Years of legal wrangling led to a settlement meeting of the State Finance Council, which includes Democratic Gov. Laura Kelly, six Republican legislators and two Democratic lawmakers.

Attorney General Derek Schmidt, left, prefers the State Finance Council avoid discussing the details of lawsuit settlements in public to avoid compromising attorney-client privileges. (Tim Carpenter/Kansas Reflector)
Attorney General Derek Schmidt, left, prefers the State Finance Council avoid discussing the details of lawsuit settlements in public to avoid compromising attorney-client privileges. (Tim Carpenter/Kansas Reflector)

The council in June convened in executive session with representatives of Attorney General Derek Schmidt to discuss settlement of the case. When reporters and others were welcomed back into the meeting room at the Capitol, the council affirmed the deal without public discussion, debate or explanation. No one offered a summary of the facts. No one mentioned the cost to taxpayers. No one offered justification or opposition to a settlement.

It was over with swiftness of a roll call vote.

“Do I have a motion?” Kelly asked the council’s senators and representatives.

House Minority Leader Tom Sawyer, D-Wichita, moved adoption of the settlement. He was seconded by Senate Majority Leader Jim Denning, R-Overland Park. The tally was 8-0. Case closed.

The same process was followed by the State Finance Council at that meeting to approve a $30,000 settlement of a suit filed on behalf of a Hutchinson Correctional Facility inmate who also apparently committed suicide.

Tip of an iceberg

Action by the State Finance Council on this pair of lawsuits followed a pattern by which representatives of Kansas’ executive and legislative branches who control the council effectively draw a cloak over expenditure of tax dollars.

Documents from the state Department of Administration show the council has settled 29 legal claims during the past decade at a cost of $2.5 million. The Kelly administration released — at no cost — the one-page memo for each case listing the amount paid to litigants. To get a sense of the men, women and children at the heart of these lawsuits, it was necessary to dig into district court files all over the state — not a task the average taxpayer has time or resources to execute.

Emily Bradbury, executive director of the Kansas Press Association, said the clear intent of state law on open meetings is the public should be privy to real-time information about votes being taken by state councils, legislative committees, county commissions, city councils, school boards or any of hundreds of other entities subject to the Kansas Open Meetings Act.

Public documents revealed it took $65,000 from the state treasury to placate the Flores-Ramos’ estate. Anyone interested in details of what happened the night Flores-Ramos died in the prison needed a copy of the wrongful death lawsuit filed in Leavenworth County. A search of Shawnee County District Court files made clear Flores-Ramos was no saint. He was in prison on aggravated battery and aggravated assault convictions after breaking into a Topeka automotive store in 2011. Before apprehended by police, he fired a shot at people chasing him on foot and by car.

A similar multi-stop journey was necessary to shed light on the case of Matthew Tedford. The Hutchinson prison inmate who died Aug. 26, 2016, received $30,000 through the State Finance Council to settle the wrongful death lawsuit filed in Reno County District Court. His daughter, Madison Tedford, sued the state Department of Corrections and Corizon Health, the contractor providing medical and mental health services to inmates.

Tedford had been placed in solitary confinement after making suicidal comments. Corizon employees put Tedford on suicide watch. Plaintiff attorney Thomas Dickerson said state corrections officers left Tedford in a cell “with a hang-off point and a bedsheet sufficient to hang himself.” When guards later checked on Tedford, he had hung himself with the sheet. His life ended while serving time on Seward County convictions for criminal threat, forgery, battery and theft. He was 47.

No so fast

Rep. Troy Waymaster, a Bunker Hill Republican, said the State Finance Council’s practice of falling silent during public meetings on lawsuits wasn’t in conflict with state law. To initiate the executive session to confidentially discuss both the Flores-Ramos and Tedford cases, Waymaster read an obligatory statement referring to statutes authorizing a closed-door meeting to consult with the attorney general on tort claims.

In an interview, Waymaster said discussion of the legal settlements was intentionally isolated to the executive session. The public’s interests are protected because the formal vote occurred in full view of the public.

“For those particular items,” Waymaster said, “we go into closed session. It’s not open to the public. When we come back and it’s back to an open meeting, we do not discuss those items. We just have the vote. Every single case that we have done this, we have never discussed the items because we have discussed it in closed session. End of story.”

Current and former members of the State Finance Council said they recalled a time when nondisclosure wasn’t the rule. They remembered public discussions of the council on the substance of pending lawsuits, points of law, settlement options and other elements of the disputes.

In June 2012, for example, House Speaker Mike O’Neal, a Republican from Hutchinson, objected during the public portion of a council meeting to a recommendation to pay $30,000 to a former Topeka Correctional Facility inmate who filed a federal lawsuit alleging a corrections officer forced her to engage in sexual activity. The attorney general’s office proposed the settlement with one of two women leveling sexual misconduct allegations at corrections officer Nathan Van Dyke, who was convicted of unlawful sexual relations while on duty.

O’Neal, an attorney, was the lone vote on the State Finance Council against the settlement and urged his peers to seek dismissal of the case.

Inconsistency?

C.J. Grover, a spokesman for the attorney general, said lawyers appropriately invoked attorney-client privilege when speaking in executive session about the pending lawsuits.

“The votes to approve the settlements are made in open session, and the settlement agreements then become public record once they are finalized,” Grover said. “However, the analysis and advice that our office provides to the council in executive session are still protected by attorney-client privilege.”

While Schmidt, the attorney general, appears to welcome the State Finance Council’s method of handling most legal settlements, he has chosen to disclose to the public information about proposed settlement of wrongful conviction lawsuits filed against the state. His office issued news releases in 2018, 2019 and 2020 to preemptively explain deals made with litigants mistakenly convicted of crimes in Kansas.

Grover said wrongful conviction settlements were put before the council for mere review — not formal approval or rejection. Amounts owed these former inmates were dictated by state law.

In 2018, for example, the attorney general recommended the state compensate Richard Jones with $1.1 million and other benefits for 17 years served behind bars for a bogus aggravated battery conviction. Last year, Floyd Bledsoe was paid $1 million for 16 years of incarceration for a Jefferson County murder committed by his brother. In February, Lamonte McIntyre received $1.5 million for his wrongful conviction in a double homicide in Kansas City, Kansas, that led to 23 years of imprisonment.

The fourth case, wrapped up in April, involved action in Sedgwick County District Court to certify Bobby Harper qualified for $238,000 for two years spent in prison on a 1987 burglary conviction. That verdict was vacated in 1990 by the Kansas Supreme Court.

Senate Minority Leader Anthony Hensley, a Topeka Democrat and member of the State Finance Council, says the council has become more secretive about settlements of lawsuits against the state because the cases of misconduct are so embarrassing.
Senate Minority Leader Anthony Hensley, a Topeka Democrat and member of the State Finance Council, says the council has become more secretive about settlements of lawsuits against the state because the cases of misconduct are so embarrassing. (Nick Krug for Kansas Reflector)

Too embarrassing

Senate Minority Leader Anthony Hensley, a Topeka Democrat and the longest-serving legislator in Kansas history, said the State Finance Council had gravitated to a process that helped political leaders avoid association with grim episodes of state employee abuse, neglect or incompetence.

He said legal counsel in executive sessions urged members of the council not to talk about the cases outside of executive session. Paperwork reviewed by council members during their meetings is collected at adjournment to reduce the temptation to share information with the public.

“I’m assuming these tort claims cases are confidential — this is my opinion — because they’re embarrassing to the state,” Hensley said. “I’d like to revisit the rebuke not to discuss it in public.”

Ron Keefover, president of the Kansas Sunshine Coalition for Open Government, said state law on open meetings contained many exemptions, but “I don’t remember an embarrassment clause.”

He speculated the State Finance Council’s attitude to public discussion of settlements could reflect the common practice of settling civil suits with participants signing nondisclosure agreements or a judge sealing the case file. He said exceptions to public discussion under KOMA were to be “narrowly construed to carry out the public purpose of the law” and that recesses for an executive session “shall not be used as a subterfuge to defeat the purposes of this act.”

“If you’re going to spend public money, that’s an open record,” Keefover said. “I don’t care if it’s embarrassing.”

Sen. Carolyn McGinn, a Sedgwick Republican and chairwoman of the Senate Ways and Means Committee, said facts and figures about settlements previously were shared publicly, on an inconsistent basis, when the council voted on a resolution.

She said the State Finance Council should make it a practice of disclosing basic information about settlements to be more transparent about the work performed by legislators and the governor.

“I don’t have a problem with announcing it,” she said.

Tough cases

Settlements affirmed by the State Finance Council since 2010 have ranged in value from $6,000 to $350,000, excluding the wrongful conviction lawsuits. Ten of the 29 were for amounts greater than $100,000 and eight cost taxpayers between $62,000 and $95,000.

Jacquie Spradling, who was a prosecutor in Johnson and Shawnee counties, was the largest recipient of a council payout in the past decade. She filed a discrimination lawsuit against Johnson County District Attorney Phill Kline, who fired her in 2007. Kline said it was for insubordination. Spradling said it was retaliation for complaining about sex discrimination. In 2011, Gov. Sam Brownback and top legislative leaders agreed to pay her $350,000.

At that time, Senate Majority Leader Jay Emler, a Lindsborg Republican, said he reluctantly voted for that “fiscally prudent” settlement because the state’s legal fees for a trial and judgment could be much more expensive.

In 2014, State Finance Council members and other state officials spoke openly about the $225,000 settlement of a lawsuit filed on behalf of a former Kansas State University football player who died at Larned State Hospital. The estate of Michael Lykins sued in Shawnee County alleging hospital staff didn’t do enough to prevent the death of Lykins in 2011.

The State Finance Council agreed four years ago to pay $100,000 to Naomi Boone, mother of late Mekhi Boone, to resolve a federal lawsuit filed over the death of the 4-year-old boy. TFI Family Services, a state foster care contractor, paid $312,000 to the family. Mekhi Boone’s father, Lee Davis, was convicted of second-degree murder for beating the child to death.

Brownback said the payment was justified: “Just everything about it makes you sad.”

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Tim Carpenter
Tim Carpenter

Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International. He has been recognized for investigative reporting on Kansas government and politics. He won the Kansas Press Association's Victor Murdock Award six times. The William Allen White Foundation honored him four times with its Burton Marvin News Enterprise Award. The Kansas City Press Club twice presented him its Journalist of the Year Award and more recently its Lifetime Achievement Award. He earned an agriculture degree at Kansas State University and grew up on a small dairy and beef cattle farm in Missouri. He is an amateur woodworker and drives Studebaker cars.

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