No credible evidence exists to remove Kansas City Municipal Judge Elena Franco, a judicial commission unanimously said Tuesday.
The five-member Municipal Judicial Nominating Commission was weighing whether to submit charges to the City Council against Franco for allegedly violating the city’s residency rule and for failing to work the required 40 hours per week.
Not only did the commission dismiss the city’s allegations, but it also chastised officials for invading Franco’s privacy and said it felt the city’s costly investigation was “characterized by secret, harsh and arbitrary procedures.”
It requested that Franco, who was suspended without pay in August, be immediately reinstated with any lost pay and benefits restored to her.
Afterwards, Franco said she was pleased with the decision.
“After being personally, unfairly and publicly attacked, I’m gratified that an independent body has reviewed the evidence and has fully and completely vindicated me,” she said.
City Attorney Galen Beaufort said the city would reserve its comment until today.
One of the lawyers representing Franco warned the city about pursuing other action against the judge, hinting that she could bring legal action of her own.
“The illegal retaliation against Judge Franco must stop now,” said Mark Jess. “She must be reinstated now.”
Jess alleged that the city lashed out against Franco when she opposed what he described as an “illegal restructuring” of the city prosecutor’s office and also opposed a new diversion program that he described as “illegal and unethical.”
Commission member John Hager said the panel was very unhappy with the city’s investigation of the judge, which cost more than $72,000.
“We felt very strongly about this,” he said. “Having someone looking through her windows in the evening is pretty frightening. We felt the whole thing was shocking.”
He also said the board was disturbed that Franco was not given the opportunity to give her side of the story before she was escorted off city property in August.
“They never gave her a chance to explain,” Hager said. “We’re dealing with human beings here. You should deal with people professionally.”
This is the first time that court observers can recall the city trying to remove a sitting municipal judge from office.
Franco was suspended following an investigation by Internal Auditor Roy Greenway. He had received allegations that Franco was violating a city charter requirement that municipal judges live continuously in the city limits during their judicial service.
Franco, who was appointed to the bench in 2005, owns a home within the city limits of Kansas City, in Clay County, and she has consistently maintained that that is her official residence. Her husband, Rick Holtsclaw, owns and lives in a Platte County home, outside the city limits.
Greenway’s report summarized the results of 24-hour camera surveillance of Franco from June 6 to Aug. 5. The surveillance also involved the use of some private investigators.
Greenway wrote that the surveillance showed Franco spent far more time at her husband’s Platte County residence than at her Kansas City address and spent only one night out of 41 work week nights at her Kansas City address.
Investigators said Franco appeared to go to her house mostly to change into and out of work clothes, and they dubbed her Kansas City address a “giant walk-in closet.”
But the commission found that Franco had presented ample evidence of her residency in the city, including the fact that she has owned her Kansas City home since 1998, she has paid taxes on the house, she has clothes and furniture there, she has made numerous repairs there, she employs a yardman there, gets her mail there, has held family gatherings there and has neighbors who frequently see her there.
The commission also found that Franco often does go to her husband’s home.
“In discussing the words ‘continuous residency,’ we determined the drafters of the charter never meant it to be applied in its strictest sense,” the commission wrote. “To adopt the (city’s) position, it would mean an employee of the city could never leave its boundaries even for vacations or trips to see relatives or to conduct business. This would be an absurd interpretation of the meaning of the charter.”
The investigation also indicated that Franco spent an average of 30 hours per week at Municipal Court, while the standard set for work hours in city ordinance is a minimum of 40 hours per week.
But the commission again found in Franco’s favor, saying she presented evidence that for years she has taken work home with her, in addition to participating in public, civic and legal meetings outside the court. The commission said judges, like council members, do not punch time clocks or keep track of their hours, but she clearly worked more than 40 hours per week.
The city charter says that charges against a judge may be brought if at least four of the five judicial commission members agree. The commission, headed by Jackson County Judge Jack Gant, includes two lawyers and two lay people. The City Council makes the final decision on that judge’s removal from the bench.
But the commission found no probable cause to send any charges to the council for its deliberation. It took aim at Greenway and City Manager Troy Schulte, raising concerns about the way the investigation was conducted and the way an elected official was summarily removed.
“Nowhere in this investigation was any consideration given to the fundamental rights of Judge Franco,” the commission wrote, “and the basic foundation of our country that a person has the right to a hearing to confront her accusers and is innocent until proven guilty.”