Emails reveal what was discussed in Shawnee mayor case. Did it violate Kansas law?
An email chain that ultimately led to a perjury charge against Shawnee Mayor Michelle Distler started with an activist who was upset about her refusal to break a tie for the city council president.
Mike Egan, a former Shawnee resident who now lives in Missouri’s Ozarks but still uses email to regularly chime in on Shawnee civic affairs, sent a March 5 email to Distler, four council members and others who keep tabs on City Hall.
Egan’s email, obtained by The Star through a Kansas Open Records Act request, blasted Distler for not breaking a 4-4 tie to choose a council president in January. Distler said at the time that she didn’t want to insert herself in the vote, fearing “it would make the Council appear even more divisive.”
That led the council to explore new ways to pick a president, who would take over as acting mayor if the mayor were to be absent or step down.
“Y’ALL ARE WlLLING TO TURN THE CURRENT GOVERNMENT UPSIDE-DOWN because the chicken-mayor wont even vote?” Egan wrote in a March 5 email. “What’s next, rewrite the U.S. CONSTITUTION until Bernie is anointed king? I have never seen a more dysfunctional city government than Shawnee.”
When two council members responded, Distler forwarded the email chain to Shawnee city attorney Ellis Rainey, wondering if the whole string violated the Kansas Open Meetings Act, a law meant to ensure the public can watch elected officials discuss most city business openly.
“There are 4 councilmembers on this chain of emails discussing council president and 2 of them have commented,” she wrote at 3:48 p.m. March 7, matching a description of the email in an affidavit supporting criminal charges against Distler. “Isn’t THIS a KOMA violation?”
Distler was charged with perjury after she allegedly filed a KOMA complaint to the Kansas attorney general, but instead of signing her own name using someone else’s. That someone else is widely believed to be blogger Ray Erlichman.
When Distler was charged, court records showed a lengthy list of witnesses, most of whom didn’t know why they were named as witnesses. Most of the witness list was copied on Egan’s email.
Distler has not commented publicly on the particulars of the felony perjury charge against her, and her attorney Robin Fowler on Wednesday declined to comment.
A notation on Johnson County District Court records online indicates that Distler has applied for diversion, which means the charges ultimately could be dropped if prosecutors agree to it and she successfully completes a diversion program.
The email responses that followed Egan’s initial email highlighted the conflict arising over even routine matters in a city government that’s closely divided on some issues.
Kurt Knappen, a council member from Shawnee’s 3rd Ward, responded to Egan with an explanation for his position on a new proposal of how to select a council president. He then asked to be taken off the email chain because he didn’t think it was constructive.
“That’s why I rarely respond to them,” he wrote. “Personal discussions are far better than one liners on mass email.”
One of the proposals the council had discussed was making tenure a tie-breaker if the council deadlocked again on choosing a president.
Erlichman, who was part of the email chain, offered his opinion.
“The seniority thing is fluctuating,” Erlichman wrote. “Right now it is good for the conservatives...but it can change.”
Eventually, it was decided to use a coin flip to decide the council president, and Lindsay Constance became president at a meeting earlier this month.
Max Kautsch, a First Amendment attorney in Lawrence, said the email chain could be interpreted as an “interactive communication,” possibly a KOMA infraction.
A 2009 Kansas attorney general opinion defined “interactive communication” as a mutual or reciprocal exchange between members of a body or agency subject to KOMA.
The opinion said such a communication does not occur when a citizen decides to email an entire public board and one member responds and copies the rest of the board.
“Should there be further interactive communications among a majority of the members concerning the business of the body, and there is an intent by any or all of the participants to reach agreement on a matter that would require binding action, those communications are subject to KOMA,” the opinion said.
Kautsch said Distler may have been “on the right track” with a KOMA complaint, had she not allegedly signed someone else’s name to it.
Knappen disagreed.
“There was no violation there,” he said. “We were discussing something that already happened, not something that was about to happen.”
Jenkins also said the email chain was not a KOMA violation.
“It wasn’t city business, there was nothing there to be discussed at council,” Jenkins said. “I didn’t like it very much; it was pretty negative the things that were said.”
Steve Howe, the Johnson County district attorney, was not immediately available for comment.
The Star’s Sarah Ritter contributed to this report.
This story was originally published December 24, 2020 at 11:01 AM.
