Kansas hired ex-official with felonies. Why didn’t a national background check happen?
The Kansas Department of Commerce was unable to perform a national criminal background check before it hired Jonathan L. Clayton, the former official now suspected of embezzling federal pandemic aid in Kansas who previously pleaded guilty to felony forgery and theft in Pennsylvania.
Clayton, who went missing Aug. 3, was found dead near Newton on Sunday, his husband said, after his truck went off the road and struck a tree.
His disappearance came amid growing scrutiny over whether he had mishandled grant funding belonging to various local associations in Mullinville and Peabody, where he lived. At the time of his death, Clayton was Peabody’s interim city clerk after leaving Commerce in 2023.
But the bizarre circumstances surrounding Clayton’s disappearance – including an apparently posthumous email from him making various allegations against state officials – have so far received more attention than a fundamental question: How did he get hired at Commerce given his criminal history?
Clayton was hired first as a regional project manager at Commerce, working in 2020 to connect businesses in southwest Kansas with aid and incentives. As COVID-19 upended the economy, the agency chose him to be the director of economic recovery, where he oversaw Commerce economic recovery programs funded by federal American Rescue Plan Act dollars – more than $100 million in total.
Commerce’s decision to hire him came after Clayton pleaded guilty to charges stemming from his time as an administrative assistant at vRide, a ridesharing platform in Philadelphia. Clayton was accused of stealing more than $200,000 from vRide, in part to help fund a fledgling theater operated by him and his husband, Christopher King.
In 2018, Clayton was sentenced to months of house arrest, followed by five years of probation and ordered to pay more than $200,000 in restitution (he still owed about $195,000 as of June). He was on probation and should have had a Kansas-based probation officer, a Pennsylvania-based probation official said; King said Clayton’s probation officer was in Pennsylvania.
Either way, Commerce has said it was unaware of Clayton’s criminal record when it hired him.
Kansas executive branch agencies don’t automatically screen out job applicants with felonies, part of a 2018 executive order issued by then-Gov. Jeff Colyer to “ban the box” by not requiring applicants to check a box indicating they have been convicted of a felony on an initial application. The order doesn’t limit criminal background checks or prevent agencies from asking about criminal histories further along the hiring process.
State officials didn’t – and couldn’t – conduct a national criminal background check, however, according to the Kansas Department of Administration, which handles some personnel functions for executive branch agencies.
“Under existing law, we are unable to perform national criminal background checks,” Department of Administration spokesperson Samir Arif said in a statement. “The Department of Commerce follows standard pre-employment procedures by conducting reference checks, online searches, and social media checks.”
A 1970s era federal law – Public Law 92-544 – governs how the FBI shares criminal history information with and between states. The law is aimed at allowing states to screen potential employees working with children and in public safety roles.
Generally, the law requires states to pass their own statute authorizing national checks for specific positions. No such check for the Commerce positions was authorized in Kansas law.
Kansas law does mandate or permit national criminal history record checks for a host of roles, however. They include optometrists, real estate appraisers, industrial hemp producers, pharmacists, bail enforcement agents, trust company directors and individuals working in secured biological labs, among others.
As of this spring, 55 state laws in Kansas authorized fingerprint-based criminal history record checks for non-criminal justice entities.
Background checks
The Legislature passed a bill in March, signed by Democratic Gov. Laura Kelly, to clean up and modernize the authorizations. The bill passed nearly unanimously after the Kansas Bureau of Investigation warned the update was extremely important to ensure Kansas isn’t prohibited from national checks in the future.
The only Department of Commerce positions mentioned in the legislation are candidates for the state boxing commission, which is housed inside the agency.
“If people controlling federal funds and state taxpayer dollars as well are not able to obtain background checks on employees – if they’re not able to get background checks on employees, then we need to fix the statute,” Rep. John Carmichael, a Wichita Democrat, said.
“Those of us in the Legislature, I think we used our best efforts,” Carmichael said. “We did exactly what the KBI recommended to us and if there were mistakes and oversights, we have to rely on the people who deal with this every day to come to us and say we need to make these legislative tweaks.”
Kelly’s office didn’t respond to questions about whether the Legislature should consider changes to the background check process. Kansas House Speaker Dan Hawkins and Kansas Senate President Ty Masterson, both Republicans, also didn’t comment in response to questions.
In the absence of an FBI check, Joseph Mastrosimone, an employment law professor at Washburn University in Topeka, questioned whether Commerce and other state agencies could seek background checks by private companies – a common practice in the private sector.
Most employers don’t contact the FBI to conduct a background check, they hire a private company, he said.
“I don’t know if there’s some restriction in state law that would prevent executive branch agencies from doing a background check, but I would be shocked if there were,” Mastrosimone said. “I just can’t imagine there is one.”
Clayton’s probation
Even without a national criminal background check, Clayton was on probation and living in Kansas. Typically, individuals on probation are supervised by the state where they reside, not the state where they were convicted.
In April 2018, Clayton was sentenced to five years of probation, which was not supposed to start until after he completed a 6 to 23-month house arrest sentence and 200 hours of community service.
By 2020, Clayton had moved back to his hometown of Mullinville in Kiowa County, which should have necessitated a transfer of probation responsibilities to the state of Kansas. It’s appears that didn’t happen.
When people on probation get permission to move to another state, their supervision responsibilities are transferred to the state where they move under the Interstate Compact for Adult Offender Supervision, or ICAOS, a binding agreement between all 50 states, the District of Columbia, Puerto Rico and the Virgin Islands.
Under ICAOS rules, states are supposed to notify other states or territories when a probationer moves into their state. Those rules were temporarily suspended in 2020 when the COVID-19 pandemic hit.
Kansas representatives for the Interstate Compact did not respond to questions on Tuesday and no one answered the office phone in Topeka. A Kansas Department of Corrections spokesperson replied to questions sent to that office on Wednesday morning.
“Mr. Clayton was never supervised by the Kansas Department of Corrections,” David Thompson, spokesperson for the department said in a statement. “How he fell through the cracks, we don’t know the answer to that question. Perhaps it’s a question for the Pennsylvania Department of Corrections?”
The Philadelphia probation office Clayton had been reporting to confirmed on Tuesday that Clayton started probation but did not provide additional information. His probation officer did not respond to multiple voice messages and an email.
Clayton’s husband, Christopher King, said in an interview that Clayton successfully completed probation recently but was definitely on probation when he was hired by Commerce and throughout his time there. He did not have a local probation officer in Kansas, King said.
“He would call in every month or every other month to his probation officer in Philadelphia,” King said.
This story was originally published August 28, 2024 at 5:30 AM.
