After Kansas ex-official’s death, audit finds agency doesn’t check criminal histories
The Kansas Department of Commerce doesn’t conduct criminal background checks on job applicants or ask if they have a criminal history, a state audit found.
The audit report, released Monday, comes after a former Commerce official suspected of embezzlement was found dead in a single-vehicle crash in August. Lawmakers sought an investigation into the agency’s pre-employment screening practices following his death.
Commerce hired the former official, Jonathan L. Clayton, in 2020 despite him having pleaded guilty to financial felony crimes in Pennsylvania. While at Commerce, Clayton oversaw $100 million in federal pandemic aid as director of economic recovery. The agency has said it didn’t know about his criminal record when it hired him, initially for a lower-ranking position.
The report from Legislative Post Audit, the Legislature’s auditing arm, described an agency where officials were unaware of options for criminal history checks. Commerce also didn’t adequately document hiring procedures for some employees, auditors found.
“They said that during the interview process, there are job-specific questions and standardized questions asked to the applicant, but these questions don’t include asking about criminal history,” the audit report says, describing comments by Commerce officials.
State law requires Commerce to perform a criminal background check on only one position – the state boxing commissioner.
Kansas officials have said they can’t conduct a national criminal background check for most positions because the checks aren’t authorized in state law. Generally, federal 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.
But auditors suggested in their report that officials have the discretion to conduct criminal history checks even without a specific authorizing law, including by searching public records.
Commerce disputed that contention in responding to the report, pointing to a 2018 executive order and guidance from the Kansas Department of Administration that it says binds its power to conduct checks. The Department of Administration sets hiring policies for executive branch agencies.
Executive branch agencies don’t automatically screen out job applicants with felonies, part of a 2018 order issued by then-Gov. Jeff Colyer, a Republican, to “ban the box” by not requiring applicants to check a box indicating they have been convicted of a felony on an initial application.
But the order doesn’t limit criminal background checks or prevent agencies from asking about criminal histories further along the hiring process.
Commerce’s chief counsel, Robert North, told the Legislative Post Audit Committee on Monday that the agency supports changing state law to authorize background checks. His comments echo statements made in August by Democratic Gov. Laura Kelly calling for changes.
North emphasized the executive order and the Department of Administration guidance, saying the agency can’t conduct criminal background checks until the Legislature changes the law. In a statement to auditors, Commerce said the hiring process should reflect the importance of jobs that oversee financial matters.
“We will be pursuing legislation to address the background check issue and give Commerce the authority to utilize criminal background checks in the hiring process. We support a hiring process that both appropriately screens job applicants and is within its authority,” the agency’s statement said.
Sen. Caryn Tyson, a Parker Republican who chairs the Legislative Post Audit Committee, criticized North and the agency, arguing they were attempting to shift blame onto the executive order and the Department of Administration’s guidance.
“Respectfully, Mr. North, you are looking for a scapegoat,” Tyson said. “Accept responsibility. You hired a felon to manage millions of dollars in government money and you’re looking for a scapegoat. I can’t imagine any business that would not do some kind of checks.”
Clayton oversaw grants
Clayton worked first as a project manager for Commerce before taking on the role of director of economic recovery, where he oversaw more than $100 million in programs funded by federal pandemic dollars, including Building a Stronger Economy, or BASE, grants.
The former official, who left Commerce in 2023, was facing scrutiny over whether he had mishandled grant funds belonging to various local associations in Mullinville and Peabody, where he lived. He went missing in early August before he was found dead in a crashed vehicle near Newton in Harvey County. At the time of his death, Clayton was Peabody’s interim city clerk.
In one instance, Commerce in April 2022 approved a BASE grant of $425,398 for the Mullinville Community Foundation. The group focused on improvements in Mullinville, a town of roughly 200 in western Kansas where Clayton grew up.
The grant agreement listed Clayton as the official point of contact at Commerce, but Clayton was also on the Mullinville Community Foundation board of directors at the time, serving as secretary-treasurer. The position gave him entrée into the group’s finances while the state official tasked with keeping an eye on the grant was him.
Earlier this year, Commerce initiated an outside review of the BASE grant awards. The review, led by risk management and emergency response firm Witt O’Brien’s, “has not uncovered any improper or ineligible grants,” Commerce spokesperson Patrick Lowry said in a statement.
“The independent third-party contractor’s review will continue until all grants are closed out,” Lowry said.
Commerce hired Clayton after he 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.
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).
“Commerce hired Mr. Clayton in 2020 without knowing about his previous criminal conviction in Pennsylvania and then subsequently promoted him to Director of Economic Recovery,” the audit report says.
“Commerce officials told us they were not aware of Mr. Clayton’s criminal conviction until after his promotion.”
