Taxpayer-Funded Intimidation by JCCC on TEA Day
By Benjamin Hodge | 04/15/09
Is there a government in Kansas more out of touch with its citizens than Johnson County Community College?
This morning, I received a cease and desist letter in my Email from JCCC President Terry Calaway and attorney Mark Ferguson. I’ll include the full Email at the end of this post. It claims that the board will consider a defamation lawsuit against me; they know such talk is nonsense and wouldn’t go anywhere in court (my statements would need to be both knowingly false and made with a malicious intent, neither of which, of course, is true), but JCCC leaders are willing to waste taxpayer resources to attempt to intimidate this board member and to attempt to protect their reputations.
It should be noted that Ferguson has never been subject to a competitive review process; he was first hired merely because it was “the JCCC way” to hire a law firm that is a “friend of the college.” In the coming months, though, he will be required to compete for his job for the first time. Last month, Ferguson made the decision to engage in a sham “review” of JCCC’s compliance with the Kansas Open Meetings Act (KOMA), during which he never talked with me nor made me aware that he was performing the review. During his public summary of the “review,” Ferguson also failed to mention that he-Ferguson-had just a few months prior determined that four board members had violated KOMA when they co-signed a letter to the editor that was published by The Kansas City Star in December 2008. I fully expect that he took his marching orders from JCCC President Terry Calaway. If that is true-that Calaway instructed Mark Ferguson to perform an intentionally incomplete review-that is an abuse of the public trust and abuse of taxpayer dollars.
Considering that the chair and vice chair are supportive of such a politically-motivated, taxpayer-funded, and misleading attack toward a fellow board member, these two trustees need to resign from their leadership positions.
Calaway, VanArsdale, and Mitchelson are still working on getting their stories straight, with regard to why Calaway made the voluntary, intentional decision to discuss the budget during an executive session that was part of the February 2009 board meeting. During that executive session, Calaway handed out a typed list of about 50 items that were under consideration to be cut or trimmed in the budget. Calaway also clearly told the board to not distribute the material.
- Calaway has repeatedly made the following false implication in public: that I asked him for the information. This is entirely false and misleading, and Calaway knows it.
- At one point during a phone conversation, I told Calaway that it wasn’t true for him to state that I had asked for the information. Calaway replied: well, maybe it was something you said (meaning, aloud during open session) at a previous board meeting.
- On February 27, as reported on The Prime Buzz blog, Calaway sent an Email to employees that included the following statement (emphasis mine): “The irresponsible nature of this reporting is exacerbated by the fact that the process under consideration had taken place as part of a board of trustees executive session, during which time a brainstormed list of potential cost-saving measures was discussed.”
- Yet in a Gardner News article on March 18 (emphasis mine):
- Chair Brown-VanArsdale was quoted: “There was no discussion on the budget,” Brown VanArsdale said.
- President Calaway was quoted: “We’re very careful about discussion in executive session,” Calaway said. “We have an exceptionally experienced board, most particularly our chair and vice chair. They truly understand the (KOMA) criteria. We’re very careful about it, which was whythere wasn’t any discussion about this material.”
- Calaway has stated that the “discussion”-to use his terminology-of the budget during executive session is permissible under KOMA because it related to his evaluation. Sorry-that’s not the intent of the Kansas Open Meetings Act. Mike Merriam, the attorney for the Kansas Press Assocation, agrees with me. I have never objected to the fact that Calaway shared this information-the issue is the timing of the distribution of the information. Calaway should have shared the information during an open meeting.
- Calaway has also said that the “discussion” of the budget was permissible because two employee names were mentioned. My comments to this:
- It’s not entirely accurate to state that two names were mentioned. Rather, two partial names were listed-in the form of “B. Hodge.”
- I do not believe that this is the intent of KOMA, and neither does Merriam, KPA’s attorney-that merely because an employee’s name is mentioned, that the discussion about the funding for that employee’s job should be discussed during a closed meeting. Remember that a government employee’s title, salary, and length of tenure are all available for public consumption.
- JCCC makes a mockery of KOMA by implying that a budget discussion involving “Cutting the position of Chief Information Officer” should be done during a public meeting, but that a discussion involving “Cutting the position of Chief Information Officer, a position currently filled by Joe Smith” should be done during a close session. There is no functional difference!
- Regardless: without a doubt, the other 48 budget items should not have been discussed during an executive session. JCCC again makes a mockery of the open meetings laws by implying that if one name is thrown into a document, that the entire document is therefore off-limits for an open meeting.
To which story(ies) are JCCC leaders sticking?
One other fact that I shared tonight in public for the first time, and that needed to be shared with college employees, in particular: during a phone conversation that I had with Calaway, not too long after the February board meeting, Calaway threatened me. The threats were implied, but they were clear: you will never work at JCCC, and I will sue you for slander/defamation.
Never before-not under former presidents Carlsen or Tyree-has any college employee (not even faculty, who know it’s nearly impossible to be fired) threatened me in such a way. About a week later, after (I thought, incorrectly) things had cooled off, Calaway apologized to me, and I mistakenly thought that he would then proceed in a clear, consistent manner beneficial to the public welfare.
Lastly-and no surprise here, but worth noting-the “meeting summary” issued by JCCC Wednesday evening includes no mention of my comments. These comments were made during a portion open to the public. JCCC leaders refuse to provide the courtesy of having a small amount of time in the official agenda; more accurately, Calaway has passively refused now for 6 days to even answer my question to him, regarding whether I will be granted a time to speak during the agenda.
Here is the letter sent to me today by JCCC President Terry Calaway and attorney Mark Ferguson:
From: Mark Ferguson [mailto:firstname.lastname@example.org]
Sent: Wednesday, April 15, 2009 10:02 AM
To: Benjamin Hodge
Cc: Terry Calaway; Sue Kuder; Ben Hodge; Don Weiss; Jon Stewart; Lynn Mitchelson; Melody Rayl; Shirley Brown-VanArsdale
Subject: Ben, Please Call Me: Confidential Attorney Client Privileged Communication
I just tried to reach you on your cell phone this morning; please call me immediately. My office phone is 913-661-0222 and my cell phone is 913-707-5125. I would like to speak with you immediately and hopefully discourage you from continuing along your current path that will certainly lead to legal claims and personal liability.
I am very concerned with the direction that you appear to be headed with your anticipated actions and comments later today at the Board of Trustees meeting. You have stated an intent to make a verbal and written presentation in the petitions and communications portion of the board meeting today. While I am sure that the Board Chair will permit you to make your statement and presentation as you have requested, I want to caution you against making any public criticism or attacks of fellow board members or the College president, which may be defamatory in nature. Not only is it simply unnecessary and embarrassing, but more significantly, it might subject you to personal liability.
I have cause for serious concern, given the inflammatory and demanding tone of the emails and blog postings that you have made since the last Board meeting. I have a heightened cause for serious concern based upon the fact that you have stated that you intend to produce a PowerPoint and data file only 30 minutes prior to the meeting. The risk you run is that by presenting any personal attacks in a public setting, which is broadcast on television, you have satisfied the “publication” element of a defamation claim.
I just reviewed your public redcountry blog. You outright accuse Dr. Calaway and the Board leadership of “unethical behavior.” You also state that there is a “recent violation of the Kansas Open Meetings Act” and refer to a “cover-up.” In prior emails and web blog postings, you have accused Dr. Calaway and others of lying and engaging in dishonesty. While you may have a difference of opinion about certain events or the application of KOMA, it is not only inappropriate, but defamatory to state these difference of opinions as fact. To continue with these kinds of baseless allegations, your labels are not only false, but are made in reckless disregard of the truth and appear on their face to be made with the intent to injure the reputation of others. Your pattern of public comments and anticipated public retaliation in tonight’s board meeting serves no legitimate purpose and is construed to be malicious.
Please be forewarned that any comments that you make which are attacking of your fellow board members, the college president, the college administration or the faculty must be based on fact and must not be false. Out an abundance of caution and to make sure that you are warned in advance of your actions, any personal attacks waged in the public will not be tolerated and will likely be met with legal claims against you. As attorney to the Board, it is within the scope of my responsibility to protect the Board from legal liability and represent the Board as a legal entity, when legal matters arise. This is one of those occasions.
I will make myself available to discuss any of these points by phone or in person today prior to the Board meeting, so as to help you avoid any public embarrassment and legal liability. I urge you to immediately cease and desist with any planned public attacks and advise you to seek advice of your own competent legal counsel.
Mark A. Ferguson
Gates, Shields & Ferguson, P.A.
10990 Quivira; Suite 200
Overland Park, KS 66210