Letter obtained by newspaper reveals details of misconduct probe and decision not to file charges against either official

A letter obtained Tuesday by the Marion County Record provides the most detailed look to date into a state investigation of misconduct allegations involving Marion Mayor Mary Olson.

The letter, provided at the newspaper’s request by the state attorney general’s office, cites among other things “long-standing bad blood” between Olson and City Administrator David Mayfield.

Detailing results of a five-month inquiry by the Kansas Bureau of Investigation and the attorney general’s office, the letter, originally sent to County Attorney Susan Robson, explains the state’s decision not to prosecute Olson or others involved in the case —including Mayfield.

The Record requested the letter after Olson initially refused to allow inspection of a separate letter she had received from the attorney general’s office, indicating charges would not be filed.

Olson later gave the Record a copy of that letter, but it contained none of the details found in the letter originally addressed to Robson.

Last March, Olson, who was running for re-election at the time, was accused after a closed-door meeting of the City Council of circulating false rumors about the financial status of a Marion business, which the Record learned was Seacat Do it Best Hardware.

At the meeting, which had been called in apparent violation of statutory procedures, the council referred the matter to the state attorney general’s office, which in turn contacted the county attorney’s office.

The response from the attorney general’s office to the county attorney, obtained Tuesday, indicated there was insufficient evidence to warrant filing charges and cast doubts on whether, even if true, the actions allegedly taken would have resulted in a conviction.

In an interview, a spokesman for the attorney general’s office said the office now considers the case closed.

The full, unabridged letter follows:

Attorney general’s letter

Dear Ms. Robson:

As you are aware, on March 16, 2010, while you were out of town, the office of the attorney general was contacted with information implicating City of Marion Mayor Mary Olson and Marion (Nick) Nickelson in spreading false rumors that Seacat Hardware was going out of business.

I called your replacement for the week, Ken [Keith] Collett, who indicated he had a potential conflict of interest and felt he could not ethically have anything to do with the matter.

I then requested the KBI to investigate the matter. Upon your return, I inquired of you, and you asked the attorney general’s office to assume all prosecutorial responsibilities in the matter.

Please be advised that our office has reviewed the available information and is declining to file criminal charges for the reasons set forth below.

Highly summarized, the KBI investigation revealed that Marion “Nick” Nickelson heard from a plumber that the Seacats had told the plumber that they had a note that was being “called in” by the bank.

Nickelson told City of Marion Mayor Mary Olson because he was aware of the $5,000 grant the City of Marion awarded the Seacat Hardware for improvements to the business. Nickelson thought that Olson and the city might be able to offer further assistance to the Seacats to save a local business.

That evening, Mayor Olson called Kurt Spachek, president of Pilsen State Bank, where the Seacats held their business account. She informed him of what Nickelson had told her and asked Spachek if the rumor was true and if so, what the City of Marion could do to help. Spachek declined to answer her questions.

The next day, Olson called Marion City Administrator William David Mayfield. The content of this conversation is contested.

Olson claims she only asked Mayfield whether he had heard anything about the Seacats’ financial condition.

Mayfield claims Olson directed him to investigate the matter and do what he could to get the city’s $5,000 grant back from the Seacat’s.

Regardless, it is uncontroverted that Mayfield contacted Spachek and the Seacats and inquired about the rumor. After doing so, he contacted City Councilman Gene Winkler and requested the Winkler call a special meeting to discuss “what Olson had done.”

[Editor’s note: State statutes do not allow an individual council member to call a special session.]

The meeting was held on March 12. The press was at the meeting, which is not unusual as they are given notice of all city council meetings. The matter regarding Olson and the Seacats was addressed in executive session, where it was decided that the matter should be referred to the attorney general’s office.

Despite the matter being taken up in executive session, the press was well versed regarding the rumors and allegations.

All involved deny speaking to the press about the matter. Some suspect that Mayfield was the leak because of the long-standing bad blood between him and Olson. However, the KBI was unable to determine who spoke to the press.

[Editor’s note: No one from the Marion County Record, which provided the only detailed coverage of the meeting, was interviewed by the KBI. The Record’s coverage was in fact the result of interviews with multiple sources, both in and outside of government.]

In reviewing whether to file criminal charges, we used the National Prosecution Standards adopted by the National District Attorneys Association as a guide.

Section 43.6 of these standards lists various factors to consider in making a changing decision. While we reviewed the entire list, the following five factors seemed particularly relevant:

• 43.6(a) — The probability of conviction;
• 43.6(b) — The nature of the offense(s);
• 43.6(c) — The characteristics of the offender(s);
• 43.6(h) — The interests of the victim;
• 43.6(j) — The availability of adequate civil remedies.

[Editor’s note: Although the state has chosen not to pursue criminal prosecution, any of the parties involved could still initiate civil suits.]

The crime of circulating false rumors regarding financial status contains the following elements:

• Circulation of a false statement;
• Done with malice and without reasonable grounds for believing the false statement;
• Done so with the intent to injure the financial standing or reputation of the subject of the false statement.

Although the Kansas appellate courts have not considered the issue, we believe the actual malice standard of New York Times Co. vs. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L.Ed.2d 686 (1964) and Garrison vs. Louisiana, 379 U.S. 64, 78, 85 S. Ct. 209, 13 L.Ed.2d 125 (1964) would apply to K.S.A. 21-4005.

Under this standard, “malice” is defined as actual knowledge that the matter stated was false or with reckless disregard of whether it was false or not.” New York Times, 376 U.S. at 279-80.

Of course, “knowledge” means actual information of a fact; the actual state of knowing, and not opinion, speculation or actual information of a fact; the actual state of knowing, and not opinion, speculation or constructive notice. State v. Edwards, 250 Kan. 320, Syl. 1,826 P.2d 1355 (1992).

While there is sufficient evidence demonstrating that Nickelson, Olson, and Mayfield circulated false statements regarding the Seacats’ financial situation, there is little to no evidence it was done maliciously, without reasonable grounds for belief or with the intent to injure the Seacats or their business.

[Editor’s note: The legal standard of actual malice was a key reason why, at the time, the Record cited legal experts as referring to the law as largely unenforceable and why the Record editorially questioned the motivation behind launching such an investigation so close to an election.]

Pertinent to this matter, the crime of official misconduct contains the following elements:

• Public officer or employee who;
• Knowingly and willfully used information confidential by law acquired in the course of and related to their office or employment to cause harm maliciously to another.

Of course, both Olson and Mayfield are public officers or employees.

Confidential information is defined for purposes of K.S.A. 21-3902 as any information not subject to mandatory disclosure pursuant to K.S.A. 45-221. There may be some argument here, but we believe the information at issues in this case does not fit any of the exceptions to mandatory disclosure set forth in K.S.A. 45-221.

Finally, there is absolutely no evidence of malice. Although not specifically set by statute or case law, we believe that the term “maliciously” in K.S.A. 21-3902 would be defined similarly to how such term is defined under the intimidation of a witness statue: acts done with intent to vex, annoy, harm or injure in any way another person.

Under this rubric, we can divine no malice against the Seacats here. While there may be an argument that Mayfield released the information with the intent to harm Olson, we are not confident there exists sufficient evidence for a fact-finder to draw such an inference beyond a reasonable doubt.

[Editor’s note: This was the first official indication that Mayfield’s conduct as well as Olson’s was being investigated.]

Considering the lack of evidence along with the other factors cited above, we do not believe filing charges is warranted. Hence, we are declining prosecution.

Please call should you have any questions or comments.

Respectfully,
Office of Attorney General Steve Six
Lee J. Davidson
Assistant Attorney General
Criminal Litigation Division