Issues That Truly Matter In The Sheriff’s Race

Mike Hayes is a licensed private investigator who works major cases for defense attorneys with clients in both the federal and state court systems. He is also a former Butler County sheriff’s deputy.

UPDATE 9:35 p.m. CDT 8/1/2016: Hayes has submitted a follow-up to last night’s post. It begins here with the original post below.

WOW. Since I am not a “blogger” I had no idea that I would get so many phone calls after post last night.

On the bright side I had the opportunity to visit with some people who had a different “take” on why some of the issues exist.

Last night I tried to talk about issues without negativity but by presenting potential solutions.

First, perhaps the county commission doesn’t feel that a raise would solve the turnover issue. Perhaps the majority of the people haven’t left because of wages and until the underlying problem is solved, the commission doesn’t want to expose the tax payers to even higher expense of paying overtime to cover shifts by giving raises. Interesting point.

Second, I failed to mention the safety of officers working for the department, no matter which division. This concern should rank up with citizen safety. I apologize to the officers for my omission. How would any of you like to make a traffic stop 10 miles east of Leon on 400 at 2:30 AM knowing that at best your closest help was 15 to 30 minutes away? And all of this for $14.70 per hour. Been there and done that and it’s not a good feeling sometimes.

Third, as far as the sanctuary county issue, I know it’s a hot button and I don’t want to discount it as an issue BUT I do feel if we solve some of the other issues first we will be better off.

Fourth, why didn’t I endorse someone? Simply because those posts detract from the importance of the issues. And the issues are HUGE. Hopefully the voters will pick the candidate who has a viable plan to deal with the issues.

And the last one is really interesting. With today’s violent society we are only a gunshot away from the Undersheriff becoming Sheriff. So I will put this out for comment, who would you want as a successor, Roy Raney, Scott Duryea, or Tony Wilhite? These are in alphabetical order by first name. Curtis Cox has not named a number 2 at this point but knowing Curtis it will be a quality individual. Over the past few of weeks, I have discussed the role of the Undersheriff and the necessity of selecting a strong and professional Undersheriff with Cox. Cox would like to wait until after the election before making a final decision, since the election is tomorrow, but stated, he would like to conduct interviews to make sure he appoints the right person for the job.  


The Original Post  

I have been sitting here tonight thinking about how the 2016 sheriff race has gotten so ugly and so fragmented. By fragmented I mean smokescreens issues that aren’t the real problem.

I made a comment a couple of days on one candidate’s post that it was time to let the sanctuary county issue go. There are more pressing issues in this race. The answer from the candidate was, the post was deleted, not just the comment but the entire post, and I was blocked from commenting on any of his posts.

Seriously it’s time to stop the nonsense about who’s flipping cheese sandwiches or are we bound by court rulings to accept illegal immigrants in our jail. We need to stop pointing fingers about dirty politics. Those who claim to run a “clean” campaign need to take a couple of steps back and think about what they are saying. A candidate may keep their mouth shut but co-workers and friends “leak” information that could have come only from the candidate. It’s not all about kissing babies and shaking hands. It’s not about who shows up for events or rides in parades. It’s about the safety of our residents and enforcing our laws.

We are at a point in our society where this election is crucial. The sheriff has always been the first line of defense for the public, but we have reached the point where he may also be the last line of defense, depending on what the federal government does or doesn’t do,

There issues that impact on my safety, my family’s safety and the safety of all of you and your property.

Employee recruitment and retention is huge in my opinion. In May I read in the paper that the sheriff patrol was at full strength and after the disturbance at the jail I read the patrol division 10 is deputies short. Either the story in May was incorrect or 10 people quit in a two month period. I have not heard anyone dispute that the turnover rate is terrible. What I have heard is that it is because of retirements, and employees who don’t meet standards. A strong recruiting program solves both of these issues. If you have a waiting list then retirements are not an issue. If employees don’t measure up, why were they hired in the first place? Again if you have a strong recruiting program you don’t have to take the first warm body in the door. If pay is really the issue and the sheriff has tried for four years to get increases but been turned down by the commissioners, there is something wrong. Either the increase isn’t being justified or “sold” to the commissioners, or the commissioners don’t care. Either way something needs to change. Call a press conference and invite the commissioners and announce that the sheriff will not accept his annual raise until his employees start getting raises, explain the retention issue and let the press take it to the “court of public opinion.” This applies to detention deputies also. TURNOVER COSTS BIG BUCKS BOTH IN TRAINING NEW PEOPLE AND OVERTIME WAGES TO COVER SHIFTS. MONEY FOR RAISES MIGHT BE FOUND BY DOING AWAY WITH THOSE TWO COSTS.

I hear more often from employees that the problem is more leadership and administration. If that is the case whoever is sheriff should have meetings with command staff to get to the root of the problem. If that doesn’t solve the problem retrain them, if that doesn’t solve the problem release them. Again you’re messing with my safety. This also applies to detention command staff.

The sheriff is responsible for providing the equipment necessary for the safety of his officers. I won’t comment here because I have no knowledge of what is supplied, but it’s pretty easy to ask a deputy, you might be surprised by the answer.

Deputies should be trained to be proficient with all of the equipment they are issued. What good does a fingerprint kit do in the trunk if the only training the officer had was a few hours at the basic academy?

Deputies should receive advanced training beyond the 40 hours of annual training required by law. If we can’t afford to send patrol deputies for additional training then coop with other agencies in the area to bring the training here.

Investigations became a concern after I watched the candidate forum for the third time. I have trouble understanding why there are 350 active cases under investigation in Butler County.

Drug task force has become an issue, and the answer was we have a deputy assigned to the DEA task force in Wichita. Well those folks work major drug cases and criminal enterprise cases. They don’t deal with the kids dealing in our schools and the small time meth cookers. This issue needs to be addressed.

Transparency seems to be important, but I never see the monthly or daily crime statistics on the department Facebook. Cases cleared or “solved” should be published. I do see a post that says the crime rate is down but no explanation. With a short staff I doubt that it is because of patrol, since we have no information about clearance rate I can’t make a call as to whether or not it is because we are arresting criminals, or is it because people just don’t want to fool with reporting minor crimes. Or maybe because the population has increased.

J keep hearing that big changes will be made. Why would you wait, the problem is now and evidently has existed for quite a while.

I could probably ramble more, but I think you probably get the point by now.

PAY ATTENTION TO WHICH CANDIDATE HAS A PLAN.

If you agree like and feel free to share or if you disagree please comment, at least that way I know you’re thinking about this difficult decision. And by the way I happen to like each of the candidates personally, but this is about my life and yours and not who I like to drink coffee with.

Mike Hayes

Towanda, KS

Tentative Settlement Reached In Flinthills Services Whistleblower Lawsuit

By Lee White

Flinthills Services, Inc. has reached a tentative settlement with an employee fired in 2012 who alleged financial wrongdoing in a whistleblower lawsuit against the agency, according to a document filed in U.S. District Court on Wednesday. Click here to view the document. U.S. Magistrate Judge K. Gary Sebelius on Thursday granted the motion by attorneys for both sides to allow time for a deputy U.S. attorney to approve the settlement. The federal government is a party to whistleblower lawsuits, so the U.S. attorney’s office must OK all settlements in such cases.

Gloria Canady, who worked at Flinthills from 1994 until she was fired on March 2, 2012, filed the lawsuit in 2014. Click here to read the original blog post, which includes case documents and in-depth background on the matter.  I originally reported on the case because Sheriff Kelly Herzet has been a member of the Flinthills Services Board of Directors since a few months before Canady was fired. Herzet currently serves as board president.

Shortly after I reported on the case on May 13 and included information about a developmentally-disabled Flinthills client who signed the rights to his house over to the agency in 2011, Flinthills filed a complaint against me with the Kansas Department of Aging and Disability Services (KDADS) alleging that I had exploited the client by naming him, the city where he lives, and the fact that he is disabled. Although I never received official notice of the complaint from the state, I understand it was investigated and I was cleared of any wrongdoing. Click here to read a blog post explaining the property rights the client relinquished.

Canady’s attorney, Robert Collins, issued a subpoena for my records related to the property transfer. I handed over a large stack of deeds, e-mails, letters, chat transcripts, and Facebook posts on July 7. Wednesday’s court filing indicated the tentative settlement was reached during a mediation session on July 21.

I hope bringing this case to light — and I am the only one who has done so despite having shared information about it with the mainstream media — will result in the client having his property rights restored. I know this client has a supportive guardian and a wonderful little community full of people who look after him. I hope he’s able to live out his days in peace and if I played a small role in ensuring that happens, that means more to me than the outcome of any election.

Sheriff Campaign Finance Reports

Here are the receipts and expenditures reports covering the period January 1, 2016, to July 21, 2016, for Butler County sheriff candidates. Click on the links below to view the reports.

Walker Andrews

Curtis Cox

Kelly Herzet

Mike Holton

Andrews Picks Raney For Undersheriff


By Lee White

Roy Raney will serve as undersheriff if Walker Andrews is elected sheriff on Tuesday. Raney is a former Butler County undersheriff and Rose Hill police chief, who has more than 40 years of law enforcement experience. He also worked for the Wichita Police Department and Sedgwick County Sheriff’s Department.

In announcing Raney’s appointment as undersheriff, Andrews said he needed a second-in-command who had “been there, done that.” Andrews especially wanted an undersheriff who had prior experience with budgets and in running the sheriff’s department. Raney served as undersheriff under Craig Murphy until retiring in 2009.

Andrews is a retired Wichita police lieutenant with nearly 30 years of law enforcement experience. He claims endorsements by former Attorney General Vern Miller, the Fraternal Order of Police, and Operation Rescue. The anti-abortion group’s leader, Troy Newman, endorsed Andrews despite his having arrested Newman multiple times during the 1991 “Summer of Mercy” protests outside the clinic of the late abortion provider Dr. George Tiller.

Sheriff candidate Mike Holton earlier announced Scott Duryea would serve as his undersheriff. Duryea is a former member of the Butler County Sheriff’s Department, who currently serves as school resource officer for the Circle Unified School District. Candidate Curtis Cox has not announced his choice for undersheriff. The current undersheriff, Tony Wilhite, would presumably continue to serve if Sheriff Kelly Herzet is re-elected.

POLL: Should Sheriff Honor ICE Holds Of Undocumented Immigrants?

Results of our Facebook poll asking: Should the sheriff hold undocumented immigrants longer than 48 hours based on a written ICE request if there is no warrant or other court order? There were 43 responses: 33 Yes, 9 No, 1 Not Sure. Click on the image below for larger view.

immigrationpollresults

 

Illegal Or Just Cheesy?

By Lee White

UPDATE 12:05 p.m. 7/24/2016: Click here for coverage of this event from andoverleader.com. One of the photo captions states, “The Andover Fire-Rescue Department challenged Sheriff Herzet to a Grilled Cheese Cookoff.” Next time, challenge all the candidates who are running. 

Sheriff Kelly Herzet and Undersheriff Tony Wilhite participated in a grilled cheese cook-off with members of two fire departments at the Andover Dillons supermarket this morning. A supporter of sheriff candidate Mike Holton let me know about the incident. The question is: Did the firefighters’ participation in the cook-off amount to an endorsement of Herzet’s candidacy and, if so, were any laws broken?

Herzet and Wilhite were part of the Benton Fire Department team. They competed against a team composed of Andover firefighters. The Benton team won. It appears that only one Benton firefighter attended (see Herzet’s Facebook photos below). The event was part of a grand opening for a cheese shop.


So what does the law say about electioneering by public officials? Here is K.S.A. 25-4168a:

“(1) No officer or employee of the state of Kansas, or any municipality, shall use or authorize the use of public funds or public vehicles, machinery, equipment or supplies of any such governmental agency or the time of any officer or employee of any such governmental agency, for which the officer or employee is compensated by such governmental agency, to expressly advocate the nomination, election or defeat of a clearly identified candidate to state office or local office. The provisions of this section prohibiting the use of time of any officer or employee for such purposes shall not apply to an incumbent officer campaigning for nomination or reelection to a succeeding term to such office or to members of the personal staff of any elected officer. The provisions of this section shall not apply to the statutory duties of the commission on judicial performance pursuant to article 32 of chapter 20 of the Kansas Statutes Annotated, and amendments thereto.

“(2) Except as otherwise provided in this section, no municipality shall permit or allow any person to distribute, or cause to be distributed, within any building or other structure owned, leased or rented by such municipality any brochure, flier, political fact sheet or other document which expressly advocates the nomination, election or defeat of a clearly identified candidate for state or local office unless each candidate for such state or local office is permitted or allowed to do so in the same manner.

“(3) For the purposes of this subsection, the term municipality shall have the meaning ascribed to it in K.S.A. 12-105a, and amendments thereto.

“(b) Any person violating the provisions of this section shall be guilty of a class C misdemeanor.”

Right off the bat, we see that Herzet and Wilhite did not violate the law by showing up in their campaign attire. The shirts themselves do not “expressly advocate” the election of Herzet as they simply give his name. My source also sent me a picture of Herzet’s campaign truck parked outside. A sign on the truck’s passenger door does expressly advocate Herzet’s election, but he and Wilhite are in the clear as far as the law is concerned.

But what about the firefighters?

The Andover guys were in uniform. They posed with Herzet and Wilhite. One could certainly infer an endorsement by virtue of the fact that only one candidate attended the event and, more likely than not, only one candidate was invited.

Benton’s is an all-volunteer fire department; however, Andover has a combination of paid and volunteer firefighters. It appears that at least a couple of the firefighters had radios or pagers clipped to their belts during the cook-off, so they may have been on duty. It would be easy to determine that from a Kansas Open Records Act request.

Judging by the number of text messages I received, the Holton supporter was upset by what both of us viewed as lending the good name of taxpayer-funded fire departments to a particular political candidate. I find that bothersome, too, and so should the governing body of County Fire District No. 7 (Benton) and the Andover City Council. It is likely that the folks at Dillons’ parent company, Kroger, are going to get an earful Monday from the Holton supporter.

But unless on-duty firefighters actually told people to vote for Herzet or handed out campaign literature encouraging them to do so, they probably did not violate the statute cited above. Cheesy and ill-advised, yes. A misdemeanor violation, no.

Butler County Attorney Darrin Devinney is the one who enforces this law at the local level. Devinney stated during the Andover Chamber of Commerce candidate forum Thursday night that he would consider election law violations, so I will e-mail him a copy of this blog post. If he disagrees with my analysis, he can let everyone know.

Is Butler A ‘Sanctuary County?’

By Lee White

Citizens for a Better Butler County (CBBC) recently mailed some postcards to Republican and Undeclared voters that addressed Sheriff Kelly Herzet’s policy on holding undocumented immigrants at the jail. Herzet has ordered that prisoners held for Immigration and Customs Enforcement (ICE) must be released if ICE cannot secure an arrest warrant or other court order within 48 hours.

Herzet, in a response posted on his Facebook page, cites two federal court cases as the basis for this policy. Click here to read Herzet’s response. So is Herzet required to follow the rulings in these two cases? The answer is, “no.”

One of the cases was decided in U.S. District Court in Portland, Oregon. The other decision came from the Third U.S. Circuit Court of Appeals in Philadelphia. Kansas is in the Tenth U.S. Circuit, which is based in Denver. Although Herzet is allowed to follow these court decisions, he is not required to.

“First, higher courts bind lower courts within their particular state or circuit. With the exception of the U.S. Supreme Court, courts of appeals and state courts do not bind courts outside the state or circuit in which they are located. That is, a federal Supreme Court decision is mandatory on all lower federal courts, both courts of appeals and district courts. A federal circuit decision is mandatory on all federal courts within its circuit, but not federal courts in other circuits. For example, a 9th Circuit decision binds the U.S. district courts within the 9th Circuit, but not federal courts in any other circuit.” — WHICH COURT IS BINDING? Mandatory vs. Persuasive Cases, Georgetown University Writing Center, click here to view document

Because the court decisions Herzet cites are not binding in Kansas, Herzet simply chooses not to honor ICE “holds.” This is a well-settled point of law, but please ask any attorney if you do not believe the document referenced above.

The term “sanctuary city,” or in this case, “county,” is a generic term that has been applied to jurisdictions that adopt local policies or laws designed to protect undocumented immigrants from deportation. The Center for Immigration Studies (CIS), a right-leaning think tank, generated a map of such locales. That map includes Butler County. Click here to view it.

CBBC released to me this e-mail the group received from CIS Director of Policy Studies Jessica M. Vaughan:

“Butler County was identified by ICE as having a sanctuary policy that was adopted in June, 2014: http://www.kansas.com/news/article1145935.html.  Here is the ICE document listing the county: http://www.kansas.com/news/article1145935.html, on p. 15.  Regarding the sheriff’s remarks quoted in the article, if that is what he said, he is incorrect.  Under federal law, ICE is not required to produce a warrant to authorize the sheriff to hold the criminal alien.  The sheriff is repeating misinformation disseminated by the ACLU and other organizations that are opposed to immigration enforcement.  90+% of the sheriffs in America do comply with ICE detainers without demanding a warrant.  The Butler County policy is contrary to standard practice among sheriffs.”

POLL: Who Won Andover Sheriff Forum?

Walker Andrews has won our poll conducted during the weekend asking who won last Thursday’s candidate forum in Andover. Andrews received 52 votes, Mike Holton 21, Kelly Herzet 13, and Curtis Cox 3. Thank you to everyone who watched the forum and voted in our poll! Click on the image below to enlarge it.

forumpollresults

Anonymity And Credibility

By Lee White

There are times when it is necessary to offer information sources anonymity. People are often afraid to speak publicly because they fear losing their jobs or even their lives. Even when one has a legitimate need for anonymity, however, there is a bit of credibility lost when one won’t stake his name and reputation on what he says.

Law enforcement is a profession that values secrecy maybe more than it should. Undoubtedly, one does not want to reveal information that could jeopardize an ongoing investigation or put officers in harm’s way. As is the case with most other professions, however, the “need” for secrecy is frequently a “want.” It is rooted in a desire not to embarrass the profession, a department, or those who run a department, not in any real need to protect life or property.

When evaluating the credibility of a source who requests anonymity and the information that source provides, I ask myself, “What does the source have to lose?” If the answer is, “not much,” I begin to question the validity of the information that source provides. I may use that information, but only after confirming it independently with another source or, preferably, with physical evidence such as a document or recording that corroborates what the anonymous source tells me.

There are two reasons I haven’t written much about the Becky Stone case despite the fact that I’ve known about it for eight years. First, there are reputations at stake — those of law enforcement, anyone who may have been present when Stone died, and my own. The last thing I want to do is to publish a false fact, harm someone’s reputation, get sued for it, and forfeit my own credibility. Second, some of the sources have been reluctant to “go public.”

When Sigrid and David Denchfield showed up at the July 11 Republican candidate meet-and-greet in El Dorado, I finally wrote something about this case. I identified the Denchfields and stated that they questioned the findings of police and the autopsy report connected with their daughter’s death. The mainstream media, including the Butler County Times-Gazette, did the same.

Because the Denchfields “went public,” so did I but on a limited basis. No reporter I know wants to place innocent people under suspicion of having committed a crime. And I know what that feels like thanks to Flinthills Services’ baseless accusation to the Kansas Department of Aging and Disability Services (click here for more).

I have encouraged privately and now I am encouraging publicly those with information about the Becky Stone case to tell their stories to members of the mainstream media who have access to the resources it will take to publish this information. When I say “resources,” I mean money to pay an experienced attorney to review the story to determine whether it might be defamatory. I simply do not have the money to handle that, so I will have to let the “big boys” decide whether to run the story.

Sheriff Kelly Herzet and Augusta Department of Public Safety Chief Tyler Brewer drew far more attention to the Stone case than anyone by speaking with the Times-Gazette for this story. In their haste to score a political “hit” by linking sheriff candidate Walker Andrews to the release of the Stone story, Brewer and Herzet threw the rumor mill into overdrive.

If Brewer and Herzet truly believed there were no inconsistencies in the investigation — if they were really concerned about the Denchfields’ grief being used for political gain — they would have allowed the matter to drift naturally from public consciousness. To paraphrase a line from Shakespeare’s Hamlet, “The sheriff and chief doth protest too much, methinks.”

The voters would be right to question Herzet’s judgment for breathing life into what otherwise might have been viewed as just another conspiracy theory. Of course, this isn’t the first time in recent memory that Chief Brewer was unable to resist the temptation to lash out at enemies real or perceived.

As this blog post explains, Brewer sent a letter to Rose Hill officials in May complaining about remarks that town’s city administrator allegedly made concerning the sexual preference of an Augusta Department of Public Safety sergeant. The letter Brewer sent listed by name a sergeant who had been sent a copy. I redacted the name from the letter because I don’t want to get into the business of implying whether someone is gay or straight. As long as that individual is a good law enforcement officer, it doesn’t matter.

Many folks seem to think Chief Brewer is a good guy including Walker Andrews, who worked for him at the Wichita Police Department. One wonders, however, whether it is time for Brewer to call it a career. Both these situations clearly called for restraint and the call went unanswered. There might be more at stake next time.