For Lynn Mitchelson and Shirley Brown-VanArsdale, the cover-up is worse than the crime

Johnson County Community College elected leaders Lynn Mitchelson (Mission Woods) and Shirley Brown-VanArsdale (Gardner) broke the law.  That’s not merely the opinion of the taxpayers who have followed recent events at JCCC — that’s according to JCCC attorney Mark Ferguson.  In an Email sent late December 2008 to the entire board and JCCC President Terry Calaway, Ferguson confirmed that four board members — Lynn Mitchelson, Shirley Brown-VanArsdale, Jon Stewart, and Don Weiss — had violated the Kansas Open Meetings Act (KOMA, for short) by agreeing in private to the contents of a letter to the editor that was published in The Kansas City Star on December 10, 2008.  The letter’s topic was whether JCCC would be increasing the property tax mill levy.  The letter was political in nature, and it discussed college business, and it therefore fell under the guidelines of KOMA.

In an effort of good will, Hodge in December chose not to make public the embarrassing fact of the ignorance of Mitchelson and Brown-VanArsdale toward Kansas laws.

Lynn Mitchelson

Shirley Brown-VanArsdale

Trustee Benjamin Hodge had asked for the opinion from Ferguson.  After Hodge had asked for the information, Ferguson repeatedly delayed and attempted to avoid answering through Email, and in the process of delaying insulted Hodge by implying that the trustee was being impatient.  Later, Ferguson told Hodge verbally and in-person that Ferguson had preferred not to put the opinion in writing.

JCCC President Terry Calaway participated in the violation of KOMA, the open meetings law.  And again, that’s not just anybody’s opinion; rather, Calaway told Hodge that the president had instructed a college employee to draft the letter for the four board members who co-signed it.  Calaway also informed Hodge that the employee wrote the letter off-hours, thereby implying that it was not as big of a deal for the taxpayer-paid employee to help four trustees engage in a political debate.

To be fair — Calaway has only lived in Kansas a couple of years, and he probably didn’t know the law.  But what is inexcusable is the arrogant and dishonest way that he has chosen to react, once Hodge revealed that JCCC was inappropriately discussing the budget during an executive session during the February 19 board meeting, and once it therefore became apparent metro-wide that the entire JCCC leadership team (“experienced,” as Calaway so often reminds us) was unwilling to learn and properly follow KOMA,

  • When responding to the press, Calaway and Mitchelson openly insult and obstruct to news reporters and news editors.
  • Calaway actually threatened Hodge by telling the trustee that he would never work at JCCC, and that Calaway would sue the trustee for slander.
  • JCCC leaders can’t get their stories straight.
    • Calaway has provided four — count them, four — different reasons for why it was appropriate to distribute the budget.
    • In an Email to college employees, Calaway said that there was discussion about the budget during executive session.  But Calaway later said (to an area paper) that there was no discussion.  Which was it?
    • They all state that there is no problem regarding compliance with KOMA: but they have intentionally chosen NOT to inform the public about the December violation (where there was no doubt).
  • Calaway chose on his own to provide the budget information and distribute it during the closed Feb. 19 executive session.  But he attempts to blame Hodge, dishonestly allowing people to believe that Hodge asked for the information.  There’s no truth to that at all.
  • Perhaps one of the most unethical actions by Calaway was spending taxpayer resources and instructing attorney Mark Ferguson to engage in a false “review” of the Feb. 19 meeting — but nobody (including the attorney) even informed Hodge it was going on.  Why Mark Ferguson should be considered a serious attorney after undermining his own client — Hodge, not Calaway, is his client — is beyond us.

The latest unprofessional behavior by Calaway and Ferguson is both comical and scary.  It’s something you would expect to see in Russia.

Wednesday — TEA Day, of all days — Ferguson sent Hodge a “cease and desist” letter that threatened to sue Hodge for defamation, a baseless threat.  If anybody has a case for defamation (which requires proof of knowingly false statements made with a malicious intent), it is Hodge in response to the behavior by all four of these characters:  Lynn Mitchelson, Shirley Brown-VanArsdale, Terry Calaway, and Mark Ferguson.  To be clear, Ferguson represents JCCC — the Board of Trustees.  Calaway is an employee, and Ferguson represents Hodge as a client far before he represents Calaway as an employee.  The board did not send this letter to Hodge, because the board never took a vote on this matter.

Here is some information that JCCC leaders — and Ferguson, who is paid to represent Hodge as a client — refuses to provide to Hodge and the public:

  • How much tax money has been spent in the effort of protecting the reputations of these few individuals?  How much tax money has Ferguson received as a result of this nonsense?  Ferguson told Hodge that he would provide to Hodge this information, but Ferguson failed to follow through with the pledge.
  • Who authorized Ferguson to send this letter?
  • An explanation of why Ferguson can claim that he was acting in good faith — or whether he was lying — when he stated publicly at the March meeting that he performed a “complete” review of the Feb. 19 meeting.  Again, in conducting this “complete” review, Ferguson inappropriately chose not to communicate at all with Hodge.  Ferguson also left out the fact that it was Ferguson’s own opinion that four board members had violated the law in December.

Mitchelson and Brown-VanArsdale are now responsible for creating a culture at JCCC that is the most unaccountable, secretive, and bullying in the college’s 40-year history.  The JCCC motto is “Learning comes first,” but education has never been a lower priority for the institution.  These two politicians cannot be trusted with taxpayer money, and they need to go.

What follows is the text of the letter by Ferguson that Hodge correctly called “taxpayer-funded bullying.”  Note that Ferguson pretends that it is Hodge’s “opinion” that the board had violated KOMA — even though Ferguson himself had previously confirmed this fact to the board in December.

________________________________________
From: Mark Ferguson [mailto:markferguson@gsflegal.com]
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

Importance: High

Ben,

I just tried to reach you on your cell phone this morning; please call me immediately. My office phone is xxx-xxx-xxxx and my cell phone is xxx-xxx-xxxx. 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.

Mark A. Ferguson
Gates, Shields & Ferguson, P.A.
10990 Quivira; Suite 200
Overland Park, KS 66210

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