Opens county to potential litigation
The story of abuse of power and county cover-up began last year when the well-known video of County Attorney James Brun commenting on the rudeness of the architect to Brun’s employees was released to the public, a video that only two people would have known the existence of – former Sheriff Paul Filla and IT Director Chris Martin.
The exact time of the video, 12:10 p.m., was released after Centerville resident Robert Morse “overheard” someone he didn’t know eating at a restaurant say that at 12:10 p.m. Brun was cussing, this under the newly installed video/audio system Public Works Administrator Jackie Messer had installed to try to squelch alleged gas thievery in the county parking lot.
Following a Kansas Open Records Act (KORA) request by Morse to County Counselor to the Commissioners Gary Thompson, the video was released to Morse. The video actually referenced a criminal case and was not subject to release by Thompson to the public under KORA, but Morse uploaded it to Facebook and promptly called for Brun’s removal as County Attorney.
The County Commissioners then issued a statement to Brun Oct. 2, 2019, asking Brun to offer his resignation, stating they fully expected the matter to head to litigation.
Brun then sent a letter to Thompson, covered under attorney-client privilege, and referenced settlement of the request to resign.
The letter stated that Brun “thought long and hard about what had transpired with the video released of my staff and I having a private conversation. As you can hear on the video, my staff and I were referencing a criminal case in the video, and the video is subject to nondisclosure per KORA as an exception because of attorney client privilege with my staff.”
The letter continued that the video was from 3½ months earlier, and he was told the video was only held for two months, a video only Filla and Martin had access to, and continued that “it is no secret of my relationship with law enforcement because I have no problem prosecuting a citizen or a law enforcement officer. I know I have countless legal claims against the county. My hope is this can be resolved quickly.”
He continued, “I am putting a week long deadline to get this resolved. I will need an answer by 5 p.m. on Oct. 9, 2019. As you are aware, I have spoken to an attorney but not engaged him as of today’s date. I am requesting the following occur within the next week.
“1. The county open an investigation into who watched the video then leaked the information to Mr. Morse.
“2. If it is true what I believe, and it is Paul Filla, I am requesting the commission prepare a statement outlining the actions were wrong, and the county does not condone what happened. The county does not have to disclose it is Mr. Filla, but that is was a previous employee of the county.
“3. If it is a current employee, I would expect they would be suspended or fired, and the commission will prepare a statement (without saying employee name) that what they did was wrong and commission does not condone what happened.
“4. Finally, I have gone back and forth with this last one. I have spoken to my wife and believe it’s time I should most likely step down. With that being said, I know I have no issue with suing the county and have been damaged by the county. I will agree to step down with the understanding the above is accomplished and the county pay out the remainder of my salary this year and next. I would sign a waiver of not suing any county employee, commission or the county. The waiver would include that nondisclosure of the payout occurred. I assume the county is concerned with where to get the money from. It’s simple; John Sutherland paid in 75k to the clerk’s office in federal court.”
The letter continued to Thompson and was signed by Brun.
Thompson’s private attorney notes between him and Brun stated Brun phoned Thompson and discussed releasing the details of the video release to KCTV5 and asked that his request for his salary of $100,000 be met, and he would not release information on county corruption in the Linn County Sheriff’s Office, County Commissioners and County Counselor.
In a letter to Brun from Thompson, he stated the commissioners would not meet his demands, and Thompson advised the commissioners that “it appears that litigation is eminent; they should not have any individual conversations with you about this or related matters.”
During the week of July 20, more attorney-client privileged material was released referencing the above material – private information between the County Counselor and County Attorney.
A KORA request was filed by former Deputy Tate West for the request by Brun for his final salary from Thompson. The KORA request was approved by Thompson releasing the attorney-client material to the public – with West posting it to Facebook that week.
It was also learned that Commissioner Rick James had made a complaint to the Office of the Disciplinary Administrator Oct. 21, 2019, following Brun’s public response to the video and the commissioners’ request for his resignation.
During the reading of his decision not to resign, Brun commented on an inmate who died in jail because proper procedures were not followed, an inmate was held in a restraint chair for up to 22 hours, the Linn County Sheriff’s Department chained an inmate to a bench for four days, a Sheriff’s Department employee was convicted of inappropriately touching another Sheriff’s Department employee, a Sheriff’s Department employee was suspected of DUI involving a single-car accident where instead of running a proper investigation, the county sheriff went to pick up the employee and took the employee home, the Sheriff’s Department evidence had been an ongoing issue under the prior sheriff Paul Filla with evidence being lost and/or turning up missing, and videos requested by the County Attorney Office would go missing or be overwritten and not available when inmates/defendants accuse the Sheriff’s Department of wrongdoing.
With that, Brun refused to resign and stated in his letter to the commissioners, “I am more troubled by the fact the commissioners have known for a substantial period of the atrocities that were occurring at the jail. The atrocities were not enough for the commissioners to stand up and publically denounce what was occurring in the jail. But, a video taken out of context is enough for them to take a stance against the County Attorney Office. Human life versus words taken out of context? Clearly, the commissioners’ values are confused.”
After Brun’s release of those atrocities to the public, Commissioner James filed an ethics complaint to the Disciplinary Administrator, stating he was chairperson of the Linn County Commission, a complaint that was found to be unsubstantiated.
His complaint was based on the question, “Does the county have an attorney-client relationship with the County Attorney? Does he represent the county? If he does, doesn’t the county have attorney-client privilege in that relationship that would make it an ethical violation for Mr. Brun to disseminate information or claims (whether true or false) that he has come into possession of in the course of that representation? Can an attorney who is vocally and publically threatening to sue the client continue to ethically represent the client?”
James signed the letter “Rick James, Chairperson of the Linn County Commission.”
The Deputy Disciplinary Administrator Kate Baird issued a response Nov. 20, 2019, that stated, “I can inform you that the situation does not, at this time, appear to implicate the rules. Mr. Brun, as elected county prosecutor, would not have an attorney-client relationship with each of the County Commissioners or the County Commission as a whole. He reports that he communicates with the county counselor when he believes there is a civil matter that should be brought to the county counselor’s attention. I understand that he communicated with the county counselor, Gary Thompson, regarding the issue involving the audio recording and the commissioners’ request for his resignation. Mr. Brun indicates that the information that he had released to the public involved only matters that had already been publically disseminated.
“While it is clear that a contentious situation may exist between other county offices or officials and the county attorney, the facts do not at this time clearly or convincingly demonstrate that Mr. Brun has violated the Kansas Rules of Professional Conduct.”
In an attempt to get the complaint by Commissioner James, signed as Rick James, chairperson of the Linn County Commission, the Linn County News issued a KORA request to the County Clerk. Thompson denied the request stating, “As I understand it, one of the commissioners, as an individual, may have filed a bar complaint. It was not a county action or a county document.
“Therefore, ‘no such document exists in county records’ should be our response.”
Thompson signed the letter “Gary E. Thompson, Attorney.”
Thompson released attorney-client privilege information between Brun and himself to West, but chose to withhold the complaint from James to the Linn County News in their KORA request.
Further, according to the Kansas Press Association attorney Max Kautsch, Thompson exposed the county to potential litigation releasing attorney-client privilege documents between himself and Brun to the public.
This places taxpayers in liability as they are the ones that pay, despite the thought that the county holds insurance to cover lawsuits.
Decisions were made in the dissemination of information to West and Morse to use what would normally be considered attorney-client privilege information as a wrecking ball against a duly elected County Attorney.
Information taken out of context was weaponized against the County Attorney, and information to try to understand the situation was denied to the newspaper – there was uneven application of the law by Thompson, and the public needs to understand those decisions could be very expensive.
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