Findings Of Fact Van Meteren

KANSAS GOVERNMENTAL ETHICS COMMISSION

William H. Beightel Complainant,

Kristian D. Van Meteren, Respondent

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Complaint No. 424

FINDINGS OF FACT 1. Kristian D. Van Meteren filed a complaint dated September 15, 2008, with the Kansas Governmental Ethics Commission. The complaint form contains the following instruction: “CONFIDENTIALITY Once a complaint is filed with the Commission, such filings and the allegations contained therein are confidential and may not be disclosed except as otherwise provided by law. (K.S.A. 25-4161, K.S.A. 46-256). Intentional violation of the confidentiality rule is a Class A misdemeanor. (K.S.A. 25-4171, K.S.A. 46-259)”. 2. On September 18, 2008, Carol Williams, Executive Director of the Kansas Governmental Ethics Commission, sent a letter to Kristian D. Van Meteren acknowledging the receipt of his complaint dated September 15, 2008. The letter stated “[o]nce a complaint is filed, such filings and the allegations contained therein are confidential unless and until probable cause is found on the complaint and a public hearing is scheduled. . . . If the Commission determines that probable cause does exist, the complaint shall become a matter of public record and a public hearing on the matter will be set.” 3. On October 8, 2008, Kristian D. Van Meteren filed an amendment to his complaint with the Kansas Governmental Ethics Commission. The complaint form contains the following instruction: “CONFIDENTIALITY Once a complaint is filed with the Commission, such filings and the allegations contained therein are confidential and may not be disclosed except as otherwise provided by law. (K.S.A. 25-4161, K.S.A. 46-256). Intentional violation of the confidentiality rule is a Class A misdemeanor. (K.S.A. 25-4171, K.S.A. 46-259)”.

4. On October 15, 2008, Kristian D. Van Meteren filed an additional amendment to his complaint with the Kansas Governmental Ethics Commission. The complaint form contains the following instruction: “CONFIDENTIALITY Once a complaint is filed with the Commission, such filings and the allegations contained therein are confidential and may not be disclosed except as otherwise provided by law. (K.S.A. 25-4161, K.S.A. 46-256). 5. On October 15, 2008, an article written by Phil LaCerte appeared on the website “Kansasliberty.com” entitled, “New campaign finance charges leveled against (name redacted).” The article contained direct quotes from the September 18, 2008 letter sent by Ms. Williams to Kristian D. Van Meteren, including the language stating that the complaint was to be kept confidential. The article also contained direct quotes from the complaint filed by Kristian D. Van Meteren. 6. On October 17, 2008, Mr. William Beightel, investigator for the Kansas Governmental Ethics Commission, reminded Kristian D. Van Meteren in a phone conversation of the statutory requirement that he not disclose the existence or details of the complaint filed by Mr. Van Meteren. Mr. Van Meteren responded, “It’s already all over the web.” 7. On October 19, 2008, an article written by Tim Carpenter appeared on the website “CJonline.com” entitled, “Ethics inquiry examines spending from campaign account.” The article contains details from the complaint filed by Kristian D. Van Meteren and direct quotes by Mr. Van Meteren. The article also cites Carol Williams in reference to the statutory confidentiality requirements of complaints filed with the Kansas Governmental Ethics Commission and the Commission’s investigation of Mr. Van Meteren’s breach of the confidentiality requirement by speaking to the reporter for the article. The article stated Mr. Van Meteren’s response was “I’ll pay the fine and exercise my free speech.” 8. On October 22, 2008, Mr. William Beightel filed Complaint # 424 against Kristian D. Van Meteren alleging two counts of violating K.S.A. 25-4161(b): “Count 1) K.S.A. 25-4161(b) Complaint Confidentiality On or about October 15, 2008, Kristian D. Van Meteren disclosed to Phil La Certe, blogger for KansasLiberty.com, the filing of and allegations contained in Complaint No. 422, filed by Kristian D. Van Meteren on September 17, 2008, amended on October 8, 2008 and amended on October 15, 2008, in violation of K.S.A. 25-4161 (b) and K.A.R. 19-6-1. K.S.A. 25-4171 provides that intentional violation of the confidentiality provision of K.S.A. 25-4161 is a class A misdemeanor. Count 2) K.S.A. 25-4161(b) Complaint Confidentiality On or about October 15, 2008, Kristian D. Van Meteren disclosed to Tim Carpenter, reporter for the Topeka Capital Journal, the filing of and allegations contained in Complaint No. 422, filed by Kristian D. Van Meteren on September 17, 2008, amended on October 8, 2008, and amended on October 15, 2008 in violation of K.S.A. 25-4161 (b) and K.A.R. 19-6-1.

K.S.A. 25-4171 provides that intentional violation of the confidentiality provision of K.S.A. 254161 is a class A misdemeanor.” 9. On December 11, 2008, in a letter from Kristian D. Van Meteren to Carol Williams, Mr. Van Meteren made the following statement to the Commission in response to the complaint filed against him: “Many members of my family have served in this nation’s military throughout its history, including several who died to guarantee me the rights enumerated in the Constitution of the United States. I will neither dishonor their service nor cheapen the rights they died to secure for me by surrendering my right to free political speech, simply to avoid the misdemeanor charge and civil fines you threaten to impose on me.” 10. On January 19, 2009, an affidavit was delivered to the Kansas Governmental Ethics Commission by Tim Carpenter, reporter for the Topeka Capital Journal. In the affidavit, Mr. Carpenter stated he authored and reported the article that was published in the Topeka Capital Journal on October 19, 2008 and to the best of his knowledge, it accurately reported the information obtained and was truthful. The article contained the information referenced in Finding of Fact item 7. 11. On January 21, 2009, an affidavit was received via fax by the Kansas Governmental Ethics Commission from Phil LaCerte, of KansasLiberty.com, which stated “Kansas Liberty.com stands by the stories we reported based partly on information from Van Meteren.” 12. On January 21, 2009, Carol Williams testified at the hearing on Complaint #424 against Kristian D. Van Meteren that her letter dated September 18, 2008 was addressed and mailed only to Mr. Van Meteren. 13. K.S.A. 25-4161 states “(b) Whenever a complaint is filed with the commission alleging a violation of a provision of the campaign finance act, such filing and the allegations therein shall be confidential and shall not be disclosed except as provided in the campaign finance act.” 14. K.A.R. 19-6-1 states “(a) Except as otherwise provided by relevant law and as provided in K.A.R. 19-5-5 all records, complaints, documents, reports filed with, submitted to, or made by the commission; all records and transcripts of investigations and inquiries or hearings of the commission under this act shall be confidential. . . . The following shall be public records and open to public inspection:(1) a complaint and any amendments after a probable cause determination;(2) an answer and any amendments with the consent of the respondent;(3) all matters presented at a public meeting or public hearing; and(4) all reports of the commission stating a final finding of fact.(b) A person subject to an investigation or a respondent may release any report or order issued pursuant to K.A.R. 19-3-1 or K.A.R. 19-5-9 and comment thereon. The confidentiality requirements of relevant law shall be observed by all members of the commission, its staff, and all parties to any proceedings.”

CONCLUSIONS OF LAW 1. Respondent, Kristian D. Van Meteren’s Motion to Dismiss is denied. 2. The Kansas Governmental Ethics Commission finds that Kristian D. Van Meteren did intentionally violate K.S.A. 25-4161 and K.A.R. 19-6-1 by disclosing to Phil LaCerte the filing of and allegations contained in the complaint dated September 15, 2008, as amended on October 8, 2008 and as further amended on October 15, 2008, filed by Kristian D. Van Meteren with the Kansas Governmental Ethics Commission. 3. The Kansas Governmental Ethics Commission finds that Kristian D. Van Meteren did intentionally violate K.S.A. 25-4161 and K.A.R. 19-6-1 by disclosing to Tim Carpenter the filing of and allegations contained in the complaint dated September 15, 2008, as amended on October 8, 2008 and as further amended on October 15, 2008, filed by Kristian D. Van Meteren with the Kansas Governmental Ethics Commission. Pursuant to K.S.A. 25-4181, the Commission assesses a civil fine against the Respondent in the amount of $2,500 for Count 1 and $5,000 for Count 2 for violations of K.S.A. 25-4161 and K.A.R. 19-6-1. OPINION Kristian D. Van Meteren filed a Memorandum of Law for the Record and in Support of Respondent’s Motion to Dismiss citing several cases supporting his argument that K.S.A. 254161 and K.A.R. 19-6-1 violate his First Amendment rights and are therefore unconstitutional. None of the cases cited in the Memorandum are on point and are therefore, unpersuasive. In Nichols v. Kansas Governmental Ethics Commission, 28 Kan. App. 2d 524 (2001), Nichols contested the confidentiality provisions contained in K.S.A. 25-4161. The Court of Appeals noted “these provisions were enacted to promote the fair investigation and enforcement of the [Campaign Finance Act].” The Court of Appeals also stated: The [Campaign Finance Act] clearly provides that all records, complaints, documents and reports filed with or submitted to or made by the Commission and all records and transcripts of any investigations, inquiries, or hearings of the commission under the Act shall be confidential and shall not be open to inspection by any individual other than a member or employee of the commission or a state officer or employee designated to assist the Commission. . . . The confidentiality provisions serve a necessary purpose in the Commission’s investigation of complaints by helping to guard against adverse effects of false allegations against a candidate or officeholder. The exposure of confidential information could well cause harm to the Commission’s ability to conduct further investigations and obtain confidential information and could cause harm to the individual respondents whose identities would be made public by the unsealed inclusion of evidence in the record.

The confidentiality requirements contained in K.S.A. 25-4161 (b) were enacted in 1974. If a complainant wishes to avail himself of the statutory process for filing a complaint, he also avails himself of the laws and regulations governing that process by deciding to file the complaint. In this case, Mr. Van Meteren filed the complaint against a current officeholder after the primary election in which the officeholder defeated Mr. Van Meteren’s mother, but prior to the general election. The State’s interest in the confidentiality provisions is to prevent individuals from using the Commission in their political campaigns, that is not the purpose of the Commission. When an individual brings the heat of a political campaign to the Commission and turns it into a complaint, those individuals must comply with the applicable laws and regulations. THEREFORE, the Kansas Governmental Ethics Commission on this 18th day of February, 2009, hereby adopts these findings of fact, conclusions of law and opinion.

Sabrina K. Standifer, Chairwoman BY DIRECTION OF THE COMMISSION