A formal complaint accuses the Douglas County district attorney of misconduct for her comments about a judge, including allegedly calling him a sexist and a liar.
But DA Suzanne Valdez’s attorney is challenging the involvement of a former DA’s office employee in the investigation. The attorney representing Valdez has filed a motion to dismiss the case or stay proceedings over the potential conflict.
In roughly nine pages of a complaint filed Monday, special prosecutor Kimberly Bonifas outlined allegations regarding Valdez’s conduct through spring of this year, stemming from a conflict that began roughly a month after she took office in January 2021.
During the pendency of the investigation, the complaint alleges, “The Respondent has continued to exhibit discourteous conduct and makes personal attacks towards Chief Judge McCabria, even during this disciplinary process.”
Much of the complaint focuses on a public conflict between Valdez and McCabria just a couple of months into Valdez’s term. But the investigation continued long after.
Valdez was elected in November 2020 and took office Jan. 11, 2021. Amid the COVID-19 pandemic, many long-pending criminal cases needed to go to trial.
Douglas County District Court employees and other county staff members had come up with a plan to try cases at the Douglas County Fairgrounds, where jurors would be able to safely distance from each other.
Chief Judge James McCabria announced March 18, 2021 that jury trials would resume the following month.
“We’ve consulted with all of the stakeholders, we’ve sought guidance from health experts throughout the pandemic, and we are confident that whether a trial occurs at the judicial center or at the fairgrounds, this district is fully capable of resuming this important function for the community,” McCabria said at the time in a news release from the county.
Valdez, however, contended that she was not “consulted” about the plan, but rather “told” what was going to happen in meetings that February and March.
“To suggest that he (McCabria) and I met personally or consulted about the jury trial plan, or that he invited or asked for my or my office’s input is simply false,” she wrote in public statements. “… Unfortunately, this is yet another example of how an outspoken and honest woman is mischaracterized as untruthful by a male in power.”
McCabria responded with an email outlining his perspective of meetings that had occurred over the past few months regarding the jury trial plans. (All of the correspondence and public statements are documented in this March 23, 2021 article.)
There was more behind the scenes, the complaint alleges.
“You should be ashamed of yourself. We were TOLD, not consulted. The only reason you commented is because I am a Hispanic female (in) a position of power. … I will shine the light of truth on everything,” Valdez wrote in text messages to McCabria on March 22, 2021, according to the complaint.
In a court hearing days later, Valdez said on the record that she believed McCabria had lied and violated the ethical code, the complaint states.
And “On May 12, 2021, when interviewed by Ronald E. Wurtz, the investigator on this ethics complaint, the Respondent initially denied that she called Judge McCabria a liar, but in that same interview actually said, ‘He is a liar’ and then badmouthed him further,” the complaint alleges.
Valdez also allegedly referred to McCabria as “sexist” in an email to the Office of the Disciplinary Administrator, “but when asked detailed questions to substantiate this claim with any facts, the Respondent replied that it was just her opinion and didn’t provide any factual basis for her claim,” the complaint states.
She reportedly told the ODA to speak with a former assistant district attorney to find out “how sexist McCabria is,” the complaint alleges, but the former ADA did not agree with Valdez’s allegation.
The complaint continues to describe how tensions have simmered during subsequent court hearings and behind the scenes in the time since.
McCabria said via email Wednesday that he appreciated the opportunity to comment for this article, but “At this time, I remain of the view that I should defer to the process and refrain from commenting.”
‘Attorneys left their jobs … because of the Respondent’s unprofessional conduct’
The complaint alleges that Valdez’s behind-the-scenes response to the conflict essentially created a toxic work environment for employees.
“The Respondent’s anger towards the Court continued where as the District Attorney, as she yelled, cursed, badmouthed, and name-called the Chief Judge to other attorneys in her office,” it alleges.
The complaint does not name specific witnesses in connection with most of the allegations, these included.
“The Respondent’s unprofessional conduct created a negative atmosphere within the District Attorney’s Office to the point where it was stressful and uncomfortable for other attorneys to practice law,” it continues. “Attorneys left their jobs at the District Attorney’s Office, in part or in whole, because of the Respondent’s unprofessional conduct.”
County records show that 10 attorneys’ employment with the DA’s office ended during her first year in office, including six who were hired by the previous administration and four who Valdez hired herself. Just one attorney whose employment began prior to 2021 remains with the office.
Eight additional DA’s office staff members’ employment ended within her first year in office; six of them had been hired under the previous administration. Altogether, employment ended for 18 out of 55 people (about 31%) who worked under Valdez during her first year in office, county records show.
Altogether, the complaint charges that Valdez violated these Kansas Rules of Professional Conduct:
• 8.2 (a): “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”
• 3.5 (d): A lawyer shall not “engage in undignified or discourteous conduct degrading to a tribunal.”
• 8.4 (d): “It is professional misconduct for a lawyer to … engage in conduct that is prejudicial to the administration of justice;” and
• 8.4 (g): “It is professional misconduct for a lawyer to … engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law,”
“as well as such other disciplinary rules as these allegations give notice of and which the evidence presented at the hearing on the formal complaint may prove.”
It is not entirely clear which alleged rule violations are attributed to which specific allegations within the complaint.
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Motion to dismiss
In a motion to dismiss the case, or alternatively to stay the proceedings, Stephen Angermayer, the Pittsburg, Kansas-based attorney representing Valdez, questions whether the investigation into Valdez’s conduct was neutral.
He wrote that a former assistant district attorney who left the DA’s office a few months after Valdez took office had joined the Office of the Disciplinary Administrator and assisted the ODA with the investigation into Valdez.
The former ADA was employed with the DA’s office in late March when the conflict peaked, county records show.
By August 2021, Valdez believed the investigation was complete, according to the motion. Then she learned that the ODA had contact with a current employee of her office.
Deputy Disciplinary Administrator Deborah Hughes told Valdez via email on Aug. 4, 2021 that an ADA who was still working for Valdez at the time had called the former ADA, according to the motion.
“During the discussion, (the current ADA) mentioned the issues surrounding the resumption of jury trials, the publicity about that issue, and that she had text messages with you about the tour of the fairgrounds. (The former ADA) did not disclose the existence of the pending complaint during that conversation.
“The conversation led (the former ADA) to believe (the current ADA) had additional information that could be relevant to the pending disciplinary complaint,” the email continued. “(The former ADA) brought the matter to our attention and we directed her to contact (the current ADA) to request her cooperation by providing a screenshot of the text message exchange. (The former ADA) contacted (the current ADA), informed her of the pending complaint, and asked (her) to provide the text message exchange she had mentioned. (The current ADA) provided the attached screenshot of a text exchange with you that occurred on Friday December 18, 2020.”
A special prosecutor was appointed in the case because of the former ADA’s involvement as a material witness and due to the potential conflict, according to the motion.
“DA Valdez maintains that the potential conflict which necessitated the appointment of a third-party Special Prosecutor also required that the investigation by the Disciplinary Administrator should have been conducted by a third party,” Angermayer wrote in the motion. “… The Respondent requests that this case be dismissed. In the alternative, the Respondent requests that the matter be stayed and investigated by a third party for the above reasons.”
The employment of the ADA who provided the screenshots of texts with Valdez ended later that August, county records show.
Valdez’s response
Valdez published two statements this week regarding the issues. She wrote that at the time of McCabria’s complaint, she was transitioning into her administration following a 16-year run by the prior DA.
“Regardless, the District Court determined that jury trials would resume at the Douglas County Fairgrounds. I commented publicly regarding my lack of input on this important decision and the public safety concerns associated with holding jury trials during a global pandemic. I only learned of the District Court’s decision to go forward with jury trials through local media reports,” she wrote. “Despite my concerns about proceeding with jury trials in this manner, I and other members of my office participated in each trial held at the Douglas County Fairgrounds per the District Court’s directive.”
She wrote Tuesday that the matter is certainly one of public interest, “and I embrace the opportunity to finally provide context to these allegations in my own voice and in a very public manner.”
“In the days that follow, I will be filing my response to the complaint, as well as other pleadings,” she wrote. “My filings will be robust, thorough, and will add context to the events precipitating these proceedings.”
She wrote Thursday that all but two currently pending complaints made against her to the Office of the Disciplinary Administrator have been dismissed.
“In summary, these complaints have been filed by individuals who have disagreed with the policies I have instituted and the decisions I have made within the scope of my work as District Attorney,” she wrote.
“With the dismissals, there were no findings that I engaged in any unethical conduct. No form of discipline was imposed against me in any of these matters. I provide this information in the interest of transparency, as my ability to comment on such matters while they are pending is limited.”
It was unclear what the second pending complaint was regarding. Under Kansas Supreme Court rules, complaints about attorneys are largely confidential unless and until a review committee has directed that there should be a hearing on a formal complaint.
What’s next?
Valdez must file an answer to the formal complaint within 21 days after she was served the formal complaint, which was Monday, Aug. 14.
If the hearings proceed as scheduled, a hearing panel will hear evidence from both sides and issue a report that will include a recommendation regarding discipline.
The panel will include Stacy L. Ortega as presiding officer, Gaye Tibbets and Sylvia B. Penner. All are attorneys with Wichita-based firms, according to the complaint.
The case is set for a prehearing conference at 9:30 a.m. Tuesday, Sept. 19, which will be held virtually by Zoom. The hearing will be open to the public. Requests to attend the Zoom hearing can be emailed to Krystal Vokins, counsel to the Kansas Board for Discipline of Attorneys, at vokinsk@kscourts.org or by calling her at 785-435-8200.
The formal hearing is set to begin at 9:30 a.m. Oct. 12 and 13. It will also be open to the public, but whether it will be held in person or virtually will be decided during the prehearing conference.
Though it is not clear from the complaint, it is anticipated that multiple Douglas County District Court judges will be called to testify in the hearings.
If the panel recommends that Valdez face censure, probation, suspension for a definite or indefinite period of time, or disbarment, the disciplinary administrator must docket the case with the Kansas Supreme Court.
A Kansas Supreme Court hearing is not required if the panel imposes an informal admonition, imposes no discipline or dismisses the case, unless the disciplinary administrator or respondent files a written objection.
A rule the Kansas Supreme Court adopted in 2021 could allow the matter to be settled with a “summary submission,” a written admission and stipulation, recommendation for discipline and waiver of the hearing. The parties would have until roughly Sept. 12 to pursue such an agreement under the rules.
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Mackenzie Clark (she/her), reporter/founder of The Lawrence Times, can be reached at mclark@lawrencekstimes.com. Read more of her work for the Times here. Check out her staff bio here.
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