City accused of bad faith about raid texts

By ERIC MEYER

Staff writer

New legal pleadings accuse the City of Marion’s insurance attorneys of acting in bad faith when they refused to turn over incriminating texts city officials exchanged about now-disavowed raids on the Record newsroom and two Marion homes.

The insurance attorneys initially denied that any relevant texts existed on city-owned phones and contended that it would be an “unreasonable burden” to ask employees and officials to turn over messages from personal phones.

However, after the Record went to court to challenge the denial, the city produced 51 pages of messages from the personal phone of Gideon Cody and 19 pages of messages from the city-owned phone of Brogan Jones.

Cody was police chief and chief organizer of the raids. Jones, his boss, was city administrator at the time. Both have since resigned. Cody faces obstruction charges for allegedly urging Kari Newell to destroy text messages they exchanged.

Cody falsely contended, according to special prosecutors, that the Record had stolen Newell’s identity when all it had done before the Aug. 13, 2023, raids was verify by legal means, with help from state officials, the legitimacy of a document a source had provided indicating Newell had been driving illegally for nearly two decades.

Among the messages the city waited until after the Record sued to turn over were messages from Cody’s private phone in which Newell talks about going on a date with him. In another, she refers to him as “buttercup.”

More damaging, in a message obtained from Jones’ phone, then-Mayor David Mayfield, who repeatedly has denied having anything to do with the raids, admitted to meeting with Cody three days before the raids and telling him “I was behind him and his investigation 100%.”

In his latest court filings, Record attorney Bernie Rhodes contends that waiting until being sued before admitting some messages existed and supplying those and others proved the city’s bad faith.

As a result, Rhodes’ filings say, the city should pay the Record’s legal fees for having to force it to go to court to enforce what should automatically have been supplied under the Kansas Open Records Act.

Rhodes’ pleading notes the city short-circuited normal open records procedures without formal arrangement by having its insurance attorney, Jennifer Hill of Wichita, rather than its officially designated city records custodians respond to requests.

Not to be outdone, the city’s insurance attorneys have filed a reverse claim — asserting that the Record acted in bad faith and should pay the city’s legal bills.

The insurance attorneys contend that Jones refused to turn over texts from his personal phone, including messages congratulating him on becoming a father, because he thought doing so might invade his privacy.

Although the attorneys admitted having Cody’s messages at the time, they say they initially refused to supply them because they had them not as public records but as “attorney work product” in their role defending Cody against federal charges.

The insurance attorneys appear to concede that officials’ city-related texts, even if stored on private devices, are public records but contend that the state law making them so is unenforceable because it provides no means to demand those records.

The city’s pleadings contend the Record is using its open-records lawsuit in Marion County District Court as a way to obtain evidence for a federal suit in which normal discovery procedures temporarily have been halted pending rulings on various motions.

The city’s pleadings specifically object that material supplied by the city, special prosecutors, and the Kansas and Colorado Bureaus of Investigation already has been used in federal court filings by the Record and others suing the city for violation of First and Fourth Amendment rights and of a federal law that largely forbids raiding newsrooms.

Sharing such public documents, the city claims, proves bad faith by the Record.

Both sets of pleadings now go to Chief Judge Ben Sexton for a ruling, no date for which has been set.