FRONTENAC, Kan. —
A judge has ruled that the Kansas Racing and Gaming Commission overstepped its authority when it denied a background check for former state Sen. Jim Barone, D-Frontenac.
Shawnee County District Judge Franklin Theis issued the ruling, which contained sharp language for the commission and its members.
“Simply, knowing what they were doing, and why, by commission members — not an onerous requirement for performance of public officials in a nation of laws — seem a reasonable expectation,” Theis wrote in the ruling issued last week.
Barone sued the commission and its individual members in 2007, after it had denied the background check required for him to serve on The Racing Association of Kansas-Southeast, a supervisory nonprofit organization linked with the now-closed Camptown Greyhound Park in Frontenac. The track was preparing to reopen in 2007.
The case will now go to trial to determine the amount of damages Barone will receive. An Associated Press story noted that Barone was seeking more than $75,000, but Barone said that would be determined later, ultimately by the judge.
“I’m delighted with the ruling,” Barone said by phone. “It’s been a long and costly process, but I feel vindicated in the end because they had no grounds for what they did. They clearly acted outside the law.”
FALSE LIGHT
The judge wrote that state law allows the commission to deny the background check only for specific reasons, including being a felon, being addicted to alcohol or drugs, repeated acts of violence, illegal gambling, and not being a resident of the state.
He wrote that by denying the background check, and with the executive director making statements to reporters, the commission cast Barone in a false light with the public, presumably causing some to assume that Barone was guilty of one or more of the prohibited items.
“Mr. Barone, in fact, suffered from none of those disqualifying conditions,” Theis wrote.
The judge wrote that only in the course of court hearings, and never to the public, did the commission or its members or its former executive director acknowledge that they had no facts based on law that would provide grounds to deny the background check.
“The commission had no authority in this particular administrative setting to not approve Mr. Barone’s background, hence, exposing him to the public view that he failed the background check, which, while true by commission decision, was fictitious in legal fact and reflected the false light that the decision was correct,” the judge wrote.
He also ruled that the individual commission members were liable.
“When the individual defendants deviated from the (law) and procedure, and instead voted to deny Barone’s background check, he/she publicly accused Barone of being an addict, convicted felon, tax evader, fixer, dealer, gambler or violent offender,” the ruling reads.
The judge wrote that the commission and its members should have known better.
“The commission members and its executive director had only to read their statute to know the wrong that was being done,” the ruling reads. “If average citizens are deemed to know the law, public officials cannot command a lesser threshold of responsibility.”
Barone said the judge is well-known and well-respected for his fairness.
The Kansas Racing and Gaming Commission has been silent about the ruling.
“It wouldn’t be appropriate to comment on a pending case,” said commission spokesman Bill Miskell, when asked about the ruling.
Among the former commission members named individually in the lawsuit is Kristine McKechnie, of Arcadia. She could not be reached for comment Tuesday.
The Associatede Press contributed to this report.
Background
Former state Sen. Jim Barone, D-Frontenac, decided not to run for re-election in 2008. He was sometimes at odds with then-Gov. Kathleen Sebelius, resulting in a Sebelius ally, Senate Minority Leader Anthony Hensley, D-Topeka, removing Barone from the Ways and Means Committee and other committee assignments.
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