morrison out

So it's official, Paul Morrison is out. It's been an amazing turnaround. About a week ago, Morrison was a highly-respected Attorney General, and a natural candidate for Governor or Lt. Governor at the end of Sebelius' term. Now, he's facing unemployment, an independent investigation launched by his arch-nemesis Phill Kline, and possible suspension or disbarment. While it was unavoidable, and probably the right decision, it's a big disappointment.

I still hope that he will be proved innocent of any professional wrongdoing. Even assuming that everything Linda Carter said is true, there is skimpy evidence that Morrison did much worse than violating staff regulations on office relationships. Now that the political damage is done, I hope that his political enemies don't try to destroy him.

Next, Sebelius will name his replacement, who will serve until 2010. There will not be a special election, as some Republican trolls have been suggesting on other blogs. The Kansas Constitution, Article I, Section 11, is clear on this issue:

When the office of secretary of state or attorney general is vacant, the governor shall fill the vacancy by appointment for the remainder of the term.

Stay Red Kansas has suggested that Sebelius might appoint Securities Commissioner Chris Biggs as Morrison's replacement. Biggs was the Geary County Attorney and a Democrat candidate for AG. Although he has lots of criminal law experience, there are some doubts about his political skills. Biggs was the man who lost to Phill Kline in the 2002 Attorney General race. However, in fairness to Biggs, 2002 was a year of major Republican gains everywhere. If Sebelius can't find any ready-for-prime-time replacements, Biggs might soon be the new face of Kansas law enforcement.

At the very least, Morrison's early exit will minimize the political fallout. All other state-level Democrats have emerged unscathed. It's also doubtful that many people will remember this once the presidential election season kicks in, much less in 2010. It might be cold comfort, but at least it's something.

why morrison made a smart move

Embattled Attorney General Paul Morrison has called for an independent investigation of the allegations against him by the Kansas Office of the Disciplinary Administrator. Morrison pledged to cooperate fully with the investigation. The move was smart politically, as it makes him look like someone with nothing to hide. But it was also smart legally. To understand why takes a bit of explanation, and a short detour into the thrilling world of disciplinary procedure.

In Kansas, when an ethics complaint is filed against a lawyer, it is referred to a Review Committee. The Review Committee reviews the charges and the evidence, and decides whether there is probable cause to continue--i.e., a reasonable belief that the lawyer committed some kind of misconduct.

If the complaint makes it out of the Review Committee, it is then scheduled for a hearing. The hearing is in front of a three person panel, and proceeds a lot like a normal civil case. Witnesses are called and evidence is introduced. After both sides have presented their case, the panel makes a decision, just like a jury in a normal case.

But here's the important part: the panel must find misconduct by clear and convincing evidence. "Clear and convincing" is considered less than "beyond a reasonable doubt," (the standard in a criminal case) but more than "the preponderance of the evidence." (the standard in a normal civil case).

In a normal civil case, like, say, a sexual harassment claim against a supervisor, the standard of proof is "the preponderance of the evidence," which basically means "more likely than not." This is the lowest standard of proof in the law. It means that you could theoretically win a case by showing that there is a 51% chance that what you're saying is true.

"Clear and convincing," on the other hand, is the highest standard of proof you can get in a civil case. Like many legal terms its exact meaning is hard to pin down, but most definitions involve some variation of "highly likely" or "highly probable." In numeric terms, think a 75% chance that something is true.

Now here's the rub: the original sexual harassment investigation against Morrison is subject to the "preponderance of the evidence" standard.

Right now, the claim is being handled by the Equal Employment Opportunity Commission, a federal agency that investigates discrimination in the workplace. The EEOC will investigate the charges, and determine if they are supported by the preponderance of the evidence. If the EEOC finds that they are, they have two options: (1) prosecute the case against Morrison themselves in civil court, or (2) decline to prosecute, in which case Linda Carter can file a private civil case against Morrison. Whether the EEOC or Carter prosecutes the case, they will have to prove that Morrison sexually harassed Carter by the preponderance of the evidence.

The bottom line is that it will be much harder to prove that Paul Morrison harassed Linda Carter in a hearing before the Office of the Disciplinary Administrator. Much of the case is going to come down to Linda Carter's testimony, pitting her word against Morrison's. But it is highly unlikely that her testimony alone can establish sexual harassment, or other misconduct, by "clear and convincing" evidence. Unless she was recording telephone conversations or has some other smoking gun, Morrison stands a very good shot at being vindicated.

Another added benefit of the disciplinary hearing is that it will force Carter's legal team to tip their hands early. They will have to come forward with all of the evidence of sexual harassment that they will be using later to sue Morrison. This will give Morrison a definite advantage in preparing for any future trials, and in finding evidence to dispute her allegations.

The Disciplinary Administrator investigation will likely be completed long before the EEOC's. If Morrison is found innocent, he will have lots of political cover, and he will be in a good position even if the EEOC finds evidence of sexual harassment. Morrison is going to stand and fight, and he may yet live to see another day.

if morrison goes, who's next?

Although Paul Morrison's future remains uncertain, conventional wisdom says that he won't run for re-election in 2010, even if he does manage to avoid resignation or removal. Dianne Silver points out that there is already some grumbling among Democrats that Morrison should resign, so that Sebelius can appoint a Democrat successor. There aren't many Democrats who are well-known or popular at the state-wide level, the reasoning goes, so it is imperative that the party put this scandal to rest so that it can hold onto the Attorney General seat.

This all begs the question: who could succeed Morrison if he doesn't fill out his term?

The most natural pool of candidates to fill the seat are Democrat district attorneys, particularly from large districts. Here are a few who are likely to be on the Governor's short list.

(1) Topping the list is Nola Tedesco Foulston, the Sedgwick County District Attorney. Foulston has an extremely impressive resume, with years of law enforcement experience and a laundry list of awards and honors. She has served as Sedgwick county DA for nearly 20 years, and ran unopposed in 1996, 2000, and 2004. She also has a compelling personal story, as she has continued as DA despite being diagnosed with multiple sclerosis in 1998. Predictably, the Operation Rescue crowd despises her for her refusal to file frivolous charges against abortion provider George Tiller. But it's hard to imagine any Democrat that wouldn't generate opposition among pro-lifers.

In raw political terms, Foulston would be the perfect antidote to Morrison's scandal. Appointing a woman who is, by all accounts, above reproach, would draw a stark contrast to Morrison's piggish behavior. Also, the fact that she is a woman and suffers from a debilitating disease would make her much harder to attack. State Republicans would probably avoid getting too nasty and personal, for fear that the attacks could backfire.

The big question is whether Foulston is interested in running for higher office. Topeka is a long way from Wichita, and she may decide that her health, her family and her career as a prosecutor are more important than climbing the political ladder.

(2) Jerome Gorman of Wyandotte County or Charles Branson of Douglas County. Both of these Democrat DAs are serving their first terms, and both have rather low profiles. Gorman appears to have some prosecutorial experience, but doesn't have too many accomplishments or honors.
He also ran unopposed in Wyandotte, which surely raises questions about his ability to win a competitive race.

Branson, on the other hand, was a criminal defense attorney for years before he was elected as DA. Republicans would definitely try to skewer him for helping to keep criminals on the street. However, Branson did decisively win a competitive election as a Democrat in 2004, when the party was getting shellaced across the state.

But the bottom line is that both Gorman and Branson won as Democrats in the only Democratic strongholds in the state. Douglas and Wyandotte were the only counties that went for Kerry in 2004, when both Gorman and Branson were elected. This raises some doubt about their ability to appeal to Republicans, which would be a necessity for any candidate for state-wide office.

(3) Convince another Republican to switch parties. While this may seem unlikely on its face, it should be remembered that nobody would have thought Paul Morrison or Mark Parkinson would have "D"s in front of their names a few years ago. In my opinion, the best "get" would be Shawnee County District Attorney Robert Hecht. The man is extremely well-respected, and has decades of experience and a mightily impressive resume.

Although he is a Republican, there are some indications that Hecht isn't an unflaggingly loyal company man. For one, he is a member of a few Democratic-leaning organizations, including the Kansas Trial Lawyers and the NAACP. He also essentially threw Phill Kline under the bus in the KCTV-5 piece about Kline's less-than-impressive work ethic. Although that may not have been his intention, the very fact that he spoke to KCTV-5, on camera, in its investigation of Kline shows less than perfect party loyalty--a hardcore Republican would have stonewalled.

Hecht, or any Republican, may be attracted to the replacement position because it would allow them to bypass what is sure to be a contested Republican primary. An experienced former Republican would be a heavy favorite to hold on to the Attorney General seat in 2010. Instead of having to go through the painstaking work of raising money and building a campaign organization, somebody like Hecht could ascend to higher office with minimal effort.

Although the Kansas Democratic party doesn't have a very deep bench for upcoming elections, all is not lost. If Sebelius and Morrison play this right, state Dems could wind up with an even better candidate for 2010, or, at the very least, one who has a fighting chance.

say it ain't so paul

The Kansas City Star reported that Paul Morrison could be in for some serious scandal:

TOPEKA | News of a sexual harassment complaint against Attorney General Paul Morrison touched off a firestorm in Kansas political circles Sunday, ranging from cautious support to calls for impeachment.

Morrison acknowledged having an affair with a former employee in the Johnson County district attorney’s office, but he denied harassing her.

Morrison also denied her allegations that he tried to use the relationship to obtain sensitive information about an abortion investigation by his successor, Phill Kline. Morrison said he never tried to influence ongoing cases.

It's very disappointing, on a personal level, to see an elected official cheat on his wife. But infidelity alone shouldn't disqualify Morrison from office, at least to the extent that it doesn't interfere with his public duties.

However, there are two serious allegations of professional misconduct being leveled against Morrison, that, if true, should disqualify him from running the state's law enforcement agency.

The most potentially explosive is sexual harassment. The Star article stated that a complaint was filed with the federal Equal Employment Opportunity Commission (or "EEOC"). The EEOC website lists the following as examples of sexual harassment:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

• The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
• The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
• The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
• Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
• The harasser's conduct must be unwelcome.

Morrison's defense seems to rest on the last bullet point. He admits that there was a sexual relationship, but he is arguing that it was entirely consensual, and therefore any sexual advances or conduct were "welcome." Whether or not the affair was consensual is a question of fact that the EEOC will try to determine. Although at this point, without seeing the complaint against Morrison, it appears that the allegations boil down to "he said/she said," which is likely not enough, by itself, to win a sexual harassment claim. In addition, the Topeka Capital Journal article about the allegations reveals no allegations of sexual harassment while Morrison was Linda Carter's boss.

Morrison is no shrinking violet, and it's unlikely that he's going to resign without a fight. At this point, without any "smoking guns," impeachment looks like a remote possibility. Still, even if he is innocent of sexual harassment and professional wrongdoing, his political future does not look good. Marital infidelity does not play well in a conservative-leaning state like Kansas, and it is a certainty that any future Republican opponents will raise the issue. It is unfortunate that Kansas Democrats have likely lost one of their best hopes for holding onto the governor's mansion after Sebelius leaves office.