Lawyers representing six current and former Garden City Community College employees who have taken issue with the management of the college filed a lawsuit Wednesday alleging that GCCC and its former president, Herbert Swender, had violated the plaintiffs' constitutional rights.
Attorneys Jean Lamfers and Bob Lewis filed the complaint in U.S. District Court in Topeka on behalf of GCCC instructors Phil Hoke, Holly Chandler, Sheena Hernandez and Jean Ferguson, GC3 Media coordinator Daniel Reyes and former college staff member Micah Koksal. The college and Swender are named as defendants.
Lamfers provided a copy of the lawsuit to The Telegram.
The lawsuit alleges that Swender’s actions at a Jan. 4, 2017, mandatory faculty in-service meeting violated the First, Fourth and Fourteenth amendments.
According to the lawsuit, at the in-service’s morning session, Swender told the roughly 250 faculty and staff members, plus other attendees, that they would be hearing “‘disturbing news,’” from the Higher Learning Commission, the entity responsible for the college’s accreditation, that he disagreed with the HLC assessment, and that the HLC team that had visited the college was biased and incompetent. In June 2017, the HLC placed the college’s accreditation on probation.
A recording of Swender’s comments, presumably recorded by someone in the audience, was sent to KSN TV later that day, according to the lawsuit.
The in-service meeting broke for lunch at the Clarion Inn, where according to the lawsuit, when Swender and Hoke were at the dessert table together, Swender allegedly took Hoke’s cell phone without explanation, opened and looked at it and returned it to Hoke before asking if the instructor was his friend. Hoke said he was, the complaint states.
Shortly after their conversation, according to the lawsuit, Swender addressed those in the room at the Clarion Inn, instructing non-employees to leave and telling employees to unlock their phones and pass them to the person on their right. The lawsuit states that Hoke, Chandler, Koksal and Reyes complied out of fear of retaliation should they refuse.
According to the complaint, Swender called to the podium then-Director of Marketing and Public Relations Kristi Tempel, who told those in the room that KSN had called asking for comment regarding Swender’s statements on HLC, and that the president reprimanded employees for communicating with news media without clearance.
The lawsuit states that Swender said he was angry at the disloyalty shown, would punish anyone at any time for reporting the comments and that the person responsible “would pay.” The plaintiffs were “coerced to remain in the room because of his threats, which were real and menacing, knowing his reputation of vindictiveness toward employees who he felt were disloyal,” the lawsuit states.
Swender then told employees to inspect the personal cell phone their coworkers had handed them, and that whoever discovered the person who had alerted the media should tell Swender within the hour, the lawsuit alleges.
The claims about Swender's behavior and statements during the in-service meeting also were mentioned in a report the Faculty Senate presented to the GCCC Board of Trustees in May.
In December, trustees received a final investigative report by Kansas City attorney Greg Goheen, who the board selected to look into the allegations in the Faculty Senate’s report. Goheen’s report largely corroborates the facts of the incident at the in-service meeting, though with less detail, and states that many faculty members did not comply with Swender’s instructions and that Swender never followed up with employees to determine who had contacted KSN.
The lawsuit claims the incident violated employees’ and the plaintiffs’ First Amendment rights to free speech and freedom of expression by chastising and threatening to punish employees for alerting the media to information that was “of keen public interest,” telling staff not to speak to the media without clearance, telling employees to not leave and searching colleagues’ personal phones.
The lawsuit also alleges the incident violated Fourth Amendment protection from unlawful search and seizure by telling employees to search each others’ phones while being “held under duress” for fear of retaliation.
Goheen's report states that Swender said he was frustrated, disappointed and “attempted to engage the employees in an exercise on ‘trust.’”
In addition to the allegations stemming from the in-service meeting, the lawsuit also alleges that Swender, as an individual, violated the First Amendment’s establishment clause in regards to an implied separation of church and state.
The lawsuit points to several alleged instances of “college-sanctioned” Protestant Christian prayer and invocations at mandatory employee in-services, Swender referring to a pastor who gave some of those prayers as the “college’s pastor” and a Texas pastor “providing Protestant witness to his life” as a speaker at an in-service in January 2018.
The lawsuit states these actions show that Swender was “trying to establish Protestant Christianity as the college’s religion."
Goheen said in his report that Swender said that invocations representing other religions had been given at other college events and that he did not force prayer on anyone, though the meetings in question were mandatory.
Goheen's report states that Swender denied naming one pastor as the college’s official pastor, but may have “light-heartedly” introduced him as something similar. Goheen said the instances of prayer did “not necessarily” violate the establishment clause “if conducted appropriately,” and that it was “not at all clear” whether naming an official pastor would violate the clause.
Lamfers disagrees with Goheen’s determination, saying Goheen approached the separation of church and state argument from a legislative angle, and she and Lewis from an angle more specific to the college as a public entity. The issue, she argued, was more nuanced than Goheen's report would suggest.
The lawsuit asks for “compensatory and punitive damages in an amount to be determined at trial” for the plaintiffs’ emotional distress and declarations from GCCC or Swender that the incident violated the constitution as stated. The plaintiffs also seek to end what the lawsuit alleges is the college's unconstitutional enforcement of a policy that prohibits employees from speaking to the media without college clearance. The lawsuit asks that the defendants pay court costs, attorneys’ fees, interest and other relief the court deems just.
The litigation is less about money, Lamfers said, and more about getting legal recourse for actions she and her clients see to be wrong. If the declarations are issued, the courts would have the power to stop the college or Swender, if he stays within the court's jurisdiction, from repeating unconstitutional behavior, Lamfers said.
“There is no dollar amount, and we’re not set on some dollar amount. Truly,” Lamfers said. “But, if we can cause some change to be permanent, that’s the best solution of all.”
GCCC Attorney Randy Grisell said the complaint will be sent to the college’s insurance counsel, Lewis Brisbois, who will work with Grisell on upcoming responses. Grisell declined to comment on the contents of the complaint but said it had been “quite some time, if ever,” since the college had been sued.
GCCC Interim President Ryan Ruda issued a statement by email.
“... individuals have legal means and parameters that they are entitled to pursue and that is not for the college to make a determination on. Individuals must do what they feel is in their best interest to do,” Ruda said. “At the end of the day, we must all find a way to collectively move towards closure and continue leading the institution towards serving students and meeting our mission. The focus must always remain on students and not deviate from that.”
Lamfers said she and Lewis also plan to prepare lawsuits regarding the rights of former GCCC host parent Toni Douglass and alleged Title IX violations by the college involving former GCCC volleyball player Shaney Tiumalu.
Lamfers said she and her clients were careful to only pursue issues of legal concern, rather than internal college matters.
“My clients ... are not interested in going outside the parameters of what they should be raising in the court. They’re not challenging the authority of the college to do its regular duties…” she said. “These are not people coming into court to whine about stuff that would be better handled at the administrative level in the college. This rises above that, and that’s why they’re bringing this.”
Hernandez said she hoped the lawsuit provides a solid foundation for the college to move forward.
Koksal said the lawsuit is about accountability.
“For me, personally, it’s just about all of the things that happened … and no one was held accountable for that,” she said.
Reyes, Chandler and Trustee Chairman Steve Martinez did not return calls seeking comment. Swender declined to comment.
Contact Amber Friend at firstname.lastname@example.org.