Federal jury clears KBI director of wrongdoing in ouster of former bureau administrator

Tony Mattivi, director of the Kansas Bureau of Investigation and a nominee of President Donald Trump to a U.S. District Court judge position, earns a victory in a federal trial on a former colleague's claim of being improperly dismissed from the KBI by Mattivi in 2023. (Photo by Sherman Smith/Kansas Reflector)

TOPEKA — A federal court jury concluded a four-day trial Thursday by declaring Kansas Bureau of Investigation Director Tony Mattivi did nothing procedurally wrong by driving out the law enforcement agency’s associate director over accustrations of contributing to a toxic work environment.

The jury unanimously sided with Mattivi in a lawsuit filed by former Associate Director David Hutchings, who claimed the director unilaterally dismissed him from the KBI in violation of his constitutional right to due process. Hutchings argued Mattivi possessed authority to remove him from the administrative job for any reason, but was required by state law to demote him to a KBI special agent job before dismissal proceedings through the civil service system.

Mattivi defense lawyer Tom Lemon convinced the jury Hutchings voluntarily resigned from the KBI after a one-on-one meeting with Mattivi in June 2023.

Lemon concluded Hutchings was initially motivated to exit the KBI because a quiet departure would allow him to avoid an embarrassing personnel fight likely to reveal allegedly unethical or illegal acts. However, Lemon said Hutchings reversed his decision to resign after consulting with an attorney and in anticipation of landing a payout of $335,000 or more.

When the dust settled in U.S. District Court in Topeka on Thursday, the eight-person jury found Mattivi more credible than Hutchings. The first question on the jury form was whether they believed Hutchings departed voluntarily or was forced out by Mattivi. Jurors checked the box indicating they believed that Hutchings resigned, and that meant the jury’s work was done. Questions about financial compensation were nullified.

Lemon declined to comment on the verdict, but during the trial he expended great effort in outlining why Mattivi and other KBI administrators believed Hutchings was unfit to serve at the bureau.

Mattivi’s defense strategy included raising charges that Hutchings had sought leverage against rivals by secretly reading employee emails, recording conversations with colleagues and maintaining files on peers containing private personnel information. In addition, Mattivi’s legal team anchored their defense at trial on a theory that Hutchings attempted to undermine the investigation of a former KBI colleague convicted in a child pornography case.

One of Hutchings’ attorneys, Alan Johnson, said it wasn’t clear what part of the defense was key to winning over the jury.

“Hard to say,” Johnson said. “I’m not sure.”

It took Senior U.S. District Judge William Johnson of Albuquerque, New Mexico, longer to read jury instructions aloud than it did for those sitting in judgment to reach their unanimous verdict. Johnson was called in to hear the case because it could have been awkward for any of the federal judges in Kansas to preside over a trial in which the defendant could soon be sworn in as a U.S. District Court judge.

Mattivi’s nomination by President Donald Trump for a seat on the federal bench in Kansas is pending before the U.S. Senate.

Before the case went to the jury, Judge Johnson ruled — without jurors present — that he wasn’t going to allow the plaintiff to make a request of the jury for punitive damages against Mattivi. The judge pointed to evidence indicating Mattivi could have succeeded in firing Hutchings if the matter had gone before a state civil service board.

“There would clearly be grounds for termination of his employment with the Kansas Bureau of Investigation,” the judge said. “I’m not giving punitive damages to the jury.”

Hutchings, a 32-year KBI veteran, alleged in the lawsuit that Mattivi maneuvered in June 2023 to strip him of the administrative post and to prevent him from remaining at the bureau in an out-of-sight, out-of-mind job outside KBI headquarters.

His argument was that KBI agents who accepted appointment to director, associate director, deputy director or assistant director were considered at-will, unclassified employees during that appointment. If new leadership shuffled the administrative deck and removed any of these directors at KBI, state law mandates those staff members be given the option of returning to a previous position within the bureau.

Hutchings, while on the witness stand, and his attorneys argued Mattivi broke state employment statute by refusing to reassign Hutchings within KBI. In this instance, Hutchings said, Mattivi should have offered him reappointment as a special agent in charge.

Johnson, one of Hutchings’ lawyers, said in closing argument Mattivi rejected the idea of demoting Hutchings, saying: “No, I’m not willing to do that.” Johnson said Hutchings informed human resources at KBI that Mattivi was terminating him from the agency against his will and that Hutchings saw no recourse other than to submit retirement paperwork.

“There is no evidence that he resigned,” Johnson said. “His constitutional rights were violated.”

Johnson told the jury Hutchings was due $335,000 in economic damages in addition to emotional damages stemming from the KBI’s attempt at character assassination.

“There’s a lot of mud thrown at him, and he didn’t have an opportunity to defend himself,” Johnson said.

Lemon, the lead attorney for Mattivi, repeated in closing argument that Hutchings’ conduct as associate director in KBI was so abusive that not a single bureau employee appeared at trial to testify on his behalf.

“There is absolutely no excuse for Mr. Hutchings’ behavior,” Lemon said. “Mr. Hutchings elected to leave. He said, ‘I will go.'”

Lemon alleged Hutchings had second thoughts about leaving the KBI, in part, because he was addicted to his influence over colleagues’ careers.

“That kind of power can’t be quit cold turkey,” Lemon said.