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The Kansas Department of Commerce failed to conduct a nationwide background check before hiring Jonathan L. Clayton, a former government official accused of embezzling federal pandemic aid in Kansas who previously pleaded guilty in Pennsylvania to forgery and theft.
Clayton, who went missing on Aug. 3, was found dead Sunday near Newton, his husband said, after his truck left the road and hit a tree.
His disappearance came amid mounting criticism over whether he had mismanaged grant money from several local associations in Mullinville and Peabody, where he lived. At the time of his death, Clayton was Peabody’s interim city clerk after leaving Commerce in 2023.
But the bizarre circumstances surrounding Clayton’s disappearance — including an apparently posthumous email from him making several allegations against state officials — have so far received more attention than a fundamental question: How was he hired at Commerce, given his criminal past?
Clayton was first hired as a regional project manager at Commerce, where he worked in 2020 to connect businesses in southwest Kansas with aid and stimulus. When COVID-19 upended the economy, the agency picked him as director of economic recovery, where he oversaw Commerce’s economic recovery programs funded by federal American Rescue Plan Act dollars — more than $100 million in total.
Commerce’s decision to hire him came after Clayton pleaded guilty to charges stemming from his time as an administrative assistant at vRide, a ride-sharing platform in Philadelphia. Clayton was accused of stealing more than $200,000 from vRide, in part to fund a fledgling theater run by him and his husband, Christopher King.
In 2018, Clayton was sentenced to months of home confinement, followed by five years of probation, and was ordered to pay more than $200,000 in restitution (he still owed about $195,000 as of June). He was on probation and should have had a probation officer in Kansas, a probation officer in Pennsylvania said; King said Clayton’s probation officer was in Pennsylvania.
In any case, Commerce has said it was unaware of Clayton’s criminal record when the company hired him.
Kansas employment agencies do not automatically screen applicants with felonies, part of a 2018 executive order issued by then-Governor Jeff Colyer to ban the checkbox by not requiring applicants to check a box indicating they have been convicted of a felony on an initial job application. The order does not limit background checks or prevent agencies from asking about criminal records later in the application process.
According to the Kansas Department of Administration, which handles some personnel functions for executive agencies, state officials have not and could not conduct nationwide background checks.
“Under current law, we are unable to conduct national background checks,” Department of Administration spokesman Samir Arif said in a statement. “The Department of Commerce follows standard pre-employment procedures by conducting reference checks, online searches and social media checks.”
A federal law from the 1970s, Public Law 92-544, governs how the FBI shares criminal history information with and among states. The law is intended to allow states to screen potential employees who work with children and in public safety positions.
Generally, the law requires states to adopt their own statutes authorizing statewide audits for specific positions. No such audit for the Commerce positions was authorized in the Kansas law.
However, Kansas law does require or authorize statewide criminal history checks for a wide range of positions, including optometrists, real estate appraisers, industrial hemp producers, pharmacists, bail bondsmen, directors of trust companies, and individuals who work in secure biological laboratories.
As of this spring, 55 state laws in Kansas allow fingerprint-based criminal background checks to be conducted for non-criminal agencies.
Background Checks
The Legislature passed a bill in March, signed by Democratic Gov. Laura Kelly, to clean up and modernize the authorizations. The bill passed nearly unanimously after the Kansas Bureau of Investigation warned that the update was extremely important to ensure that Kansas is not excluded from national audits in the future.
The only positions within the Department of Commerce mentioned in the legislation are candidates for the state boxing commission, which is housed within the agency.
“If people who are managing federal funds and also state tax dollars can’t do background checks on employees — if they can’t do background checks on employees, then we need to change the law,” said Rep. John Carmichael, a Wichita Democrat.
“We in the Legislature, I think we’ve done the best we can,” Carmichael said. “We’ve done exactly what the KBI told us to do, and if there were mistakes and errors, we have to trust that the people who deal with this every day are going to come to us and say we need to make these legislative changes.”
Kelly’s office did not respond to questions about whether the Legislature should consider changes to the background checks process. Kansas House Speaker Dan Hawkins and Kansas Senate President Ty Masterson, both Republicans, also did not respond to questions.
In the absence of an FBI check, Joseph Mastrosimone, a labor law professor at Washburn University in Topeka, wondered whether the Commerce Department and other government agencies could require private companies to conduct background checks — a common practice in the private sector.
Most employers don’t hire the FBI to conduct a background check, but hire a private company, he said.
“I don’t know if there’s a restriction in state law that prevents executive branch agencies from doing background checks, but I would be shocked if there was,” Mastrosimone said. “I just can’t imagine there is.”
Clayton’s probation
Even without a national background check, Clayton was on probation and living in Kansas. Normally, people on probation are supervised by the state where they live, not the state where they were convicted.
In April 2018, Clayton was sentenced to five years of probation, which would not begin until he had served six to 23 months of house arrest and 200 hours of community service.
The Philadelphia Probation Office confirmed Tuesday that Clayton had begun probation, but did not provide additional information. His probation officer did not respond to multiple voicemail messages and an email.
In 2020, Clayton had moved back to his hometown of Mullinville in Kiowa County, which would have necessitated a transfer of probation responsibilities to the state of Kansas. It is unclear if that happened.
When people on probation are allowed to move to another state, their supervisory responsibilities are transferred to the state to which they move, pursuant to the Interstate Compact for Adult Offender Supervision (ICAOS), a binding agreement among all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands.
Under ICAOS rules, states must notify other states or territories when a probationer moves to their state. Those rules were temporarily suspended in 2020 when the COVID-19 pandemic hit.
Kansas representatives for the Interstate Compact did not respond to questions Tuesday, and no one answered the phone in Topeka.
Clayton’s husband, Christopher King, said in an interview that Clayton had recently completed his probation, but that he was definitely on probation when he was hired by Commerce and during his time there. He had no local probation officer in Kansas, King said.
“He would call his probation officer in Philadelphia every month or every other month,” King said.
Clayton’s local contact for probation services would have been Court Services in Dodge City, which handles probation for offenders living in Mullinville.
When contacted by telephone, a court official declined to provide information about whether Clayton was on the Dodge City office’s radar.
“Our information is confidential, so we cannot release anything,” she said.
Asked to clarify how that information could be withheld under state law, she said, “We don’t have the liberty to say that. And that comes from my supervisor.”
