The Missouri Western District Court of Appeals in a ruling announced on Tuesday, September 21, largely sided with the Glasgow School District in its 2017 lawsuit against the office of the Howard County Coroner. The decision upheld Circuit Court Judge Scott Hayes’s ruling that then-Howard County Coroner Frank Flaspohler willingly violated the Missouri Sunshine Law when he denied access to records of a public inquest to the school district.

The decision also reversed a ruling that awarded $73,250.50 in attorneys fees to the Glasgow school district, remanding the decision back to the Circuit Court.

This most recent decision by the Western District Court of Appeals in large part affirms Judge Hayes’s July 29, 2020 ruling that Flaspohler knowingly violated the Missouri Sunshine Law when he refused to turn over transcripts from the public coroner’s inquest. A bench trial was held in January 2020 in Howard County Circuit Court, at which Mr. Flaspohler testified for nearly four hours.

The suit was brought about regarding a transcript of a coroner’s inquest held by Mr. Flaspohler following the December 21, 2016, suicide death of rural Glasgow teenager Kenneth Suttner. April Wilson, then-Attorney General Special Prosecutor, helped conduct the inquest. The school district had repeatedly requested a copy of the transcript, but Mr. Flaspohler refused to comply, insisting that the record was closed because it was part of a criminal investigation.

Mr. Flaspohler, however, did turn over a copy of the transcript to at least one other person, while denying the school district’s request.

The coroner’s inquest, which was held in the Howard County courthouse and was open to the public in January of 2017, involved a six-person jury that found negligence on the part of the school district in its alleged failure to prevent bullying of Mr. Suttner by students and faculty. The inquest jury also recommended charges be brought against Harley Branham, who was Suttner’s manager at the Fayette Dairy Queen at the time of his suicide. Parts of Suttner’s suicide notes were read allowed.

Tom Mikes, attorney for the Glasgow School District, told this newspaper on Thursday that the ruling from the appeals court is a vindication for the school district. “He didn't talk to any school official, never talked to any students, and then put on that dog-and-pony show in public,” he said. “The district had no opportunity to call witnesses, cross-examine. Nothing. Just sit there and take it. It was sad.”

Judge Hayes’s July 2020 ruling stated that Mr. Flaspohler did not conduct the inquest for any of the permissible reasons he identified at trial. “The purpose of a coroner’s inquest is to determine the manner and cause of death,” Judge Hayes wrote in his ruling. The manner and cause of death had already been ruled as suicide by a self-inflicted gunshot wound. However, Mr. Flaspohler contended that bullying at school and at work played a significant role, which was the driving reason for the inquest.

The inquest jury also found that Ms. Branham, who was Mr. Suttner’s manager at the Dairy Queen at the time of his death, was culpable in his suicide based on her treatment of him. Ms. Branham originally faced a felony charge of manslaughter. Ultimately,  she pleaded guilty to third-degree assault, a Class A misdemeanor, in July of last year, less than three weeks before her trial was to begin. She received a suspended sentence of 180 days in the Howard County Jail, 30 days house arrest, and two years of supervised probation. All other charges were dismissed pursuant to a plea deal. She also was ordered to complete mental health and substance abuse evaluations.

Ms. Wilson prosecuted the case against Ms. Branham.

Additionally, Mr. Suttner’s mother, Angela, engaged the Glasgow school district in a wrongful death lawsuit. The parties reached a settlement in August 2019.

Case History

This case has a long and storied history. On February 2, 2017, the Glasgow School District’s attorney requested a copy of the transcript of the inquest from Mr. Flaspohler, who would not receive it until February 14 himself. On February 17, Sherry Shive, the mother of a Glasgow student named during the inquest, asked for a copy of the transcript.

Mr. Flaspohler testified during the January 2020 trial that on that same day he contacted the Missouri Attorney General’s office and inquired as to whether the transcript was an open or closed record. On February 21, he contacted Ms. Wilson, the state’s attorney who helped conduct the inquest, with the same query. Both Mr. Flaspohler and Ms. Wilson testified during the trial held in January 2020 that she advised the records should be closed.

On February 23, 2017,  Mr. Flaspohler gave a copy of the transcript, at no charge, to Ms. Shive. A copy was also provided to Mr. Suttner’s family, to which it was entitled by law. The following day the Glasgow district asked again for a copy of the transcript. Mr. Flaspohler testified that he told Mr. Mikes, the district’s attorney, that he would provide a copy and that the district would have to pay for it. A bill was then issued. Mr. Flaspohler said at that time his intent was to turn over the transcript.

“The day that Sherry Shive picked it up, I emailed Mr. Mickes to say, ‘this is what it costs to copy it, this is what it costs to mail it, I’m happy to send it to you’,” Mr. Flaspohler recalled in July 2020 following the release of Judge Hayes’s ruling. “That afternoon is when April Wilson called me and said, ‘no it's a closed record, you can't release it.’ That’s why all of a sudden it stopped right there.”

Ms. Wilson testified during the trial in 2020 that she had, upon advice from the Missouri Attorney General’s office, instructed the coroner to close the transcript and that further requests should come directly to her office. She said her opinion had not changed even after the school district had filed suit.

On March 2, 2017, before the bill had been paid and a copy of the transcript made, Mr. Flaspohler refused to provide a copy to the district’s law firm because he considered it a closed investigative document in the state’s then-ongoing case against Ms. Branham.

Mr. Flaspohler said that despite the recommendation that the transcript was considered a closed record, he did not ask for Ms. Shive to return the copy she was given.

New information outlined in the Western District Court’s opinion released that week details text messages sent between Ms. Wilson, and Mr. Flaspohler’s son, Frank Robert Flaspohler, an attorney in Fayette, during February of 2017.

“I meant to tell you. Dad told me today that Mickus (sic) called and demanded a copy of the transcript and copies of the suicide notes,” wrote Frank R. Flaspohler. “I think Dad’s plan was to tell him that under Sunshine Law, he requires payment in advance for transcript, and if he does pay, it takes 10 days to clear bank before copies are released... Of course, transcript only; no letters. Those are definitely not public records.”

On Saturday, February 15, 2017, Wilson replied to the above text message. “I have never gotten my copy I requested or disclosed it to Jeff ... I thnk (sic) if he wld (sic) send to me it becomes investigative & cannot be released. I have been saying

That for a couple weeks:)”

The appeals court’s opinion states that “text messages between Coroner’s son and Wilson indicate Coroner was seeking a way to prevent School District from receiving the transcript.”

A phone call made on Thursday by this newspaper to Frank Robert Flaspohler was not returned.

The decision released last week by the appeals court upheld Judge Hayes’s finding that the Coroner’s Office purposefully violated the Sunshine Law. “The evidence and arguments made by Coroner in this point do not render that finding against the weight of the evidence,” the court’s opinion states.

The Sunshine Law violation resulted in a fine of $500.

On March 13, 2017, the coroner’s office sent a letter to the school district’s attorney advising the requested records were a part of Ms. Wilson’s criminal investigation against Ms. Branham, were not open records, and could not be released until Ms. Wilson released them.

On June 7, 2017, television network HBO aired an interview in which Mr. Flaspohler discussed the inquest. Also shown was video footage from the inquest, along with some typed pages of the transcript. Contents of Mr. Suttner’s suicide notes were also divulged.

In October 2017, Judge Hayes ruled that Mr. Flaspohler wrongfully denied access to the transcript and exhibits used in the inquest, and ordered him to provide the district “with copies of the transcript made of, and all exhibits offered during, the Howard County Coroner’s Inquest” no later than October 11. But it wasn’t until November 2 that Mr. Flaspohler finally provided the requested materials.

Richard B. Hicks, the attorney representing the Coroner, argued that Mr. Flaspohler could close the records from the inquest because the office of coroner is a law enforcement agency. Judge Hayes, however, in his partial summary judgment, ruled that the office of coroner is not a law enforcement agency and therefore could not close records.

That decision was appealed and brought before the Western District Court of Appeals in April of 2019. Ultimately, the case was dismissed by the appeals court and sent back to Howard County, allowing Judge Hayes’s order to stand.

Judge Hayes reiterated during the trial in January 2020 that he would once again find that the coroner is not a law enforcement officer.

Mr. Flaspohler said at the time that he hoped an appellate decision would establish whether or not coroners are considered law enforcement. But the appeals court declined to rule on this particular matter. “We need not, however, resolve this question because, even assuming that a coroner’s office functions as a law enforcement agency when it conducts an inquest, the transcript of a public inquest is not an ‘investigative report’ within the meaning of §610.100.2,” the court wrote in its latest opinion.

“Probably the biggest disappointment for me personally was that they did not address the issue of whether the coroner was law enforcement or not. They sidestepped that,” said Mr. Flaspohler after reading the court’s decision.

A similar lawsuit against the coroner for his refusal to provide a copy of the transcript from the inquest was brought about by the Columbia Missourian, the newspaper published by the University of Missouri School of Journalism. Judge Jeff Harris ruled in February 2019 that Mr. Flaspohler did not knowingly or purposefully violate the Sunshine Law when he denied that newspaper’s requests for the same transcripts. In a written judgment, the judge stated that although the Court determined that the inquest transcript should have been disclosed under the Open Records Act, the issue that was presented to the Court is far from settled and apparently one that seldom arises.

“In the Court’s view,” Judge Harris wrote, “there was a stronger argument that the transcript should have been disclosed, but there was also a colorable argument that it should have been withheld.”

Judge Harris’s ruling left ambiguous the decision regarding whether or not county coroners in Missouri are considered law enforcement officers, and can, therefore, close records.

Mr. Flaspohler said he thinks it is good that the appeals court’s latest decision clarified that the transcript was an open record. “That makes things much simpler. But I still think they left coroners in a quandary.

“The Attorney General’s office and two attorneys told me, ‘nope, you can’t release them.’ But that’s not what the court says. Any coroner’s kind of caught in the middle without a definite answer here. I would like to have seen a clearer answer on that.”

Attorney’s Fees

The court’s decision brings the four-year-old lawsuit closer to an end. However, the two parties will return to Howard County Circuit Court so that Judge Hayes may make a new ruling with regard to how much the county will have to pay the school district to reimburse attorney fees.

In his decision released in July 2020, Judge Hayes awarded $73,250.50 in attorneys fees to the Glasgow School District. The appeals court ruled that $19,965 of those fees were accrued by the district while its council sought certain exhibits from the inquest. However, the coroner’s office was not the custodian of those records, and therefore fees resulting from attempts to gain such records could not be charged to the coroner.

But those attorney’s fees also do not include the cost of the appeals process. Mr. Mikes said the fees associated with the latest appeal will total around $20,000. He did not give an exact total.

Because the lawsuit was against the office of the coroner, and not Mr. Flaspohler personally, any attorney’s fees awarded back to the Glasgow School District will be paid by Howard County taxpayers.

In addition, the costs to defend the coroner in the lawsuit and two appeals are the responsibility of the taxpayers. Records obtained by this newspaper show that as of September 23, 2021, $62,056.26 was paid to the Van Matre Law Firm in Columbia.

No date has been set for the parties to return to Howard County Circuit Court.

Trish Clark is the current Howard County Coroner. She defeated Mr. Flaspohler in an election held on November 3, 2020. She said on Thursday that her office considers the matter closed and will not further appeal the case.

Bullying

Mr. Flaspohler re-affirmed last week that his intention during this entire matter has been to expose the matter of bullying. “Hopefully this will get resolved and then maybe we can back up and start talking about the bullying issue again,” he said.

“We’ve talked about a lot but really haven’t done anything to solve it. We haven’t addressed positive steps to try to do something about it. Hopefully, we can wrap this legal mess up and then focus on correcting the bullying problems. And it’s not one school. I don’t mean to imply that it is one school. It’s statewide, nationwide.”

“I’ll continue to fight (against bullying) whether I’m coroner or not,” said Mr. Flaspohler. “I’m a concerned citizen. I’ll still fight to put a stop to bullying.”