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Court sides with Glasgow school district in open records case against Howard County Coroner

County taxpayers could be on the hook for more than $73k. Flaspohler will appeal the decision.

Justin Addison Editor/Publisher
Posted 8/4/20

Circuit 14 Presiding Judge Scott Hayes on Wednesday, July 29, ruled in favor of the Glasgow R-II School District in a lawsuit that claimed Howard County Coroner Frank Flaspohler knowingly violated …

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Court sides with Glasgow school district in open records case against Howard County Coroner

County taxpayers could be on the hook for more than $73k. Flaspohler will appeal the decision.

Posted

Circuit 14 Presiding Judge Scott Hayes on Wednesday, July 29, ruled in favor of the Glasgow R-II School District in a lawsuit that claimed Howard County Coroner Frank Flaspohler knowingly violated the Missouri Sunshine Law when he refused to turn over transcripts from a public coroner’s inquest. The judgment orders Mr. Flaspohler to pay a $500 fine for violating the Missouri Sunshine Law, and $73,259.50 in statuary attorney fees.

The suit was brought about regarding a transcript of a coroner’s inquiry held by Mr. Flaspohler following the December 21, 2016 suicide death of rural Glasgow teenager Kenneth Suttner. 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.

The judgment is the latest, although likely not the last, step in the legal battle between the district and the coroner that began more than three years ago. Mr. Flaspohler’s attorney, Richard B. Hicks, told this newspaper that he intends to appeal the ruling within the next 30 days.

“I'm not surprised by (the ruling) based on the history of the case,” said Mr. Hicks. “The judgment the judge has signed was a judgment that was prepared by the Glasgow School District. So he just signed off on their judgment. That doesn't surprise me. We're going to be appealing, and I expect the appeal to go very differently.”

The coroner’s inquest, which was held in the Howard County courthouse was and 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 note read were allowed.

Judge Hayes’s 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. 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.

“Based on a rumor, and without talking to any of the school people, he slammed together this inquest,” said Tom Mickes, attorney for the Glasgow School District, in an interview with this newspaper on Friday.

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 received a suspended sentence of 180 days in the Howard County Jail, 30 days house arrest, and two years of supervised probation after 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. All other charges were dismissed pursuant to a plea deal. She was also was ordered to complete mental health and substance abuse evaluations.

April Wilson prosecuted the case again Ms. Branham. She also helped conduct the coroner’s inquest.

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

This case has a long and storied history, beginning in 2017. On February 2 of that year, the Glasgow School District’s attorney requested a copy of the transcript of the inquest from Mr. Flaspohler, who would himself not receive it until February 14. On February 17, Sherry Shive asked for a copy of the transcript in an effort to clear her son’s name in the matter. 

That same day, Mr. Flaspohler 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 in January of this year that she advised the records should be closed.

On February 23, 2017,  Mr. Flaspohler gave a copy of the transcript, at no charge, to Sherry Shive. A copy was also provided to Mr. Suttner’s family, to which it is entitled by law. The following day the Glasgow district asked again for a copy of the transcript. Mr. Flaspohler testified in January that he told Mr. Mikes 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 on Friday 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 January that she had, upon advice 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, 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.

Later, in October of that year, 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.

Mr. Hicks 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, which means Judge Hayes’s order still stands.

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

“I still think I’m law enforcement,” Mr. Flaspohler contends. “The bright spot is that I think it will give us an appellate decision that can establish for coroners whether we are or not.”

Two judges, two opinions

A similar lawsuit of the county 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 in Columbia. The judge in that case ruled in February 2019 that the coroner did not knowingly or purposefully violate the Sunshine Law when he denied that newspaper’s requests for the same transcripts. In a written judgment, Judge Jeff Harris 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.

“I think it’s best left up to three judges on the appellate court to make a final decision that’s clear, and cut and dry, and that I can understand, and even coroners across the state can understand. This issue of whether or not we can close the record is a really big deal,” said Mr. Flaspohler.

“The reason I believe that it needed to be appealed is because myself, as well as other coroners, need a clear answer about what to do when the prosecutor tells you not to release your records because they are a part of her investigation,” Mr. Flaspohler wrote in an email to this newspaper on Monday. “In the Columbia Missourian case, Judge Harris ruled that the coroner did not knowingly and purposely violate the Sunshine Law because he was doing what the prosecutor told him to do. In the school district case, Judge Hayes ruled that I did knowingly and purposely violate the Sunshine Law. In both cases, no one disputed the fact that I was doing what the prosecutor told me to do. So in the future when we have a homicide in Howard County and the prosecutor tells me the records are closed because it is a criminal investigation, which decision do I follow? Do I keep the records sealed and risk violating the Sunshine Law, or do I release the records and risk criminal prosecution for obstruction of justice? A decision by the Appellate Court will set legal precedence that all coroners and myself can follow.”

While the case is on appeal, the $500 fine and $73,259.50 in attorney fees awarded to the Glasgow School District will be stayed. An appellate ruling in Mr. Flaspohler’s favor could wipe out the judgment. “Judges make different decisions sometimes. That's why we have appellate courts,” said Mr. Hicks.

However, if the court declines to hear the case or upholds Judge Hayes’s findings, the taxpayers of Howard County will foot the bill.

“There's really two different opinions from two different judges,” said Mr. Flaspohler. “It could certainly make a difference on whether the taxpayers have to pay $73,000 or not.”

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