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Judge hears arguments in trial of civil suit against Howard County Coroner

Editor
Posted 1/22/20

Flaspohler testifies for nearly four hours 

Judge Hayes will decide if coroner knowingly violated the Mo. Sunshine Law

A lawsuit by the Glasgow R-II School District against Howard County …

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Judge hears arguments in trial of civil suit against Howard County Coroner

Posted

Flaspohler testifies for nearly four hours 

Judge Hayes will decide if coroner knowingly violated the Mo. Sunshine Law

A lawsuit by the Glasgow R-II School District against Howard County Coroner Frank Flaspohler took a major step toward conclusion Thursday as the case went to trial before Judge Scott Hayes in Howard County court.

Judge Hayes is the Presiding Circuit 14 Judge which includes Howard and Randolph Counties.

The lawsuit stems from a nearly three-year-long legal battle that began when the school district requested transcripts of a coroner’s inquest held January 31, 2017 relating to the suicide death of rural Glasgow teenager Kenneth Suttner. The public inquest 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.

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.

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

The heart of the matter at Thursday’s trial between Flaspohler and the school district was whether or not Flaspohler believed he was not in violation of the state’s Sunshine Law when he refused to turnover a transcript of the inquest along with exhibits used.

Mr. Flaspohler had given the Suttner family, an abridged copy of the transcript on February 17, 2017, to which they are entitled by law. However, Glasgow resident Sherry Shive also received, upon request, the abridged transcript on Feb. 23. The district’s attorney, Thomas A. Mickes claimed he asked twice for the transcript in early February. But at that time it had not been completed by the court reporter and given to the coroner. Mr. Mickes said he asked again on February 24 and Mr. Flaspohler explained that in order to provide the copy of the full transcript, which spans more than 200 pages in length, the law firm would have to pay for copies to be made and shipped to it’s office in St. Louis. A bill was then issued. Mr. Flaspohler said at that time his intent was to turn over the transcript.

“If you had come into the office I would have made you a copy right then,” Mr. Flaspohler testified.

It was around this time that Mr. Flaspohler said he had consulted April Wilson, the prosecuting attorney appointed by the Attorney General’s office involved in both the inquest and the state’s case against Ms. Branham, as to whether or not he could distribute the document.

“I didn’t want to jeopardize a future case,” Mr. Flaspohler explained during nearly four hours of testimony.

Ms. Wilson testified during Thursday’s trial that she had, upon advice the Missouri Attorney General, 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.

On October 4, 2017, Judge Hayes ordered Mr. Flaspohler 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. He said Thursday that Flaspohler was operating under “horribly deficient legal advice from April Wilson.”

Richard B. Hicks, attorney for Mr. Flaspohler, argued that his client could close the records from the inquest because the office of coroner is a law enforcement agency. Judge Hayes, however, in his partial summary judgement, ruled that the office of coroner is not a law enforcement agency and therefore could not close records. His 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 that he will once again find that the coroner is a not a law enforcement officer. 

But when Judge Hayes ordered Mr. Flaspohler to turn over the document to the district in 2017, he had not ruled on whether the corner had been in violation of the Open Records Act by withholding the transcript. Attorneys at Thursday’s trial argued as to whether or not Mr. Flaspohler knowingly violated the Sunshine Law.

At stake are attorneys’ fees on behalf of the school district that exceed $60,000 for services provided over the last three years.

Attorneys on both sides agreed rather than to make closing remarks, arguments would be submitted as briefs sometime during the next 30 days.

Mr. Hicks called the situation a case of first impression. He said he felt optimistic given the plaintiff’s high burden of proof in showing that Mr. Flaspohler knew he was in violation of the Sunshine Law.

It is unknown when Judge Hayes will submit his verdict in the case.

Mr. Mikes told this newspaper he felt good about the district’s chances in the case. He said he tried to get to the truth of the matter to provide justice for the school district.

In a similar suit brought against Mr. Flaspohler by the Columbia Missourian newspaper, a judge ruled in February 2019 that the coroner did not knowingly or purposefully violate the Sunshine Law when he denied the paper’s requests for the same transcripts. In a written judgement, 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 and to the defendant 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.”

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