Attorney General Chris Koster should not represent the Missouri Highway Patrol in a personnel matter involving a trooper who spoke out about the drowning death of a handcuffed Iowa man, the trooper’s lawyer said Thursday.
Sgt. Randy Henry’s lawyer, Chet Pleban of St. Louis, said it is a conflict for Koster’s office because it already is representing several patrol members in a civil lawsuit related to the drowning of Brandon Ellingson.
Henry, who criticized the patrol after Ellingson’s death last year, is a whistleblower, Pleban said. And he is a witness for the plaintiffs in the lawsuit that Ellingson’s family filed against the patrol and several commanders. Koster’s office represents the current patrol superintendent in that lawsuit as well as the patrol and others employed by the agency.
“Essentially, the attorney general’s office is representing everybody who is at odds with Randy Henry,” said Pleban, who earlier this month filed a conflict-of-interest motion. “And that’s certainly an appearance of impropriety. That’s like representing the judge and the jury.”
Last month, the patrol said it was demoting Henry to corporal and moved him from the Lake of the Ozarks, where he had patrolled for nearly three decades. He is now assigned to Truman Lake. He remains a sergeant pending his appeal.
A patrol review board will now recommend whether the discipline should stand. An attorney from Koster’s office will serve as legal counsel for the review board.
In a response to Pleban’s motion to the review board, Koster’s office denied any conflict of interest.
Nanci Gonder, a Koster spokeswoman, said the attorney general’s office does not comment on pending litigation.
The nature of the professional standards complaint against Henry hasn’t been disclosed.
Pleban said the discipline being imposed is “on issues that are connected to the Ellingson drowning.” He said he couldn’t elaborate.
“But that’s why it’s my contention that he (Henry) is being disciplined in connection to his activities as a whistleblower in order to discredit him and his testimony in the multimillion-dollar lawsuit by the family,” Pleban said.
The hearing for Henry’s appeal was initially scheduled for Aug. 17. But Pleban has asked for more time because he hasn’t been able to depose key witnesses, including the person who filed the professional standards complaint against Henry. That person has not volunteered to be deposed, Pleban said.
Pleban has deposed one patrol employee, and the patrol has presented others to be questioned. But Pleban said the patrol has not responded to his request for subpoenas on witnesses outside the patrol.
“He has an absolute right to take a deposition,” Pleban said of Henry. “I need a subpoena to compel witnesses to testify. And they (patrol officials) ignore my requests.”
A motion filed by Koster on behalf of the patrol states that the review board doesn’t have the authority to issue subpoenas. And, according to the motion, “the patrol and the superintendent are voluntarily complying with all reasonable and proper discovery requests.”
Ellingson drowned May 31, 2014, while in the custody of Anthony Piercy, a veteran road trooper. Jurors at a coroner’s inquest in September found the death to be accidental, and special prosecutor Amanda Grellner announced days later that she would not file criminal charges against Piercy.
In the days after Ellingson’s death, Henry told investigators what he said Piercy had told him the night a handcuffed Ellingson died. But Piercy’s account later was different, and so was his testimony at the inquest.
Henry also testified in front of a special House committee about minimal trooper training after the Water Patrol in 2011 was merged into the Highway Patrol.
Since Ellingson’s death, the patrol’s marine operations — especially along Missouri’s most popular waterways — have been under scrutiny. The House committee in January called on the state to correct flaws created by the merger.
Among the changes the committee sought are an overhaul in training of troopers for the water and recruitment of specialized officers to patrol by boat. The committee called for a thorough inspection of changes in two years.
Henry told legislators that road troopers who helped out on the lake part time received four weeks of classroom training, but “the field training of the (part-time officers) was very, very minimal.”