Because of a conflict of interest, the attorney general's office should not represent the Missouri Highway Patrol and Superintendent Bret Johnson in a disciplinary hearing against an officer accused of misconduct, the officer's lawyer said in a July 2 legal filing released to the media Thursday.
Attorney C. John "Chet" Pleban of St. Louis said Sgt. Randy Henry was demoted to corporal and reassigned to the Truman Lake area from the Lake of the Ozarks - after he gave a deposition supporting the Ellingson family of Clive, Iowa, in their federal civil suit against the Patrol.
The Ellingsons accuse the patrol of violating their son's, Brandon Ellingson, rights when he drowned May 31, 2014, at the Lake of the Ozarks, while in Patrol custody for a boating while intoxicated arrest.
"The disciplinary action pending against Henry is designed to silence and discredit Sgt. Henry in connection with his claim of a cover-up" over Brandon Ellingson's death and the following investigation, Pleban said in a news release.
Pleban said his client is a "whistleblower" on the Patrol's improper training of former road officers assigned to water patrol duty, and in their handling of the Ellingson case.
The Patrol has not released the specifics of the misconduct accusations against Henry, who has appealed the disciplinary action. The appeal will be heard by a Procedural Hearing Board comprised of patrol officers from around the state.
"Now he finds out that Koster represents everyone in the pending disciplinary appeal," Pleban said. "Randy doesn't need a house to fall on him to figure out how this appeal is going to end."
In his motion to disqualify, Pleban charged the Procedural Hearing Board can be joined and influenced by Koster and/or a high-ranking lawyer in his office.
"Moreover, while Johnson, the ultimate decision maker (of Henry's discipline), is deliberating the fate of this 29-year veteran law enforcement officer, he may be joined and potentially influenced by Koster," he argued.
But, in the attorney general's response, Assistant Attorney General P. Benjamin Cox told the hearing board there is no conflict of interest involving Koster's office and staff, and their work representing the Patrol in both Henry's disciplinary hearing and the Ellingsons' federal civil rights suit.
In his news release, Pleban also complained Johnson has ignored Henry's requests to subpoenas witnesses at depositions being taken prior to the disciplinary hearing.
"Apparently, the due process rights of a whistleblowers is not at the top of the priority list for this Superintendent," Pleban said.
The legal maneuvering is just the latest chapter in a story that began with Ellingson's drowning while in Trooper Anthony Piercy's custody.
While in handcuffs, Ellingson fell into the lake and drowned.
Henry was Piercy's supervisor, and testified in both criminal and legislative investigations into the accident.
A Morgan County coroner's inquest last September determined Piercy was not guilty of negligence in the drowning.