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City staff, officials allege city prosecutor of having high number of absences

City staff, officials allege city prosecutor of having high number of absences

August 19th, 2018 by Nicole Roberts in Local News

Jefferson City Prosecutor Brian Stumpe has missed several Municipal Court and Cole County Associate Circuit Court dates, leading to city staff filling in unexpectedly and cases being dismissed, city staff and city officials have alleged.

Absences in court

There have been multiple times during the last year and a half when City Counselor Ryan Moehlman and Associate City Counselor Bryan Wolford have filled in for Stumpe, according to city emails obtained by the News Tribune through an open records request last week.

There were four full days and four half days when Moehlman and Wolford acted as city prosecutor in place of Stumpe within "the past year or so," according to a Dec. 22, 2017, email from Moehlman to Mayor Carrie Tergin.

In a Dec. 22 email, Municipal Court Administrator Lindsay Sullivan told Moehlman, "Mr. Stumpe was not present" for that morning's court docket.

"Fortunately, (Bryan) Wolford was available to fill-in as city prosecutor," Sullivan states. "As of right now, we have not heard from Mr. Stumpe as to why he was not in court this morning."

The Dec. 22 Municipal Court docket lists Stumpe as the prosecutor that morning, according to a January records request by the News Tribune.

Stumpe was elected city prosecutor in 2011 and was re-elected in 2013, 2015 and 2017.

Under city code, if the city prosecutor is not present, "the mayor or administrator shall direct the city counselor to act in his stead during such temporary inability, in any proceedings pending before the municipal division of the circuit court."

Wolford told the News Tribune earlier this month that "in the last 12-month span" he has filled in for Stumpe "six, seven times."

There were three times he missed Municipal Court due to family medical reasons, Stumpe said. He gave the city prior notice weeks in advance that he would not be able to attend court those days, he added.

Wolford confirmed there were three times Stumpe gave prior notice.

"Other times, I just covered," Wolford said.

When the News Tribune asked Stumpe last week if there had been other times when he had missed Municipal Court within the last year, Stumpe said: "Not that I can think of."

"There were the three, and I think (Municipal Court Judge) Cotton (Walker) sent me home because I had the flu. I don't know if that was this year or last year, but those are the three times I can think of," Stumpe said.

When he does have to miss a Municipal Court date, Stumpe said, he talks with Walker, Moehlman and Wolford "to make sure I can be covered."

Municipal Court dockets list Stumpe as the city prosecutor for all court days in 2017, according to a January records request by the News Tribune.

"As far as I know, he's always showed up to court on time," Walker told the News Tribune. He said he did not want to comment further on the topic.

In a June 21 email, Sullivan said Stumpe "missed the court date on a pending trial de novo case," along with a screenshot from Case.net that states: "Prosecuting attorney fails to appear. Defendant appears in person."

A trial de novo case is a new trial in a different court.

He dismissed two trial de novo criminal cases at the Cole County Associate Circuit Court this year, Stumpe told the News Tribune. These are the only two trial de novo cases he has dismissed this year out of "thousands of tickets," he said, adding: "In perspective, it's a pretty minimalistic thing."

One of the cases was dismissed July 30 due to Stumpe not attending court, according to emails provided to the News Tribune.

A trial de novo case was "dismissed for failure to prosecute," according to an email to Wolford from the Missouri Courts eFiling system. The email notes Jefferson City's counsel failed to appear in court, but the defendant appeared with his or her attorney.

"Stumpe was a no-show," Wolford said in an email.

"Mr. Stumpe is literally just not showing up to court," Moehlman told two council members in an Aug. 3 email provided to the News Tribune. "The Circuit Court dismissed this trial de novo case because Brian failed to appear."

The Cole County Circuit Court denied the News Tribune's records request for this case file as it is a "confidential record."

A city prosecutor has "prosecutorial discretion," said Missouri Municipal League Deputy Director Richard Sheets. Under prosecutorial discretion, a city prosecutor can decide whether to pursue or dismiss a case.

One of the trial de novo cases was regarding a red light ticket, and the other was a speeding ticket, Stumpe said. In both cases, he said, the cases had gone through the Municipal Court several times and the city had expended funds to subpoena Jefferson City Police Department officers and pay the officers overtime for attending court while off-duty.

"The decision was made by me that it was not in the city's best interest to expend those resources and city finances for a jury trial on a speeding ticket that was of minimal danger to the city," Stumpe said. "Officers have a lot of things going on — drug issues, murder cases, rape cases. I think the officers' times are better spent (in the field), instead of waiting around in court for a red light ticket or a speeding ticket, to focus their energies on the more dangerous crimes in Jefferson City. That's why the decision was made to let those two cases go in that situation."

Eleven Municipal Court cases were dismissed between Nov. 1, 2017, and Aug. 10 due to failure to prosecute, according to city records. These offenses include driving while intoxicated, red light violation involving an accident, first- and second-offense stealing, and obstruction of a police officer.

Included in these 11 cases is a red light ticket in which a trial de novo was filed. This red light ticket later was dismissed by a circuit court judge, Moehlman said.

"I didn't feel like it was in the city's best financial interest to subpoena an officer two or three more times to come to court and have him come in on his days off, pay overtime to that officer over a $121 ticket," Stumpe said. "So the decision was made. She had already come to court three or four times, I believe, and (when) she went to the associate court, I stopped after that point because it ended up being more of a burden to the city financially than it would have been otherwise.

"I think the lady had learned her lesson by coming to court four times, the burden of not fully stopping at a red light in the future. The system is designed to show you how and why to change your behavior, and I think she had learned that lesson."

Jefferson City sees 11,000-12,000 cases a year, Stumpe said.

Stumpe may dismiss cases due to mandatory dismissals under state law, insufficient evidence and on a case-by-case basis — looking at each defendants' past records, their intentions and situations, he said.

The News Tribune was made aware of potential city prosecutor absence issues in December. Over the last eight months, Moehlman told the News Tribune he could not comment on these rumors or whether the city was experiencing issues regarding city prosecutor absences and case dismissals.

"That falls under attorney/client privilege, so I can't speak for that," Moehlman said. "It relates to the operations of the city, and it's just not appropriate for me to speak on rumors regarding any type of issue on city officials."

Stumpe said city staff and officials have not expressed concerns to him regarding absences or case dismissals.

Jefferson City Council reactions

Tergin told the News Tribune last week that city staff had informed her in December there was an issue with Stumpe being absent during Municipal Court. She said she is aware Stumpe "has been absent on several times, at least four days and four half days."

Based on what city staff has told her, Tergin said, it was her "understanding that not all of (the absences) had notices."

"Ultimately, I think some have had notices and some have not," she said.

After learning this, she asked city staff whether the city could be reimbursed for city prosecutor absences.

Tergin was told via email: "There is no means by which the city can withhold payment from the city prosecutor or recoup city cost when city counselor or staff is required to fulfill the duties of the city prosecutor in his absence. There is no means to discipline the city prosecutor for unexplained absences as the position is elected and not accountable to the City Council or anyone else within the city."

Tergin said she did not feel comfortable providing the News Tribune with a copy of this email, as it falls under attorney/client privilege. She instead read the email to a News Tribune reporter.

Since Stumpe is an elected official, he is not considered a city employee under state statute. Stumpe said elected officials "are given 'X' number of dollars for pay," regardless of whether they miss or add days of work. When the city added half-day Municipal Court dockets twice a month last year, he added, he was not paid additional money, even though he had to leave his Jefferson City-based private practice more.

Stumpe's salary is approximately $36,000 annually, Tergin said.

This also applies to other elected officials, Stumpe said.

"We're paid a certain amount of money, and that's what it is," he said. "If the mayor goes to Atlanta and mayor pro-tem sits in, that doesn't influence the mayor's statutory pay. If a councilman is gone for some reason, that shouldn't change their statutory pay. If a judge is gone for a judicial conference, or whatever, or when he has to recuse himself and another judge has to come in and fill in, that doesn't affect your pay at all."

Ward 3 Councilman Ken Hussey said he has concerns that the city charter or city code does not give the city authority to address excessive absences.

"If city staff, like our city counselor and associate city counselor, are having to take their time to fill in for the prosecutor who is absent, regardless of who it is, that's a direct cost to the city, and yet, we're also allocating resources to a prosecutor to do that," Hussey said. "I don't think we've tracked that very well as a city either, so I know there may be some interested in directing staff to keep tabs on how much staff time we spend filling in for an elected official.

"So, we're paying an elected official but we're also paying city staff to do those services. So, the charter really lacks the ability to really deal with situations like that."

Tergin said she plans to approach the Jefferson City Council Committee on Administration at its next meeting to discuss amending the city code to state the City Council should be given notice in a public meeting when the city prosecutor misses court.

"Although there is no accountability on behalf of the City Council, it at least informs the council because we have no mechanisms to know unless we hear about it or unless we ask about it, like how it's coming to our attention now or how it came to my attention in December," Tergin said. "Knowing the accountability rests with the voters, it allows voters to be informed if the elected city prosecutor is not fulfilling their duties. If it's a one-time thing and this person is not able to appear because they're sick or they have an issue, that may be different than if it were happening multiple times."

Moehlman copied the City Council on the Dec. 22 email regarding Stumpe missing Municipal Court. However, council members told the News Tribune this month they could not confirm whether city staff was experiencing issues regarding Stumpe being absent or dismissing cases, although many confirmed they had heard rumors.

Council members David Kemna, Rick Prather, Rick Mihalevich, Laura Ward, Erin Wiseman, Ron Fitzwater, Mark Schreiber and Hussey said they had heard rumors but could not confirm them.

Wiseman confirmed she was aware of the two trial de novo cases dismissed at the associate circuit court level but said she did not know why they were dismissed. She did not want to comment on whether city staff has been experiencing issues due to city prosecutor absences because she hasn't "been in court to actually witness him trying cases or not showing up to cases."

"As an attorney, it's not my policy to comment on the jobs of other attorneys, and as a City Council person, we don't have any purview or control over that office, so there's nothing really to comment about," she said. "The city prosecutor's position is an elected position by the people, so as a City Council person, I don't think I have any room to criticize him or anything else because it's not my job as an elected official to criticize him or his position."

"Every time I've gone in, I've seen Mr. Stumpe and the judge," Ward 4 Councilman Carlos Graham said. "I don't go there every Wednesday, but I go there at least once a month, but I haven't heard he's not showing up."

Ward 5 Councilman Jon Hensley said he has not "been given anything specific or received complaints" regarding Stumpe missing work. Hensley was elected to the City Council in April.

While he had heard the rumors, Fitzwater said, he hadn't verified them, but planned to look into the matter.

He added there could be "a personality issue" intertwined in the rumors and conflicting information due to the way Stumpe executes his city prosecutor duties.

"All of us have people who like what we do and don't like what we do for whatever reasons," Fitzwater said. "Folks kind of poke at that, and some of them may be real and some of them may just be, 'I want it right and you want it left.' It's just differences of getting to the same means, just doing it in a different way. But is it a legitimate concern or, again, are things being expanded out of what they actually are to try and justify making a move to an appointed position? I want to make sure they're not manufacturing any reasons to justify supporting making an appointed position versus actual reasons."

City charter amendments

The Jefferson City Charter Review Advisory Committee recommended a city charter amendment earlier this year that would make the city prosecutor an appointed position instead of an elected one. Under the proposed amendment, a selection committee — comprised of two members appointed by the Cole County Bar Association and one member appointed by the mayor — would nominate someone to the city prosecutor position. That nomination would go the City Council for approval and, if approved, the city prosecutor would serve a four-year term until a successor is appointed.

After public testimony, the committee originally voted to keep the position elected. Some committee members said they thought making the position appointed would be more efficient and save money, but other commissioners said they worried about a lack of autonomy and increased corruption.

However, they reversed their vote to recommend it to the selection committee at a later meeting. There was no public testimony during that meeting, according to the minutes. Notice of the city prosecutor discussions was not posted on that committee agenda.

George Hartsfield, chairman of the charter committee, did not return the News Tribune's calls or emails for comment.

While many council members said they did not know if city staff's concerns regarding Stumpe's absences were driving the proposed charter amendment, Prather said he thought that was the case.

"That is one of the things that is driving this whole issue, trying to correct action as far as what's been happening," Prather said. "I know they've had some issues down at the city with certain situations involving (Stumpe)."

When asked if the proposed city charter changes were due to the rumors, Hussey, who is the bill co-sponsor of the proposed city charter amendments, said: "Yes and no." He noted the current recommendations were brought forth by the committee, not the council.

Fitzwater is the sponsor of the current recommended city charter amendments bills.

Hussey has sponsored previous bills proposing making the city prosecutor an appointed office instead of an elected one.

The city charter committee also recommended giving the City Council authority to remove the city prosecutor from office for just cause, such as if he or she were convicted of a felony, lacks the qualifications of the office during the term or neglects the duties of the office. The council would need a two-thirds vote to remove the city prosecutor from office, if this change is approved by the council and voters.

Hussey said he didn't think the alleged issues were "to that level yet."

Tergin and some council members said they do not believe a city charter amendment should be made based on one individual.

"I briefly alluded to it the other night (at the last City Council meeting), but if there are issues with any position, particularly when they want to change the charter, then what needs to happen is those issues need to be made public," Schreiber said. "From that standpoint, I think the voters should make a decision rather than the City Council be responsible for that position or really any other position that's already outlined in the charter that it's supposed to be voted on by the voters."

Amending the city charter based on one individual, Kemna said, "could open up a whole can of worms."

"What if it's a judge or other elected official?" Kemna said. "Where do you draw the line with that? Do you change everything around all of the time when someone feels someone isn't doing their job adequately? It's a slippery slope."

Several council members said they opposed making the city prosecutor an appointed position.

While he said his opinion is "biased" due to him being an elected official, Stumpe said, he thinks it is important to keep the city prosecutor and municipal court judge elected positions. Not only are elected official more likely to be active in the community, he said, it also combats corruption because the city prosecutor is accountable to the voters, not the City Council.

"If all of a sudden (the council) says, 'Gosh, I don't want you having teenagers work off their speeding tickets. I don't want you to send a kid to the animal shelter to pick up poop for 15 hours, versus having his mom write a check for $121,' all of a sudden you're encouraged now to just have mom write a check for $121 and fill the city's pockets instead of seeing what's going to be more effective and teach that kid to slow down," Stumpe said. "You're at the beck and call and desires of not the community, but the council."

The City Council will vote on the charter amendment, among others, on Monday. If approved by council, Jefferson City residents may vote on them in November.