Cole County Presiding Circuit Judge Patricia Joyce said Friday she needed to do some more studying before ruling on former trooper Anthony Piercy’s future with the Highway Patrol.
Almost a year ago, on June 27, 2017, Piercy pleaded guilty to a misdemeanor charge of negligent operation of a vessel on the Lake of the Ozarks on May 31, 2014.
Piercy, a veteran road trooper, had agreed in 2013 to be cross-trained as a water trooper as well and, on May 31, had stopped Brandon Ellingson, 19, of Clive, Iowa, for apparent boating while intoxicated on the lake.
He arrested Ellingson, placed him in handcuffs and put a Type III personal flotation device, or PFD, over Ellingson’s head.
But, investigators later would find, Piercy should have used a Type I or Type II PFD.
While Piercy was taking Ellingson to the zone office to complete the testing required for the BWI charge — Piercy’s attorney, Tim Van Ronzelen, told Joyce Friday afternoon — Ellingson “was ejected or fell or jumped out of Trooper Piercy’s patrol boat. Trooper Piercy jumped over the side, attempted to save him but his efforts failed.
“And Mr. Ellingson drowned.”
After a coroner’s inquest in Morgan County, the coroner’s jury determined no crime had been committed, and the patrol was told in a Sept. 8, 2014, letter no charges were being filed.
However, the case later was re-opened and, in December 2015, Piercy was charged with involuntary manslaughter — a Class C felony.
But that was changed in June 2017 to the misdemeanor charge Piercy pleaded guilty to. He was sentenced to 180 days in jail with the execution of the sentence suspended.
Piercy was placed on two years’ supervised probation, which doesn’t end until next year.
A six-member Highway Patrol Review Board then considered Piercy’s case and determined last Dec. 11 his conduct had violated the patrol’s “general orders.”
But, the board unanimously recommended Piercy be reinstated to active duty, but transferred from Troop F to another part of the state.
However, on Dec. 15, Superintendent Sandra Karsten issued her own Findings of Fact and Conclusions of Law in the case — and ordered Piercy fired.
Van Ronzelen reminded Joyce that Piercy’s five-count lawsuit challenged Karsten’s actions, with two of the counts asking the court to review Piercy’s case as a “non-contested case” and to find the state laws governing the patrol’s operations mean its disciplinary process does not allow Karsten to fire someone when a board found deemed the firing was not appropriate.
Two more of the five counts ask Joyce to study the same issues as a “contested case” under a different state law.
Missouri Supreme Court Judge W. Brent Powell wrote in a decision released June 12 — only 10 days before Joyce’s Friday hearing in the Piercy case: “The distinction between a contested and non-contested case is significant because the scope of judicial review is different.”
Assistant Attorney General C. Douglas Shull asked Joyce to dismiss Piercy’s case and find that Karsten acted within her powers.
“The most reasonable way to read that, is that (the punishment) is dismissal as adjudged by the superintendent,” Shull explained, “and any one of those others” listed in the policy, as Karsten determined to be appropriate.
“Just to be clear,” he added, “the superintendent’s position is not that she has the (authority) to terminate at will — but that she has the power to terminate as provided (and) required by the statute.”
Both sides based their arguments Friday on the placement of the word “or” in the patrol’s discipline policy, and where semicolons affected the list of punishments available to the colonel — whether it limited her options to no more than the Review Board recommended, as Piercy wants, or gave her leeway to change the board’s recommendation.
Both sides also said Piercy’s case likely is affected by that June 12 state Supreme Court ruling on contested and non-contested cases.
Shull argued Piercy’s Review Board disciplinary hearing, which is required by state law, clearly is a “contested” case.
Van Ronzelen and his co-counsel, John Landwehr, countered Karsten’s willingness to ignore the Review Board’s recommendations made the case “non-contested,” because Karsten wasn’t present during the Review Board’s hearing.
The fifth count in Piercy’s lawsuit asks the circuit court to order the patrol to pay Piercy his “back wages and benefits, due to what we believe was the (patrol’s) unlawful action,” Van Ronzelen explained.