This past August we received an email from the Gottcha Board asking about availability to attend a closed meeting call.  Anticipating a client was in trouble, we responded that we would accommodate the Board’s request.  However, the Board’s purpose for the call was to make an inquiry about representation to resolve the dispute with the Division over personnel and budget authorities.

Without disclosing the Sweeny-Phillips litigation, the Board recounted how the Division had rejected the Board’s requests to hire an additional inspector.  Initially the Division had advised the Board that it lacked authority to hire personnel.  After our posting of Missouri Funeral Home Inspections and Pictures:  You Were Warned!  the Division changed its stance and advised the Board that it had given up control over its personnel budget.  The Board’s executive director had made numerous inquiries to the Division and to the Department of Commerce and Insurance seeking documentation of that delegation of authority over its budget, but nothing was produced by either the Division or DCI.

The Board perceived that litigation was their only avenue to getting to the truth about the authorities it possessed over inspections and audits.  However, we suggested that before litigation was brought the Board should make open records requests to confirm whether or not a past Board had actually delegated their budget authority.  The open requests could also determine if there was any complicity among key Division officials.  The Board agreed and then went about getting Division authority to hire our office for those open records requests.  But as the MFDEA predicted, the Board’s inquiry was not well received, and the Governor replaced most of the Board.

While the sacking of the Board and the executive director may have been predictable, the inclusion of the preneed exam supervisor in the bloodletting signaled that something more than a tiff over funeral home inspections was at play.  Accordingly, we proceeded with the open records requests recommended to Board, and the long awaited results included some surprises.

We made requests to the State Board for the infamous October 14th script, to the Division for the Board’s delegation of budget authority and to the DCI for Board requests regarding budget, personnel and legal counsel.   The State Board and Division responses were quick and predictable.  The new State Board response was: “What script?”  Well, the script that the Board chairman complained had been stolen from his personal papers.  If it will help here is that Russell complaint.

During the October 14th Board meeting, I asked the Division attorney what the Division was relying upon when asserting that the Board had delegated their authority over personnel funding and Ms. Ledgerwood advised that there was a 1999 Board action.  In response to our request for any 1999 document whereby the Gottcha Board had given up its authority over personnel funding, the Division replied no such document existed.

In contrast, the Department of Commerce and Insurance advised that their responses to the requests would take several weeks.  Jump forward two months to this week, the DCI produced hundreds of pages of communications and documents.  From the DCI records we found weekly reports from the Division to the Governor that suggested a plan to streamline the Division, starting with the Embalmers board.  The Division director advised the Governor that changes were needed to be made “to increase efficiency and fiscal responsibility.”  Improvements were needed, “especially with inspections and financial examinations”, and that there could be potential cost savings of $200,000.  The weekly report also advised the Governor:

 The Division is working with Kyle Aubuchon and Caroline Colter on filling vacancies and replacing board members on expired terms for the Embalmers board and several others. The Division appreciates that people have been willing to serve on expired terms but the Division is excited to have new members who bring new ideas and expertise to protect the people of Missouri.  

In a weekly report to the Governor that followed the October 14th Board meeting, the Division was complementary of the Missouri Embalmers and Funeral Directors Association for their assistance.  But what may be more telling of the DCI records disclosure were communications that never occurred.

While cutting expenses and streamlining government are noble objectives, no one approached the Gottcha Board with the plan and a request for recommendations.  Rather, the Division and the DCI implemented a plan for cost cutting behind the Board’s back.  When the Board made inquiries about their budget and their personnel authorities, the Division and the DCI stonewalled the Board.

Also missing from the DCI records was a 1999 Board action delegating its budget authority.  Rather, there was a 1998 Board report explaining that the 1999 budget projections would include increasing litigation costs, thus reducing the amount of Board revenues being transfer under the Hancock Amendment to the State’s General Revenue Fund.  The records include other minutes reflecting actions taken by the Board to mitigate the transfers of revenues to the General Revenue Fund.

The DCI records are also void of any notice to the Governor that the Division cost cutting plan had encountered a slight hiccup with a Warrensburg funeral home.  While the Governor is led to believe the new Board appointees bring “new ideas and expertise” to protect the people of Missouri, the reality reflects two appointees that do not satisfy the statutory requirements for serving on the Board.

Our conclusions are the Division made a serious misstep by implementing a cost cutting plan without including the Gottcha Board in the process.  Someone failed to advise the Divison’s acting director that the majority of the Board’s budget comes from the Missouri preneed consumer.  With a 2021 projected budget of $513,795.00, the preneed consumer audit fees account for $397,500.00.  With Senate Bill No.1, the Missouri Legislature authorized the consumer fee to provide the Board the funds to audit the funeral homes for compliance with the new law.  It was not the Legislature’s intent that the Division cut the Board expenditures to the bone so that consumer audit funding would pour over to the State’s General Revenue Fund.

Then the Division compounded that error by attempting to cover up the Sweeney-Phillips affair.   The public litigation filings did not disclose that the Division’s CIU investigators had been dropping the ball for years.   A Board lawsuit would have brought the CIU’s failures to the public’s attention, and undermine the Division’s representations to the Governor.  Accordingly, the Division dismissed the Sweeney-Phillips lawsuit as discovery of the preneed issues was about to commence.

As the MFDEA continues to remind anyone who will listen, it was political suicide for the Gottcha Board to threaten the State.  However, I don’t think those Board members have any regrets for standing up for the Missouri consumer.