BELLE — An amended seven-page affirmative defense filed by the city of Belle’s attorney on May 24 alleges the board of aldermen terminated former city clerk Frankie Horstman for “evasiveness, dishonesty, and lack of cooperation during an internal investigation.”

The amended defense filed by city attorney Adam D. Hirtz came after Horstman’s attorney Shelly A. Kintzel filed a response to the city’s defenses and requested Maries County Circuit Judge William E. Hickle strike several from the record or be more specific.

Changes to the document were on pages five and six under affirmative defenses B, C, F, G, and H. Affirmative defense J was deleted and added into a new “statement regarding additional affirmative defenses” section.

The city’s original affirmative defense outline, section B, alleged that Horstman’s “claim to damages is barred to the extent she failed to mitigate her damages.” Under the amended version of affirmative defense B, Hirtz added, “Namely, upon information and belief (Horstman) has not made reasonable efforts to find employment or other sources of income to cover any past or future lost wages or benefits she claims as damages.”

Affirmative defense C claimed, “(Horstman’s) employment was terminated for legitimate, non-retaliatory business reasons.”

The amendment added that Horstman’s termination was “for evasiveness, dishonesty, and lack of cooperation, in an internal investigation into allegations that the city of Belle violated the Missouri Sunshine Law Act.”

Under affirmative defense F, Hirtz originally cited, “Missouri Revised State Statute 105.055 which allows the city to discipline employees for their violations, mismanagement, gross waste of funds, abuse of authority, or endangerment of the public health and safety.”

The amended defense removed the statute’s citation and added that Horstman “cannot establish by clear and convincing evidence that she reported a prohibited activity or suspected prohibited activity.”

Under affirmative defense, G was amended to say, “Even if (Horstman) is able to establish by clear and convincing evidence that she reported a prohibited activity or a suspected prohibited activity, the (city) did not terminate her employment as a result of such reporting.”

The affirmative defense H was amended to state the city of Belle, “asserts that (Horstman) was, at all material times, an at-will employee of the (city) and, therefore, (Horstman) was subject to discharge at any time, with or without cause, so long as said discharge was not for an unlawful reason.”

The city’s attorney originally used affirmative defense J to “reserve the right to assert further defenses as appropriate.” However, J was deleted from the amended affirmative defense and added to a closing statement regarding additional affirmative defenses.

According to the affirmative defense statement, “Because no discovery has yet occurred in this action, (the city) reserves the right to assert further defenses as appropriate.

“Wherefore, the city, having fully answered (Horstman’s) petition for damages and asserted affirmative defenses thereto, prays (Horstman’s) petition be dismissed in its entirety, at (Horstman’s) cost, with an award to (the city) of its attorney’s fees and costs incurred in the defense of this matter, and for such other and further relief as the court deems appropriate.”

Horstman’s case was in Judge William E. Hickel’s 25th Circuit Court on June 3 for a hearing on the change of venue, which was previously approved. The city of Belle’s attorney failed to appear, however, it’s Sunshine Law Attorney, Nathan Nickolaus, was present representing the city of Vienna.

Hickle approved the change of venue to Phelps County.

“This is a new case,” Hickle said. “Do we need to set a date (for a pre-conference trial)?”

Nickolaus asked Hickle to wait on the city’s attorney who is handling the case to set a date.

“The venue is transferred to Phelps County,” Hickle said. “For now, no further action is taken.”