Legal opinions differ on closed meetings, recordings

Saturday, May 10, 2008

During a closed meeting April 17 of the Cape Girardeau County Commission -- attended by the three county commissioners, Prosecuting Attorney Morley Swingle and County Auditor David Ludwig -- Ludwig was pressured to resign. Without telling anyone in the meeting, Jay Purcell, 2nd District commissioner, recorded the meeting on a digital recorder.

Since that meeting and the subsequent disclosure of what was discussed and the fact that it was secretly recorded, questions have been raised.

Were laws broken?

If so, what was illegal: the taping or the meeting?

On Friday, Swingle -- also serving as the county's legal counsel -- said he wasn't aware that recordings existed of any closed meetings. He said he is only aware that Purcell recorded a four-hour exchange between the 2nd District commissioner and Presiding Commissioner Gerald Jones while the two men rode together in Purcell's county car from Cape Girardeau to Jefferson City.

Some Sunshine Law experts say the discussion of county business during the car trip might have been an illegal meeting because two members of the three-person commission would constitute a quorum.

"Unless they were having the conversation with the intent to subvert the law, they were doing nothing wrong," Swingle said.

Swingle also said he doesn't believe the recording of that conversation violates the Sunshine Law.

Missouri law allows individuals to secretly record conversations as long as one party is aware it is happening. However, Missouri's open meetings and records law -- the Sunshine Law -- bars recordings of closed meetings without the consent of a majority of the officials present.

Other legal experts disagree with Swingle's view of what has transpired.

Purcell and Jones have been at odds for more than a year. Since January, confrontations at public meetings over road easements, webcasting of meetings, reassigning office space and the sale of county park land have escalated, leading to a 2-to-1 vote at Monday's regular commission meeting to strip Purcell of most of his administrative authority. During that meeting, Purcell said he felt forced to make the recordings. The recording of regular meetings of governmental bodies is allowed by Missouri law.

At issue is the recording of closed meetings. There are concerns that the commission's April 17 meeting might not have been proper.

Swingle and the commissioners have said recently that the meeting was closed to discuss personnel discipline and potential litigation. But discussions with elected officials are not personnel matters, and the law requires such meetings to be held in open session. On Friday, Swingle said he believes the meeting was properly closed because the discussion involved topics related to potential litigation. Whether or not potential lawsuits fall under the Sunshine Law provisions for properly closing a meeting is a matter of dispute, with some lawyers contacted by the Southeast Missourian saying such meetings should be open to the public.

Swingle's involvement as both a prosecuting attorney and as the commission's legal counsel represents a conflict of interest, some of the lawyers say.

"He can't now prosecute the commission on Sunshine Law positions when he's advised them on the Sunshine Law," said J.P. Clubb, a Cape Girardeau lawyer who served for nearly three years as the lead Sunshine Law lawyer in the Missouri attorney general's office. "If someone files a complaint or [Swingle] becomes aware of a complaint, he should ask somebody else to look into it."

Swingle said Friday if that situation arose, he would recuse himself from prosecuting such a case.

Cape Girardeau lawyer John Cook said, "My opinion is very simple. The county commission should ask for an opinion from the attorney general's office on this point. It's an obvious conflict for Morley. The commission frankly acts as if it does not want to seek an objective opinion. They should get one from the Missouri attorney general."

Larry Bock, the 1st District commissioner, said Purcell has never obtained the commission's consent to record closed meetings.

Bock stopped short of calling for Purcell to be prosecuted, calling the secret recordings "not respectful."

"It's so foolish. It's pitiful. We've got a job to do. Let's be men and just do it," he said.

Bock said there is no need to record meetings, including Purcell's idea of a Web cam. He said he's open to members of the public taping the meetings.

Bock also said he thinks Purcell's recordings should remain private.

"Other than Jay Purcell, I wouldn't think anyone else should hear it. That's just my opinion." he said.

Jones is dealing with a critical illness of a family member and could not be reached for comment.

Purcell declined to comment for this story.

Cape Girardeau County commissioners are elected to four-year terms. The presiding commissioner is paid a full-time salary of $65,373. Associate commissioners are paid $63,373. Swingle is paid $106,180 as prosecuting attorney.

pmcnichol@semissourian.com

335-6611, extension 127

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