Purcell sues commission over Sunshine Law

KIT DOYLE ~ kdoyle@semissourian.com J.P. Clubb, left, is representing Commissioner Jay Purcell in his suit against the Cape Girardeau County Commission for Missouri Sunshine Law infractions, speaking Wednesday, May 14, 2008, in Clubb's Cape Girardeau office.

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Purcell's suit, filed Wednesday in Cape Girardeau County Circuit Court, alleges the commission violated the Sunshine Law -- Missouri's open meetings and open records law -- when it went into closed session April 17.

In that closed session, the commissioners discussed a road easement for property belonging to cattle farmer Lawrence McBryde as well as asked David Ludwig, the county's auditor, to resign after being caught for the second time in a year violating the county's computer-use policy.

Purcell's attorney, J.P. Clubb, a Cape Girardeau native and former Missouri assistant attorney general, spent three years as the state's lead Sunshine Law lawyer.

Wednesday afternoon, Purcell and Clubb began releasing copies of the digital audio recordings Purcell began making in February, starting with a sometimes heated exchange between Purcell and Presiding Commissioner Gerald Jones during a car trip from Cape Girardeau to Jefferson City.

"I don't look good in this process. I don't," Purcell said. But he said he wants the audio to be in the public domain. "I'm just going to get it all out. I've got to believe my kids are going to learn from this."

Clubb said copies of all Purcell's audio recordings of county business would also be turned over to County Clerk Kara Clark. Purcell said the only closed meeting he recorded was the one involving Ludwig, and that was an accident, because he had been recording the regular meeting and forgot his machine was running when the commissioners agreed to meet in closed session.

Al Lowes, Ludwig's attorney, said his client needs to get well "and serve out the balance of his term."

As for the release of the recording related to Ludwig, Lowes said, "I guess if he does it, he does it. I don't know what went on there."

The lawsuit asks the court to order the county commission to comply with the Sunshine Law and pay for the costs of the lawsuit and "such other and further relief as the court shall deem proper."

Clubb said the suit does not seek to punish any individuals. The suit names the Cape Girardeau County Commission as a defendant. Clubb said Purcell isn't suing himself, as a member of the commission. He said Purcell is suing the government body, as a private citizen and taxpayer.

Associate Commissioner Larry Bock said he didn't want to comment before he knew more about the suit.

The suit points out that the Sunshine Law "shines a light on the workings of our government and ensures that Missouri's commitment to openness is promoted and enforced. In Cape Girardeau, the county commission carries out important business and serves the taxpayers. The commission is bound to comply with the requirements of the Sunshine Law and its failure to do so is the reason that Commissioner Jay Purcell seeks judicial enforcement."

Purcell's suit cites a commission meeting April 17. That meeting's agenda included discussion on a FEMA emergency plan and temporary levee for Dutchtown; a waste tire collection program update by assistant to the commission Robb McClary; bid openings for a company to do lien searches; a request to ask for bids for graders and backhoes; and title commitments for a planned roundabout on Route AB in Blomeyer.

But the commission also went into executive session. In making the motion to close the meeting, Purcell cited the McBryde easement and "the possibility of litigation." Presiding Commissioner Gerald Jones added that the board also needed to discuss a personnel matter. Jones, Purcell and Bock unanimously agreed in a roll-call vote to close the meeting. The county's prosecuting attorney, who is under contract as the commission counsel, also attended the closed meeting.

While the board met, three sheriff department deputies waited outside the closed doors, saying they had been called in advance of someone being escorted from the building.

During the closed meeting, Purcell's suit states, commissioners discussed "alleged misuse of county resources by county Auditor David Ludwig and what options the commission had to punish Mr. Ludwig or to get him to discontinue his violation of county policies on resource use."

The court document goes on to state the commissioners also discussed whether the McBryde easement, signed in 2001 but notarized April 7, 2008, was improperly notarized.

The lawsuit claims Swingle "failed to prevent the commission from going into closed session."

The lawsuit also claims the commission did not issue a proper notice for the April 17 meeting and further that the closed-session discussion with Ludwig was improper because the auditor is an elected official. Under the Sunshine Law, elected officials are not considered employees and must be confronted in a public meeting.

Sunshine lawsuits are infrequent, according to Jean Maneke, a Kansas City, Mo., Sunshine Law specialist who represents the Missouri Press Association.

She said such cases are often decided by a judge rather than a trial.

"They generally don't have much factual dispute," she said. "It's a question of whether those facts constitute a violation of the law."

She said such lawsuits can take up to two years to resolve, sometimes longer, depending on specific details. Typically, she said, the accused party has 30 days to respond.

"Then, it's hard to say exactly what will happen from that point on," she said, explaining that each side has the option to interview potential witnesses and formally request documents and answers to questions.

Purcell was elected to the commission in 2004 and started his term Jan. 1, 2005.

The county commission has a regularly scheduled meeting at 9 a.m. today at the county administration building, 1 Barton Square in Jackson. Clubb said the lawsuit should not be discussed today but should be put on the agenda and discussed at a future meeting.

Jones, who has been dealing with a family medical crisis for more than a week, was unavailable for comment, according to the commissioners' administrative assistant, Donna Oldham.

pmcnichol@semissourian.com

335-6611, extension 127

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