Cape County prosecuting attorney denies he recommended recording's destruction

Friday, August 15, 2008
KIT DOYLE ~ kdoyle@semissourian.com Commissioner Jay Purcell discussed his suit against the Cape Girardeau County Commission Wednesday, May 14, 2008, in Cape Girardeau.
KIT DOYLE ~ kdoyle@semissourian.com Commissioner Jay Purcell discussed his suit against the Cape Girardeau County Commission Wednesday, May 14, 2008, in Cape Girardeau.

Cape Girardeau County Prosecuting Attorney Morley Swingle on Thursday denied he recommended Commissioner Jay Purcell destroy a secret recording of a closed county commission meeting to avoid prosecution.

Swingle, responding to comments made by Purcell in an article printed Thursday in the Southeast Missourian, said that at a May 7 meeting with Purcell and lawyer Diane Howard at the Limbaugh Law Firm, the issue of recording closed meetings was not discussed. He added that he did not know that Purcell had secretly taped a closed meeting, a potential violation of the Missouri Sunshine Law, until two days after the May 7 meeting.

The only issue discussed "was whether the private meeting in the car was public or not," Swingle said. "I told Jay it was not a public thing and it did not need to be released."

The "private meeting in the car" was a four-hour drive when Purcell and Presiding Commissioner Gerald Jones traveled to Jefferson City. Purcell recorded the conversation with Jones. At the time of the May 7 meeting, Purcell was being asked by the Southeast Missourian to release the recording because two commissioners discussing county business constitutes a quorum under the Sunshine Law and raises questions about the legality of the discussion.

Purcell said Wednesday that he, Swingle and Howard also discussed what to do about his recording of an April 17 closed meeting. Purcell is suing the commission, contending the April 17 meeting should not have been closed. On May 11, Swingle asked the Missouri attorney general's office to act as a special prosecutor to determine whether Purcell should be charged with a misdemeanor for making the secret recording.

"He is clearly wanting to make political points," Swingle said of Purcell. "He clearly is totally using every opportunity to try both his civil suit against the county and his criminal investigation in the newspaper rather than in the courtroom."

Purcell said Thursday he may have been mistaken about when the discussion of whether he could avoid prosecution if he destroyed the evidence took place. But he said he is not mistaken that Swingle said there would be no criminal case without the recording.

"I can't say if he spoke to me about it at that meeting, but the citizens are smart enough to know what is happening," Purcell said.

Purcell's remarks Wednesday came after his attorney in the lawsuit against the county, J.P. Clubb, released copies of bills the county has paid for outside legal help since Jan. 1. Clubb sought the bills in a Sunshine Law request, and the records show the county has spent $5,775 on private attorneys this year. The attorneys have provided help on the Sunshine Law, real estate law and sexual harassment law.

Swingle said the Missouri State Highway Patrol is investigating Purcell's recording of closed meetings. He said Purcell faces two misdemeanor counts if it can be shown that he also recorded a closed meeting April 3, when commissioners discussed selling a 1.24-acre strip of Cape County Park North.

Swingle said he has been interviewed by the investigators, while Purcell has refused to do so.

Purcell said he did not record the closed meeting April 3 but now wishes he had because his recollection of the meeting and that of Jones differ on many details.

Purcell has also objected to the spending on private attorneys, questioning when the commission authorized the expenses.

Swingle said the commission has not formally approved the hiring of the attorneys but that he has made agreements he expects the commission to honor. "I needed legal answers quickly, and I know from my relationship with the county commission that they are not going to renege on paying," he said.

rkeller@semissourian.com

335-6611, extension 126

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