A quiet conversation Thursday between Cape Girardeau County Presiding Commissioner Gerald Jones and 2nd District Commissioner Jay Purcell illustrates a question about what can and can't be discussed in a closed meeting. It also speaks to the heart of the Sunshine Law suit Purcell filed against the commission in May.
Missouri's open meetings and records act, nicknamed the Sunshine Law, is aimed at making government operations as public and transparent as possible, but makes exceptions for keeping some information and communications private.
Jones initiated Thursday's 98-second exchange with Purcell just after a commission meeting adjourned, suggesting the junior commissioner at times turn off his digital audio recorder during open commission meetings.
"We've got some confidential things that we've got to talk about sometime, so you've got to turn that recorder off," Jones said.
Purcell suggested that the subject -- some form of business development -- qualified for a closed session, and Jones disagreed.
"I'm not trying to be argumentative," Purcell said, but Jones interrupted.
"But if you don't turn it off, you're just going to be left out of the process," Jones said.
Purcell has openly recorded county commission meetings since releasing a collection of digital audio secretly recorded between Feb. 6 and April 17. On May 14, he filed a lawsuit against the commission, asking county officials to acknowledge they violated the law by having a closed meeting April 17, during which county Auditor David Ludwig was confronted for improper use of his county computer. The suit also asks county officials to agree to Sunshine Law training. The county responded by hiring consulting attorney Tom Ludwig and is pursuing the legal matter to court, which included taking a deposition from Purcell on Friday.
Thursday's conversation between Jones and Purcell was picked up by a Southeast Missourian digital video camera used to record Thursday's meeting.
Jones can be heard off camera, telling Purcell that there are times during the open meetings when his digital recorder should be shut off so certain business can be discussed that doesn't qualify for a closed meeting.
They continue to disagree about whether the recorder should be shut off during an open meeting, until Purcell said, "If it's a closed session item, then we can go into closed session."
Jones responded by ended the conversation, saying, "OK, you gave me your answer."
In an interview Friday, Jones acknowledged the conversation and said he was concerned because he did not find rules under the Sunshine Law addressing whether such topics as industrial recruiting, intergovernmental agreements or such things as a TIF district could be discussed in a closed session.
Asked why sensitive information would be discussed in an open meeting, where the public or members of the media could be present, he said, "Most newspapers have honored that [confidentiality], because whenever you break the news that Cape Girardeau County is dealing with XYZ Corporation out of Paducah or somewhere, then everybody knows it and there comes all these other towns and counties, trying to recruit them away and what was confidential negotiations becomes public and most of the time the business or industrial concern just drops it."
The Sunshine Law specifies 21 exceptions for what may be discussed in closed sessions, along with those "otherwise provided by law."
Any votes on closed-session matters must be made public.
Jean Maneke, an attorney who specializes in Sunshine Law and represents the Missouri Press Association, said the state's economic development laws allow for closed sessions under certain circumstances. Missouri Statute 620.014 states records and documents related to financial investments in a business, or sales projections or other business plan information "which may endanger the competitiveness of a business may be deemed a 'closed record.'"
Jones said he is pursuing a legal opinion on what topics can be discussed in a closed meeting. But he isn't asking Morley Swingle, the county's prosecuting attorney who, since 1996, has also had a contract to represent the commission.
Jones said the move will not cost the county any money and does not indicate dissatisfaction with Swingle.
"Morley has done a wonderful job for Cape Girardeau County over the last 14 years and saved us well over $1 million," he said.
"If we can go into closed session, that's the way we'll handle it," Jones said. "If we can't go into closed session, I'm just not going to tell Purcell about it."
Purcell, in an e-mail to the Southeast Missourian, called the incident "a perfect example of why I had to sue and why they won't admit they screwed up and move on. Somebody had to stand up and try to get the county to comply with the law."
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