Purcell to appeal Sunshine ruling

Saturday, October 25, 2008

Associate Commissioner Jay Purcell's attorney vowed Friday to fight on despite a court ruling that turned back almost every legal point in his case alleging Sunshine Law violations by the Cape Girardeau County Commission.

In his ruling, Associate Circuit Judge Stephen Mitchell of Stoddard County declared he found no purposeful or knowing violation of the Sunshine Law when the commission went behind closed doors April 17.

Mitchell's ruling is a complete vindication of the commission's claim that it did not violate the Sunshine Law, said Tom Ludwig, who represented the commission.

"Judge Mitchell made a tight and concise exact ruling," Ludwig said. "He courageously bit into the issues, and I think the court system worked the way it should have worked."

Purcell could not be reached for comment Friday after the ruling was released. But his attorney, J.P. Clubb, said he intends to file an appeal. The lawsuit served a purpose even if Purcell does not prevail on appeal, he said.

"Without this lawsuit we wouldn't have been talking about the Sunshine Law," Clubb said. "Purcell wouldn't have an opponent. That is what this lawsuit has created -- awareness. Hopefully it will spur other governments to follow the Sunshine Law."

In his ruling, Mitchell hinted that Purcell may have filed the lawsuit to shield himself from possible criminal sanctions for secretly recording the session.

"The court finds that the legislature did not intend to allow a public official to commit violations of Chapter 610 and then sue himself as a member defendant of that body in order to reap the equitable benefits of judicial enforcement as a shield from any repercussions of those violations," Mitchell wrote.

During the meeting, Purcell, Presiding Commissioner Gerald Jones and District 1 Commissioner Larry Bock tackled the possibility of a lawsuit by female employees offended by pictures that Auditor David Ludwig printed from the Internet. They also discussed how to deal with a resident's anger over a road easement that was notarized and recorded years after it was signed.

Wandering discussions

During the meeting, they also discussed whether they had the power to discipline Ludwig. While commissioners did discuss matters that they should have aired in public, Mitchell ruled that those actions were not enough for him to declare the whole meeting illegal.

"However, it is also clear to the court that the discussions held in closed session wandered off of 'potential litigation' to a large degree especially during the county auditor portion of the discussions," Mitchell wrote. "All public bodies should establish procedures and practices for closed session that would limit the rambling engaged in by this body on April 17, 2008, while in closed session."

The Missouri Open Meetings and Records Act, also known as the Sunshine Law, requires that public business be conducted in the open and allows for specific exemptions. A lawsuit is one exception. So are personnel matters and real estate sales or purchases. The law directs the courts and public bodies to view the law as expansive in what should be public and narrowly drawn regarding what can be kept secret.

Mitchell went too far in his ruling by saying that no violation of the Sunshine Law occurred because none of the commissioners knowingly or purposefully sought to avoid the rules, Clubb said.

It is not a question of intent, he said; instead, the lawsuit was seeking a declaration that the meeting violated the law in order to prevent future violations.

"I didn't ask for penalties for a reason -- we were not trying to prove intent and we didn't want to prove intent," Clubb said.

The first step in an appeal is to file a notice with the Eastern District Court of Appeals in St. Louis.

Ludwig said he saw no avenue for a successful appeal. "I don't know where he finds hope he could win on appeal," he said.

Mitchell was brought into the case after Judge Benjamin Lewis recused himself. Through Clubb, Purcell asked that the court rule that the language in commission agendas giving notice of closed meetings was faulty. He also asked that the entire meeting be declared a violation because it strayed away from the items allowed for closed discussion.

Recording as evidence

Purcell, unknown to his colleagues, recorded the meeting on a digital recorder in his pocket. The recording was part of the evidence that Mitchell considered before making his ruling.

In the 13-page ruling, Mitchell found that the meeting notice, the announced reasons for going into closed session before the vote and the matters discussed all comply with the requirements of the Sunshine Law.

In evaluating each member of the commission's actions, Mitchell noted that Purcell "varied from appropriate subjects of closed session" but did not knowingly or purposefully violate the law. Presiding Commissioner Gerald Jones participated in the off-limits discussion but sought to bring the talks back around to the correct matters, Mitchell noted. "The court finds that he both participated with Commissioner Purcell in varying widely from the appropriate subject or subjects of the closed session and acted as a shepherd attempting to bring the group back to the proper subjects," he wrote.

As for Associate Commissioner Larry Bock, "the court finds that he said the least of all the members of the commission at the April 17, 2008, closed session."

The potential for criminal prosecution of Purcell remains. Cape Girardeau County Prosecuting Attorney Morley Swingle, after learning that Purcell recorded the meeting, sought a special prosecutor from the Missouri attorney general's office to handle the case. The prosecutor, assistant attorney general Andrea Spillars, has not filed any charges. A spokesman for the attorney general's office declined to say whether that would occur. Any charge would be a misdemeanor.

Paying the bill

Purcell, as he campaigns for re-election against independent challenger Rock Finch, has said the lawsuit cost him $6,000. The county has received bills for $11,532 from Ludwig, Jones said Friday. If Purcell appeals, Jones said, he would seek to have the courts force Purcell to repay the county's legal bills.

The judge's advice to set policies for closed discussions is a good idea, Jones said. The issue of the auditor's future was taken up in the closed session because he didn't know it was out of bounds and he was trying to avoid embarassing Ludwig, Jones said.

If Purcell had admitted making a mistake by making the recording, the matter probably would have died months ago, Jones said.

"It would have been a lot cheaper for him if he had said 'I messed up,'" Jones said.



Watch video of previous hearings on the Sunshine Law case

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