Commission hires attorney to defend against suit

The Cape Girardeau County Commission has hired attorney Tom Ludwig to respond to a lawsuit filed by 2nd District Commissioner Jay Purcell. The decision was made in a closed-session meeting Thursday that Ludwig had with Presiding Commissioner Gerald Jones, 1st District Commissioner Larry Bock and Morley Swingle, the county's prosecuting attorney and the commission's counsel.

Ludwig said he was invited to take the suit.

The county will pay him $150 an hour to handle the case.

J.P. Clubb, the attorney representing Purcell and a former Sunshine Law specialist for the state attorney general's office, expressed disappointment at learning the news. According to Purcell's suit, the county commission violated Missouri's open meetings and records act -- called the Sunshine Law -- in the agenda for its April 17 meeting, which included a closed session at which Auditor David Ludwig was confronted over violating the county's computer-use policy. The Sunshine Law allows public bodies to close meetings for "hiring, firing, disciplining or promoting of particular employees."

But according to a Sunshine Law handbook distributed by the state, elected officials are not considered employees for the exception, meaning Ludwig should have been confronted in public. Swingle originally stated the meeting was being closed for employee discipline reasons, but later acknowledged that while the meeting shouldn't have been closed for that reason, it was still properly closed for potential litigation.

Purcell's suit claims the commission was wrong to close the meeting, and asks for a judge to force the commission to follow the Sunshine Law. As a settlement offer, Purcell has asked the commission to admit it erred, take two hours of Sunshine Law training and pay Purcell's attorney's fees.

"It's a shame they decided to go the route to spend the money and hire an attorney when they could have signed a consent judgment and taken the Sunshine Law training," Clubb said.

Swingle appears to have no role in the suit other than as a potential witness. Earlier this month, Swingle asked the state attorney general's office to assign a special prosecutor to investigate Purcell for recording the commission's April 17 closed session.

Because Purcell recorded the meeting without getting permission from officials present, he could face a class C misdemeanor charge, which carries penalties of up to 15 days in jail and fines of as much as $300.

"The attorney general's office would have the discretion to conduct an investigation and see if they want to use their resources to file a charge and proceed," Clubb said. "They are going to have to show intent."

Such a criminal proceeding, he said, would not make sense in light of the civil suit he filed on Purcell's behalf.

In a written statement faxed to the Southeast Missourian at 2:32 p.m. Thursday, Swingle called Purcell's lawsuit "frivolous" and said it was possible Purcell "may end up paying the attorney's fees for both sides in this lawsuit."

Clubb took issue with Swingle's statement that the lawsuit is frivolous.

"Under Missouri law and pretty much under any law, a frivolous lawsuit is one in which the attorney has no good-faith belief that allegations contained in the petition are not true. We all know what happened. We all know they went into closed session. We believe [everything in Purcell[']s suit is] all true and the court will say this, too," Clubb said.

Swingle's statement indicated Purcell could "make it go away any time he wants by simply dismissing his frivolous lawsuit."

Swingle's news release also said "the county intends to take the high road and try this case in the courtroom and not the media."

Clubb strongly disagreed, saying the whole point of Purcell's suit is to require more open government.

"The public should know everything about it. Why not? We're spending $150 an hour of county money for this," Clubb said.

Ludwig, while declining to disclose details of Thursday's closed meeting, said he was given background paperwork May 23, as well as a copy of the recording of the April 17 meeting and the agenda.

"I honestly do not see anything that the county commission, including Mr. Purcell, did wrong in this instance," Ludwig said, but wouldn't suggest whether Purcell should or would be charged with a class C misdemeanor.

Tom Ludwig and the county auditor are distantly related.

"My dad's dad's dad's brother's son is David's dad," Ludwig said, adding that he plans to double-check his family tree.

However, David Ludwig was an alderman in the city of Jackson for 21 years; Tom Ludwig is Jackson's city attorney.

"I've supported David for his election, and he was my city alderman for many, many years," Tom Ludwig said. "As is typical in a town the size of Jackson, anyone of any substance you're going to know and know well. There are certainly going to be issues that I have worked side by side with him on."

Tom Ludwig said he'd address the issue of the commission confronting the auditor over computer use in a closed meeting in the written response to Purcell's suit. Tom Ludwig expects to file his paperwork late next week.

"I want to satisfy myself that I'm correct on the law," Ludwig said.

pmcnichol@semissourian.com

335-6611, extension 127

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