County wants Purcell charged

Charge Jay Purcell with a misdemeanor.

Seal the secret audio tape he made April 17.

Those are just two requests made Wednesday by the Cape Girardeau County Commission's attorney. They came in the form of the legal brief answering the Sunshine Law suit filed last month by Purcell, the county's 2nd District commissioner.

The county's legal brief maintains commissioners did not violate Missouri's open meetings and records act, nicknamed the Sunshine Law, on April 17, but admitted changes were being made to more closely follow the law.

Tom Ludwig, longtime city attorney for Jackson and Delta, and now representing the county for the Sunshine Law suit, issued a news release stating Purcell's case was "without any doubt the most bizarre factual situation that I have ever come across" in part because Purcell appears to be suing himself.

"I thought they weren't going to try this in the media," said J.P. Clubb, Purcell's attorney and a Sunshine Law specialist. He said the county's response was "nitpicking."

Purcell's suit alleges commissioners did not give proper notice for the closed portion of its April 17 meeting and that, while in that closed meeting, improperly discussed Auditor David Ludwig's violation of the county's computer-use policy and a whether a county road easement along Lawrence McBryde's property was legal.

David Ludwig is a distant relative of Tom Ludwig. The two worked closely during the 21 years that David Ludwig served as a Jackson alderman.

Clubb said he was "stunned" at the suggestion Purcell was suing himself.

"The county commission is a legal entity. They can be sued," he said. "Jay Purcell sued as an individual against the entity of the commission."

Clubb said he was outraged to learn the county's response includes a request to seal the audio recording.

"They cite no provision of Missouri state law or case law supporting that. But that's the thing that screams out. They're asking for all this stuff to go back under the cover of darkness. Why?" he said, adding that more people should hear the recording.

Purcell's motion to close the April 17 session indicated he wanted to discuss real estate and possible litigation. Presiding Commissioner Gerald Jones amended the motion to include "personnel." During the closed session, Jones apologized to Purcell and 1st District Commissioner Larry Bock for not making them aware that the county auditor was going to be confronted for misusing a county computer and putting the county at risk for a sexual harassment lawsuit.

Political, not legal disputes

Tom Ludwig said the disputes among the commissioners "are political and not legal and should be decided by the commissioners working together on them and not by the courts."

The county's legal brief goes on to state Purcell suggested going to court to oust David Ludwig from office, but the audio recording indicates legal action was posed by Morley Swingle, the county's prosecuting attorney and, since 1996, under contract as commission counsel. The commissioners and Swingle pressured David Ludwig to resign from his $65,373-a-year job. He refused and went on sick leave that day. David Ludwig has not yet returned to work; his attorney, Al Lowes, has indicated the auditor does not plan to leave office until his term expires Dec. 31, 2010.

The county's suit asks that Purcell's suit be dismissed and he be made to pay all court costs, including Tom Ludwig's fees.

Last month, Swingle asked the Missouri attorney general's office to assign a special prosecutor to the case, as well as for the commission to seek outside counsel. Swingle has said he cannot act as prosecutor or commission counsel in the case because he is a potential witness. The county is paying Tom Ludwig $150 an hour for legal services.

Purcell's suit said Swingle violated the Sunshine Law by allowing the closed session to take place.

Purcell also faces a possible Sunshine Law violation, which could result in a class C misdemeanor charge, because he made a digital audio recording of the closed April 17 meeting. The Sunshine Law bars such recordings from being made unless officials vote to allow it. If Purcell wins his lawsuit, he would not face charges because the closed meeting would be deemed improper. Losing the case means he would face up to 15 days in jail and up to $300 in fines for recording a properly closed meeting.

Last month, Purcell offered to settle the case with a consent judgment, in which the commission would acknowledge it violated the Sunshine Law and would begin to comply immediately, as well as agree to take two hours of Sunshine Law training, which Clubb said he would provide the county at no cost.

"I don't think anyone would crucify the commission for admitting they made a mistake," Clubb said. "We'll certainly fight any attempt to keep anything closed and out of the public. Everything in this case should be open. They're going to fight tooth and nail. And we'll do that, and I think we'll win."

The case will be heard by Circuit Judge Stephen R. Mitchell. The Stoddard County judge got the case after Circuit Judge Benjamin F. Lewis recused himself. A court date has not been set.

pmcnichol@semissourian.com

335-6611, extension 127

Have a comment?

Log on to semissourian.com/today

Poll question

<form method="post" action="http://www.semissourian.com/scripts/poll/vote.php">Who do you think is in the right in the Sunshine Law suit 2nd District Commissioner Jay Purcell filed against the county commission -- Purcell or the commission? Purcell

Commission

Both sides just need to drop it and get on with business.

>">

County commission April 17 meeting excerpt

<embed class='castfire_player' id='cf_65580' name='cf_65580' width='480' height='310' src='http://p.castfire.com/kCWxU/video/14058/commissionapril_2008-06-04-195055.flv' type='application/x-shockwave-flash' allowFullScreen='true'>