Purcell suing county commission over Sunshine Law

Cape Girardeau County Commissioner Jay Purcell is suing the the county commission for Sunshine Law violations, he announced Wednesday in an interview with the Southeast Missourian.

Purcell's suit, filed today, alleges the commission violated the Sunshine Law -- Missouri's open meetings and open records law -- when it went into closed session to discuss a road easement for property belonging to cattle farmer Lawrence McBryde as well as to ask David Ludwig, the county's auditor, to resign after being caught for the second time in a year violating the county's computer-use policy.

J.P. Clubb, who worked in the state attorney general's office for three years as the lead Sunshine Law lawyer, is representing Purcell.

The lawsuit asks the court to order the county commission to comply with the Sunshine Law and pay for the costs of the lawsuit and "such other and further relief as the court shall deem proper."

The suit points out that the Sunshine Law "shines a light on the workings of our government and ensures that Missouri's commitment to openness is promoted and enforced. In Cape Girardeau, the county commission carries out important business and serves the taxpayers. The commission is bound to comply with the requirements of the Sunshine Law and its failure to do so is the reason that Commissioner Jay Purcell seeks judicial enforcement."

The suit cites a commission meeting on April 17. That meeting's agenda included discussion on a FEMA emergency plan and temporary levee for Dutchtown; a waste tire collection program update by assistant to the commission Robb McClary; bid openings for a company to do lien searches; a request to ask for bids for graders and backhoes; and title commitments for a planned roundabout on Route AB in Blomeyer.

But the commission also went into executive session. In making the motion to close the meeting, Purcell cited the McBryde easement and "the possibility of litigation." Presiding Commissioner Gerald Jones added that the board also needed to discuss a personnel matter. Jones, Purcell and 1st District Commissoner Larry Bock unanimously agreed in a role-call vote to close the meeting. The county's prosecuting attorney, who is under contract as the commission counsel also attended the closed meeting. While the board met, three sheriff department deputies waited outside the closed doors, saying they had been called in advance of someone being escorted from the building.

During the closed meeting, Purcell's suit states, commissioners discussed "alleged misuse of county resources by county auditor David Ludwig and what options the commission had to punish Mr. Ludwig or to get him to discontinue his violation of county policies on resource use."

The court document goes on to state the commissioners also discussed whether the McBryde easement, signed in 2001 but notarized on April 7, 2008, was improperly notarized.

The lawsuit claims Swingle "failed to prevent the commission from going into closed session."

The lawsuit also claims the commission did not issue a proper notice for the April 17 meeting and further that the closed-session discussion with Ludwig was improper because the auditor is an elected official. Under the Sunshine Law, elected officials are not considered employees and must be confronted in a public meeting.

Sunshine lawsuits are infrequent, according to Jean Maneke, a Kansas City Sunshine Law specialist, represents the Missouri Press Association.

She said such cases are often decided by a judge rather than a trial.

"They generally don't have much factual dispute," she said. "It's a question of whether those facts constitute a violation of the law."

She said such lawsuits can take up to two years to resolve, sometimes longer, depending on specific details. Typically, she said, the accused party has 30 days to respond.

"Then, it's hard to say exactly what will happen from that point on," she said, explaining that each side has the option to interview potential witnesses, and formally request documents and answers to questions.

Purcell was elected to the commission in 2004 and started his term of office on Jan. 1, 2005.

Video

Cape Girardeau County Commissioner Jay Purcell and his attorney J.P. Clubb discuss why he is suing the the county commission for Sunshine Law violations. (Video by Aaron Eisenhauer):

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