Purcell worried Sunshine Law was violated

Cape Girardeau County Associate Commissioner Jay Purcell wrote an e-mail to his colleagues saying the commission didn't have the authority to hold a closed meeting April 17 when members pressed Auditor David Ludwig to resign.

The legality of the meeting was one of the Sunshine Law issues Purcell raised in two e-mails addressed to commission assistant Donna Oldham and included in the public records of Monday's regular commission meeting. In an e-mail sent Friday, Purcell said he became convinced after the fact the portion of the meeting dealing with Ludwig exceeded the commission's authority because of court rulings that disciplinary hearings about elected officials must be held in public.

"My concern is that according to my interpretation of the Sunshine Law, our meeting should have been done in open session because we discussed possible suspension and even demanded for the office holder to resign," he wrote in one e-mail. "I am uncomfortable about this entire issue but we must at all cost follow the law and protect the integrity of Cape Girardeau County."

In the second e-mail, Purcell raised objections to a decision not to record in the meeting minutes that he made a motion that was defeated when neither Presiding Commissioner Gerald Jones nor Associate Commissioner Larry Bock would offer a second. That motion apparently related to the controversy over a road easement recorded five years after it was signed. Purcell wrote that Prosecuting Attorney Morley Swingle had issued an opinion stating the easement was null and void.

At the meeting, Ludwig met with Jones, Bock, Purcell and Swingle. Three armed sheriff's deputies were stationed outside.

Ludwig, who was off for six weeks when complications developed after late-December surgery, underwent a fourth surgery last week. He did not return a call to his home seeking comment.

His attorney, Al Lowes of the Cape Girardeau law firm Lowes & Drusch, has said commissioners accused Ludwig of violating the county's computer use policy for downloading a picture of actress Pamela Anderson in a bathing suit.

On Monday, Lowes questioned Purcell's motives for sending the e-mails, accusing Purcell of leading the push to oust Ludwig. He agreed with Purcell that the commission overstepped its authority, but not by holding a closed meeting. Matters involving Ludwig's adherence to county policies is a "personnel matter" that should be closed, Lowes said.

The county commission under state law has no role in disciplining a county auditor. Those duties are given to the courts and state law directs that the same procedures be used as the courts would use in disciplining a circuit clerk.

The exact powers of the county commission in disciplining the auditor or any county elected official needs study, Lowes said. "I think there is grave question about that," he said.

Ludwig "is trying to get well," Lowes said. "He will be out at least 30 days, maybe longer than that."

In an interview Monday afternoon, Purcell said his intention sending the e-mail was not to pressure Ludwig. Instead, he said he wants to push his colleagues to follow the Sunshine Law. "I want to make sure we move forward on sound legal ground," Purcell said. "We need to do what is right and legal. And where I had a dissenting opinion, I want people to know I made that stand."

Neither Jones nor Swingle returned calls seeking comment. Bock could not be reached at his home.

The county's policies for using county-owned computer equipment ban most personal uses. It specifically bars the accessing or other use of material that "exceeds the bounds of generally accepted standards of good taste and ethics," as well as engaging in unlawful activities "or any other activities which would in any way bring discredit on the Cape Girardeau County."

County-owned equipment is also not to be used for personal commercial activities or engage in fundraising, endorse products, lobby or engage in politics.

Late Monday, Purcell said he asked county information technology director Eric McGowen to remove links on Swingle's departmental Web page to information about three commercially available books written by Swingle. Purcell said he will discuss the use of the county's Web site with Swingle when the prosecutor returns to Cape Girardeau.

The Internet policy was issued in February 2005. A copy was provided Monday to the Southeast Missourian at Purcell's direction. Swingle on Friday declined a Southeast Missourian request for the policy as well as information about Ludwig's Internet use and the number of violations by anyone on the county payroll since it was adopted. The Southeast Missourian also asked for numerous other public documents.

Swingle declined the entire request and said he will study it further after he returns from a scheduled out-of-town trip. In an e-mail addressed to Oldham he said a private lawyer with Sunshine Law expertise is helping with some research, especially about whether Purcell's motion should be included in the meeting records.

In another e-mail, Swingle also said he has sought outside legal help to research the issue about the five-year-old easement.

Swingle has not asked the commission for any money to pay the attorneys, Purcell said.

rkeller@semissourian.com

335-6611, extension 126

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