Purcell's latest action in lawsuit against Cape County commission 'bad form'

The attorney representing the Cape Girardeau County Commission in an open meetings lawsuit filed by commissioner Jay Purcell is angry that Purcell and his lawyer would release documents filed in the case to the media.

The consulting attorney for the county, Tom Ludwig, said he was outraged that the documents were released to the media, an act he called "bad form" before he could review them for his client.

Purcell filed a 30-page legal brief this morning on his Sunshine Law suit against the Cape Girardeau County Commission.

The brief will be filed in an attempt to get the matter before a judge as soon as possible.

In the brief filed Monday morning, Purcell and his attorney, J.P. Clubb, have asked to see a judge as soon as possible in the hopes of bypassing a trial.

"A summary judgment saves the time and expense of going to trial -- you go to trial for fact disputes," Clubb "The facts here are incontrovertible."

Ludwig said while the cost of a trial would be saved, the real cost is in the work leading up to trial. He has 30 days to respond to the request for summary judgment.

Clubb said the documents were hand delivered to Ludwig's office within hours of being filed with the court.

"Bad form is spending taxpayers' money in a fruitless attempt to further a political vendetta against Mr. Purcell when the facts and law are clear. I would have appreciated a chance to respond to something like that," Clubb said of Ludwig's comments.

Ludwig was hired in June to represent the commission because county prosecutor Morley Swingle, who also has a contract to represent the commission, would have had a conflict of interest in representing the commission over a Sunshine Law suit. As prosecutor, Swingle is responsible for enforcing the law, in this case Missouri's open meetings and records act.

Last week, Clubb and Ludwig filed a joint legal brief reflecting an agreement between their two clients that the digital recording Purcell made on April 17 is a true and accurate, though muffled, record of the conversation that took place behind closed doors. That private meeting included a discussion about the sale of county park land and a confrontation of the county auditor by the commission and the county's prosecuting attorney, Morley Swingle, who accused the auditor of sexually harassing his two female deputies.

Included in Monday's legal brief asking for a summary judgment is a 19-page list of reasons supporting the request, an affidavit from Purcell, the agenda of the April 17 meeting and a digital recording of the commission's open meeting on July 31, at which Presiding Commissioner Gerald Jones acknowledged that elected officials are supposed to be confronted publicly. Jones went on to say his remarks were not an admission that the April meeting was improperly closed.

Purcell's affidavit states Swingle failed to prevent the commission from going into closed session and reviews his perspective of the case.

The 19-page list of reasons includes statements that the meeting was not properly closed because the agenda uses the wrong language; the meeting was not closed for reasons stated on the agenda; the commission was wrong not only in discussing their concerns about and with the county auditor over his computer use, but wrong to discuss the improper notarization of an easement signed by Lawrence McBryde for a portion of County Road 436.

Purcell has indicated that, while news of the secret recordings cast a pall on his integrity, he felt forced into making them.

"I believe, to this day, that if I had not done that, there would be people saying 'That didn't happen,'" he said in a phone interview Monday. "I kind of feel like I was forced into that [secretly recording conversations]. I was continually ignored [in commission meetings] and many statements were made to me over the last year ¿ 'Well, that's not the way I remember it.' When people understand that was the environment, they'll understand why I did what I did."

Since the secret recordings were made public in May, Purcell has openly recorded open commission meetings. He said he won't make secret recordings again.

Ludwig said he has scheduled a deposition of Purcell for Aug. 29. Depositions are not usually conducted in an open forum, Ludwig said, adding "But who knows? … I'm learning something every day in this case."

For more on this story, check back at semissourian.com or read Tuesday's print edition of the Southeast Missourian.