Sunshine Law case to be heard Oct. 9

The court date looms for Judge Stephen Mitchell to hear the case between Cape Girardeau County 2nd District commissioner Jay Purcell and the county commission.

Mitchell is scheduled to hear the case at 9 a.m., Oct. 9, at the Common Pleas Courthouse in Cape Girardeau.

On Monday, the commissioners agreed informally to eliminate their meeting scheduled for that day so they may attend the hearing.

The lawsuit centers on Missouri's open meetings and records act, nicknamed the Sunshine Law, and is the result of a series of events. It goes back to a Feb. 6 recording of a private conversation between Purcell and Presiding Commissioner Gerald Jones. That recording, which Purcell made during a trip the two men made to Jefferson City for a meeting, was publicly acknowledged during a May 5 commission meeting. At that time, Purcell acknowledged that he had also recorded commission meetings. On May 10, he announced he would release all of the recordings. On May 12, Cape Girardeau County Prosecuting Attorney Morley Swingle asked Attorney General Jay Nixon to investigate Purcell for having secretly recorded a closed meeting on April 17. According to the Sunshine Law, the penalty for recording a properly closed meeting without permission is a Class C misdemeanor, the penalty for which is a fine of up to $300 and as much as 15 days behind bars.

Purcell and his attorney, J.P. Clubb, filed a lawsuit against the county commission on May 14, maintaining the April 17 meeting was improperly closed. During the closed portion of the meeting, Auditor David Ludwig was confronted for misusing his county computer and the commissioners discussed a road easement notarized seven years after it was signed.

Purcell's claims

Purcell's suit 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 that the meeting was further improperly closed because Ludwig, an elected official, should not have been confronted in a closed session. According to the Sunshine Law, elected officials are not considered employees and must be confronted in a public meeting.

Swingle has withdrawn himself, in this case, from each of his dual roles with the county. As prosecuting attorney, he is responsible for upholding the Sunshine Law. Swingle also has a long-standing contract as the commission's legal counsel. Tom Ludwig, a distant relative of David Ludwig and the attorney for the city of Jackson, was hired in May to represent the county in the Sunshine Law case.

The county's claims

The county's most recent filing, recorded Thursday, has reiterated its contention that Purcell has no right to sue because he participated in the meeting over which he has filed suit and that he cannot sue the commission, because it is not a legal entity. The legal brief goes on to state that no actions, such as votes, were made during the meeting.

The filing acknowledges that, while the notice to close the April 17 meeting used an out-of-date citation for the Sunshine Law, the meeting itself was properly closed, including the portion involving the county auditor. The county's suit claims the possibility of a sexual harassment lawsuit from the two women working in the auditor's office justified the private confrontation as a personnel matter.

pmcnichol@semissourian.com

335-6611, extension 127