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An Improper Meeting, Some Misrepresentations, And A Sprinkling of Fascism

There’s so much to unpack, I’ll do it in three sections.

Tuesday’s Meeting Was Improperly Held and All Votes Can be Voided

The November 12 city council meeting should have been canceled, and I think it was negligent for city attorney Tom Ryan to encourage the meeting to go forward. If a vindictive person with nothing better to do wanted to go to court for funsies, s/he could sue to invalidate every single decision the “council” made. This is because council terms are for two years, and they end the Monday after the November election. The mayor’s office and three council seats are still vacant because we don’t know who won the election, which left only three currently seated council members. Since a quorum of four is required before city business can be conducted, there should have been no city business conducted on Tuesday night, and unless a properly seated council ratifies those votes, they are voidable.

Ryan absolutely knows this can be an issue. After a previous election – when we actually knew which council members had been elected and they’d been sworn, Ryan asked the council members to ratify the votes they’d taken before the election was certified. It’s a much bigger problem when council members whose terms have expired are voting on city matters.

Sue Wylie asked Ryan to address why people who hadn’t officially won an election were sitting at the council table after the election but before the results were known. Ryan said “so, the reason is, is because as the charter says in state law, until a vote is canvassed by the Oakland County Clerk’s Office, the current council stays in place.” Wylie questioned the charter requirement that new officers are to be sworn in the second Monday of November, and Ryan said, “it also says a catch-all after the votes are canvassed and certified. . . . we’re subject to state law for that.” Responding to Ryan’s invitation, our contract clerk talked about recent changes to election law, absentee ballots, and signature requirements, and she provided the following citations to Michigan law to support what she was saying – MCL 168.766, MCL 168.759a, and the Michigan Constitution, Article 2, Section 4. Unfortunately, while these citations explain the extensive delay in reporting the election results, which is what she was speaking to, none of them support Ryan’s proposition the Clarkston city council could properly convene with council members whose terms have expired.

Section 3.11 of the Clarkston charter pertains to the canvass of votes and states: “The Board of Canvassers designated by statute as being permitted  to cities for canvass of votes on candidates and issues shall canvass the votes of all city elections in accordance with statute.” Section 3.7 of the charter states that the mayor and city council members shall serve two-year terms, and “[t]he term of office for the Councilpersons and Mayor shall commence on the second Monday in November at 7:30 p.m. local time next following the date of the regular city election at which they were elected.”

The charter section on canvassing that says votes will be canvassed consistent with state law is what is known as general language. The charter language expressly limiting the terms of the mayor and council members to two years ending at 7:30 p.m. on the Monday after the election at which time their replacements are sworn in is known as specific language. When interpreting a statute, ordinance, or a charter, the specific language always trumps the general language.

What does it all mean? It means the city attorney gave the city bad advice again, because there is no charter “catch-all after the votes are canvassed and certified” that would allow mayor Sue Wylie and council members Mark Lamphier, Peg Roth, and Amanda Forte to “hold over” their offices until the final election results are reported and/or certified. (Perhaps council member Roth read the charter and that’s why she didn’t come to the meeting.) Since Oakland County has delayed the official vote results, the proper response isn’t to proceed with officials whose terms have expired. The correct thing to do would be to postpone the meeting until after the results are known.

It’s unfortunate that city council members are unaware they often get bad advice from Ryan and that council member Rodgers thinks Ryan is doing the city a favor by charging $95.00/hour for all his purportedly great advice. Apparently, math isn’t her strong suit because the city attorney’s unusual practice of billing in half-hour increments allows him to bump his fees up to an effective hourly rate that is much higher than $95/hour. How? Because he can bill a full thirty minutes for even a few minutes of work. So, ten minutes of work on each of four discrete matters can result in a two-hour bill for $190 for forty minutes of actual work. The city attorney also uses “block billing” for his charges, meaning he lists several tasks within a broader description without advising the city how much actual time was spent on each task, something that would certainly enlighten them about the basis for the total charges.

Though billing in half-hour increments is unusual (since most firms bill in tenths of an hour), the city attorney has a course of dealing with the city that permits him to do it until the city objects to it. Block billing is more common, though many clients object to it because it has the effect of hiding the actual time spent on tasks. This means that neither practice violates the Michigan Rules of Professional Conduct (the ethics rules governing lawyers) per se, but taken together, they allow the city attorney to achieve an effective hourly rate that is significantly higher than $95/hour. Unfortunately, city officials have yet to learn it’s far better to pay more for competent advice that is billed in tenths of an hour than for advice at a lower hourly rate billed in half-hour increments when relying on that advice has resulted in financial costs to the city, some of which were paid by the city attorney’s malpractice carrier.

(I have made the council members at the Tuesday meeting aware of this issue by email, attached here.)

The Misrepresentations

At the November 12 meeting, members of the city council spent quite a bit of time discussing yours truly and two recent Freedom of Information Act (FOIA) requests I sent. The requests were dated September 14 and 16; were due on October 7 and 8, respectively; and the city attorney billed extensively for these requests in September and October. City manager Jonathan Smith advised the council that he also consulted with a “FOIA specialist” attorney from an outside law firm about these requests for some reason, which will result in additional costs to the taxpayers.

Wow. These must have been significant, complicated requests, right? And I suppose they involved a lot of Smith’s time too? The answer to both questions is “no.” The complaints about the cost of my FOIA requests to the city appear to be largely related to the attorney fees Smith voluntarily incurs for simple matters without any council oversight or pushback.

These two FOIA requests involved the Historic District Commission (HDC) commissioners, Historic District Study Committee Chair Nancy Moon, and what I believe were some fairly blatant campaign finance act violations involving the HDC charter proposal. The FOIA requests related to a false advocacy statement the HDC placed into its minutes purportedly obtained from the State Historic Preservation Office (SHPO) and a library event about historic districts that included a presentation from Moon in her official capacity. (You may recall Smith used city equipment and resources to advertise the presentation and to tie the historic district commission charter proposal to the historic district library presentation, even though the library director advised us the presentation had nothing to do with the charter proposal and the city attorney forced Smith to issue a correction.) Had I not (correctly) surmised that city officials were using government resources to oppose this citizen-initiated ballot proposal after the city attorney told them such conduct was prohibited, the FOIAs would have been unnecessary.

Here is a chronology showing how Clarkston paid hundreds of dollars to respond to two FOIA requests for records that weren’t even located in city hall (meaning Smith didn’t have to search for them):

    • September 19 – Smith asked for a ten-day extension of time to respond, which he was entitled to do, because Moon and the HDC use personal emails, and he was unable to search for responsive records. He copied the city attorney who billed the city for 30 minutes of review time ($47.50).
    • October 3 – Smith said only Nancy Moon had records, she’d left town before completely responding to the requests, he was unable take further action until Moon returned, and he thanked me for my understanding. The city attorney billed the city for 60 minutes of review time and a phone call ($95.00) for my FOIA and another resident’s FOIA. The block time billing for both obfuscates how much time was spent on each. Despite charging the city for a legal review of the response, Ryan allowed Smith to respond with unexplained blackouts (“redactions”), which was a partial denial of my request requiring the city state a legal basis for refusing to provide the information. Ryan didn’t advise the city of its obligation to specify a statutory reason for redacting the records, although that is a requirement he should know about if he is undertaking to advise the city on its responses to FOIA requests. Smith provided twelve pages of records in response to the September 14 FOIA request that included the four-page charter proposal and a nonresponsive two-page email from the HDC chair to Moon forwarding the original FOIA request. The remaining six pages confirmed exactly what I suspected – that Moon was using her city council-appointed position to obtain and push opposition material about the proposed charter amendment to the public and into city government:
      • The records included a one-page letter to mayor Sue Wylie from Janet Kreger, Moon’s co-presenter at the library presentation; this letter also appeared on the website of the group opposing the charter amendment.
      • Moon’s subject line in her emails to SHPO – “Promotional Material to Stop the Petition” – could not have been clearer in its intent and included a purported SHPO quote that was later shared by Moon at an HDC meeting and placed into the minutes by her husband Michael, an HDC commissioner and the commission’s secretary. A portion of the SHPO quote was used in the charter proposal opposition group’s website using the phrasing found in Moon’s email correspondence, which differed slightly from the published HDC minutes and suggested the group obtained the quote directly from Moon. (Moon later claimed she “couldn’t find” the original email containing the purported SHPO quote. 🙄 )
    • October 9 – I emailed Smith about the redactions, asked for clarification about whether other records existed, and asked how much more time would be needed. Smith ignored my email.
    • October 17 – Moon was back in town at least as of October 13 for her library presentation that Smith and I also attended. Since the city still hadn’t responded, I sent a much more detailed email and asked again for the information I should have been provided in the beginning. Even though there was no requirement that I do so, I voluntarily extended the city’s time to respond to October 23 because I knew the city was short-staffed and that Smith had no access to the HDC’s and Moon’s correspondence. Smith responded twelve minutes later with Moon’s records for the September 16 FOIA request and said he would forward my follow-up questions to Moon. Despite Ryan’s bill for two hours ($190) for review, these records also contained unexplained redactions.
    • October 29 – My voluntary, good faith extension of the time to respond to October 23 came and went with no response from the city. I could have filed a lawsuit but chose to send a final email instead and voluntarily provided one last extension of time until October 31 to avoid litigation.
    • October 30 – Ryan billed one hour ($95) for a “response” to my request.
    • October 31 – Smith responded with the records without redactions and several “no records” certifications. Ryan billed one hour ($95) to review the response (twice) and for a phone call about the response.

So, that’s the backstory of the request that inexplicably cost taxpayers $522.50 in Ryan’s attorney fees and Lord knows how much from the “FOIA specialist’s” attorney fees.

The biggest complaint from the city council appears to relate to the cost of attorneys’ fees for FOIAs, but no one ever asks why so many attorneys’ fees are incurred. An attorney’s involvement in every facet of FOIA handling transforms the attorney from legal advisor (appropriate) to the FOIA Coordinator (inappropriate). Even worse, the city attorney is not properly advising the city in exchange for the fees he’s charging, or he would have told Smith the city can’t send records that have been redacted without also acknowledging this is a partial denial, providing the appropriate statutory exemption justifying the redaction, and including the mandatory appeal and right to sue language in the response.

My approach has always been to try to communicate with the city about incomplete responses first, and I’ve provided extensions of time to respond on my own and when requested because I know the city is short-staffed. Smith has chosen to involve the city attorney in every FOIA request (not just mine) resulting in council complaints about the cost. My only other alternative is to sue the city, which will result in thousands of dollars in attorneys’ fees and costs and blow the city’s legal services budget. But if I’m going to be excoriated at city council meetings for the Smith-created costs for simply trying to cooperatively work with the city to get records, I’d rather just file a lawsuit.

The November 12 city council meeting also included a discussion about FOIA fees in the apparent belief that charging for “every nickel” will help to recoup the unnecessary attorneys’ fees. Smith falsely claimed that “three clerks” had tried to charge me for FOIA responses and failed, though if the city was lawfully charging FOIA fees, I’m not sure how they could be rebuffed. I assume Smith was referring to Jennifer Speagle, Karen DeLorge, and Catherine Ashley. I’ve also worked with a fourth clerk, Sandy Miller. Ashley never sent an invoice. DeLorge and Miller did send unobjectionable invoices, and contrary to Smith’s claims, I paid them. That leaves Jennifer Speagle’s one request for fees, something Smith constantly refers to without any backstory to make it seem as though the city was the wronged party when in fact it was me – and if I were as litigious as the city claims I am, I could have sued over the fees and easily won.

So, let’s talk about the Speagle invoice. This invoice related to a FOIA request for records pertaining to Smith’s attempts to conceal the source of a $10,000 payment to outside counsel by funneling the payment directly to the outside counsel (rather than through the normal city process that would have created records subject to FOIA). Speagle sent an almost $800 invoice without also including a response to the request that granted, denied, or granted/denied all or a portion of the request in part. Not only is this information legally required, but it would also have allowed me to understand what I was being asked to pay for.

There were numerous problems with the invoice. For example, the city is required to use the wage of the least-paid capable employee to bill for FOIA work, which was Evelyn Bihl. During the 2021/2022 budget presentation in May 2021, Smith told the council and the public that Bihl was currently making $11.54/hour. He proposed a 25% increase to $14.42/hour because he was increasing her job duties, and she was given a new title of administrative/treasurer assistant. Bihl was the least paid city employee capable of performing the FOIA work, yet Speagle asked for $17.00/hour rather than $14.42/hour. After further inquiry, I learned Smith had given Bihl a raise to $17.00/hour on January 24, 2021, without council approval, and he deliberately misrepresented her actual wage to the public and the council months later at budget time.

There were multiple other problems with the invoice. Speagle tried to charge me to respond with physical paper copies of records when I’d asked for a digital copies. She didn’t reduce the fees by 50% for her horrendously late response. Speagle’s emails suggested she charged me at least 9.5 hours for organizing records and “weening out all the dupes,” something that isn’t legally authorized and would be a bizarre length of time for doing those things. She failed to keep time as required by the statute (which requires that time be charged 15-minute increments with the final total rounded down to the nearest 15-minute increment); for the most part, Speagle appeared to be “guesstimating” her time and rounding to whole hours without logging stopping and starting times to account for interruptions.

After trying to work things out with Speagle, I eventually filed a fee appeal with the city council, as provided by the statute. If, as the city council members claim, they are interested in recouping FOIA costs, the fee appeal provided them with the opportunity to properly adjust the invoice and resubmit it to me for payment.

What did the city council do? It ignored the fee appeal.

Even though I could have sued after the city’s time to respond to the appeal expired, I waited a month and a half before I wrote to the council again, advising it if it continued to ignore the fee appeal, I would sue. Two minutes later, Speagle emailed the records to me, four months after I originally requested them. To this day, I still don’t know if the response to that FOIA request was complete.

There were no charges on Ryan’s bills relating to this FOIA, though I’m not surprised by that. The $10,000 payment was made to an outside attorney the city hired to resolve the costs and attorneys’ fees the city owed me after losing my five-year FOIA lawsuit, that outside attorney had recommended the city make a malpractice claim for Ryan’s conduct during the five-year lawsuit, and Ryan’s malpractice carrier contributed to my attorneys’ fees and costs.

I discussed FOIA fees in this post. It’s not a mystery, and FOIA Coordinators are protected from making mistakes by the statute’s requirement that, unlike wrongful denials of records requests, all fee disputes must be appealed to the head of the public body before a lawsuit can be filed (though ignoring fee appeals like Clarkston did is a bad practice that can result in lawsuits). Smith thinks the city needs “more stringent” guidelines when in truth city employees simply need to read the statute and follow it.

Smith also made the bizarre claim that he spent an hour and a half on Tuesday to answer someone else’s FOIA request that sought information about an accident occurring at Kroger. He said, “it wasn’t in my jurisdiction, but I still had to put all the proper paperwork together and respond appropriately, or we could be sued.” Our uniformed city council apparently doesn’t know that it does not take an hour and a half to complete a form similar to the one Smith sent to me. If Smith is taking an hour and a half to respond to a request for records that clearly don’t exist within the city on the face of the request, then Smith is also part of the problem. (And will the city attorney be billing us for a consultation involving a FOIA request for records relating to an accident at Kroger? Inquiring minds want to know.)

Fair warning. I’ve had it with Smith and certain council members attacking me in council meetings about FOIA requests and costs. If council members and the city manager want to continue to lie about my FOIA requests in public meetings, then I will stop trying to work with the city and simply sue whenever the city violates the statute. Once the legal services budget gets blown out exponentially – as it will, because I’ll only bring cases that I’m certain I can win, and the lawsuit will be pled in a way so the city’s insurance policy won’t cover legal fees and costs – then maybe the council member complaints will be justified. Do Smith and the complaining council members think that would be better?

How quickly the council forgets that my husband’s research resulted in the city’s entitlement to reimbursement for ~$96,000 in negligent overpayments by city employees to Independence Township for police and fire services, all of which started with one of my FOIA requests. I’m pretty sure that the city is far more in my debt than I am in theirs.

(And yes, I also included this discussion in the email I sent to the council members at the Tuesday meeting, attached here.)

And Now For The Fascism

I’m using the word “fascism” colloquially because the current meaning has gone far astray from the original definition. As the word is currently understood, it refers to people with government power taking action against those without government power because they either want to shut them up or shut them down.

Mark Lamphier did not disappoint on Tuesday. If any of the 225 people who voted for the HDC charter amendment are reading this, listen up – should you want to pick up the torch and work toward a less comprehensive change to the charter, you should know Lamphier wants to shut you down before you even start.

You may recall Lamphier was adamantly opposed to the charter amendment and used the precious space in his candidate statement to the Clarkston News to claim: “The most immediate issue facing the City of Clarkston is defeating the proposed amendment to our City Charter that is on the Nov. 5 ballot.” (Seriously? I would have picked fiscal responsibility over a charter proposal that would have protected residents from HDC overreach, but that’s just me. 🙄)

Even though his side won on the charter amendment issue, Lamphier wants to make it more difficult for Clarkston voters to make future changes to our own charter. He wasn’t talking about the petition signature requirement, but rather the vote requirement. Instead of being able to change the charter if 50% plus one votes are in favor, Lamphier would prefer a 2/3 “yes” vote before Clarkston voters can change anything.

Do you know how many votes it takes to change the State of Michigan’s constitution? 50% plus one votes in favor.

Let that sink in for a moment – Lamphier wants to require a larger percentage of votes to change our local constitution (the charter) than it takes to change the state constitution.

So, let’s be real. Lamphier is saying – without expressly saying – he doesn’t want citizens to be able to change the charter, a charter that belongs to the citizens of which Lamphier is only one. Why? Because it’s highly unlikely that any proposal would get a 2/3 vote because virtually no ballot proposal gets support in that percentage. This would include the changes to the charter like those proposed by the city a few years ago that were initiated as a way to benefit only the seven council members, so as my mom used to say, Lamphier is advocating that the city government cut off its nose to spite its face.

Does anyone think Lamphier would suggest the city propose something that would make it practically impossible to propose a charter change in the future if he was in favor of the HDC charter proposal? Of course not. Yet if this avenue is essentially closed, the only other way for Clarkston voters to realistically make a change to the way they are governed would be to petition for an ordinance change, but a future city council filled with Lamphiers need only wait two years before they could give voters a big middle finger and change the ordinance right back to the way it was before voters asked for the change.

Ironically, Lamphier cannot get his way without asking for a charter amendment, which means Clarkston voters would have to willingly give away their right to make changes to the charter simply because people like Lamphier don’t think they should have a say in that. I would suggest you never do that – unless you want tyrants like Lamphier to always be in control.

I would be surprised if Lamphier wins the election, since he didn’t campaign and wasn’t boosted by the “Charming” group-affiliated campaign signs. If that’s the case, good riddance to this kind of hateful mindset. Even so, you should keep an eye on any future fascist-lite thought expressions from people on the city council. It would only require a majority vote on a charter amendment to realistically give away your rights forever, so we need to watch these people like hawks.

I’m truly sorry if any “no” voters actually believed the risible claims of the HDC charter proposal opponents suggesting they were in any way interested in working toward any compromise in the way the HDC treats people making the change to the charter unnecessary. This was yet another ploy to try to get people to vote “no.” These people don’t care about you, and they never did. If it were otherwise, there would have been consideration and discussion at Tuesday’s council meeting that acknowledged a whole lot of people believe the HDC needs reformation.

The silence was deafening, wasn’t it?

If you want to know what the HDC charter proposal opponents have always thought of you, listen to Lamphier’s comments and remember the Maya Angelou quote – when someone shows you who they are, believe them.