Another Day, Another Open Meetings Act Violation

You would think that after Clarkston was sued over an Open Meetings Act (OMA) violation, forced to admit that the Clarkston city council violated the OMA by unlawfully closing a public meeting (with the participation of the city attorney), paying legal fees related to that lawsuit, and receiving a warning from the Oakland County Prosecutor’s Office about not violating the OMA in the future and about potential criminal liability, the Clarkston city council would be more careful about closing a meeting. But you would be wrong.

The Clarkston city council is a public body. The default position in the State of Michigan is that all meetings of a public body must be open to the public. Government draws its authority from the people, and whenever public officials hide anything from the public – even in the few rare circumstances when they are permitted (but not required) to do so by state statute – they are choosing secrecy over transparency against the people to whom they are responsible, the taxpayers. But, if we’ve learned anything over the last six years or so, it’s that you can always rely on Clarkston government to hide things from the public whenever it can and to fight tooth and nail to be able to do so.

The city council continues to believe that it is entitled to hide settlement agreements from you by discussing, reviewing, and agreeing on settlement contract terms in closed session and then cryptically instructing the city manager to sign the undisclosed agreement in open session. They don’t believe they need to tell the public what the material terms of the agreement they are committing us to are or what the amount of the payment to the plaintiff is. This is what they tried to do in my Freedom of Information Act case, and it’s what they did with the Kay Valley settlement that I’ll discuss below.

The OMA permits (but does not require) the Clarkston city council to meet in closed session in a few very specific circumstances. One of the permissible purposes for the Clarkston city council to close a public meeting is “[t]o consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body.” MCL 15.268(e).

Though the city council was not required to go into closed session to discuss a potential settlement in the Kay Valley lawsuit on November 8th, 2021, they were allowed to do so if all of the requirements were met: 1. An attorney was present to discuss trial or settlement strategy; 2. Specific pending litigation existed; 3. City officials could credibly claim that discussing the subject at an open meeting would have a detrimental financial effect on the city’s litigation or settlement position; and 4. During an open meeting observable by the public, at least two-thirds of the city council (five members or more) voted “yes” to close the meeting. (Please note that with regard to item #3, if the city can’t demonstrate that there is a detrimental financial effect, the meeting cannot be closed no matter how much the city council wants to secretly talk with its attorneys about litigation or settlement.)

On the evening of November 8th, the city manager indicated that Kevin McQuillan was physically present in the room (though he was standing outside of the view of the video camera). McQuillan works for Kerr Russell, the law firm that is representing Clarkston in the Kay Valley lawsuit. All of Kerr Russell’s attorneys’ fees are paid for by the city’s insurer, the Michigan Municipal League’s Liability and Property Pool. (McQuillan is one of the many attorneys who worked on my Freedom of Information Act lawsuit.)

In addition to McQuillan, city attorney Tom Ryan attended by video conference. For some inexplicable reason, the city council allows Ryan to include himself as co-counsel along with the city’s insurer-assigned counsel on city lawsuits, giving Ryan the ability to bill Clarkston taxpayers for all of his unnecessary “work” on these matters. Ryan’s involvement is duplicative – the city’s insurer pays for all of the legal fees charged by the attorneys at McQuillan’s law firm who work on the lawsuit. But, as we are constantly reminded, the city council doesn’t seem to be very concerned about spending taxpayer dollars on unnecessary expenses.

(I’ve included a helpful visual depiction of Clarkston government spending decisions below.)

There were two other lawyers present on the evening of November 8th – Al Avery and Gary Casey. I mention that not because I’m suggesting that Avery and Casey were there to act as lawyers for the city – they were not – but because they obviously have more familiarity with legal issues than someone who isn’t a lawyer. There were non-lawyers present who have been through the mechanics of closing a public meeting on multiple occasions and know how it’s supposed to be done – Council Members Sue Wylie and Joe Luginski, Mayor Eric Haven, City Manager Jonathan Smith, and Clerk Jennifer Speagle were there as well. And while it’s possible that Haven’s hand-picked write-in city council candidates – Bruce Fuller and Laura Rodgers – may not have been aware of their legal obligations under the OMA, that doesn’t make them any less culpable than the other council members.

So, let’s walk through what happened on the evening of November 8th. Agenda Item 11b called for a resolution to accept the 2020/2021 financial audit. The council had an extensive discussion with auditor Rana Emmons, but they moved on to the next item before voting on a resolution to accept the financial audit.

The next item was Agenda Item 11c, which called for a resolution to go into closed session to discuss the Kay Valley v City of the Village of Clarkston lawsuit, supposed case number 2019-001360-NI. If you were to search for this case number on the Oakland County Circuit Court’s website, you would receive the following message – No Circuit Records Found! If this were an actual case, the first four digits would indicate that the lawsuit was filed in 2019 and the “NI” at the end tells you that it’s a personal injury case with or without property damage involving the use of a motor vehicle. However, the lawsuit they were closing the meeting over was filed in 2021, the case number is 2021-187813-NO, and it is the only lawsuit that comes up on a search for Ms. Valley’s name in Oakland County Circuit Court. A case suffix of “NO” refers to a non-categorized personal injury claim. This case suffix is consistent with a case involving someone who was injured after tripping on a street/sidewalk defect (which is what we were told happened). This is also the case number on the complaint (assigned when Ms. Valley filed her lawsuit), and on the city’s answer to the complaint (signed by McQuillan).

I would note that the resolution for this closed session was prepared in advance of the meeting, presumably with input from the city’s attorneys. Case numbers aren’t a secret – the case number is included on every document that relates to the case, and plaintiff and defense attorneys will also typically include the case name and number in the subject line of any correspondence they generate.

After a short discussion that included City Manager Smith reading the previously prepared resolution to go into closed session from the council packet and referencing the non-existent case number, Clerk Speagle mentioned that the city council had failed to pass a resolution accepting the financial audit at the end of the discussion on previous Agenda Item 11b. At that point, Wylie made the motion, Luginski seconded the motion, and then all seven council members voted to adopt the resolution that accepted the financial audit.

Procedurally, the next thing that should have happened is that a city council member should have made a formal motion to close the meeting (presumably adopting the motion that Smith read aloud), a different council member should have seconded that motion, there should have been an opportunity for additional discussion, a roll call vote should have been taken, and at least five members needed to vote “yes” to close the public meeting – before the public meeting was closed. But none of that happened.

There was no motion.

There was no second.

There was no council discussion.

There was no roll call vote.

Avery clarified that nothing else would happen after the city council came back from closed session beyond this agenda item. Avery also responded to resident Steven McLean’s request that the council be more specific about why they were closing a public meeting so that people listening could understand. Smith specifically invited the people present to wait on the front porch if they wanted to stick around until the meeting reopened. Finally, Haven told the public they had to leave because the city council was going into closed session.

Did you know that after the public is kicked out of the meeting room, they are required to wait outside in the freezing cold until someone comes out on the porch to yell that the open meeting is back in session? Yes, that’s right – the city council remains seated in the heated, $400,000 city hall building while the taxpayers get to freeze their butts off waiting until the city council deigns to allow them to return to the building that they are paying for. Nice, huh?

So, with Haven’s summary dismissal, the November 8, 2021 public meeting was unlawfully closed. The Independence Television videographer turned off the camera and left along with the rest of the public so the secret session could begin. Once the videographer was allowed to return to the meeting room, the recording resumed for the last few minutes of the open meeting.

At that point, the city council authorized Smith to sign the settlement agreement. Here is a cut and paste of the resolution authorizing Smith to sign the undisclosed settlement agreement pertaining to the non-existent case in Oakland County Circuit Court and hiding the terms and amount of that settlement from the public (highlights mine):

WHEREAS, on June 19th, 2019, Ms. Kay Valley fell while crossing Church Street in the City and subsequently filed a lawsuit against the City of the Village of Clarkston in Oakland County Circuit Court (case no. 19-001360-NI), and;

WHEREAS, City Attorney Tom Ryan and counsel for the City’s insurer, the Michigan Municipal League, have negotiated a settlement agreement with Ms. Valley including financial consideration to be paid fully by the MML, and;

NOW THEREFORE, BE IT RESOLVED that the City of the Village of Clarkston hereby authorizes the City Manager Jonathan Smith to execute the settlement agreement prepared by the MML’s legal counsel in the case of Kay Valley v City of the Village of Clarkston (Oakland County Circuit Court case #19-001360-NI) with financial consideration in exchange for a full release from Ms. Valley of all claims she may have against the City pertaining to this incident.

You can watch the entire proceeding for yourself by going to the link below. The discussion begins at time mark 0:52:14 and continues for about five minutes.

Since we’re in the season where we celebrate the miracle of Christmas, you should know that a miracle of our own occurred right here in little old Clarkston. No, really! Even though the Independence Television video clearly shows what happened on November 8th, the meeting minutes, which are the only “official” record of the meeting, indicate that a unanimous roll call vote to go into closed session occurred during the open meeting – even though it didn’t.

Here is a cut and paste from those draft minutes:

So, don’t pay any attention to what you can plainly see on the video – the city’s official record of the meeting shows that the motion to go into closed session was made by Avery, seconded by Casey, and everyone on the city council voted “yes.”

You can find the complete draft set of minutes on the city’s website by clicking this link (under the city council’s procedures, meeting minutes aren’t labeled “final” until two meetings after they are taken):

Aw, darn. I totally forgot that the city has a magic copier. You remember – this is the same magic copier that appeared to fix Fuller’s and Rodger’s declaration of intent to run as a write-in candidate forms. (I wrote about that here: I’m sure that totally explains everything that’s fishy about the November 8th meeting minutes. 🙄

Even if there were a vote, it is questionable that a closed session was proper under the provision cited, which allows (but does not require) a closed session when an open meeting would have a detrimental financial effect on the city’s litigation or settlement position. From the little the city did disclose, it appears the settlement was a done deal and all that this meeting was about was to get formal approval from the council. If that’s all that was discussed and all that happened at the secret meeting, then there is no basis to claim that there would be a detrimental financial effect on the city’s litigation or settlement position. This may seem like a picky point, but the city (and its lawyers and lawyer members) apparently thinks that just citing a statute is excuse enough to have a closed meeting. After all, we wouldn’t want anybody to be questioning what they decide by finding out the details. Better to do it so that nobody but the insiders know what is going on.

On a more serious note, let’s consider why the city would prefer to have minutes that reflect that a vote took place when the video recording obviously shows that it didn’t. As I said in the beginning of this post, the Clarkston city council has been warned by the Oakland County Prosecutor not to violate the OMA again. Violations of the OMA can potentially lead to fines and criminal charges for the individual city council members. The city could also be sued again. Someone could argue that the Kay Valley settlement agreement should be set aside (not just because of the unlawfully closed meeting but also because the council authorized Smith to settle a case that doesn’t exist). The minutes from their unlawfully closed session can be requested as a public document. And, while the OMA is quite generous to public bodies when they make mistakes by allowing them to avoid liability for an OMA violation in some circumstances by “reenacting” a decision, they can’t reenact a discussion that took place during an unlawfully closed meeting.

So, I guess rather than coming clean, someone (or more than one someone) thought it was better to have the minutes reflect a vote that anyone who watches the video can clearly see didn’t happen (or didn’t happen when it was legally required to happen). You may recall that the Historic District Commission has recently been accused of tailoring its minutes to exclude things that Historic District Commission members would prefer not be part of the record. This is why every public meeting should be recorded, not just city council meetings, because clearly, our local public bodies cannot be trusted. If it weren’t for Independence Television, the only record of the November 8th city council meeting would be the one that the city government wants us to see.

For those who want to give the city council any benefit of the doubt that a roll call vote actually occurred at some point, the only way that would have been possible is that a vote was taken after Haven tossed the public out of the room and the video was turned off. Unfortunately, that was too late. Avery had already told people during the open session that nothing else would happen beyond this agenda item once the public was forced to leave the meeting room. This would have the obvious effect of encouraging people to go home since they already knew that whether or not city council approved the settlement, they weren’t going to be told anything further beyond the cryptic description in the resolution that was included in the publicly disseminated city council packet.

Mistakes do happen – even with four lawyers in the room, apparently. However, once they realized their mistake, the right thing to do would have been to reschedule the closed session so they could legally have their discussion, hopefully with documents that were corrected to reflect the existing lawsuit. They didn’t need to wait until the next council meeting to do it; a special meeting could have been called within a very short period of time. But the city council, its lawyers, and staff decided to go ahead with the secret closed meeting anyway, perhaps hoping people would not watch the video, rely only on the minutes, and be none the wiser.

City council members, you all should know better. And so should your lawyers.

  • But wait, these are not the only violations of the Open Meetings Act (OMA) or the Freedom of Information Act (FOIA).
    OMA requires draft meeting minutes to be available within 8 business days of the meeting, and final minutes to be available within 5 business days. While this generally, but not always, happens with city council meetings, minutes for the Historic District Commission (HDC) often take 3 to 4 weeks to be available. The minutes for the June 3, 2021 Zoning Board of Appeals (ZBA) meeting were not released until November 30, 2021 even with a FOIA request and reminder filed months ago.
    If one goes to the city web site, you will see there are no minutes for the May 2, 2017 and May 9, 2017 ZBA meetings. If you read the just released minutes for the June 3, 2021 meeting, you will see a reference to the “Corrected minutes for the November 12, 2020 ZBA meeting…” except there is no record on the city web site for a meeting on that date, and no minutes.
    OMA also requires the both the draft and corrected version of minutes be shown. The ZBA minutes say “corrected” without saying what was corrected to the minutes that don’t publicly exist.
    The city has been informed about all of this, in writing, twice, and nothing has been done, other than ZBA minutes for one meeting being released six months after the meeting. The FOIA request for those minutes has yet to be fulfilled officially by providing the requested minutes even though the city clerk said they would be.
    For those who think this is minor and has no significant impact on the city and public, the ZBA and HDC are decision making government bodies, versus recommending. If anyone disagrees with their decisions, they go to court to challenge them. That costs everyone a lot of time and money. I have to believe that the courts will not look favorably on the city when they have repeatedly violated well established Michigan law, been challenged on it, and found at fault. You would think the city attorneys, and all other attorneys, would have some understanding of that.