In the February 16, 2022 Clarkston News, Editor Matt McKinder published a piece titled “City Manager Responds to Recent Issues, Accusations.” I noticed that block quotes were taken from several of my posts, but no links to the posts were provided. Since the entire post would have included both the context for the quotes as well as the links to any factual material that served as the foundation for my opinions, it wasn’t an accurate representation of my work. After all, creative material is automatically copyrighted, which includes everything I post on my website. It also didn’t tell anyone reading the Clarkston News piece where to go to find the complete post being referenced. Since I don’t write for the Clarkston News, I think that it would have been only fair to provide that additional information since not everyone participates in social media, or perhaps they don’t participate in the social media that I use.
But the most disappointing aspect of all of this is that such a disjointed presentation of my work enabled the city manager to duck difficult questions. It also allowed him to craft the impression that the city always conducts its business in an open, honest, transparent, and ethical way. While that’s true in some cases, and maybe even in the majority of cases, there are too many examples where that is not true at all (since that number should be zero). Looking at the February 16 article, the most egregious example is the city manager’s comments to Mr. McKinder concerning the unlawful closure of the November 8, 2021 city council meeting. My original blog post went into great detail regarding why that meeting was unlawfully closed. Unless the city manager was misquoted, what he told the Clarkston News was patently false. The city manager was simply allowed to say “not true” to the Clarkston News – without any challenge. I’ve provided additional material below that demonstrates that the city manager knows – or that he should know – that what I said happened, did happen. I think that the Clarkston News could have better used my website material to formulate independent and challenging initial and follow-up questions.
Lack of candor is not a small thing. I’m not speaking of any government official or employee in a personal context. I don’t know them personally. I’m talking about our elected and appointed officials acting within their government roles. When someone acts as a spokesperson for the government and speaks untruthfully, it calls every other statement that spokesperson makes into question. After all, how can we discern what is truth and what isn’t? How do we know that this time we should believe, when there were other times that we were duped into believing something that we shouldn’t have? I’m not talking about misstatements here; everyone is human. We all make mistakes. Information changes. It would be unfair if we didn’t allow someone to correct the record. But I think, when you look at what I’ve provided below with regard to the Clarkston News article, you may begin to see a pattern that might make you less likely to automatically believe what you’re being told is true. And honestly, I don’t think that’s necessarily a bad thing.
I’m going to respond to the city manager’s comments to the Clarkston News, and I’ve included a lot of new source material. Take a look at the material, my opinions about it, and draw your own conclusions. (Please note that all of the italicized material under the headings labeled “City Manager Comment” are taken from McKinder’s February 16, 2022 article.)
City Manager Comment:
When asked to respond to Bisio’s website and in-depth critique regarding the city’s operations, Clarkston City Manager Jonathan Smith responded. “As a matter of policy, the city does not respond to comments made on social media, which may or may not be factually based,” Smith said.
Clarkston Secrets Response:
Add two points for throwing shade but subtract five points for lack of substance, foundation, and straight up lying. I’ll present my proof below, and you can be the judge. And, if this “matter of policy” is a formal city policy – as opposed to something the city manager simply pulled out of his butt to avoid responding to valid criticism – then gosh, I should be able to submit a Freedom of Information Act (FOIA) request for a copy that policy. Maybe I’ll do that. 🤔 After all, under the city charter, “[t]he Council shall determine all matters of policy of the city ….” Charter, § 4.2. So, there should be some city council resolution or ordinance that sets this so-called “policy.”
Since my practice is to either cite or link to any factual source material I use as the foundation for my blog posts, perhaps the city manager is referring to some other social media venue as not being factually based. Oh wait, that can’t be case, as my website was the topic of the Clarkston News’ question.
Want to know a secret? Even though our city manager may claim some sort of personal policy of not making public statements about what I write, he lied about not responding to it – because he most certainly does. As a matter of fact, our city manager is quite the avid consumer of my website content.
How do I know this? I have indirect evidence of it because the city has frequently changed its position and/or made clarifying public comments on matters I’ve written about close in time to my website postings. I have direct evidence of it because I made a FOIA request for city records that referenced the Clarkston Secrets website, and the information I received in response demonstrated that the city manager is a huge fan of my writing. I’m totes flattered!
Example #1:
My FOIA lawsuit settled for $160,000 in attorneys’ fees and costs. Even though Clarkston begged for financial help from the city attorney’s malpractice carrier and the city’s insurer, Clarkston was solely responsible for coming up with the money to pay the settlement if either or both of them refused to contribute. Yet, the city manager (and the city council) deliberately concealed the total settlement amount from the public – as well as the settlement agreement – revealing only that the city would directly pay $35,000.
I discussed the city’s attempts to keep this public information from the public in a March 31, 2021 Clarkston Secrets post. The city manager downloaded that post, saved it as a pdf file, and sent it to the city council with his own comments. I’ve attached Smith’s email here: 20210401 – City Manager email re Clarkston Secrets. In this email, Smith asserted that that I “did not waste any time attacking the city, posting the attached comments on [my] Clarkston Secrets blog,” and he alleged that there were “several misleading claims in the blog post.”
Not only can I assure you that there were no misleading claims in my March 31, 2021 blog post, I would note that Smith didn’t articulate exactly what I said that was misleading. This is no different in kind or character than Smith’s statement to the Clarkston News that the city has a policy not to comment on material that “may or may not be factually based.” By couching things in general terms, the city manager can avoid any demand that he substantiate his allegations of untruthfulness. Pretty slick, eh? While slippery language works very well for politicians and the proverbial used car salesman, it’s not admirable coming from a public servant.
My March 31, 2021 website post included a link to my settlement agreement so that the public would be able to see what the city was desperately trying to hide. The city also tried to conceal the individual payment amounts for attorneys’ fees and costs (and the identity of who was paying for them) by funneling the checks through its attorney. Handling things in this way would have allowed the city to deny any FOIA request for payment information. (“Records? What records? We don’t have no stinkin’ records.”) If I hadn’t provided copies of the payment checks, you would never have known who contributed to the $160,000 total settlement amount and how much each contributed.
The city’s practice of trying to keep settlement amounts and settlement agreements a secret from the public continues to this day. When the Kay Valley lawsuit was settled last year, the city council and city manager ensured that you would not be told what the settlement amount or the terms of the settlement were, despite the fact that settlement agreements are contracts – and even this city government wouldn’t dare handle any other contract approval in such an underhanded way.
Example #2:
This email from the city manager is my personal favorite, and you can read it here: 20210421 – City Manager email re Clarkston Secrets. This time, the city manager complains that I have been “ranting lately” about my FOIA lawsuit. He notes that there have been “4 or 5 installments now” – and gosh darn it, he apparently read every single one of them. 😂 😂 😂
Smith sent this email to the attorney hired by the city’s insurance carrier to defend the city in my FOIA lawsuit. He also copied the attorney the city was forced to hire with taxpayer dollars because our charter-appointed city attorney was dealing with his own misconduct in the case (which is why the city attorney’s malpractice carrier was involved in the settlement, something the city manager graciously referred to as the city attorney’s “conflict” 🙄).
As before, Smith downloaded my website content, saved it as a pdf, and forwarded it. Smith’s apparent reason for doing so in this case was because he wanted to make absolutely sure that the insurance-funded attorney was aware of my website post, stating “[b]ecause her comments border on slander, I thought you should know.” Isn’t he a peach? Perhaps if the city manager spent less time trying to stir up lawsuits, he wouldn’t complain so much about having too much work to do. Just a thought. 🤔
The pdf attachment to Smith’s email was not provided in response to my FOIA request (in violation of the FOIA), but it’s easy to identify the post that the city manager thought was worthy of special attention and that’s why I didn’t make an issue of it. In that post, I explained how a simple legal question about the FOIA statute devolved into a lawsuit that outrageously cost approximately $700,000 in the aggregate, with most of it paid by taxpayers throughout the State of Michigan – and that was just for the attorneys’ fees. Here is a link to that post:
Smith’s email concretely proves that Clarkston government is actively monitoring my First Amendment activity. It also reveals a city official trying to persuade someone outside of the city to institute legal action against me, apparently as punishment for telling the public what actually went on during a lawsuit that lasted for five years and ended up costing the taxpayers a good chunk of change. We can’t have that!
You know, if the city manager is going to accuse me of tortious conduct, he might want to get his terms straight. Slander refers to oral comments; libel refers to written comments. In addition to not understanding the meaning of the legal terms, when they should properly be used, or how “slander” or “libel” is defined in the law (hint: it requires more than someone saying something you don’t like), the city manager is also apparently unaware that opinions are neither libelous nor slanderous, and truth is an absolute defense to claims of libel (or slander). There’s a reason why I never received a demand for a retraction or to take down my website posting. That reason is because what I said was truthful and the involved attorney knew full well that I could prove every word that I said. And, all the while that attorney was doing all the things that I said he was doing, he was doing them with the express and/or implied consent of Clarkston government and with the full knowledge and active participation of our “conflicted” city attorney, an officer appointed under the city charter.
This really is my favorite email, and I can’t express enough appreciation to the city manager for sending it. Even though it requires a special kind of stupid and lack of anger control to draft such an email, it provides me with an awesome Exhibit A to prove animus should the city ever decide to take any adverse action against me in the future. I truly appreciate the assist. Thanks, Mr. City Manager! 👏👏👏 And, lest you think that this is something that’s only happened to me, I have copies of emails from the previous city manager attacking two other citizens for having the audacity to speak out against the city. They apparently can’t help themselves.
Example #3:
This city manager email concerned the $10,000 payment that the city tried to hide from the public, and you can read his email and the website posting here: 20210607 – City Manager email re Clarkston Secrets. The city used the $10,000 to pay some of the legal fees the city incurred because it had to hire additional representation in my FOIA lawsuit due to the city attorney’s “conflict.” The city followed the same practice that it established in my FOIA case – it funneled the payment check directly to the attorney. This ensured that there was no paper trail and enabled the city to keep the identity of the “donor” a secret from the public. Our city officials were apparently shocked and surprised when this attempt at concealment prompted questions about whether such a large sum of money coming from a secret donor was paid to secure favorable treatment, forcing them to disclose that the city’s insurer had made the payment. (You know, when you work for the government and you’re doing something to which the label “keeping secret from the public” applies, you might want to reconsider your course of action. Just a suggestion.)
There you have it. Three examples showing that the city manager’s claim that “the city does not respond to comments made on social media,” or more specifically, that the city does not respond to comments I make on my website, is just another lie. The city (and city manager) most certainly do respond to what I have to say – they just make sure to do it in a way that is hidden from public view, which is their preferred way of doing things anyway. And, despite Smith’s claim in his annual city manager’s report that he “strive[s] to be fully open and transparent on all topics” (found here: 02142022-1052 (villageofclarkston.org) at page 5 of the pdf file), his actions speak far louder than his words. (Yes, he really said that. 🙄)
City Manager Comment:
Smith was asked about the [42 W. Washington] case, saying, “This is an active case in the Oakland County courts and, as such, we are unable to comment on any aspect of it.”
Clarkston Secrets Response:
It’s patently false to say that the city is “unable” to comment on the 42 W. Washington dispute. Unless there is a court order expressly preventing city officials from making comments – and there isn’t – city officials can make as many comments as they want, as often as they want, wherever they want, and to whomever they want. If Smith were being truthful, he would have said that the city has a practice of choosing not to comment on litigation. Or perhaps he could more honestly say “the city attorney would prefer that I not say anything at all because I’ll surely say something stupid.”
The 42 W. Washington dispute has been going on for years. By my calculation, the legal costs are approaching $20,000. And, based on the information that I learned simply from reading the allegations in court papers, I think that the city’s conduct in the current and past litigation has been reprehensible. It’s been alleged that the city knew that the house at 42 W. Washington has some serious structural issues caused by the city itself and that the city did not disclose that during the administrative proceedings where state was considering the owner’s demolition request in light of the property’s purported historical significance. After keeping silent, the city is now arguing that the court should not consider any information about the significant structural issues the city caused. The city is also aware of a 2021 inspection report that concluded that this house should be condemned because it is “a danger to itself, to anyone who enters it, and to the general public.” I linked to the actual court filings in my post, which can be found here:
I haven’t stopped digging on this one. Once I’ve finished, I’m going to focus on what the city attorney knew about 42 W. Washington. Spoiler alert – the city attorney knew everything. He was involved in the litigation with the previous owners over the city storm drain that is alleged to have caused the structural damage to the home back in 2009. In fact, the whole dispute started because the city attorney signed the lawsuit complaint that dragged the former owners into court so the city could force the owners to allow city officials onto their property to repair the storm drain (with little notice and an offer to pay less than $900 for the city’s claimed right to invade their property). The previous owners countersued, and that countersuit is where all the dirty details came out. Even though the city denied responsibility for the damage its storm drain caused (don’t they always deny responsibility for everything?), the settlement in the case went far beyond a small nuisance settlement. The city paid the previous owners $80,000(!) shortly before the trial was due to begin.
I guess I don’t blame the city for not wanting to comment on this lawsuit, given its abhorrent conduct and the ever-increasing legal fees that Clarkston taxpayers (rather than the city’s insurance company) are forced to pay. Notwithstanding the city’s deliberate decision to give “no comment” answers, I intend to continue to write about this lawsuit and every other lawsuit the city would prefer to be kept out of the spotlight. Oakland County Circuit Court records are available on request. So are the materials that the city exchanges with opposing lawyers in litigation matters, thanks to the Michigan Supreme Court decision in Bisio v Clarkston. And I will publish all of it – because, as the name of this website so aptly states, I’m sick and tired of Clarkston Secrets.
City Manager Comment:
Back on November 8, 2021, the Clarkston City Council meeting went into a closed session to discuss pending litigation, reportedly with no vote being taken by the council. Smith said that is simply not the case.
“While the Independence Television video recording ended in the November 8 council meeting prior to the council voting to close the open session and enter a closed session for purposes of discussing pending litigation, the fact of the matter is that council did vote in favor of closing the open session and then opened the closed session,” said Smith.
Clarkston Secrets Response:
Holy cow. As a friend of mine used to say, these are lies from the pit of h*ll. Maybe the city manager follows the maxim that if you lie loud enough, long enough, and often enough, the lie becomes accepted as truth. Only he knows for sure. However, the truth is that the Clarkston City Council violated the Open Meetings Act (OMA) by failing to properly vote to close the November 8th meeting, and I will prove that to you by using materials that I previously published along with materials that I haven’t previously published.
To summarize, the city council decided to close a city council meeting to discuss pending litigation with their attorneys in the Kay Valley lawsuit. Ms. Valley alleged that she was injured as a result of the city’s bad sidewalk and street maintenance, which might not have happened if the city properly prioritized expenditures to accomplish desperately needed repairs.
The charter-appointed city attorney was remotely present at the November 8, 2021 city council meeting along with the insurer-paid attorney who was physically present. The resolution the city used to close the meeting was unbelievably sloppy, citing to a 2019 circuit court case that never even existed. Frankly, if one of the city’s attorneys charged the city for writing this garbage, they should credit our account for these particular “services.”
And no, the city council did not vote on a motion to close the public meeting during the open session of the meeting. That evening, the closed session was listed as Agenda Item 11c. After the council began discussing the meeting closure, they were interrupted with a request from the clerk to vote on a resolution to accept the auditor’s report, something the council neglected to vote on during the previous agenda item. The council voted on that resolution.
Councilmember Avery told the public that nothing would happen once the council returned from closed session. Smith told people they could wait out on the porch (in the freezing cold) for the meeting to reopen if they wanted. Mayor Haven dismissed the public from the open meeting, telling them that they had to leave because the council was going into closed session – even though the council never took the required vote to close the meeting in front of the public during the open meeting because everyone had left. Newsflash – a meeting is no longer an open meeting after the mayor orders the public to leave.
After Haven told the public they had to go, the Independence Television videographer turned off the camera. You can see the point at which the camera was shut down, freezing the frame on everyone walking out by going to this link:
http://216.11.46.126/CablecastPublicSite/show/3609?channel=2
The discussion begins at time mark 0:52:14 and continues for about five minutes.
So, with two lawyers present, city council unlawfully closed a meeting without voting to do so. Following the meeting, the city’s minutes were deceptively written to make it appear that the meeting had been properly closed – when it had not. I wrote about that OMA violation in a website post on that can be found here:
https://www.clarkstonsecrets.com/another-day-another-open-meetings-act-violation/
The city council had another meeting on November 22, 2021, and nothing was said about the OMA violation. My website post about the unlawful closure was published on December 7, 2021. Despite the city manager’s claim that the city doesn’t “respond” to what I write, my December 7th post apparently sent the city scrambling to try to “correct” the OMA violation that Smith now denies. A new resolution was presented to council at the December 13, 2021 meeting, located at page 30 of the council packet pdf and can be found here: 12132021-1043 (villageofclarkston.org). That resolution stated in part:
WHEREAS, at the regular City Council Meeting held on November 8th, 2021, City Council resolved to go into closed session to discuss specific pending litigation after the Mayor announced the end of the open session and the public was dismissed.
If Smith was telling the truth, why did the city council’s resolution state that the city council resolved to go into closed session after the Mayor announced the end of the open session and after the public was dismissed? It’s not a big mystery – if he wasn’t misquoted, then Smith simply lied to the Clarkston News about what happened. Had Mr. McKinder viewed my source material, rather than taking the city manager at his word (which apparently isn’t worth the powder to blow it to Hades), appropriate follow up questions to ask Smith would be “if what you say is true, then why did the city council reenact the vote to go into closed session,” and “why did the city council’s resolution admit that the vote took place after the public was dismissed”? Neither of those things would be necessary if, as Smith alleges, the meeting was lawfully closed.
I should also note that the resolution I quoted from above was invalid because the section of the OMA that the city cited was inapplicable. There wasn’t any “fix” for this, and the blame for that falls squarely on the shoulders of the city attorney and the insurer-funded attorney. It was their job to make sure that the city followed the law, and they failed.
I promised that I would give you some additional information that I haven’t provided before. I received this material in response to a FOIA request that I sent asking for information relating to the closed session.
The first document is an email from Mayor Pro Tem Wylie that I’ve linked here: 20211208 – Wylie email. In that email, Ms. Wylie said that after watching the Independence Television video. she agreed with me that the council never voted to go into closed session. She also didn’t understand why the minutes included a reference to a vote to go into closed session, “because we did not vote to go into a closed session.” Ms. Wylie provided a link to my blog post about the incident and asked what the city could do to fix the problem. You’ll note that Smith was copied on this email.
I also have a copy of the “closed session” minutes. They don’t really say anything very important, but that’s not the point. The OMA requires that a public body keep a separate set of minutes for closed sessions. These minutes are never to be made available to the public unless a lawsuit is filed to obtain them, and only if the lawsuit complies with the statute.
And yet I was provided a copy of the “closed session” minutes in response to my FOIA request, and I always knew that the city would have to provide them to me (with or without a legal fight). You might ask why the city would do something like that without forcing me into court, and the reason why the minutes were provided to me is because I know – and the city knows – that the November 8, 2021 meeting was unlawfully closed. The OMA doesn’t authorize a reenactment in these circumstances, and even if it did, reenactments are not retroactive. In other words, there was never any way to go back and “fix” this screw up. You can read the closed session minutes for yourself by going here: 20211108 – Closed Meeting Minutes.
There are no shades of grey here, no benefits of doubt to be given. No matter how you slice it, unless Smith was misquoted by the Clarkston News, Smith lied to McKinder about the November 8th closed session when he claimed that a vote was taken to go into closed session before Haven closed the public meeting and ordered the public to leave.
City Manager Comment:
As far as short-term rentals in the city, after holding a public hearing on the topic in 2021, Smith said the city’s planning commission submitted an ordinance modification recommendation to city council to only allow short-term rentals in commercially-zoned properties. After two readings, council voted unanimously on January 10, 2022 to approve the ordinance. The effective date of the revised ordinance change was Tuesday, February 8, 2022, after a posting period in The Clarkston News. Existing short-term rental properties in non-commercial districts will have 12 months (until February 8, 2023) to cease operations.
Clarkston Secrets Response:
There were no block quotes from the Clarkston Secrets website included in this section of the article. I would note that Smith completely glossed over the fact that the city originally claimed that the ordinance had passed in 2021 rather than 2022 – when the truth was that the ordinance failed for lack of a sufficient number of votes in 2021. You can read why I know that was the case in my November 10, 2021 post, which can be found here:
Despite the failure of the ordinance to pass, the city manager continued to tell the public (and the city council) that it had passed. It’s possible that this was based on the city attorney’s advice, but that just means that the city attorney was wrong – again. You should know that the city attorney was present at the time that the ordinance received only three council votes at the second reading when four votes were required. And I would note that this failed vote occurred a short time after the city attorney supposedly looked up the vote requirement and told the council that four votes were required for city council action. I wrote about it again on December 19, 2021, and you can read that post here:
https://www.clarkstonsecrets.com/why-does-the-city-keep-lying-about-the-short-term-rental-ordinance/
What the city manager did not tell the Clarkston News was that the January 2022 vote was the second time that the city tried to pass this ordinance. At that point, all council members voted yes. I’m not sure why the city felt the need to lie about the passage of the short-term rental ordinance in 2021, but that’s what happened. I’d also note that the city took this additional action at the first meeting following my December 19, 2021 blog post. And, the additional action that the city took in January amounted to a total of three ordinance readings, not two as Smith told McKinder. The January city council vote was the (second) second reading of the ordinance.
I have always wondered why our city manager regularly throws the small remaining pieces of his tattered reputation into the dumpster fire that is our city government. I’m reminded of the old adage cautioning that people who live in glass houses shouldn’t throw stones. I would add that city managers who regularly mislead the public shouldn’t be making claims that others are being untruthful until they’ve addressed the mess in their own house.
Just sayin’.