I think this is one of the more important posts that I’ve written. I want to warn you about what I think that the city council is up to. Even though I won in the Michigan Supreme Court in a 6-1 decision, Mayor Eric Haven and his friends on city council have decided to continue fighting over even insanely small issues in their continuing effort to drive my fees up as high as possible (only Councilmember Sue Wylie voted “no” to this course of action). I’m going to estimate that the total fees (on both sides) have gone up $50-$60,000 as a result of the continuing briefing battle that has taken place following the Court’s decision, all of which I’ve posted here for you to see.
There are five city council seats to be filled in November – along with the Mayor’s position – and all are running unopposed. I believe that Clarkston will eventually lose its fight to hide the 18 records, and I also believe that my legal fees and costs will be paid. The only question is WHO will pay them. I think that Mayor Haven and his friends on council have an as-of-yet unspoken plan to make YOU pay my legal fees directly, but you aren’t going to hear about it until after they win the election. Let me explain.
Shortly before the Michigan Supreme Court decided in my favor, the charter-appointed city attorney (I’ll just call him the “city attorney”) admitted to the council that right after my lawsuit was filed in December 2015, the city’s insurer (the Michigan Municipal League Liability and Property Pool, or MMLLPP for short), informed him that the insurer would not pay my legal fees and costs. Yet in 2017, the city attorney told the city council just the opposite – that the MMLLPP WOULD pay my legal fees and costs. The attorney paid by the MMLLPP to defend the city (that I’ll call the “insurance attorney”) recently told the city manager that my fees and costs could be as high as $350,000. (They’re not that high, but they’re steadily increasing with every silly city council court filing.) In response, and apparently with the understanding that the MMLLPP would not pay, the city manager outlined some options for the city council that would allow the city to pay for my attorneys’ fees and costs by shuffling some funds, delaying some things, and borrowing from other city funds – with no direct taxpayer involvement.
After learning that I’d won the case, Mayor Haven called for a subcommittee to be formed to discuss “options.” Mayor Haven deliberately kept the number of subcommittee members low enough so that they could meet in secret outside of the public view. They also scheduled a special city council meeting on August 4th to have a secret, closed session with the insurance attorney. When they came out of closed session, Mayor Haven announced that the city council (all except for Councilmember Sue Wylie) had authorized the insurance attorney to fight my request for a small amount of taxable costs and to ask the Michigan Supreme Court for a rehearing (before the ink was even dry on the opinion that the Michigan Supreme Court had just issued).
When asked by a constituent if the city council planned to restrain spending while waiting for the results of the motion for rehearing – since my FOIA fees and costs were now an issue that should be budgeted and planned for – Mayor Haven told that constituent that there were NO plans to restrict spending.
And that is what has happened – since losing in the Michigan Supreme Court, Mayor Haven and his friends, among other things, authorized $50,000(!) for installation of an overpriced new driveway and also authorized almost $35,000(!!) to pay for cutesy new signs to be placed around town – a project pushed by Cara Catallo and the city manager’s wife, Toni Smith.
You may remember that the city “borrowed” from our water fund and sewer fund to pay for the city hall renovations. They did this in spite of a taxpayer sign and letter writing campaign telling them we didn’t want to spend money on that project.
Now we’ve learned that Clarkston is on the hook for almost $99,000, which represents our portion of the Oakland-Macomb interceptor drain repair bill. To pay this bill, the city is considering restructuring the loan that they gave themselves to pay for the city hall renovations by shifting the loan obligation from the water fund and the sewer fund to only the water fund. After that, they are proposing to pay the $99,000 drain repair bill from the sewer fund and bill each of us for $177.02 (plus costs), spread out over four sewer bills, to reimburse the sewer fund for the $99,000.
The money in the water and sewer funds is money that they’ve taken from us to pay for these kinds of repairs – but since they are overextended because of the city hall renovations, you’re probably going to have to pay more for your sewer bill for four months. (This will be discussed at the September 14th city council meeting.)
With all of this going on, why on earth would they be spending insane amounts of money on a driveway and signs after losing in the Michigan Supreme Court, knowing they are obligated to pay my legal fees and lawsuit costs?
I think I know the answer.
Though the city council and the insurance attorney have lied about and vilified my husband, even suggesting that he’s got some sort of “vendetta” against the city, my attorneys are actually The Kemp Klein Law Firm (my husband works for Kemp Klein).
The legal fees were incurred over the last five years because the city council and the insurance attorney were less interested in resolving the simple legal question – whether the 18 records are “public records” – than they were in providing cover for the city attorney’s decision to keep the records hidden in an off-site file and fighting everything to drive those legal fees up as high as possible (just as they are doing now).
The lawsuit costs were not only incurred for necessary things like filing fees, but also for normally unnecessary things like paying process servers (because the city refused to voluntarily accept service for the complaint or agree that anyone from the city would appear at a deposition without a subpoena that wasn’t personally served). The city council also required me to pay for all of the circuit court hearings to be transcribed as part of the appeal (because the insurance attorney refused to agree that I needed to pay for only those transcripts that were relevant to the appeal).
All of the necessary (and unnecessary) legal fees and lawsuit costs will eventually be wrapped up into a judgment that will be at least three times higher than it should have been because of the abhorrent conduct of the city council and their attorneys.
If you’ve been following this story at all, you know that this could have been avoided. First, the city council could have released the 18 records, ALL of which relate to the Catallo children, at any time. Instead, they’ve chosen to hide them for five years (and counting).
Second, the city council and its attorneys could have defended the lawsuit in an honest and forthright manner, rather than engaging in scorched earth litigation strategies that were mostly designed to delay and increase costs (and they are still doing that).
Finally, the city council could have accepted our offer to talk about a reasonable settlement right after the Michigan Supreme Court handed down its decision rather than responding with a boatload of court filings (and a promise of many more to come in the circuit court). The reason that I’ve been posting all of the latest court filings here is to give you an idea of the insane litigation strategy that the city council and the insurance attorney have been engaging in for the last five years.
The inescapable message to you is this – don’t you even think about challenging us about the secrets we’re keeping, or you’ll be next. Honestly, I think they’ve long ago forgotten who they work for.
There have been no public statements about the MMLLPP having a change of heart and agreeing to pay my legal fees and lawsuit costs. If that’s still the case, and the MMLLPP won’t be paying them, then none of what has happened makes sense. That is, it won’t make sense unless you understand that the insurance attorney likely told Mayor Haven and his pals during the secret closed session on August 4th that they can choose to shift the entire amount of any judgment against Clarkston for my attorney’s fees and costs directly onto YOU, just as they are proposing to do with the $99,000 drain repair bill.
Here’s how that would happen.
The city council can voluntarily pay a judgment out of city funds (actually, that’s just money that you’ve already paid, since “the city” doesn’t have anything without you). But they can also refuse to pay it. Since they’ve already blown over $400,000 on a revamped city hall that taxpayers didn’t want, a new driveway to service the city hall that the taxpayers didn’t want, and a sign project that their friends wanted, they’ll likely refuse to pay it.
In that case, I’ll have to file the judgment with the assessor, who will assess a prorated share of the judgment on your next property tax bill as a one-time charge for all of the legal fees and lawsuit costs most of which the city council and their attorneys needlessly incurred. The assessor would then forward that information on to the Clarkston Treasurer, who will send you a tax bill that includes your regular taxes plus your share of the judgment. This is called a judgment levy. (Google MCL 600.6093 and look at paragraph (1), which describes the process.)
At the present time, including those fees that accumulated after the Court’s decision because the city council has continued their scorched earth litigation strategy, our ballpark estimate of the cost to individual property owners would be 6 mills ($6 for every $1,000 of taxable value) – but that’s only if the city council stops playing games and settles the lawsuit right now. Have a home with a taxable value of $100,000? After the judgment levy is filed, your next property tax bill will go up by $600 ($100,000 X .006 = $600). People who’ve lived in the City of the Village of Clarkston for a long time would pay less because their taxable values are capped at a maximum amount each year; new residents would pay a lot more because their taxable value is higher.
The full amount of your portion of the judgment levy would be added to your next property tax bill. At that point, you won’t have input, you can’t object, and if you refuse to pay, the regular penalties for nonpayment of property taxes apply. And, Mayor Haven and the city council will say, “gosh, don’t be mad at us, it’s all Susan Bisio’s fault for pursuing this lawsuit – she’s the one who caused the judgment tax levy, not us” – even though they would trigger that result by refusing to pay the judgment when presented and are the reason those fees and costs are so astronomically high. Pretty slick, eh?
No wonder Mayor Haven doesn’t want to answer taxpayer questions about how the city will pay for this! Why would he want to tip his hand about the city council’s plans to force you to pay for a judgment he and his friends on city council are responsible for and make you mad before the election? He’s never had to worry about the insurance attorney’s fees because they’ve been covered by the MMLLPP, and now he doesn’t have to be concerned about lacking the money to spend on his pet projects – and the pet projects of people he likes. It works out great for everyone – except for you, the taxpayer. In upcoming posts, I’ll share my thoughts regarding who I think should be responsible for all (or part) of the FOIA costs and fees associated with my lawsuit and why I think that way.
You may want to start paying attention to what the city council is doing in my case, because if I’m right, it’s going to affect you personally. Every time they increase my fees and costs, they are increasing the amount of the final judgment. There aren’t that many properties in Clarkston to divide into the total.
For what it’s worth, you do have some recourse – if this is the course of action that Mayor Haven and his friends have decided on, they can all be swept out of office through a recall election. In December 2018, I discussed the timing and the number of valid signatures required for a recall petition with Oakland County Elections, and the magic number is 137. Do you think there would be at least 137 angry registered voters who would be willing to sign recall petitions if I’m right about Mayor Haven’s plans?
I could be wrong about how the city plans to pay my legal fees and lawsuit costs, but I don’t know how else to explain the city council’s continued profligate spending after they lost in the Michigan Supreme Court. Unfortunately, only those who were in the secret August 4th closed city council session know what the future plans are for certain.
Normally I tell people to make their feelings known to the city council, but if I’m right about their plan, it won’t make a difference because they clearly don’t care a whit about you. The only way to change the direction of the city is to elect people who are fiscally responsible, who believe that government serves ALL constituents (as opposed to a select, privileged few), and who don’t think their government should be hiding public records in off-site files.
Are you the person that we have been waiting for? Mayor Haven and five city council seats are up for election in November. You can file a declaration to run as a write-in candidate until October 23rd. The declarations are available on the city’s website. Just select “Forms and Documents” on the home page, then choose “Document Center,” select “Clerk’s Office,” and then click on “Elections.” From there, you can download the only form that is posted, titled “Write-In Candidate Declaration of Intent,” and follow the instructions.