Category: Open Meetings Act (OMA)

I’m going to be discussing two different attorneys as I bring you up to date. I’ll call the attorney assigned by the Michigan Municipal League Liability and Property Pool (MMLLPP for short) the “insurance attorney,” and I’ll call the attorney appointed under the city’s charter, and serving as an officer of the city, the “city attorney.”

You may recall that the city attorney told us that “there’s no nefarious scheme here” in connection with his refusal to turn over the 18 documents involved in the lawsuit (9/11/17 city council meeting video, at 1:43:20), yet our city officials are certainly acting as though that’s exactly what happened. Either the city is trying to provide cover for the city attorney, or the documents contain information so innocuous that the city is embarrassed to have spent all of this time tearing the community apart, exposing the city taxpayers to a small fortune in legal fees, and forever associating the name “Clarkston” with secrecy and hiding public records. No matter which of these scenarios is true, Mayor Haven and his friends on council look pretty awful to any objective observer.

A few months ago, the city council became aware of a letter sent from the MMLLPP to the city attorney advising him that if the city lost the case, the MMLLPP did not believe that my legal fees were covered under the city’s insurance policy. At that time, the city attorney admitted that he’d received a similar letter shortly after I filed my lawsuit in December 2015(!). No one on the council seemed to be aware of the first letter, and I don’t recall any public discussion about it. It really begs some questions . . . Did the city attorney ever tell the city council about the first letter, and if he had, would they have acted more responsibly throughout the lawsuit? Or, was the city attorney more concerned about keeping the lawsuit going in an attempt to vindicate his advice to the city to withhold the 18 records and to maintain what he perceived to be some sort of personal right to hide city records in his off-site office? I think these are fair questions to ask of government officials.

At the June 22nd meeting, the city council had an uncomfortable discussion about what would happen if I won the lawsuit and they had to pay my attorney’s fees, something they’d apparently not considered before. The city manager told the council that the insurance attorney estimated my legal fees to be between $300,000 and $350,000. I have no idea where this number came from – perhaps that’s how much the MMLLPP has paid the insurance attorney since the lawsuit started – but it’s not the first time that the insurance attorney has provided the city council with an exaggerated estimate of my legal fees.

The city manager said that the city had a number of ways to pay $300,000 in legal fees, including eliminating capital improvement expenditures for one year, drawing the fund balance down to 16.67%, borrowing from a bank, borrowing from the water and sewer funds, and even laying off employees or cutting salaries. These recommendations were included in the budget resolution, and you can listen to that discussion at this web address, beginning at 00:54:24:

http://216.11.46.126/Cablecast/Public/Show.aspx?ChannelID=2&ShowID=3178

My legal fees – for now – are not $300,000, though they are significant. At some point, I’m going to show you exactly what caused them to be so high. Generally speaking, the city attorney and the insurance attorney did everything imaginable to raise my fees to a point where they thought they would force me to go away, presumably with the blessing of city council. It didn’t work. But the insurance attorney, the city attorney, and the city council won’t pay the ultimate price for this conduct. No, the cost will apparently be borne by the employees and Clarkston taxpayers, neither of whom have done anything wrong. It’s disgusting, frankly.

If you watched the July 27th city council meeting, days after the Michigan Supreme Court decided in my favor, you’d know that my attorney asked the insurance attorney if the city was ready to authorize the necessary steps to resolve the case and simply stop the fighting. This is our community too, and we thought that everyone might be ready to close this chapter in a reasonable way and move forward. You would know that we reached out to the insurance attorney because a city official posted a confidential memo, prepared by the insurance attorney and subject to the attorney/client privilege, on the live GoToMeeting screen during the first part of the July 27th city council meeting.

As you know, the city deliberately puts the absolute minimum amount of information in the meeting minutes, so if you don’t attend the meetings or watch a replay on the Independence Television website, you cannot possibly know what you need to know about what your government is doing. Unfortunately, if you weren’t able to watch July 27th meeting live, you’re mostly out of luck – only the last part of the meeting was uploaded. The city claims that this was the result of an honest mistake – someone simply forgot to start recording at the beginning of the meeting – but this mistake was very beneficial to the city because you won’t be able to see most of insurance attorney’s memo now. Poof! It’s gone.

There was a lot of additional discussion about things that you might also have wanted to know about in the lost recording. For example, you won’t get to see Council member Sue Wylie confronting Mayor Haven for misleading her about adding a motion to the agenda to release the 18 records involved in my lawsuit. Ms. Wylie also felt compelled to respond to an unnamed person’s request that she recuse herself from voting on issues relating to my FOIA lawsuit because she allegedly has a relationship with my husband and me.

Let me set the record straight – neither my husband nor I have a relationship with Ms. Wylie. We’ve run into her a few times over the years and had casual conversation, but that’s it. We avoid talking to all active city council members and have approached none of them to discuss my lawsuit. Whomever suggested that Ms. Wylie was behaving improperly should really be ashamed of him/herself. Ms. Wylie has always conducted herself in a manner that is above reproach, and if Mayor Haven and the rest of the council possessed a fraction of her integrity and competence, the city would be a much better place. I’ve made no secret about my political support for Ms. Wylie (and others), but it’s because she truly cares about competent government and transparency, things that are clearly lacking in Clarkston under Mayor Haven’s leadership. I wonder if the person asking Ms. Wylie to recuse herself also objected to Sharron Catallo voting on matters that affected her son’s restaurant businesses in the city? There was actual evidence that Ms. Catallo had a conflict, and I discussed it under the post heading “A Conflict or Not a Conflict – That is the Question,” parts 1 and 2. On the other hand, there is zero evidence that Ms. Wylie has any conflict whatsoever.

On July 27th, at Mayor Haven’s suggestion, the city council voted to establish a sub-quorum committee to discuss my FOIA lawsuit expressly to avoid the public meeting requirements under the Open Meetings Act. In other words, they voted to create a committee that would meet in secret to discuss a lawsuit involving keeping secret records in off-site files. (If this isn’t quintessential Mayor Haven conduct, I don’t know what is.) No one outside of the council knows how many times this group met, because that’s a secret too. The city council met again as a whole on August 4th. As most of this meeting was spent in a closed session with the insurance attorney, you don’t get to know about that either.

After all of the secret discussions following the ruling against them by the Michigan Supreme Court, you might think that the city council would be ready to resolve the lawsuit and produce the records. Wrong! The city council voted to fight some more (Ms. Wylie was the only no vote). Since I’ve had quite enough of the city’s secrets, I’m going to be posting information about their actions following the Michigan Supreme Court’s decision so that you can see them for yourself – because our city officials certainly aren’t going to share anything with you. As a taxpayer and constituent, you need information about the city’s actions so that you can hold them accountable. Taxpayers need to determine if the city government is representing their interests or protecting their own interests. The more fighting there is, the more legal fees there will be.

Let’s start with the first thing that the city council authorized the insurance attorney to do after coming out of their secret, closed session on August 4th. The Michigan Court Rules allow a winning party to ask the court to approve a small amount of reimbursement from the losing side (known as “taxable costs”). In my case, we asked for reimbursement for the expense of printing the briefs and appendix as well as the cost of filing the application for leave to appeal. The total amount that we requested was a nominal amount – $1,761.00.

20200728 – Plaintiff-Appellant’s Bill of Costs

Once a request for taxable costs is submitted, the other side has seven days to object. August 4th, the day of the closed city council meeting, was the last day to object. The closed session started at 7:00 p.m. and the council didn’t come back into session until shortly before 9:00 p.m. Even though he participated in the closed session with the city council, the insurance attorney was able to file the city’s objections within a half an hour of the meeting’s end. Clearly, representatives of the city were privately discussing this option with the insurance attorney before the council meeting. (More secrets, of course.)

I’m posting the city’s objections to my request for taxable costs below. You’ll note that the city argued that I didn’t really prevail in the Michigan Supreme Court (yes, you read that correctly), and therefore, I’m not entitled to receive taxable costs. According to the city, the reason that I didn’t technically win is because the Court decided the case using different arguments than the ones I made (something the Court is absolutely entitled to do when interpreting a statute). Alternatively, even if I did win, the city argued that I shouldn’t receive taxable costs because a “public question” was involved (even though a public question is always involved when a court interprets any statute that provides a right to the public – such as the FOIA statute). Consider for a moment what the attorneys you know charge per hour and multiply it by the number of hours you think it would take for an attorney to research, draft, and file these objections. Isn’t it reasonable to conclude that the cost of filing the objections exceeded $1,761.00? It seems apparent that the city council members have decided to take the loss in the Michigan Supreme court personally and want to fight over everything, even something this small.

20200804 – Objection to bill of costs

The city’s objections were filed electronically at 9:26 p.m. Since we know that the Court’s clerk wasn’t breathlessly waiting for the city to file anything, I imagine August 5th began like any other day for her. She probably came into the office, turned on her computer, grabbed a cup of coffee while things were loading, and then read what had been filed since she signed out the day before. Moments later, she noted – and rejected – the city’s objections and then taxed costs against the city in the amount of $1146. This dollar amount reduction had nothing to do with the city’s objections; the Clerk simply disagreed with the amount that we’d requested under the court rules.

20200805 – Clerk’s taxation of costs

The city has seven days from August 5th to file a motion to ask the entire Michigan Supreme Court to get involved in what is now $1146 in taxable costs. If they do this, that will result in more legal fees, which are likely already more than the amount in question. I’ll let you know if they do that.

The next thing that the city authorized the insurance attorney to do is to file a motion to ask the Michigan Supreme Court to reconsider the decision that the Court just issued in my favor. The city wants to try to convince the Court that even though the Justices have just finished spending hundreds of hours reviewing the information filed in my almost five-year-old case, reading other cases and bench memos prepared by their clerks, hearing arguments from the parties, discussing the decision among themselves, and writing three opinions in the case (the majority, concurrence, and dissent), there is some other argument that should affect the outcome of the case that everyone missed until this moment – even though there was ample time to address all arguments between the time that leave was granted (September 2019) and when the case was heard (March 2020). There certainly is a possibility that they could convince the Court to change its mind, but it’s very small, and it’s equally possible that the change might not be in the city’s favor. Notwithstanding, the vast majority of these kinds of motions are rejected because the Court has been there, done that, decided, and wants to move on.

The insurance attorney told the council that I wouldn’t even be allowed to reply to whatever their super awesome new arguments are. Apparently, he didn’t read the court rule before he gave them that advice, because I am certainly entitled to respond within 14 days. I’ll post the filings here, not just because I think you should know, but because this pattern of city conduct is why there are so many attorneys’ fees involved in this case. As a reminder, even though the MMLLPP is regularly paying the insurance attorney for whatever work he does, that money comes from public bodies throughout the state – which means you are paying indirectly for the insurance attorney’s time while he continues to work to drive up my legal fees.