Despite What You’ve Been Told, We Do Not Have A Short-Term Rental Ordinance (With Bonus Slimy Mayor Tricks)

I’m behind in publishing the informal minutes for the city council but I’m working to catch up. Part of the reason is because I got busy and fell behind. The other problem was the abysmal sound quality on some of the meeting recordings – trying to go through them took forever! The more recent meeting recordings have much better sound quality, so hat tip to whomever is responsible for that.

Anyway.

I’m going to be referring to things that happened at the April 22, 2019 and August 23, 2021 city council meetings, and I’ve provided the links at the bottom of this post so that you can hear what I’m referring to for yourself.

OK, let’s begin.

At least four votes are required for any city council action

Section 4.13 of the Clarkston Charter (“Quorum and Vote Required”) states:

“Four (4) members of the Council shall be a quorum for the transaction of business. In the absence of a quorum, any number less than a quorum may adjourn a meeting to a later date. The vote of at least four (4) members shall be required for official action by the Council, unless a larger majority is required by statute or this Charter.” (I bolded the important text.)

Got that? The Clarkston Charter, our city constitution, expressly states that at least four votes are required for any official action unless a law or the charter requires more. In other words, there will be no circumstance where the council will be able to get away with less than four votes for any official action – and it’s possible that more than four votes could be required. If they can’t muster four votes, the resolution or motion fails.

Choosing a replacement city council member (the slimy stuff)

Let’s go back in history a bit, because there have been two opportunities to fill a vacant council seat since Eric Haven was elected mayor in 2018. The first time happened on April 22, 2019, and the second time occurred on August 23, 2021.

April 22, 2019, Replacing Rick Detkowski:

You might remember that when Haven started his secret mayoral campaign in violation of the charter in 2018, he timed his resignation from city council for the Friday before nominating petitions were due. (Completed nominating petitions are required to get your name printed on the ballot.) Insiders Sharron Catallo, David Marsh, and Jason Kniesc spent the weekend getting nominating petitions signed for Marsh before anyone else knew that there was an opening created by Haven’s resignation. Meetings weren’t broadcast live at that time, so the rest of the public didn’t find out that Haven had resigned or that there would be a vacancy to fill for the remainder of Haven’s term until the following Monday evening. Unfortunately for the non-insiders, nominating petitions were due on Tuesday, the day after the Monday city council meeting. If it weren’t for my election complaint, Haven, Catallo, Marsh, and Kniesc would have, in effect, chosen Haven’s successor – because Marsh would have been running as an unopposed candidate for the remainder of Haven’s term.

(You can read about Haven’s conduct leading up to the 2018 election here: https://www.clarkstonsecrets.com/november-2018-election/)

Another fact to keep in mind is that Sharron Catallo lost her November 2018 election, months before the April 22, 2019 meeting to select Rick Detkowski’s replacement. Do you think that maybe Haven, Catallo, Marsh, and Kniesc had a conversation before the April 22, 2019 meeting about how the nomination to replace Detkowski was going to go down? I’ve always wondered about that.

There were two candidates to replace Detkowski on the evening of April 22, 2019 – Julie Lamphier and Sharron Catallo. Lamphier told the council that Haven had approached her about putting her name in for consideration. I have always believed that Haven wanted a second candidate to avoid making it look too obvious that the majority of council was going to put Catallo right back on the council, ignoring the will of the voters who collectively said that they did not want Catallo on city council.

The city attorney said that the council should choose some method to decide who should be voted on first, for example, in alphabetical order, order of nomination, or whatever; they just had to pick one name and vote. The city attorney did not tell them what to do. I disagree that they had to address one candidate at a time – they could have considered both candidates at once, with each council member voting by giving their preferred candidate’s name. And, if they wanted to consider one candidate at a time, a fairer way to handle things would have been to flip a coin to see who received first consideration – because the first person considered has a distinct advantage over the second person considered.

Haven jumped at the idea of considering candidates in alphabetical order by last name (if they’d done it by first name, Catallo would be the second candidate considered). Kniesc thought there should be some discussion about how to do this, but the council conversation drifted off to other matters, and there was no council discussion about the order of candidate consideration. When it came time to vote, Haven said “we will take them in alphabetical order then and we’ll have Sharron first by her last name.” Marsh, Kniesc, Avery, and Haven voted yes; Wylie and Reynolds voted no. Voilà! Catallo had been selected to fill the vacancy, and Lamphier received no consideration whatsoever.

Pretty slick, eh? You can hear the discussion for yourself by clicking the link to the April 22, 2019 city council meeting recording that I provided at the end of this post. The discussion starts at video time mark 2:07:58.

August 23, 2021, Replacing Jason Kniesc:

On the night of August 23rd, there were only five council members present – Eric Haven, Ed Bonser, Gary Casey, Joe Luginski, and Sue Wylie. Al Avery was absent. Jason Kniesc had resigned, leaving a vacant seat on city council. (Roll call was taken 22 seconds into the August 23rd video.)

The four-vote issue came up when the council was trying to seat Kniesc’s replacement. The city attorney correctly stated that the city can’t be bound if there are less than four votes. Later in the discussion, the city attorney said he wanted to check the charter because he thought there were six council members present rather than five. After reviewing the charter, the city attorney said that he thought it was the majority of the remaining members on council, there are six members remaining even though only five were present that night, and a majority of six is four, so he stood by his original comment that four votes were required. Huh? I quoted the charter earlier, and it says four votes. And you don’t need a word salad or mental gymnastics to reach that conclusion.

Wylie nominated Christopher Moore, and Haven nominated Bruce Fuller. (In case you haven’t noticed, Haven likes to nominate his neighbors for everything – so if you live near Robertson Court, you’re golden!)

The nomination discussion starts at video time mark 0:12:04 of the August 23, 2021 city council meeting recording. At video time mark 0:12:33 of the recording, Haven suggested that the council vote on the candidates “arbitrarily” in alphabetical order. Gosh, I’m sure it was a coincidence that “F” for Fuller comes before “M” for Moore in the alphabet, eh? R-i-i-i-i-ght. Since the first person to receive four votes is the winner, there is a distinct advantage to going first, as Haven well knew from the last time they’d replaced a council member who’d resigned.

But things didn’t go the way Haven planned them. I suspect that there was a discussion outside of the council meeting about who was going to vote for whom, and I think Haven thought Fuller would be, as my mom used to say, “in like Flynn.” So sure was Haven that Fuller had received the required four votes, he didn’t listen to the actual vote and said that’s four [votes for Fuller]. The city attorney corrected him. Unfortunately, Dr. Moore didn’t receive four votes either, so the city council left Kniesc’s position open until the November 2nd election – even though the Clarkston charter required that they replace Kniesc within 30 days of his resignation.

The Short-Term Rental ordinance

As I said before, only five council members were present on August 23, 2021 – Eric Haven, Ed Bonser, Gary Casey, Joe Luginski, and Sue Wylie. Ed Bonser was recused from any vote on short-term rentals because he owns a short-term rental that would be affected by the vote. That left four council members who were eligible to vote on this ordinance.

This was the second reading of the short-term rental ordinance, so the August 23rd vote meant that the ordinance would either pass or fail that night. Despite being expressly told that four votes were necessary when they were voting on Fuller and Moore to fill Kniesc’s vacated council seat (something that anyone can look up for themselves in the charter), that’s not how the vote went down.

When it came time to vote, Haven said that a yes vote would be for approval of the ordinance, and a no vote would be to not approve the ordinance. Haven, Luginski, and Wylie voted yes. Casey said that he reluctantly voted no because he thought the ordinance was too restrictive. Haven said that the motion carried.

Au contraire, mon frère, the motion most certainly did not carry. Casey’s vote was necessary to pass the ordinance, and he voted no.

What does this mean? It means that there was no change to the existing ordinance, despite what Haven said. The final August 23, 2021 meeting minutes are published on page 6 of the September 27, 2021 city council packet – and they accurately reflect that only three people voted for the Short-Term Rental ordinance but erroneously also state that the motion carried. And all of this happened right in front of the city attorney. (Why exactly are we paying him to sit through every city council meeting?)

Now I know that the city manager reads every post on this website and apparently stores copies of them on our government computers for posterity. But the city manager has also disdainfully said that the city doesn’t pay attention to anything I say here.

Alas, what a conundrum.  Do nothing, and there is no change to the ordinance, despite all of the whining for the last couple of years that we had to do something about short-term rentals. Follow the correct process to properly adopt the ordinance changes, and someone might suggest that it’s only because Clarkston Secrets pointed out the city’s failure, months after it happened (and that’s only because I’m behind on posting meeting summaries on the Clarkston Sunshine page).

My bet?

They’ll do nothing. It’s better not to admit that anyone at the city did anything wrong or acknowledge that anyone in city government consumes the content on this website (even though I have copies of the city manager’s emails proving that he’s quite an avid follower of Clarkston Secrets 😘).

So, if you find yourself fined or otherwise harassed under the short-term rental ordinance that doesn’t exist, please direct your attorney’s attention to Section 4.13 of the Clarkston Charter; the recording of the August 23, 2021 city council meeting, beginning at time mark 0:45:55; and the final August 23, 2021 meeting minutes published on page 6 of the September 27, 2021 city council packet.

You’re welcome!

 

References:

April 22, 2019 video recording of the Clarkston City Council:
http://216.11.46.126/VOD/2671-ClarkstonCity-4-22-19-High-v2.mp4

 August 23, 2021 video recording of the Clarkston City Council:
http://216.11.46.126/VOD/3538-CLarkstonCity-8-23-2021-v1/vod.mp4

  • I wrote a letter to the editor in the Clarkston News that was published on October 6 pointing out that the council had not met the charter requirements for filling the council seat that had been vacant since August 5.
    I repeated this in a letter published on November 3 in the Clarkston News. When I wrote those letters, I had not listened to the meetings and went by the official meeting minutes.
    Now that I have read Susan Bisio’s detailed summary, I see that the council and administration were fully aware that they had to select someone within the required 30 days, realized it would require a special meeting to do that due to a tie vote, and tried to work out a date that worked for everyone. They could have also extended the discussion, stated the pros and cons of each candidate, and then voted again at the same meeting, but that didn’t happen.
    Then they did nothing, the meeting never happened, and the open seat was not filled until the regular election 3 months later instead of the required 30 days.
    Yet another violation of the city charter and there are
    no excuses as the record shows they knowingly ignored their legal requirements.
    If the residents of the Village of Clarkston think their government is honest, transparent, and operating in accordance with governing law, they are not paying attention or simply don’t care.

  • FYI, even if the council should vote correctly and the ordinance amendment receive at least four votes, it still does not go into effect for at least 20 days after adoption and publication per city charter section 6.5. Publication is generally in a local newspaper and therefore is after the date the council adopts it so that adds a few more days.
    Based on comments made at city council meetings, it is unknown when it will become part of the city online ordinance records so the final approved version may only be available by a request to the city hall.