A group identifying themselves as “your friends and neighbors promoting a positive Clarkston” sent a letter that actually does quite the opposite. You should know that they didn’t send this to everyone. I didn’t receive a copy, and I’m not the only one. This is because your supposed “friends and neighbors” fear truth and facts like the plague.
You may recall that I described the “old guard” in my last post as follows:
They think they are our betters just because they have lived here longer. Most are in their 70s and 80s, but some of their poisonous beliefs have managed to seep into the Millennial and Gen Z generations too. They want you to pay your taxes and keep quiet about how they spend that money. No matter how much you object, they will find a way to take care of their friends and do what they want. They perceive the city as an “us versus them” schism. They would rather destroy you than reach across the aisle. There is no cooperation; everything is a zero-sum game to them. They don’t like you.
I have no doubt that this letter came from people who fit squarely into that mold. Had they signed the letter, you would know for certain – the fact that they didn’t sign it suggests that they are part of the old guard club. They also seem to perceive Cory Johnston and Steven McLean as a significant threat – or they wouldn’t have spent time and money on a last-minute letter asking you to support the incumbents and telling you half-truths.
I’ll leave most of the letter aside and comment on what I know best – the description of my lawsuit, which they put under the heading “[s]ome simple truths.”😂😂😂 Had they left me out of the letter, I wouldn’t feel compelled to respond. Since they don’t want to tell you the truth, I will. I’ve addressed their bullet points one at a time below.
Legal documents were requested by resident and attorney, Susan Bisio, under the Freedom of Information Act (FOIA).
I am a resident and an attorney, and I did in fact make a request for a number of documents using the FOIA five years ago. I’m glad to see that I’ve finally been correctly identified as the FOIA requester. Apparently, the old guard has abandoned their sexist and misogynistic claims that I was my husband’s puppet, incapable of making decisions on my own, and that my lawsuit was some sort of “vendetta” against the city attorney by my husband. Progress!
I received a lot of records in response to my FOIA request before filing a lawsuit, but 18 documents were withheld. I’m not sure why my profession is relevant here, but since it seems so important to your “friends and neighbors,” let me add that I graduated first in my law school class (and the second person wasn’t even close), have been a municipal attorney for almost 20 years, and have specialized in FOIA for over 12 years. When it comes to the FOIA, I clearly know what I’m talking about – and the city does not.
The documents that the city attorney withheld were not “legal documents” by any stretch of the imagination. Just because a lawyer sends or receives something does not transform that thing into a “legal document.” Despite what your supposed “friends and neighbors” say, when it came time to answer questions under oath, the city attorney himself never claimed that these 18 records were “legal documents.” This exaggeration is also easily disproven by looking at the records that I posted online for all of you to see.
The City denied the request because of principle and not because of content; and once released, the documents proved inconsequential.
The “city” had nothing to do with the denial, which was made by the city attorney on his private law firm letterhead. City council members told us repeatedly that they had no idea what the documents contained. Years into the lawsuit, current mayor Eric Haven was so ill-informed that he thought I was seeking the city attorney’s “private correspondence,” though nothing could have been further from the truth.
The city attorney admitted that he alone made the decision to withhold the 18 records – which were all sent to him or from him using a private email address – even though he reports to the city council. He also participated extensively in the lawsuit. This was ethically questionable conduct, not “principled” conduct, and the city attorney should have known better since he is a former State Bar president and is a member of the Judicial Tenure Commission, where he sits in judgment regarding whether Michigan judges have behaved in an ethical manner.
Most of the 18 records concerned Curt Catallo’s proposed drive-through coffee shop at 148 N. Main Street. Since there were concerns about potential groundwater contamination that could have been exacerbated by construction on that site, hiding these records only intensified the public’s anxiety. The remainder of the documents concerned Cara Catallo’s conduct while serving as the Chair of the Historic District Commission (HDC). Ms. Catallo used her authority to attack property owners for merely cutting trees on their own land, which land is also coincidentally located near two of her brother Curt Catallo’s restaurants. Hiding these records led to continued questions about whether the HDC was using its power for purposes of favoritism.
I find it disturbing that the authors of the letter defend keeping secrets like this and apparently applaud letting these concerns fester for five years. With the exception of Sue Wylie, every single person up for re-election this year supported the notion public officials should be able to keep documents about city business in secret, off-site files, perhaps because they do it, too. It has been said that sunlight is the best disinfectant, yet your “friends and neighbors” apparently believe that darkness is best to promote a “positive Clarkston.”
I agree that there was nothing in these documents that justified hiding them, but since I wasn’t allowed to see them, I had no idea what they contained. Fighting to keep the records secret on the grounds of some inane “principle” was the worst possible decision that could have been made by the mayor and city council members asking for your vote in the upcoming election. If you support secrets, I guess they deserve your vote?
The City’s case was supported by the Michigan Bar Association, the Michigan Municipal League and the Michigan Townships Association.
Um, there is no such thing as the “Michigan Bar Association.” The closest organization would be the State Bar of Michigan (SBM), something that every licensed Michigan attorney is compelled to join. The SBM didn’t support anyone in the lawsuit – nor would they ever have done so.
The Michigan Municipal League (MML) and Michigan Townships Association (MTA) did support Clarkston in the Michigan Court of Appeals and Michigan Supreme Court. The primary attorney hired by the insurer to represent Clarkston has an extremely close relationship with these two organizations, and he has written briefs on their behalf for other public bodies. Frankly, it would have been surprising if the MML and MTA had refused to support Clarkston after being asked to do so by the insurer’s attorney because there is such an intense professional relationship and network between them. I would note that they weren’t interested in being involved until the deadline to submit briefs had passed, and even then, only after media organizations came out in support of me.
After the Michigan Supreme Court decided against Clarkston, the city council authorized the attorney provided by the insurance carrier to try to overturn the decision, which increased my legal fees by tens of thousands of dollars. At that point, the Michigan Association of Municipal Attorneys (MAMA) was added to the caption on the amicus brief. This was a really disingenuous move. MAMA is part of MML, so adding MAMA to the case caption in support of the MML is like adding Chevrolet in support of General Motors. I’ve personally been a member of MAMA for years now, and obviously, they didn’t represent my position in my lawsuit (or the position of any municipal attorney I know), so it was more fluff than anything else.
If our “friends and neighbors” believe that it’s important to know which organizations supported one side or the other in the lawsuit, then I would remind them that these well-recognized organizations supported me: Michigan Press Association; Detroit Free Press; Michigan Association of Broadcasters; Reporters Committee for Freedom of the Press; Detroit Chapter of the Society of Professional Journalists; The New York Times Company; The Detroit News; E.W. Scripps Company; New World Communications of Detroit, Inc. (on behalf of WJBK-FOX 2 Detroit); Nexstar Media Group; Zillow Group, Inc.; Better Business Bureau of Eastern Michigan; Meredith Corporation; and Michigan Coalition on Open Government.
The City’s legal fees are covered by Insurance.
While this is a minimally true statement, Clarkston’s “insurance” is provided by the Michigan Municipal League’s Liability and Property Pool (MMLLP). The MMLLPP is self-insured, and they receive all their funding from public bodies who are members, such as Clarkston. Since public bodies depend on taxpayers for all their money, the legal fees covered by “insurance” were paid indirectly by every single taxpayer in Michigan who lives in a member community. The attorney hired by the MMLLPP was paid with these indirect taxpayer dollars, and he made the most of it. In the first ten and a half months of the lawsuit, the insurance attorney and eight other lawyers at his firm managed to bill almost $100,000 that was all paid by the MMLLPP. And they didn’t stop there. In total, the city has been represented by two different law firms and at least ten different lawyers in those firms.
Just because something is covered by “insurance” doesn’t mean that the money is “free,” and it’s an expression of ignorance to suggest that it is. In fact, because of the city’s claims history, its insurance premiums were raised this year. I don’t think that it’s a positive that most taxpayers in Michigan were forced to subsidize Clarkston’s bad decision to litigate over whether public officials could keep documents in secret, off-site files, do you?
Negotiations for settlement are still months away, and settlement amounts are merely conjecture.
This is an interesting statement, considering that your “friends and neighbors” don’t know anything about what’s happening and apparently assume that the case will be “settled.” It’s my lawsuit, and even I don’t know if that’s going to happen.
As you know from the city manager’s disclosure of a memo subject to the attorney/client privilege during a public city council meeting, we reached out to the city shortly after the Michigan Supreme Court ruled against Clarkston because we wanted to know if the city had any interest in settling the lawsuit. The response we received was the equivalent of kicking sand in our faces – the city filed a boatload of motions and briefs arguing that the Michigan Supreme Court should reverse itself, they insulted six of the seven justices by claiming that they didn’t know how to interpret the FOIA statute, and they told the Michigan Supreme Court that the city had no intention of releasing the records no matter what the court decided. Obviously that last part was a lie, since the city released the records shortly after the court issued one-sentence denials of the city’s motions.
The bottom line is that Clarkston lost, my fees and costs were increased by tens of thousands of dollars after I won, and they continue to rise each with each court filing and hearing. Under the Michigan FOIA, a court must order the losing public body to pay reasonable attorneys’ fees, costs, and disbursements to a prevailing plaintiff (like me). Contrary to the suggestion of your “friends and neighbors,” there is no “settlement requirement” in the FOIA statute that would result in something less than the documented attorneys’ fees and costs, so they clearly have no idea what they’re talking about.
A settlement requires cooperation from both parties, and the city council has expressed no interest in settling the lawsuit. Because of that, we recently filed a motion in the Oakland County Circuit Court requesting $280,414.50 in attorneys’ fees, $4,860.52 in costs, and $1,000.00 in punitive damages. All of these fees, costs, and damages are supported with ample documentation, and is not “conjecture” as claimed by your “friends and neighbors.” I will be happy to post our request and the city’s response on this website once the city files a response. I would also note that the conduct of the city and its attorneys during the last five years arguably supported even more attorneys’ fees and costs than we asked for. And, while your “friends and neighbors” claim that “negotiation and settlement are still months away,” it doesn’t make the costs and fees go away – the only thing that will happen months from now for certain is that the election will have passed.
Your “friends and neighbors” also neglected to tell you that the city has no flipping clue who will pay for this, whether the lawsuit is settled or the city is ordered to pay a judgment. With the exception of council member Sue Wylie, your mayor and every city sitting council member has contributed not only to my attorneys’ fees and costs, but to the attorneys’ fees and costs paid by the insurer. In 2017, the city attorney told the city council that the insurer would pay for my attorneys’ costs and fees, despite receiving a letter from the insurer telling him that they would not pay them right after the lawsuit was filed. The insurer sent another letter earlier this year telling the city the same thing.
If the insurer refuses to pay, then the city will likely force each of you to pay a share of the cost through a judgment lien added to your property taxes. I warned you about that possibility in my post titled “Clarkston Taxpayers, I Think You’re About to Be Screwed – by the City Council.” I also suggested that before any Clarkston taxpayer is required to pay one damned dime, there are others who should be looked to for payment (see my posts titled “Who Should Pay My Costs and Fees,” parts 1, 2, and 3). The bottom line is that Mayor Haven and his pals on city council have gifted all of us with a whole lot of grief for what your “friends and neighbors” characterize as “inconsequential” documents withheld on the grounds of “principle.” Apparently, they are arguing that it was all worth it? If so, then perhaps they don’t live in Clarkston.
The fees and costs for this lawsuit should have been 1/3 or less of what they are if the city and its attorneys had properly conducted themselves. Even though the current mayor and city council members were grossly negligent (with the exception of Sue Wylie), the insurer, the attorneys hired by the insurer, and the city attorney share the blame for where we are now.
Your “friends and neighbors” want you to reelect the mayor and city council members who participated in this. They either think you aren’t very smart, or they’re hoping that you will be fooled by a last-minute mailing that was deliberately not sent to people who will tell you the truth. Since they were so untruthful about the lawsuit, what else are they lying to you about?
Updated (I’m moving this up from the comments in the interest of accuracy):
I just went out to get the mail and one of the unsigned letters was waiting for me. Previous letters sent city-wide discussing me or my FOIA lawsuit were not sent to me as an obvious way of trying to keep me from responding to the content.
Since I criticized the unnamed senders for not mailing me a copy of a letter that mentioned me, it’s only fair that I make the correction. As of 11:10 pm when I’m writing this, I know that there are other people who have not received the letter, and I can’t know if that’s deliberate or not.
I just went out to get the mail and one of the unsigned letters was waiting for me. Previous letters sent city-wide discussing me or my FOIA lawsuit were not sent to me as an obvious way of trying to keep me from responding to the content.
Since I criticized the unnamed senders for not mailing me a copy of a letter that mentioned me, it’s only fair that I make the correction. As of 11:10 pm when I’m writing this, I know that there are other people who have not received the letter, and I can’t know if that’s deliberate or not.