I know that the word “literally” is overused, but let me pile on. I literally laughed out loud when I saw the city’s April 1st email saying this:
Bisio Lawsuit Settlement
The City is pleased with the completion this week of a settlement in the long-standing Bisio v. Clarkston lawsuit. A statement will be issued soon summarizing the case and settlement.
I’m going to assume that this wasn’t an April Fools’ joke.
Did you get that? The city is going to “summarize the case” and “summarize the settlement” for you. The people who hid records from us for five years on the basis of “principle” (the principle being a claimed right to hide Clarkston’s public records in off-site files), and the people who hid the terms of the settlement agreement from you by misrepresenting them during a council meeting, are now going to “summarize” what happened. Mmm-kay.
If Mark Peyser (the attorney the city hired to handle facilitation) writes these summaries, he’s probably billing us for it (do you think that’s a good use of your tax dollars?). If Jim Tamm, the attorney assigned by the Michigan Municipal League Liability and Property Pool (MMLLPP) to represent the city in court does it, he’s probably billing the MMLLPP for it (do you think that’s a good use of the tax dollars of every taxpayer who is part of a community that pays in to the MMLLPP self-insurance?). If City Attorney Tom Ryan is doing it, then he would be terribly remiss if he didn’t explain why he had to get his malpractice insurance carrier to contribute financially to the settlement of the lawsuit. 😂
To this day, Clarkston city officials can’t even acknowledge that they lost the case in the Michigan Supreme Court. They would prefer to focus on their “victories” in the circuit court and court of appeals. That and a couple of dollars might buy them a cup of socially-distanced coffee. THEY LOST. I WON. Maybe they could focus their efforts on not hiding records in the future. I would like to see something like that in the “summary.”
Clarkston city officials also hid the terms of the actual settlement agreement from the public, voting on a motion that supposedly “summarized” the settlement, which is why you should be suspicious of any “summary” they might offer to you. As I previously noted in this post (https://www.clarkstonsecrets.com/the-city-council-has-apparently-not-learned-a-damned-thing/), the motion claiming to be the settlement didn’t actually summarize the settlement. The settlement amount was $160,000. That the city was able to get others to share in these costs is good for the city, but the lawsuit was against the city and not the MMLLPP, Ryan, or Ryan’s law firm.
A settlement agreement is a contract. Not only did the city violate the Open Meetings Act (again) by discussing and agreeing to approve a contract in closed session, but they also completely misrepresented the terms of the settlement agreement to the public when they approved it.
So, how about if I just upload a copy of the Michigan Supreme Court’s decision and a copy of the settlement agreement right here, in one place, so that you can read them for yourselves without relying on the city’s summary or my summary. Sound good?
Here is the decision from the Michigan Supreme Court (20200724 – MSC decision, Bisio v Clarkston – 158240). The first three pages of the document are called the “Syllabus.” That’s not part of the opinion, but it’s kind of a cheat sheet written by the Michigan Supreme Court’s reporter of decisions.
The 4th page of the pdf is titled “Opinion,” but there were actually three opinions in my case – the majority opinion, a concurring opinion, and a dissenting opinion. The majority opinion – the opinion that decided the case – was written by Justice Markman and joined by Justices Zahra, Bernstein, Clement, and Cavanagh. I know that not everyone follows politics, but the six justices who reached the conclusion that the records I asked for were public records (which includes the Justice who wrote the concurring opinion) are Democrats and Republicans. The issue of transparency cuts across both political parties.
The concurring and dissenting opinions are interesting, but they don’t have any precedential value—they’re not binding on lower courts. The concurring opinion was written by Chief Justice McCormack. Concurring opinions mean that the Justice either disagreed with the reasoning of the majority opinion in some way, or they are written to clarify or emphasize things that the concurring Justice believes are important. In my case, Chief Justice McCormack agreed with the conclusion reached by the majority opinion, but she would have used different reasoning to get there. Her agreement with the conclusion of the other five Justices made my case a 6-1 decision. Chief Justice McCormack’s concurring opinion begins at page 19 of the pdf.
The last opinion was a dissenting opinion, written by Justice Viviano. Justice Viviano disagreed with the majority opinion and would have upheld the opinion of the Michigan Court of Appeals. Justice Viviano’s opinion begins at page 25 of the pdf.
I’m also attaching a copy of the fully executed settlement agreement. The settlement amount – that the city was entirely responsible for – was $160,000. The city received contributions toward its obligation from the MMLLPP ($90,000) and from Ryan’s malpractice carrier ($35,000). The remainder ($35,000) was paid from city funds. The settlement agreement is linked here (20210331 – Fully signed settlement agreement).
There you go. You don’t need anyone else to tell you what to think.
Susan Bisio speaks the truth. City officials not so much. When asked directly in “public comments” they rarely speak at all. I really look forward to Mayor Eric Haven explaining and justifying “the principle.” City officials, except for Sue Wylie, have never explained what was so special about the 18 withheld documents. Many clearly know, based on the content of the 18 documents. City attorney Tom Ryan and City officials Haven, Luginski, Avery and Kneisc (who have been in City official roles since the FOIA request was made) were trying to protect the reputation of a family at the expense of the reputation of the citizens of Clarkston and the credibility of City officials. And they spent our money and money of other citizens of Michigan doing it. I estimate north of $700K,
It seems they are also trying to protect the city attorney, Tom Ryan, who caused the entire problem when he decided to not release 18 documents for no reason other than he didn’t want to. Perhaps it was to protect ex city officials and their family but we will never know for sure because the city is defending the city attorney’s actions with our tax dollars. The court documents, filings, and who is paying what are public records so it is impossible to know why the city works so hard to try and hide them, refusing to publicly answer any questions about them.
It will be interesting to read what, if anything, is written by the city since they have been silent for over 5 years even as information was openly provided by others. Since all the decision making discussions were done in closed meetings, they cannot reveal what was discussed unless the city council now votes to make that information public. That is highly unlikely. The settlement agreement was not provided to the public by the city, even though available. Instead only a brief, inaccurate, and misleading resolution that may or may not be in the official meetings minutes as full resolutions seldom are.
Then we have the actual settlement being signed by the City Manager even though the city charter requires contracts to be signed by the Mayor and Clerk.
It is painfully obvious that the city council does not represent the public but instead represents only the city administration regardless of what law, charter, ordinance and resolution say.
One final note is that while the settlement agreement amount was $160,000, and only about half of Bisio’s billable costs, it did not cost the city only $35,000. There are also legal expenses to date in excess of $20,000, possibly still increasing. The city attorney charged time to this issue until that was cut-off due to the inherent conflict of interest since he caused the problem. Then there is all the administrative time spent responding to the ongoing issues and discussions. No one is keeping track of those costs, at least not on the public record, and the city council never asks about any of it. Much like the city hall renovations, and just about everything the city does, the council finds it better to not ask and simply approve spending our tax dollars on whatever is put in front of them.