The Aftermath, Part I – On Ending Things

Now that it’s finally over, I want to share my perspective and opinions on my Freedom of Information Act (FOIA) lawsuit. I know that everyone has their own opinion about what happened, but this is my take on things from the inside of the first lawsuit I ever filed in my own name and as someone who has worked with the Michigan FOIA almost exclusively for 14 years as a municipal attorney. It’s been going on for more than five long years, and I have a lot to say.

You might be surprised to know that before all of this began, I didn’t even vote for city council members. I didn’t know who they were or what they stood for, and I won’t fill in the ballot circle if I have to guess. In fact, I pretty much ignored everything that was going on within the city from 2003 through 2015 because I was too busy with work and family obligations to pay attention. But now, as the direct result of my experience dealing with the city and their lawyers for half of a decade, Clarkston government has my full attention going forward, whether they want it or not (and I’m pretty sure they would prefer the old me rather than the new me 😉).

For over five years, the city’s attorneys and many members of the city council made every effort to smear my husband and me for – let’s face it – nothing more than our refusal to let errant (and arrogant) City Attorney Tom Ryan decide transparency issues for us, contrary to state law. In my case, Ryan decided that it was exclusively up to him to choose whether or not I received information about my city government. In my husband Richard’s case, Ryan instigated and assisted the city council in committing an Open Meetings Act (OMA) violation. (I wrote about that here: https://www.clarkstonsecrets.com/open-meetings-act/.) Ryan’s legal advice was directly responsible for causing (and maintaining) both of those lawsuits.

Ryan expressly told everyone in the city that that he was personally going to control the information coming out of city hall and that he alone would determine when public records “became” public records as though there was some sort of birthing process involved, the timing of which he alone decided. As far as Ryan was concerned, if he created or received records pertaining to Clarkston business using a non-city email address (and billed us for it!), neither the taxpayers nor the city council were entitled to know what was in those records – unless and until Ryan decided to forward the record(s) to city hall. And if we didn’t like being treated that way, that was too bad. This is how the city operated for years, and most city council members not only supported this approach, almost all of them displayed an unacceptable lack of curiosity regarding the Clarkston records that Ryan kept hidden from them as well.

Tiny Clarkston Has More Than Its Share of
Truly Awful People and Really Bad Government

I was the first person who stood up to Clarkston in court on FOIA issues (and my husband was the first person to stand up to Clarkston on OMA issues). Clearly, city officials and their attorneys didn’t like that one bit, which is why they all fought so hard against disclosing the records. It’s also why Bill Basinger, Zoning Board of Appeals member and ostensible “expert on everything,” twice sent letters to everyone in the city, attacking me for nothing more than standing up for my rights under Michigan law. Of course, these letters weren’t sent to me so that I could respond, which tells you more about Basinger’s cowardice than anything about me. I wasn’t a local public figure or running for office – I was a wife, mother, taxpayer, and constituent who was simply asking for public records and refusing to take no for an answer from the people who are paid with my tax dollars. That was apparently very offensive to Basinger, who has been uncharacteristically quiet since I won the lawsuit. (Gosh, maybe he’s not such an expert after all?) It was also a classic example of how the “old guard” in the city will circle the wagons and try to punish and ostracize anyone who questions them.

Ryan’s bad conduct was endorsed by most city council members who still apparently don’t realize that they – not the attorneys – are in charge of city affairs, a phenomenon that attorneys frequently refer to as “a non-sophisticated client.” Though they may be unsophisticated regarding the role of the lawyers in running city government, most of your city council members agreed with Ryan and didn’t give the slightest damn about transparency – with the notable exception of Sue Wylie, Scott Reynolds, Rick Detkowski, and former mayor Steve Percival. The rest of your city council members view Clarkston information in two distinct categories – “the city’s business” versus “your business” and ne’er the twain shall meet – even though everyone in city government is ultimately responsible to each of us, the taxpayer/constituent.

These backwards beliefs are especially true for our current mayor, Eric Haven. Whenever Haven has had the chance to do something secretly versus doing that thing out in the open – from closing meetings, to “private” email discussions among a quorum of city council members using personal email addresses in violation of the OMA, and even engaging in a surreptitious election campaign that violated the charter – Haven has always chosen to operate in secret. (After Haven got caught red-handed, the old guard simply pushed to change our Charter to ensure that the mayor and council members can run secret election campaigns in the future.) Haven (and Ryan) have publicly claimed on multiple occasions that they fought my lawsuit as a matter of principle – but the “principle” they were fighting for was the ability to conduct government activities in secret. I have never heard Haven say that he supports government transparency, nor do I expect to – because he absolutely does not support it.

Ryan wasn’t the only errant lawyer involved in the lawsuits. I was in court when James Tamm, the lawyer hired by the Michigan Municipal League Liability and Property Pool (MMLLPP), told our judge something that he knew was untrue as the words were coming out of his mouth, and I’ve watched recordings of city council meetings when Tamm told the city council things that also weren’t true (and he had no evidence beyond his imagination to support the things he said to them).

We learned during discovery in my FOIA case that Tamm and Ryan are “social friends,” and that explains quite a bit about the way that the two of them acted during the OMA and FOIA lawsuits. Though we were accused of engaging in some sort of “vendetta” against Ryan for simply fighting for the right to receive public records, it was really Tamm and Ryan versus the Bisios, not the Bisios versus Ryan. For example, Tamm seemed obsessed with finding out why I sent FOIA requests to other cities regarding Ryan. He ended my deposition in a huff when my lawyer objected to his irrelevant questions about these unrelated FOIAs. Even though Tamm had no information about these other requests, he told the city council that my husband (and my attorney in the FOIA case) had sent them and that they had something to do with my FOIA lawsuit. Neither of these things were true.

Tamm vilified my husband and me as part of his effort to keep the FOIA lawsuit going, inflame the anger of the city council members, and to protect his friend Ryan. Of course, all of this had the added benefit of keeping those monthly MMLLPP insurance checks coming into Tamm’s law firm for the hundreds of billable hours he and the almost a dozen lawyers he assigned to work on the case were racking up. Perhaps the bromance between Tamm and Ryan works both ways, since Tamm always seems to be assigned to handle every single one of the city’s litigation matters. (Interesting, that. 🤔) The city council came along for the ride, not only because most of them are predisposed to value secrecy over transparency, but because they were repeatedly lied to.

Honestly, I had no idea who Ryan was before this whole thing started, which makes it rather odd that Tamm would tell the city council that my lawsuit was about some sort of ill will that I felt toward Ryan. Since I don’t personally have much use for the Michigan State Bar, I neither knew (nor cared) that Ryan was a former state bar president, a position that most lawyers realize comes about through relationship connections and not from any particular skill or ability on the part of the attorney. And, before this case, I was unaware that Ryan was on the Judicial Tenure Commission (JTC), a body that sits in judgment of our elected state judges. You know, I often wonder what Ryan’s fellow commissioners and the judges that he has voted to discipline would think if they knew that Ryan, among other things, refused to recuse himself from my husband’s OMA case or my FOIA case, something that undoubtedly contributed to the length and expense of both of those cases. Under the rules governing lawyers, lawyers are not permitted to be involved in cases in which they have a personal interest because they cannot provide objective advice to their clients. Ryan would know this because his job on the JTC requires that he enforce those same rules against sitting judges (along with the rules that pertain specifically to judges).

Ryan eventually stopped charging the city for his “work” on the FOIA case, but as reprehensible as that was, charging fees is not the core issue – involvement is (I will have more to say on Ryan’s fees in another post). Ryan was personally responsible for instigating both the OMA and the FOIA cases, which in turn resulted in all the negative publicity for the city, all the hard feelings in the community, and bringing the city council members to the attention of the Oakland County Prosecutor’s Office for the OMA violations that Ryan helped to facilitate.

We Agreed to Settle the Case
Because It Was Best for Everyone

We never forgot that if the MMLLPP (the city’s insurer) refused to pay for my attorneys’ fees, the money would have to come from a judgment on everyone’s property tax bill or taken from the city’s treasury, which is nothing more than taxpayer dollars that are paid by all of us. The practical effect of the city directly paying a fee claim would mean that our streets and sidewalks would not be fixed for a long, long time. This was concerning to us because this is our city too. It’s not our neighbors’ fault that the city’s lawyers and elected officials acted irresponsibly over the last five years, it’s their fault – but everyone in the city would suffer because of the way Tamm, Ryan, and most of the city council members conducted themselves. We also never wanted our city employees – whom we think do a fantastic job overall – to have to pay any price for the lawsuit through salary cuts or layoffs as was suggested by the city manager last June if the city’s share of the legal fees were too high.

In September 2017, Ryan told the city council that the MMLLPP would pay my attorneys’ fees at the end of the case as part of the city’s insurance coverage. Last year, Ryan was forced to admit that the MMLLPP told him that they objected to paying attorneys’ fees right after the case was filed over five years ago. I’ve never heard anyone on city council publicly chastise Ryan for keeping the insurer’s position on paying attorneys’ fees a secret from them. Why would he do that? Well, we know that Ryan had a clear interest in vindicating his claim that he was entitled to hide public records by keeping them in his law firm’s office or by using his Gmail account. He also knew that, if the city lost the case at any point, he would have a lot of explaining to do about how it started. Yet, Ryan has continued to brag about being proven “right” in the circuit court and court of appeals, skipping over the part where the Michigan Supreme Court ruled that the records that he claimed were not public records actually are public records. Ryan has learned nothing from all of this.

Despite what you may have been led to believe, I didn’t need to “settle” anything. I won. The attorneys’ fees, which amounted to over $300,000, were well-documented. I was entitled to go to court and have the judge decide the fee issue, and if I didn’t agree with the judge’s determination, I could appeal to the court of appeals (and beyond that, to the Michigan Supreme Court). All of the additional attorneys’ fees that I might have incurred to fight about the amount of attorneys’ fees that were owed would have been added to the city’s final bill. That’s the kind of thing that only the lawyers benefit from.

We also didn’t need to agree to facilitation, but we did. The point of facilitation was to work out a fair number to resolve the case that both sides could agree to. We knew that it would be less than $300,000, and Kemp Klein agreed to accept less than the firm was entitled to because we all thought that it was time to end things and not incur additional fees – just to fight about fees. The city also benefited from the fact that March 31^st is the end of the Kemp Klein’s fiscal year and was another reason they wanted to wrap things up.

Honestly, I think that I can fairly estimate that the attorneys’ fees on each side should have only been around $100,000, which includes going all the way to the Michigan Supreme Court, if the city’s lawyers had behaved in an ethical and straightforward manner. Instead, the lawsuit was handled by almost a dozen MMLLPP-funded attorneys, led by Tamm, who all benefited financially.

Neither my husband nor I planned to publicly speak about settlement issues while they were ongoing because our goal was to settle the lawsuit without more fighting. However, I wasn’t going to sit silently while Tamm continued to file baseless motions regarding non-existent settlement agreements that were publicly discussed by the city manager at city council meetings or included in his city manager’s report (a report that was also posted online and blasted out to the community through a listserv). I responded by posting the court filings on this website for everyone to see and to decide for themselves who was right and who was wrong. (Note to city officials – digital ink is free, websites are inexpensive, and I will always respond when you make public comments about me.)

Never forget how much Tamm benefited from all of this – as long as he continued to bill hours and assign other attorneys to work on the file, the MMLLPP sent him a check every month. Tamm was/is a partner at the (two) law firms that worked on this case. Partners are owners, and law firms generally pay partners in a similar way, which means that Tamm likely received not only a percentage of the hourly fees collected for all of his personal work on the case, he probably also received a percentage of the hourly fees generated by every other attorney he assigned to work on the case. And, at the end of the firm’s fiscal year, Tamm would have received a cut of the firm’s overall profits for the year, which included the revenue generated from my FOIA case.

It’s fairly well-known in legal circles that when it comes to billing an insurance carrier for legal services work, lawyers will often reduce their hourly rates to get the business and then bill as much as possible because they know they are going to be paid regularly for what they do (and any reduced hourly rate they charge is made up for by the overall number of billable hours submitted for payment – sounds an awful lot like Ryan’s billing method as well, doesn’t it?). This is not what lawyers are supposed to do, but it’s frequently what happens. I don’t know if Tamm was engaging in that practice, but it’s absolutely true that it was always in his financial best interest to keep the lawsuit going, to file all kinds of bizarre and baseless motions, and to convince the city council that they were the actual aggrieved party (instead of me). My lawsuit unquestionably turned into a very lucrative endeavor for Tamm.

(To be continued . . . )