An Emergency City Manager for Ludington?

[XLFD]

It all started by a FOIA request based on curiosity about the Ludington City Manager's way of doing business after reading an article quoting him in the City of Ludington Daily News (COLDNews).  In the FOIA request I phrased it thusly:

"In the 1-22-2013 (Tuesday) Ludington Daily News (p8) it is written:  "Shay said there have been similar emergencies in which he has had to act prior to a council meeting being held."  This refers to the possible failure of the Brother Street conduit noticed in early July 2011 and fixed in September 2011.

Under provisions of the Michigan Freedom of Information Act (MCLA 15.231 et seq; MSA 4.1801 (1) et seq) I am requesting to personally inspect the following public records, or receive scanned or electronically transmitted records (whichever is most economical) for :

1)  If it exists, any list of such "similar emergencies" that required at least $10,000 of public expenditures to mitigate without City Council approval beforehand.  If such a list does not exist, please provide one (this last, of course, would be outside the realm of FOIA since you would have to create a record).

2)  The written definition of "emergency" that the City of Ludington officially uses in regards to such events (i.e. a record that distinguishes an emergency from a normal incident/event/expenditure).

3) Contract(s) and quote(s) from the most recent "similar emergency" (i.e. one where you acted unilaterally on beforehand) that involved the expenditure of over $10,000 not including the Brother Street repairs."

I got back the following response amounting to a 1 page invoice:

Here is the history of that 'emergency'.  On the evening of Monday, November 26, 2012, the City Council met-- but before on that day, local radio and the Mason County Press reported on some 'emergency repairs' on a sewer main break around the area of Adams and First Street in Ludington's Fourth Ward.  Reported by the latter:

"The city of Ludington’s Department of Public Works is currently repairing a sewer main break. City Manager John Shay said the break was discovered Sunday in the area of First and Adams streets.

“We do have sewage flowing into the Creamery Corners drain which empties into Pere Marquette Lake,” Shay said. “Crews are making emergency repairs and expect to have it complete by the end of the day.”

The break was caused by a crack in the sewer line.

Shay said because this is an emergency repair, no meeting of the city council was called. He said he would caution people to avoid Pere Marquette Lake until the line is fixed."

As depicted, this does sound like an 'emergency', though by the response, there is no clear definition of "emergency" that the City relies on for emergency City responses, since that wasn't included in the FOIA response.  Nor was there any mention of an outside contractor in the MCP article, where Shay was contacted, only the DPW.  Without any other loss of generality, let's say it was an emergency and Hallack Contracting was the company they had to go to, when it was figured out that the DPW could not fully resolve the issue.

Keep in mind, that the City Council and its attorneys went into closed session two weeks prior to this event to discuss a lawsuit saying they had violated the Open Meetings Act in not deliberating and deciding the expenditure of $95,000 for mitigating non-emergency water system problems on Brother Street.  A lawsuit they settled in a stipulated judgment by saying they had violated two sections of the OMA.

The minutes of the 11-26-2012 meeting even has John Shay mentioning the repair:

Was this handled the proper way?  Let's look first at the City of Ludington's charter-- LudCharter sec 13.2 :  Purchases Contracts and Lease [Procedures]: "The dollar limit within which purchases may be made without the necessity of prior Council approval will be set by ordinance with the exception of emergency repairs... All purchases and sales above a limit established by ordinance shall be evidenced by written contract or purchase order."

LudCode of Ordinances sec 2.4:  Purchases and Contracts: "... Sealed bids shall be asked for in all transactions involving the expenditure of $10,000.00 or more and the transaction evidenced by written contract submitted to and approved by the city council."

Presuming the emergency nature and that Hallack Contracting is the City's favorite for no-bid contracts in such emergencies, the City still erred.  The City has an invoice from Hallack for this event, not a contract or even a purchase order.  Such contract is needed for expenditures over $10,000, emergency or not.  The work was all done by the end of the day on November 26, and an invoice for the transaction was made by Hallack on December 11, two weeks later.  And not paid by the City until at least January 8 of 2013, four weeks later (On Jan 7, 2003 the City Council packet (p. 17) contains the $10,818.85 expenditure to Hallack for this repair, which was placed among all the City's expenses to be paid by approval of the 'paying of the bills'.).  Hallack Contracting?  Didn't they do the Staffon, Mitchell, Brother, and Dowland projects in the last year and a half also?

How can the City Council approve a contract, even after the "emergency", when such a contract never exists?  Why can't they convene an emergency meeting and vote when an emergency arises, as the Open Meetings Act allows in section 5(5)?  Why is unelected, unoathed John Shay, a person who has been uncontestedly labelled a "perjuror" at an open meeting of the Ludington City Council six times by the individual filing the successfully-prosecuted OMA lawsuit, given the power to unilaterally define what an emergency is before calling in his crony contracting firm for over $10,000 of taxpayer money for work/materials?

Is it simply because the City Council just doesn't care about protocol and the safeguards that have been put in the law to protect against the misuse of public monies?  What the City Council has got to learn is that the ethical conduct of a City's City Manager (or lack thereof), reflects on the perceived image and effectiveness of the corresponding City Council.  A clear understanding of what amounts to an "emergency" is something that would help, and to limit the times when such emergencies should be declared, as corruption is just a few emergencies away.

[XLFD]

And they seem to make more bad decisions than good on the tourism, such as what we seen with the million dollar marina transient docks.  The West Ludington Avenue Project, which is still on the drawing board is a good example of a bad idea for the future.  At a cost of around $700,000 the city will put in a concrete walkway along the Stearn's south beach, and construct something at the end of Ludington Avenue to try and draw tourists there. 

It's hard to say what, since they have kept it so secret from us all, but from what I have seen it's a detriment to the natural and scenic beauty I look for when I go down to the beach.  Why mess with Stearn's Beach when it has recently been ranked so high on Michigan's beaches list?

[Jane]

That is the stupidest idea ever screwing with the south side of the breakwall, it's the only semi=private place a introverted person can walk to dip there toes in the water wear there aren't all those hot teenagers in bikini's to make you feel old and fat.

Dear COL, leave the south side alone for us old folks. Some of us still like ludingtons natural beauty, not your pave paradise to put up a parking lot theories, why do you think tourists come here, the lack of city-fication.

[AQUAMAN]

You really think that the COL officials born and raised down-state care about what the locals feel is important and sacred to them? Think again then...I can remember a Ludington when the parks, beaches, and playgrounds/fields had NO Signage of Rules and Do Nots. People in general had the common sense to do what was right, and also cleaned up afterwards. I've never seen so many signs of don't do this or thats, and rules in any place in my life. And it even turns the tourists off from observations of recent years, condescending and too formal. Spoils the natural outdoor experience, like a prison camp atmosphere.