An Open Letter on Openness to the Ludington City Council

[XLFD]

Ludington City Councilors (LCCs) Miller, Lenius, Wiczewski, Johnson, Serna, Rozell, and Bourgette

400 S Harrison Avenue

Ludington, MI 49431

       Re:  FOIA Appeal and an explanation of why I assert the City has broken the FOIA and OMA.

Councilors,

I have an appeal of a Freedom of Information Act (FOIA) request coming before you for your adjudication on the evening of February 11, 2019. The disposition you ultimately decide on should not be considered lightly, it is very important that you approach your decision honorably and in accordance with the laws of the State of Michigan, of which you have all sworn to defend. I appeal to your diligence to follow the laws of transparency enshrined in the FOIA and the Open Meetings Act (OMA) as they apply in this instance. I will link to laws and minutes for your convenience in support of my position, and try to avoid legal lingo when possible.

A brief background: The city had contracted with the Michigan Municipal League (MML) last year in order to do a city manager search, and by early this year had 37 applicants. The LCC arranged a meeting of a Committee of the Whole (COW) to meet on January 10, 2019 in order to whittle the field down and issued a councilor packet for the meeting.

It was noted on the agenda and at the meeting that the council would go into closed session "per Section 8(f) of the OMA" in order to "Review and Consider Applications of Potential City Manager Candidates." In the packet, a memo dated 1-3-2019 from Jeff Mueller of the MML to the mayor and the LCC noted that (emphasis added): "Since some applicants requested confidentiality... the discussion we will have will be in closed session" (p.2).

The COW minutes you approved at the 1-24-2019 meeting inaccurately report that "[Mueller] stated that all of the candidates requested confidentiality...", which is factually inaccurate according to my audio recording of that meeting where he never used the word 'all', with nobody asking why his memo stated 'some'.

You likely are aware that when 'some' is used as a pronoun, like here, it means either 'an unspecified number of people' or 'a small amount of people'. When considering a group of 37 people, one would usually assume that 'some' refers to a minority of those people, rather one would use the word 'many' or 'most'. Mueller, well-versed in rhetoric, did not. This was definitely the case back in late 2002 when the LCC did its last city manager search and the local paper listed 19 of 24 new applicants (only 5 had requested confidentiality).

The approved COW minutes also relate in full: "Moved by Councilor Lenius, seconded by Councilor Rozell, to direct the MML Facilitator to contact candidates #27, #7 and #22 to determine their interest in interviewing for the city manager position. If one of the three candidates decline, then also ask candidate #5 for their interest in interviewing, and if two of the candidates decline, then also ask candidate #25 for their interest in interviewing for the city manager position. The candidates will be identified by name on the agenda set for the meeting on January 24, 2019. Motion Carried. "

Not one piece of deliberation went on during the open meeting before a vote was made on five candidates, strongly suggesting that the LCC did more than they should have in closed session. Clerk Luskin takes meticulous minutes as can be seen by the rest of the meeting, she would have noted discussions beyond the motion and the vote. By law, the closed session could only have been used to 'review and consider' the applications of those people who specifically requested confidentiality, definitely not used to decide the five finalists or deliberate over the applications of those not requesting confidentiality, as it clearly was in violation of OMA.

Review and consider used as verbs have slightly different meanings. Review is to survey; to look broadly over while consider is to think about seriously. As legal terms, you actually consider then review. Looking over, then thinking about does not indicate that the council would be able to deliberate and decide amongst themselves. If that happened in any way, the council went beyond what they could do in the closed session.

This is even included as the modus operandi planned for the closed session stated in the minutes during open session (emphasis added): "Council will decide [in closed session] the number of each candidate that will be interviewed in the open session." and "Jeff Mueller explained that he will go through the [narrowing down] process with Council first before any decisions are made by Council on which candidates will be selected to interview."

Mueller did not go through that last process in open session, ergo it was conducted in closed session, ergo at least two decisions and likely a whole lot of deliberations went on during the 135 minutes the closed session lasted.

This is why the City violated the OMA, there is the additional evidence that two of the candidates who interviewed (Reagan and Van Ess) never officially requested confidentiality and so they should have been deliberated on in open session, for the full records I received of the three finalists had no insistence for confidentiality. Foster did. Some did.

As noted in my letter of appeal, the 1-3-2019 memo by Mueller fulfilled my FOIA request, but was never sent, possibly because the City Manager and Attorney knew that it would implicate the LCC for an OMA violation when Mueller explains how he is trying to thwart FOIA and/or exploit the OMA, when he writes:

"I will retrieve the screening reports and resumes so they will not remain in your possession and therefore be subject to request under FOIA" [Wrong, in FOIA "Public record" means a writing used by a public body in the performance of an official function, from the time it is created." The location of that writing does not matter.]

"Because we are discussing confidential candidates in a closed session, no information about that session can be shared in any way outside of that meeting." [False. It would be unethical and a disservice to the public to keep information secret that should have been discussed in open session in the first place, which there is plenty of evidence there is]

He also notes that once the three were chosen and accepted the invitation to interview that the records you used to come to your decision (resume, cover letter) would be publicly available. I received these two records for all three candidates, so that part of my FOIA was fulfilled, but only Foster had expressed confidentiality in writing on his cover letter. Reagan's and Van Ess' were absent, meaning they never formally and explicitly asked for confidentiality; it did not exist, according to the FOIA response.

At the interview special meeting, Mueller stated that all ten finalists had asked for confidentiality, despite his non-committal language at the 1-10-19 COW meeting, and 'some' declaration in the 1-3-2019 memo that, I will note once again, was not supplied to my FOIA request even though it was definitely applicable. Despite that there is no writing showing that they requested confidentiality.

This council should never have based their decision to grant confidentiality strictly on hearsay information, and Mueller should have been professional enough to make any request for privacy more than just hearsay by having a record signed by all who requested it. Yet he did that for only one of 37 applicants, my FOIA response says the other 36 do not exist even though these were made available to the council in closed session on 1-10-19. I also did not receive the 34 other applications, suitably redacted, if confidentiality actually was explicitly asked for by every single one of those 34 who didn't make the cut.

This is one of those damned if you do and damned if you don't situations for you as a councilor. The LCC has apparently violated both the FOIA and the OMA and will see themselves taken to court for their attempts to avoid transparency for proper sanctions if the FOIA Coordinator's response is affirmed without admissions of mistakes being made regarding the OMA and FOIA, and proper disclosures and reenactments are made voluntarily. I hope somebody from the LCC is big enough to admit those mistakes, coordinate the remedies, and make the legal exercise unnecessary. 

I noticed in this Monday's council packet that the City's FOIA Coordinator has not opted to provide a defense for his determination, that's a good way to save the taxpayers a few hundred dollars on paying him to argue for an untenable position.

XLFD,  February 10, 2019

[Willy]

Excellent letter X. It seems to me that most of the Councilors are not competent in legal matters so they rely heavily on the City Attorney for advice and leadership in that area. I think that is where the problems originate. The Council for years has been mired in Open Meeting Act and FOIA request misdeeds due to the directions taken after the CA has rendered his opinions. It would seem to be a wise decision to seek other legal experts for advise so that transparency and legal correctness dealing with these issues can finally be achieved. In other words hire someone who will help the Council to follow the FOIA and Open Meetings Act in a manner that actually serves the people they represent.