This last week, the Michigan Court of Appeals issued a written opinion concerning the OMA/FOIA lawsuit I had with the City of Ludington and three city councilors. The decision wasn't in my favor as they affirmed retired trial court Judge Peter Wadel's finding that the OMA problems noted were cured by a simple reenactment. The COLDNews did contact me on the defeat for a few words from my perspective, and I gave some. Most were left on the cutting room floor, but they gave me a few sentences at the end of their article, which wasn't nearly as one-sided for the City of Ludington as it often has been.
As more of a mathematician than an attorney, the court's opinion is not persuasive to me as it flies brazenly in the face against logic, and against law. I made my case to the court using solid statutes and precedents, what they said and what they didn't say in my brief before the court: 2021-4-26 Appt. Brief.pdf, the City's lawyer had their chance to refute my points, but instead went towards putting my own words out of context and quoting precedents the same way: Appellee's Brief.pdf, I ran through a process of simplification in my reply to that brief trying to show that the original decision led to multiple contradictions: 2021-6-7 Reply Brief.pdf.
But if you don't have the legal acumen to fully appreciate the issues involved, I will proceed to develop the case in a chrono-logical and chrono-legal order centering in the waning days of 2019, specifically between the two council meetings of 11-25-19 and 12-9-19. After this period, a FOIA request was made for the minutes of each of the two closed session which were denied claiming that the meetings of properly closed meetings are exempt from disclosure. On administrative appeal to the council, they denied both requests, which led to the local court system.
My premise is that neither closed session was legitimate, making the minutes public records, suitable for immediate disclosure, with potential 'spot-exemptions' if the attorney-client privilege was invoked. The City's premise (accepted by the courts) was that a reenactment at the second meeting of the vote to go into closed session allowed them to 'cure' the procedural deficiency at the first meeting and allowed them to go into another closed session, and another vote on settlement in open session.
Please follow along with the facts and links presented and comment faithfully on what you think after reading through it as to whether the court's decision was a good one, or whether the Ludington City Council followed the law.
1) The Ludington City Council (LCC) convenes a meeting at 6:30 PM, there is no controversy that this wasn open meeting of that body.
2) With only 4 of 7 councilors present, they avoid voting as to whether they will opt out of health insurance hard caps, as the statute clearly indicates 2/3 of the public body elected members must approve. That would require 5 councilors.
3) The LCC votes to go into closed session under section 8(e) to consult with its attorney regarding trial or settlement strategy in connection with a lawsuit.
4) Like the hard cap vote, statute (section 7(1)) indicates 2/3 of the public body elected members must approve moving into closed session under 8(e).
5) Nobody realizes that as the council's 4 members enter into closed session for 16 minutes.
6) When the meeting opens back up, the four LCC members vote unanimously to accept the settlement terms, only a simple majority was needed to approve it.
7) The two plaintiffs present sign the settlement agreement, the LCC's attorney agrees to file it within a week.
Interval (11-26 to 12-8)
8) I verify my initial impression, that section 8(e) requires a 2/3 vote and notify the city manager of the problem by e-mail. I inform him that this (IMHO) did not affect the unanimous settlement vote.
9) After conferring with attorneys, they collectively decide to reenact the decision to go into closed session on November 25 at the next meeting (12-9-19), and then vote to settle.
10) I offered my opinion that the two votes were independent of each other and that reenacting the vote to go into closed session would cure that decision, but it wouldn't cure the action of being in closed session contrary to the OMA.
December 9th, 2019
11) The LCC holds another regular meeting at 6:30 PM, another legal open meeting.
12) The LCC approves the minutes of 11-25-2019 without amendment. The minutes indicate that the LCC voted to go into closed session legitimately, and voted to settle the lawsuit at the prior meeting.
13) During the last public comment, I apprise the LCC of the legal implications of doing what they wanted to do, and how it was not logically or legally plausible.
14) The LCC fails to rescind their lawful approval of the settlement before they vote to go into closed session for a reenactment. Section 8(e) says only discussion of "pending litigation" and only "if an open meeting would have a detrimental financial effect on the litigating or settlement position." If one strictly defines pending as 'awaiting settlement'' this was not pending, nor was there any modification of the settlement, taking out a detrimental financial effect, none of which was explained by the LCC even outside of the motion.
15) The motion to go into closed session was not made so as to 'reenact' the prior vote (see the 12-9-19 minutes), rather it initiated another closed session, one that had no real purpose since the specified lawsuit had already been settled with real monetary terms.
16) The second closed session for the purpose of discussing an already settled lawsuit, and strictly for reenactment according to the LCC, lasted 23 minutes. The date of a reenacted decision is the date of the reeneactment, meaning the LCC 'properly' voted to go into closed session on 11-25-2019 exactly 14 days after the secret session.
17) The 6 LCC members make another vote to settle the prior lawsuit, the same settlement they approved unanimously on 11-25-19.
18) I asked after the meeting whether they would need us to sign the same settlement again, I was told that wouldn't be necessary by the city manager, they would use the one signed in November. Once again indicating it was settled litigation two weeks prior.
EPILOGUE: I did my best effort in late 2019 and early 2020 to try and broker a deal with the city manager and new city attorney, Ross Hammersley, to let the OMA violations slide, but only if they would share the minutes of the two unlawful (IMHO) sessions with any truly privileged discussions exempted. While they acted in good faith, the LCC voted not to share their two unlawful (IMHO) sessions on February 10, 2020, voting unanimously to keep both minutes unavailable even two months after the purpose for the secret meetings was old news and had no effect on the City's bottom line.
Rather than be a transparent public body, the council unanimously voted to keep the minutes of their two unlawful congregations and spend a lot more of everyone's money than the $600+ I wasted on court costs alone in what turned out to be a losing cause in two courtrooms that never considered the implications of allowing public bodies to reenact votes to go into closed sessions when they have unlawfully entered closed session in the past. I almost have a duty to try and appeal this decision at the Michigan Supreme Court, but I will have to get legal representation if I do.
Can someone explain to me what neither court has bothered to yet? How do you explain the paradox of a public body's vote to go into closed session at a point two weeks after that closed session was held?
IMO, The "Reinactment" clause in the OMA is like a "second chance" for a public body that gives them a chance to fix a wrong act, but also gives them a loophole for corruption. I hate to encourage you to take it to the Supreme Court, but the law needs to be fixed in order to hold public entities to honest accounting and transparency in public meetings and illegal closed sessions. The problem with getting the law rewritten is that there is so much other corruption in our governments that this is on the bottom of the barrel and finding an attorney to take it on as an ethical cause is a long shot. That is the conundrum with the law and just another way our governments get away with corruption and particularly how Ludington got away with more acting behind closed doors. This is a disgusting ruling that gives corruption a bigger foothold.
Great points, I totally concur. The legislative intent of 'reenacting a decision' is to have a process that allows the public body to correct a decision made where the general public was left out of the process of making public policy or acts. A vote to hold a closed session is not a matter of public policy or a public act, it's a decision to deliberate outside of the public's view.
As I explained in my brief, a vote to go into closed session is immediately effective and of limited duration (lasting only to the adjournment of the closed session), making a future vote to go into that closed session meaningless. Had the city council did the right thing, they would have done a reenactment motion at the second meeting acknowledging the earlier procedural defect (an actual reenactment, not a dream reenactment), and that the minutes of that closed session would be amended onto the proper spot of the November 25 meeting minutes. There was no reason to go into a second unlawful closed session.
How simple that would have been-- but the city council would have none of it, they went into a purposeless closed session just to be the unaccountable non-transparent body that they've been for a long time, then stonewalled the release of either of those unlawful sessions' minutes urging me to take them to court if I didn't like their solution.
It is more simple to du right in the first place, and that is the problem with Ludington trying to cover up their mistakes when pointed out. The slick-fighting expensive attorneys weave their webs of deception deeper, cost the taxpayer a lot of money defending the misdeeds and create more distrust among the citizenry. Next city raise their salaries and raise the water fees and taxes, etc.
Excuse me for getting a little philosophical, but as I get older, it becomes so much clearer that the real restitution to injustice in politics or elsewhere comes in the Final Judgment. Those public servants who pad their own lies and wallets will be rewarded appropriately. This life is only a short time to learn to do what is right. We can't take our material possessions, money or arrogant power with us. The only thing that counts and that which we present for our accountability on earth is our CHARACTER. Liars and deceivers entrusted with public trust, judges and attorneys who twist truth to defend the unrighteousness shall receive a true judgement by a righteous Judge. When all else fails, this is the faith in Justice that keeps me sane in a crooked world.
No need to apologize for waxing philosophically, especially when the philosophy you expound on is similar to my credo. I may have lost this argument in two courts already, including a motion for reconsideration by Judge Middlebrook, but I will always consider and dub these two closed sessions as unlawful, because they are. If judges do not want to go by logic, law, and legislative intent in doing their job of interpretation, then that's ultimately their mistake and they should be judged accordingly in this realm and beyond.
First of all, thank you X for your time and effort on trying to keep Ludington City Hall honest. A lawsuit like this is not a simple procedure. Great job.
I agree with you. Your argument was right on the money, but the Court certainly did not think so, and it has cost the taxpayers thousands of dollars. This reenactment argument is about as lame as Biden's brain scan. And all of this over what? The releasing of public information? I am concerned at the Cavalier way they Council is willing to hand over tax dollars to pay for an obviously sloppy way they have conducted the "citizens" business. Every City official who supported this lawsuit should have their pay docked so that the people can be reimbursed for this fiasco. As far as explaining the paradox, it's like explaining how Joe Biden became President while hiding in his basement.
Thanks for the affirmation, it strikes me as odd that all the judges that have looked at this case have not seen the obvious problems with what the City of Ludington did, and went out of their way to justify the two unlawfully held closed sessions. It was surely not the legislative intent of the drafters of the OMA to effectively allow reenactment of a closed session when the first one was done wrong.