City of Ludington FOI-sted by their Own Petard, pt. 1

[XLFD]

Daily News Editorial Board Calls Another One Wrong

 

To be "hoisted by one's petard" is an idiom originating from Shakespeare meaning to be hurt, or destroyed by one's own plot or device, of one's own doing which one intended for another; to be "blown up by one's own bomb".  A petard was a crude bomb device used in the late medieval period to blow holes in gates and castle walls.  They would have to be moved to the proper place and ignited, or vice versa, and it wasn't unheard of to have the deliverers get caught in the blast, hoisted to the heavens. 

 

 

For the stated reason to free up the City Manager's time, the Ludington City Council voted to appoint Susan Sniegowski (Kasley) to be the Ludington FOIA Coordinator.  She would be doing the job at $125 an hour, significantly higher than John Shay's hourly rate, and she would do so as someone who is not employed by the public body known as the City of Ludington.  This was noticed in Saturday's (9-21-2013) City of Ludington Daily News (COLDNews)

Within a day of my posting an article critical of the COLDNews lax reporting on the Ludington City Council activities here, the editorial board rallied for a cause and mentioned my name almost derogatorily five times.  This is the article crafted by the fine minds of Steve Begnoche, Patsi Klevorn, and fired retiring Jeffrey Evans who have nothing better to do than praise ignorance while saying that's not their intention:

The overall premise about availability of public records is good, if misguided by their understanding of the situation.  I also feel their mention of a lawsuit is a bit overstated; if they were actually paying attention, the City of Ludington has done quite a bit worse things regarding FOIA and the suppression of public records than just changing a FOIA Coordinator (FOIAC) under a 'premise'  that they would presumably charge the person wanting that information even more.  FOIA laws of the state and city allow for reassignment of the FOIAC to outside sources, though it is rarely done.

 

Here is a much stronger premise, COLDNews editors:  a government wanting transparency would be more receptive to opening up their records to the public instead of changing FOIA policy at least three times over the last three years to make it more difficult for the public to get records.  That's part of the record.  Ludington City Hall, does not want the public to have easier access to records, therefore the premise changes to why don't they?  If they were doing everything according to Hoyle, would they not want the public to see that?  Would a citizen that has sought information continue doing these alleged  'fishing expeditions' in the same waters if he never caught anything?

The City and local media would like to characterize myself and my motives into a convenient box, which often cross the line into libel.  I use the FOIA to get information for my news stories; I also use it to verify or refute suspicions I or others may have over what the City is doing.  More so than the COLDNews, I want my stories to reflect the truth, and not just the 'official version'.  To do this, I have to ask for information, and rely on the provisions of the FOIA to enforce them giving me all the records.  But this is how the COLDNews, reportedly a medium of information itself, characterizes someone in the same business as them asking for information from their government:

 

"... no doubt in a large part to the excessive use of (sic) FOIA by resident Tom Rotta"

At what point is excessive?  If you take the City's account of my bicycle incident as the starting point of my behaviors, my requests have been less than one every ten days.  Three per month, thirty-six a year.  One has to ask the COLDNews how many times they ask the various City officials and agencies for information-- is it more than 36 times a year?  One would hope so.

 

"always counseled against the kind of blanket FOIA fishing requests Mr. Rotta uses, saying that really isn't the intent of the law."

Blanket FOIA fishing requests?  Sounds like something one would make at a Long John Silver's Restaurant.  Kaye Holman used the same terminology when she was saying I owed the City $6000 from FOIA requests, but like Councilor Holman, they provide no examples of any FOIA request I have made that fall in that category.  Of the 150 or so distinct requests I have made to the City, there was a distinct purpose for each. 

 

"No matter how irritating or disruptive the City may find Mr. Rotta to be..."

Even after I have won two lawsuits against the City for them violating the Open Meeting Act and then violating the First, Fifth and Fourteenth Amendment of a citizen unlawfully, my behavior is found to be irritating and disruptive.  Explain their behavior, COLDNews editorial board, they are the ones that can't live within the law-- or did you miss reporting on my ten issues just over these last two meetings?

 

"While we sympathize with the City over the dilemma Rotta's endless stream of FOIA requests present..."

Can you believe a newspaper actually feels this way about the FOIA, and someone who runs a blog that presents a dilemma to a proven corrupt city government by asking for usually general information less than once a week?   It's not a dilemma to me that their editorials are an endless stream of cow excrement-- excuse me, cow excrement has substance-- cow flatulence.

 

"...before all citizens potentially end up suffering due to Mr. Rotta's fascination with FOIA."

I must be public-information enemy number one according to the editors.  I can't gauge their reasoning, but I was taught to believe that the best citizens are ones that are interested in their government and try their best to understand why it may be dysfunctional, and who take steps to remedy the situation or at least bring awareness.  You can't figure that out by relying just on well-spun press releases, spoon-fed to the media.

 

"We understand the disruption caused by one person's overuse of (sic) FOIA..."

'Disruptive', 'excessive use', and the erroneous use of the abbreviation has already been used (the word 'the' should be placed before 'FOIA' in both places-- are these actually editors of a newspaper?), so requires no further comment.  Too bad they cannot "understand the corruption caused by one City Hall's abuse of the FOIA".  However, I think they do understand, and they are okay with it. 

 

When it came down to discussing this issue at the City Council they referred to the COLDNews editorial, and corrected some of the suppositions themselves; surprisingly, it wasn't how the COLDNews or even I, had interpreted their new move from their press releases and council packet paperwork.  Maybe they tweaked it at the end:

 

Councilor Taranko (Head of the Committee that put forth this idea, and Mayor candidate):  (29:00 in) "In an effort to reduce the amount of time that our City manager spends on responding to FOIA requests, I am proposing to appoint Susan Sniegowski as the new City FOIA Coordinator.  Currently she handles all City criminal legal matters.  She would respond to all FOIA requests at the rate of $125 an hour, and I so move.  (Motion is supported by Councilor Castonia, put to discussion)   Yes, I'd like the City Manager to address an article that was in tonight's paper [the above article] to clarify an issue."

 

City Manager (soon to be ex-FOIA Coordinator) John Shay:  "Just a clarification, the editorial in the paper indicated and cautioned the city against trying to recoup the $125 hourly rate against anyone that's submitting a FOIA request, and that's never been the City's intent.  The City is eating this cost, the only cost that the City would seek to recoup are those allowable by FOIA for searching, compiling records, copying them and so forth, so any fees that we would pay to Susan Sniegowski for this, would not be passed along to the persons or organizations requesting information through FOIA.  It's a cost that the city would eat."

 

(Holman and Castonia says Shay's statements addressed their question.)

Mayor Henderson:  "I think as Councilor Taranko pointed out, our City Manager is spending a substantial amount of time on FOIAs, well over 200, a substantial amount of hours are being expended at that effort.  We all believe in FOIA, we believe that everyone is entitled to documents, there's nothing we, we try to put as much out on the web so people can see it.  

It's ongoing and specifically in this case an individual that continues to, to... On the part of the Daily News it's an assumption on their part that why we raise the fees is not true, the first part about someone exercising it beyond the reasonable accountability is happening, and we need to focus on getting the City Manager back on city business and staying focused on some of these other issues that continue to rise or lack of... we just got to stay focused on the day to day business [the BS detector in Councilor Holman's cell phone goes off.  Levity results ]

Well anyways, back to the FOIA thing which is a serious matter, we are having to outsource that to make sure we have the services done, but more importantly trying to get the City Manager more focused on the task of running the city again, and stay focused on the projects that we are not getting his complete, um, not because of lack of trying to, but because he is trying to juggle too many balls in the air for this.  It's unfortunate we've had to go to this point, but we'll try this for a period of time.  It seems to be reasonable, it seems to make sense.  I don't like the cost necessarily, but it is going to be the cost of doing some business so...

 

City Attorney Dick Wilson:  Well, when you compare what the cost of John [Shay] you know, incurs with, the job doesn't pay by the hour, but you can calculate what John's hourly rate is, and you're not paying any benefits to Susan, this is a contract payment, so there's no FOIA, er FICA, taxes that we have to pay or anything like that, and so if you calculate John's rates into all that you will find that they are fairly comparable. 

 

Councilor Kaye Holman:  And now we'll know exactly how much each one costs, won't we? [agreement from others] And it's at least $125 of City money, please remember that, this is CITY money!  [the motion was unanimously adopted].

 

And that is the important point for all taxpayers to understand.  For if Susan Sniegowski takes an hour coordinating with various city employees to hunt down records (and attorneys are known for charging by 10 or 15 minute increment or even by the minute), her bill does not get sent to the requester it gets paid out of the general fund (i.e. from the taxpayer).  The current system does not cost the taxpayer any extra-- John Shay is a salaried worker who doesn't put in overtime to coordinate simple FOIAs every ten days or so. 

 

And this is because an independent contractor for the City, like Ms. Sniegowski is and will be, cannot charge the FOIA requester for her services in getting records, because of section four of state FOIA law:  (3) In calculating the cost of labor incurred in duplication and mailing and the cost of examination, review, separation, and deletion under subsection (1), a public body may not charge more than the hourly wage of the lowest paid public body employee capable of retrieving the information necessary to comply with a request under this act."

 

The operative phrase here is "public body employee", the Michigan Supreme Court made a ruling in Coblentz v Novi:  "In this case, defendant's attorney did not receive a paycheck or other employee benefits from defendant. The record reflects that the attorney was employed by a law firm that defendant retained as city attorney. The attorney acted as the lead attorney for the firm in that capacity. His social security and other employment benefits were paid by his law firm. Defendant did not directly pay the attorney for his services. Rather, defendant paid the law firm, which, in turn, paid the attorney...  This is the classic example of an independent contractor. The attorney was the employee of the law firm. He and the law firm acted as independent contractors for defendant. Because MCL 15.234(3) does not mention independent contractors, defendant was not entitled to charge for the attorney's work... 

Finally, we reverse the part of the decision affirming the allowance of fees for the work of defendant's attorney. The attorney was an independent contractor. The lower courts erred in failing to note the legal distinction between employees and independent contractors. MCL 15.234(3) allows recovery for the costs associated only with employees."

 

And so what the newspaper and the general public are not fully understanding here is that now the City, to avoid further embarrassment by an employee doing a terrible job at FOIA coordinating, is contracting a service out that could cost the local taxpayers dearly just for a simple request.  Liability issues could result from Attorney Sniegowski's incomplete knowledge of the City's records.  Face it, a City Manager or a City Clerk, full-time people familiar with the running of a city and the records it makes, are just the logical choice for a FOIA coordinator.

 

Finally, the COLDNews got the picture in this article the next day:  The Ludington City Council appointed attorney Susan Sniegowski as Ludington’s new Freedom Of Information Act (FOIA) coordinator Monday after learning the city’s budget will pay for her $125-an-hour time to do the job. And why did one time prosecutor Susan Sniegowski get this job and the potential to make a financial killing off people in Ludington trying to get information about their shady government.  My reasoned guess would be pure Ludington cronyism.

To see why:  http://ludingtoncitizen.ning.com/forum/topics/city-of-ludington-foi...