Clarifying Transparency: Ludington City Attorney Wilson's Seven Minute Legal Lesson

[XLFD]

In the recap of the Ludington City Council meeting that took place on October 28, and the video on that link, the public was treated to 420 seconds of mangled logic and absolutely no legal reference by one of their many attorneys, Richard Wilson of Manistee to describe in a City-friendly way what the recent ruling on the public's FOIA's lawsuit against the City in Appeal's Court. 

Even though I was interested in what he was saying, I soon found myself suffering a bad case of vertigo from all the spinning going on, and engaged in some clock-watching, since I would not be afforded the opportunity to refute a lot of his nonsense at the meeting.  Fortunately, I can live by the rules which afford me only five minutes to put my viewpoint out there, but I can then counterpoint the City Attorney's arguments/spin right here on the Torch with links and files to back it all up.  Wilson says early that he has supplied the decision to the councilors, but it was not supplied in their packets.

Even though the comments by myself and Wilson comprised nearly 40% of the time of the meeting, and besides the bayou dredging, was the only contested issue, neither of the counties two news sources present, the City of Ludington Daily News (COLDNews) and the Mason County Press deferred any mention of the disputed points, the COLDNews deferring to their original press release from the City.  The following is the full sermon by the City Attorney beginning at 19:45, until it ends seven minutes later, Wilson's words in red, my commentary/analysis in black and bracketed.  I welcome any discussion from either side.

 

 

  

Ludington City Attorney Dick Wilson:  I just want to clarify [more like cloud or confuse] a couple of remarks that Mr. Rotta made during the public comment with regard to the recent opinion of the Court of Appeals.  I believe everyone on the city council has received a copy of the opinion [the Ludington Torch has made it available uncensored to everyone, see it here] and has had the opportunity to review it, if there are any questions I would be more than happy to respond to them [one wonders if the City Attorney gave them an unedited version, or just excerpts favorable to the City Attorneys, who have probably made more than $20,000 to defend the City's actions and counter-prosecute their claims for money owed (under $700)] .   Richard Wilson, City Attorney casts a weird shadow -->

 

Mr. Rotta is correct that the Court of Appeals said that he and Ms. Swiger were prevailing parties for the purposes of costs [plaintiffs prevailed on all parts of their original claim, with the eventual disclosure of the records, and were entitled to attorney fees (which they had none, nor did they ask for any), costs, and disbursements MCL 15.240(6)].  Costs among litigation are, is basically just filing fees which is $150 and whatever amounts he has paid the sheriff, if he has paid the sheriff at all, to serve the papers on the city which would amount to at most about 25 to $50. 

[Here Dick Wilson is wishful thinking.  He is correct about the two costs above being allowed, although we used personal service to the City Hall and/or by first class mail, so his estimate is high for service.  Here are a couple laws that apply:  MCL 600.2441 which adds $20 per motion for those that led to judgment.  We had a motion for summary disposition that was effectively made moot when the City finally gave out the records (after supplying false records), because by the previous FOIA section link, we prevailed at that point and entitle us to both costs and disbursements.  Another section gives the court the option on remanding to assign the costs of appeal ($400) to the prevailing party, which I will seek:

 

 

Furthermore, in a law suit, disbursements include expenses such as photocopying, necessary transcript expenses, and courier costs and the like.  It seems only fair that I should charge at least $.25 per copy I published, as that is the amount the City has been charging for making unnecessary copies for my FOIA responses with copiers, ink, and paper provided by public dollars, rationalizing it as their incremental cost.]

 

Those costs were awarded because of essentially the timing of the disclosure [true, but if FOIA Coordinator John Shay had properly replied and provided these 30 incriminating records as he is required to do by law, or if the City Council took their duty to the people seriously, all of this would have been avoided].  If you may recall, just after the lawsuit was filed [about five months after], the City did discover additional documents that had not previously been provided [after the City Manager willfully sworn falsely his non-responsive/duplicative records were sufficient] that were in fact responsive to Mr. Rotta's request [these would never have been provided if I didn't have other records pointing to most of those records existed!]; they had not been provided previous to the filing of the lawsuit, because quite honestly, the City FOIA Coordinator, the City Manager, didn't know those documents existed [quite honestly, many of the records were signed by Shay and Heather Tykoski, wife of the business owner, discussed at meetings they were both present at, so this 'honest oversight' is not believable]. The court of appeals states however that the trial court never ordered the disclosure of any public record, and that is of course, a true statement.  As soon as we found the additional records we voluntarily provided them to Mr. Rotta [after Rotta pointed out about twenty disparate records that existed that weren't disclosed]. 

 

Nevertheless, because the case was filed and the extra documents were provided after the lawsuit was commenced, under the terms of the Freedom of Information Act Mr. Rotta is entitled to his $150 back and whatever service of process fees he might have incurred [along with the other costs previously noted]. 

More importantly, however, he is not entitled to any punitive damages, because as the court of appeals noted, the defendant, the City of Ludington, and John Shay did not act arbitrary and capriciously in refusing to provide any requested information, consequently, I think it's a stretch that-- his 'one bridge too far', if you will-- to conclude that John Shay acted illegally in some fashion by not disclosing some records he was not aware of, and particularly when the court of appeals found as a fact that he did not act arbitrarily or capriciously in withholding the records.

[Wilson assigns a line of thinking that wasn't used by the court.  The FOIA has an unfortunate clause that absolves the public body from punitive costs MCL 15.235(3) if they haven't been ordered by the court to disclose the info, which didn't happen, even though they were able to block the public from seeing the records for a half of a year.  Traditionally, this has been interpreted strictly for punitive liability, but I had hopes.]

 

The point remains also that the court upheld our judgment against Mr. Rotta and Ms. Swiger for the amounts that were owed to us, and those amounts substantially exceed any of the expected costs that Mr. Rotta will get [If we get the additional costs of appeal, for necessary motions, and publishing, I think that will push it above $700]  It's also important to note that the court of appeals, Mr. Rotta has made a point of this on numerous occasions in the past, in some of his appeal to the city council, that the City is not giving him the records in the form that he wants them.  You all know the City's FOIA policy allows the FOIA Coordinator to print and scan documents into a format so that they cannot be changed once they leave the City's hands.  

Other documents, documents that could be changed or altered by additional parties are not routinely provided in that form they are provided in a .pdf form a format so that they cannot be changed, the records cannot be altered once they leave our possession, and that is our policy of the city, and despite Mr. Rotta's attempt to get the court of appeals to overturn it, the court of appeals affirmed that as an appropriate policy on the part of the City to preserve the integrity of its records. 

[The Court of Appeals took the FOIA Coordinator by his word when he said on the stand that city policy used the most economical method of providing records on request.  I request .pdf files for all written records which avoids the cost of copying (ink, paper, copying machine maintenance, etc) for the City, the public, and for me.  It also prevents me from tampering or destroying the records, which are crimes I would never do or contemplate. 

But Shay prints them out, even when he doesn't need to, to punitively have the public pay for those copying expenses, and make us have to purchase those at a quarter per page.  That fails the 'most economical test'; the City is out not to provide documents, but to make a profit and depress requests, since their incremental costs to make a copy is much less than $.25 in public money.]

And so, however Mr. Rotta wants to spin this, I think it's a good win for the City on a number of very important points that he has raised a number of times in the past, and hopefully this will put a lot of those to rest in going forward.  Like I said, if there's any other questions or any other points of the opinion you want me to address.

[If the mayor would have let me finish my public comment, they would know I wasn't spinning the loss I suffered in the countersuit, Wilson was spinning the City's loss into something less.  This 'win for the City' effectively was a repeal of open government principles, which is a loss for every citizen wanting to know about their government.] 

 

City Manager John Shay:  Conflict of Interest.  Was there an allegation of conflict of interest? 

 

Oh yes, with the judge.  The court of appeals also took up the issue of Judge Cooper.  Claims had been made that Judge Cooper had acted improperly by not disclosing that his son at the time was working for my law firm.  Judge Cooper did in fact raise that point with the parties before he had any material involvement in this case.  

[Beg to differ, these two Dicks (Wilson and Cooper) shared some correspondence before the judge ruled to allow a counterclaim.  Here is an excerpt from the full letter Judge Cooper sent to the plaintiffs:

 

 

Sounds like some material involvement, especially since the referenced letter from Dick Wilson to Dick Cooper was on letterhead that contained Judge Cooper's son's name Craig Richard Cooper as this excerpt shows (orange box and arrow added):

 

 

Craig Cooper, former City Attorney

The time between November 8, 2012 and March 7, 2013 is four months, the court saw about ten different motions come from both parties during that time, when Judge Cooper came forward and we actually found out the relationship.  Four months since reviewing that letter, seeing his son's name in the letterhead, and knowing it was wrong to proceed, because he had made this clear when he was considering the wind turbine issue with the same law firm and disclosed his relationship with Craig Cooper in late 2012.  The canons of judicial conduct says in Canon 3C: 

 

But he didn't, nor did Dick Wilson, or anyone else in Manistee's Gockerman law firm come forth to explain that to the ignorant plaintiffs.  That is among their own rules of professional conduct where individual lawyers and their law firms are synonymous, and both Wilson and fellow City Attorney George Saylor who were actively participating in the City's defense, needed to disclose to plaintiffs the familial relationship at the earliest opportunity. 

 

 

When they came forth as a law firm to represent the City in front of Richard Cooper, Craig Cooper also came forth.  the record shows an abuse of process by the defendants during that four month period, whether any court wants to admit it or not.]

 

George Saylor, City Attorney 

You have to understand that cases get filed all the time and it's quite a while before the judge even finds out about it [not this time, as the judge's 11-14-2012 letter above to plaintiffs shows].  The cases are filed with the clerk, not filed with the judge, so a case that gets filed with the clerk may sit there for six months while parties are being served while there is preliminary items going on, before-- excuse me-- the judge ever realizes that a case is before him. 

Judge Cooper in this case, as soon as the case came before him, disclosed that his son was working part-time for my law firm and offered to recuse himself [he should have notified them in his 11-15-2012 letter of that fact, after his son's law firm came forth].  Mr. Rotta and Ms. Swiger asked him to do so, and he did so. All of which is appropriate and aboveboard and the court of appeals I think, in a good opinion, pointed out that what Judge Cooper did was correct, because Judge Cooper is an honorable man, and he acted honorably in this case, as did Judge Wickens who was appointed in his place.  So there was... the court of appeals found no inappropriate conduct on the part of Judge Cooper and it found no inappropriate conduct on behalf of Judge Wickens.

[No charges of inappropriate conduct was made on Judge Wickens, just questions about his legal findings and his draconian limitations on what plaintiffs could discuss in this case-- so as to make appealing a lot more difficult.  When the judge says our claim is a moot point, and disallows us to comment on improprieties that may show punitive damages, it keeps those issues from being presented strongly in the Appeals Court becase they generally can't enlarge the record or scope of the proceedings.  The Appeals Court did not say what Judge Cooper did was correct, only that they didn't have enough facts to support any declarative sanctions on their last page. 

 

 

There is no question in my mind that both the Gockerman, Wilson, Saylor, Hesslin, Glancy, and Cooper law firm and Judge Cooper had a duty to plaintiffs and the course of fair justice to disclose that fact and to admit that Wilson and Cooper engaged in serious misconduct in their persecution of the plaintiffs.]