FOIA Appeal, March 12, 2012: Where are the Records?

[XLFD]

The following plea was made to my friends at City Hall to be considered at their meeting tomorrow night.  I don't expect any results, so that I will not once again be disappointed, but this is not something that really should be wasting the City Councilor's time. 

I had asked for nine specific public records and was given an incomplete set.  FOIAC/City Manager John Shay gave me most all of the invoices, although there was estimates and other documents included that I had not requested.  The fifth record definitely was not included, and yet his form stated he had fully complied with sending all nine records.  Because he claimed it was granted, while it was not, I appealed his decision.  This is more explained in the appeal. 

Since he has once again failed to give me timely written permission to attend the meeting without fear of my detainment, as per the dictums of the Workplace Safety Policy/Letter of Trespass, I will not attend.  At my last appeal, the City Council abandoned their duty to hold this appeal and say that I had abandoned it.  Will they do that once again, this time?

 

 

FOIA Appeal  (To be read into the minutes of the 3-12-2012 Ludington City Council meeting, please reproduce the first link for clarity):

 

This FOIA appeal deals with the simple case that Ludington's FOIA Coordinator, John Shay, refuses to certify that certain public records do not exist.  Section 5, subsection 4 of the FOIA says:  A written notice denying a request for a public record in whole or in part is a public body's final determination to deny the request or portion of that request. The written notice shall contain a certificate that the public record does not exist under the name given by the requester or by another name reasonably known to the public body, if that is the reason for denying the request or a portion of the request.

 

Requested were nine public records that deal with City Councilor Nick Tykoski's business dealings between his sign business and the City of Ludington that were part of the financial records of the Ludington Downtown Development Authority, but that City Manager John Shay declared in a sworn affidavit to the 51st Circuit Court did not exist in February of 2012.  He later recanted this story after this request, which is the subject of this appeal, was submitted to him.

 

He has now resworn that the set of records he has given to me is the complete set, and yet he hasn't provided me the fifth public record I requested, nor is it clear why certain invoices are sent as "Estimates" for other enumerated records.  Where have those public record gone, and why does he not certify that it either does not exist, contradicting the financial records, or that it has been inadvertently destroyed or lost.  That is the proper question for this body on this appeal, not any question beyond that which the City Manager may pose.  Let us not forget that John Shay and the staff at Ludington City Hall are mere stewards of the public records that they have in their possession.  The true owners of those records are the people.  That is the law. 

 

 Perhaps you are comfortable with knowing that the Community Development Director Heather Venzke and current husband, City Councilor Nick Tykoski, were both members of the Ludington Downtown Development Authority in 2008 when the City of Ludington decided to amend its Tax Increment Financing Plan (TIF) without proper notification to other agencies and the people that their taxes would soon be diverted eventually amounting to over $100,000 per year to the DDA.  And you may be comfortable also in the fact that according to this plan there would be $150,000 used for signage over the first few years of the ten year plan.  And that the initial signage project of $15,001 in 2009 was given to Councilor Nick's sign company without any bid and without any contract.

 

Maybe you are comfortable that when bids were actually sent out for a project a half year later, the other companies so contacted had three business days to respond to a complex project that Councilor Nick's company had already submitted a bid a week before the other 'request to bids' were sent out.  Comfortable, that at the next meeting of the DDA , not only was Nick given the "contract" (though no contracts between the City and Tye Signs have ever been produced despite countless FOIA attempts in the past), but also the rest of the numerous signage projects were granted to him.  All without the acknowledgment of Councilor Nick's or CDD Heather's apparent conflict of interest noted in the notes, or the mention of any of the two votes about that in the minutes of that meeting, both violations of the OMA law.

 

Do you continue to be comfortable with the fact that CDD Heather asked for a Letter of Trespass to be issued against me, Tom Rotta, in March of 2011, the same month that the following invoice for services was produced http://ludingtoncitizen.ning.com/photo/tye-s-that-bind?context=latest.  This had Councilor Nick's sign company, Tye's Inc, residing at the very house that both Councilor Nick and CDD Heather bought and reside in.  Her initials for the expense and her "Do not Mail" were an added touch of corruption that continues in about two dozen other invoices-- all with a total absence of any sort of contract between the two entities, and signed by CDD Heather and/or John Shay.  Having contracts and fair bidding practices is mandated by the City Charter, ethics are mandated by state and local laws.

 

Are you content in that the Letter of Trespass police report had John Shay telling LPD's Sgt. Schultz the sole reason for a trespass letter was for Tom Rotta utilizing a publicly available website at the Ludington City Assessor's website:  https://is.bsasoftware.com/bsa.is/AssessingServices/ServiceAssessin....

 

And comfortable in knowing that the above link was provided by me, Tom Rotta, in an effort to show the causal link between the two principals, Nick and Heather, that had significant private financial gain through the series of business transactions unethically carried out between them in their position as public servants, not to threaten or intimidate anyone.  But are you then comfortable in knowing that I have been threatened and intimidated with arrest if I as much as step within the lobby of this building for over a year now, so that I can't even come to an Open Meeting like this and have the rest of my civil liberties taken from me in the process of defending my rights under FOIA? 

 

Of course, you are comfortable; or at least a lot more comfortable than you would be for acknowledging the law and ethical violations that have taken place right under your nose by your own colleagues, sometimes with your tacit understanding and approval.  And you feel definitely more comfortable that I, Tom Rotta, dare not enter into the Ludington City Hall or Police Station under the threat of incarceration, under a policy enacted by most of you in obvious ignorance of the rights provided to all citizens by the First, Fourth and Fifteenth Amendments to the Constitution of the United States.  Please, reread your oath of office to the Constitutions of this state and this nation to strengthen your resolve to do what's right.  Or be comfortable in the fact that you have failed in your duties to both your office and the people of this city.

 

Tom Rotta

The Ludington Torch

 

 

[Willy]

Excellent letter X. However I don't think it will see the lights of the City Council chamber or the pages of the meeting minutes. If the council doesn't act after receiving this communication then it would be safe to say that Ludington's citizens have a Council that refuses to act in an ethical manner.

Is it a misdemeanor or a criminal offense to violate the City ordinance by assigning projects to businesses  without having contracts? Do you know what the penalties are for violating bidding procedures? Who has the final say in regards to who gets the bid for work to be done? Sorry about the questions but it would seem that if all this work was done without a bid or contracts and was approved by the City Council then they could be in deep doo doo.

[XLFD]

Laws mean nothing if they are not enforced.  But here's the local laws on contracts and bids:  Ludington CC Sec. 13.2 :  "Where required by ordinance, purchases shall be made from the lowest competent bidder meeting bid specifications unless the Council shall determine that the public interest will be better served by accepting a higher bid. Sales shall be made to the bidder whose bid is most advantageous to the City.

All purchases and sales above a limit established by ordinance shall be evidenced by written contract or purchase order...

No contract or purchase order shall be subdivided for the purpose of circumventing the dollar value limitations as specified by ordinance.

No contract shall be amended after the same has been made except upon authority of the Council, provided that the City Manager may amend contracts for those purchases and sales made by him under the authority of Section 13.1.

No compensation shall be paid to any contractor except in accordance with the terms of the contract."

 

Furthermore in the City Code Article I, Section 2-4 :  "Competitive bids for all purchases and public improvements shall be obtained where practicable and contracts awarded to the lowest responsible bidders. The city council shall have the power to reject any and all bids if deemed by it to be to the advantage of the city. 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. However, when it is clearly to the city's advantage to contract without competitive bidding, the city council, by affirmative vote and upon recommendation of the city manager, may so authorize. Detailed purchasing and contracting procedures shall be established by the city manager. The city council may authorize the making of public improvements by day labor."

 

These people should know the law, and definitely know that they are snubbing their nose at the laws their predecessors have made for the public good.  But do they care, and do they worry that it is being exposed for what it is?  I really don't think so.

 

As regards state law, the Shay, Venzke, and Tykoski echelon could be said to be in violation of one or more of subsections 3,4,5, or 7 of this law   MCL 15.342, and just in case you worry about #7, this law MCL 15.342a confirms it.  But the Board of Ethics which is supposed to oversee this stuff is a farce, so look for more and more to continue until some grown up gets in charge, the State gets involved, or the citizens riot.

[XLFD]

Let me add that the financial records would seem to show that Tye's Inc. had did just under $30,000 of work in the summer of 2010 on wayfaring signs for amounts of $9552.76 at three different times.  Similarly, in 2011 they split a bill slightly over $13,000 into half, to be paid twice. 

So effectively after they knew they were under more of a microscope they decided to keep the "contracted" work under $10,000 by doing split billing.  This subdividing is against section 13.2, above, and points out an appearance of trying to get under that $10,000 figure. Pretty shameless.

[AQUAMAN]

Dale, you bore me, with these continuing inuendos and farcicle statements. Now you are saying the light of day, the Torch forum, is the platform of news from which all the residents of Mason County get information. How sad and whimsicle your observations are. We don't have all that many members here to begin with, and furthermore, many that joined aren't necessarily reading it anymore anyhow. Excuse me, time for another screen shot, sayeth the drone. Btw, all your ballyhoo about screen shots, try reading the bill of rights, it's called Freedom of Speech, so you're wagging your lawyer tongue for nothing again, and probably being paid well in the process, by Ludington's taxpayers, no less, not the Shyster Shay that keeps you prodding.

[AQUAMAN]

Larry, at the beginning when you, Robby, and Dale first joined, all at the same exact time and day, you seemed to be in synchronization, that of buddies, you'll have to answer that question for all of us. Personally, I could care less. It would be more interesting if you both came here to quantify your real interests and state with facts what it is you desire and need from this forum to be a member in good stead. Or if you come as enemies to destroy this forum in some way. Your recent posture seems to have improved greatly and in legion with objectivity, while Dale plunges forward like a bull in a china shop. You guys should read ALL the posts in depth more carefully, imho, before plunging in so hastily. You make a valid point though, let's see if improvements on both sides develop in the future. Best regards.

[Willy]

Larry

The reason you see many here joining at around the same time is because we all participated in other local forums and knew about this forum's beginnings. Some of the defunct forums such as the Ludington Daily News  and the Soup, to which a lot of us belonged,  discontinued for reasons of their own which left the Torch as the only local forum.

[XLFD]

There was a forum called Eye on Ludington that started up around this last summer.  Problem was they were apparently around only to bash the other existing forum at the time, The Ludington Torch.  Typical posts are included in the attached screen shots.  These weren't the worst.

When The Ludington Torch came onto the scene in 2009, the LDN had a website called Ludington Talks, renamed Picture This! when it was reformed into a picture sharing site.  Also around was at least four other Talks site supported by Shoreline Media and Lakeshore Soup, which though flawed itself, led to the creation of a site that tried to live up to the ideal of free speech and minimal rules. 

That can't guarantee everyone not getting offended by other posts, but we try to walk the line of these ideals.  This is what set us apart from what was out there and appealed to many of the local bloggers that were active and in the area. 

Larry, Aquaman is wrong, you were here over a week before Dale and Robbi arrived, but let me be honest, I don't trust your implied reasons for being here and believe most of Aquaman's other assertions are on the mark for three big reasons.  None of which deals with your skewed views.

[XLFD]

Oops here are the attachments.

[XLFD]

It will be interesting to see what's in the Ludington Doily News tomorrow about this.  I still haven't heard anything about it from any source.

[Sweater Cows!]

The article about your most recent appeal was in the paper, even made the front page with huge font!

It also had a section near the end about how judge Cooper said he would leave the case if you guys(you & COL) did not come to an "agreement" and ended up going to trial. I am under the impression there is now and never was on your part X of any 'agreement' but actually the point is to go to trial and prove that the COL denied your FOIA request illegally.

I think in general the article seems very defensive by the COL, and not informative about an chronology of events regarding the FOIA's.

I had to chuckle at the part about how the COL made up 3 different 21 page something or others regarding your appeal and then they couldn't use them because you did not show up. Does Shay need to make up a bunch of powerpoints(I assume) to make his point. He/They can't just address the issue without 63 pages of documents?

[Sweater Cows!]

And also they cannot address the issue without you there even though the paper neglects to mention that you are banned from being there, does the COL and Shay need you there to walk them through it?

[XLFD]

Sounds like the LDN likes kool-aid.  However, I was surprised that they included anything from my side given their history.  But wasn't surprised about the lack of coverage about the WSP preventing me from attending without the threat of arrest, or any in depth probe of the issue at hand.  The statement by City Attorney Wilson and the musing about "possible" disqualification, and the lack of any contact with me, is par for the fairness of that rag.  This is your local paper for you.  A fact checking thread is in order.