Hiding Behind Signs 3: FOIA Discovery!

[XLFD]

A FOIA request dealing with inspecting the contracts and receipts between the City of Ludington and the then City Official/City Councilor Candidate Nick Tykoski's company  between 2008 and 2011 which the City would not divulge or assign a fee cost for was related in the thread Hiding Behind Signs.  Read, or skim that if you remember it,to get a background. 

 

We at the Torch then appealed to the City Council, and was promptly denied any sort of administrative appeal process as illustrated in Hiding Behind Signs 2.  Again take a quick glance at that, for even more background.

 

We then began the second appeal process, in the Circuit Court to find out why we were not getting any documents or any sort of acceptable FOIA response from the City Manager in Going to Court.  Because we thought the FOIA law was clear, our complaint points were strong, and the City was in arrears by not following the FOIA, we decided to go without a lawyer and save the City (i.e the taxpayers) the costs of any  attorney fees on our part.  An original court date of November 2 was made, but due to a misunderstanding between us and the court where the defendant was never given a court date, this date had to be rescheduled for November 17.

 

But starting election day, the lead City Attorney of Ludington, Manistee's Richard Merlin Wilson, drafted a document that started the City's counter-offense.  This 11-8-11 letter had in it the following:

First off, I see nothing in the FOIA appeal process that claims it is a "civil action", but it does say in Section 10: "The court shall determine the matter de novo [afresh] and the burden is on the public body to sustain its denial." and "An action commenced under this section and an appeal from an action commenced under this section shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way."

  

Allowing pre-trial answers to the complaint, discovery and counterclaims is not expedient, nor does the FOIA claim the FOIA appeal process is a civil action.  Besides with plaintiff discovery, should I not get to see what I originally requested-- the Tye Sign's FOIA?  And what would be up with a counterclaim?  Is the City now wanting to sue me and/or Toni for making FOIA requests? 

 

I hang my head in shame for the City I live in to announce it, but the answer to that is "Yes".  Here is their list of Affirmative Defenses:

 

I expect a line of defense from the City of Ludington, but this defense is ridiculous and fraudulent.  Here is a quick refutation of every one of the five defenses.

 

1) As in the original request Toni has asked to inspect certain records.  The City has not made available those records either by granting her those records or establishing any fee for those records.  The records differ from a request she made in January, which we paid for in full.  And even different than I, a totally different person, made last year.  That is a clear denial of allowing us to see these records.  The City Council then passed on their duty to judge it in the administrative appeal.  Which led us to this impasse.

 

2)  As stated the only FOIA request prior to this made by Toni that overlapped this request was on January 24, 2011, which she paid for.  This was a totally different request that involved competitive bidding on the DDA signage contract with no mention of Tye's Inc.  This assertion is slanderous as she has paid that charge.  Barrister Wilson, I am a different person, but this was not my request of last year and the charge then was illegally based.

 

3)  FOIA requests about a City Official's company and his possible benefitting from unfair contract awards is excessively and unreasonably interfering with the discharge of the City's functions... oh, please.  Take a minute to look in the file folder or computer file dealing with "Tye's Signs" and allow us to inspect it.  How's this appeal after appeal working for you?  It sure is a waste on my time, and trampling on the public's right to know about their new councilor-elect.

 

4)  The City Attorney boldly lies here: the records have yet to be offered for any price, and Toni has asked for them only on this FOIA and its appeal.  The chain of replies is in the "Hiding behind Signs" thread where FOIAC John Shay never offered these records nor stated any price.  By Section 5, FOIA, (2) and (3):  Failure to respond to a request pursuant to subsection (2) constitutes a public body's final determination to deny the request. In a circuit court action to compel a public body's disclosure of a public record under section 10, the circuit court shall assess damages against the public body. 

 

5)  More slander.  Toni does receive some public assistance and has a notorized affidavit of indigency filed at the Ludington City Hall.  John Shay arbitrarily allows her to have the $20 off it affords at times.  At other times, like for the January 24 request, he disallows it capriciously. 

 

Five out of five times, they make assertions without proof, just a tax-dodging lawyers word for it who hasn't even filed an Oath of Office with the City.  "Scheme to defraud" ?  Those are strong words, Dick.  Since Toni has got her affidavit approved, there has been absolutely no duplication of her requests to mine. 

 

At the bottom Richard prays that the honorable court dismiss plaintiff's complaint with prejudice [barring the plaintiff from filing another case on the same claim], grant to defendant its costs and expenses in defending this action, including a reasonable amount for attorney fees and other just and reasonable awards.

 

Here is how open, honest, and thrifty our City Hall is.  We will likely now have to get an attorney to handle all the extra bother the City has put in our way, and when we win, guess who's going to pay the court and the attorneys for the City's reluctance to show these documents?  We all are, and yet why doesn't the City Manager freely let Toni come in to inspect these documents?  Is he just hiding something, or is he just being an obstructionist who is upset for having an occasional extra duty of hunting down documents?  Someday we may find out.

 

But Saturday's LDN dutifully reported that the City Council is going to go into a closed session on November 14, Monday night, to discuss the City Attorney's letter in full.  If any of you in the Council have a soul, please help Toni and the public at large to get this information which the City Manager has claimed privileged. 

[XLFD]

Toni is the FOIA requestor of the FOIA under appeal.  This is over her one FOIA request.  This is not a lawsuit.  This is a FOIA appeal of the denied administrative appeal of the Ludington City Council in the next avenue of appeal, the 51st Circuit Court, due to a very real denial of a FOIA request to Toni. 

City Attorney Richard Wilson has decided to pad his paycheck by trying to make this into a full blown civil action by his latest actions.  His affirmative defenses, besides being contradicted by the record, do not refer to this one unique request (except for #1).  This doesn't have to be the case.  The Circuit Court has the option of just hearing arguments and basing a decision on the merits of the arguments, or for having a hearing, formal or informal, to do so, to make a decision at the earliest practicable date. 

Due to his latest maneuver, the hearing date for this appeal may be moved back to December 13, and it may be reassigned by the court as a 'civil action' over unrelated issues to this one request rather than a 'FOIA appeal'.  This would be unnecessarily and costly for whoever loses the battle. 

If both sides could present their evidence in front of Judge Cooper on the 17th, it would cost the City only court fees if Toni and I prevailed, and whatever they have paid the CA.  If they won, we would be stuck with court costs, and possibly their attorney fees.  We will file a motion early tomorrow to try and get this argued on the 17th over the FOIA request on appeal.   

[Willy]

This move by Shay is absolutely uncalled for. This is another way to stifle the release of information. All I know is that the City had better reign in their City Manager before he makes Ludington the laughing stock of the north. He is a one man wrecking ball regarding the denigration of the Constitution and Ludingtons reputation. I'm just curious, did Shay take and oath when he took the office of Manager or is an oath only required by certain elected officials?

[XLFD]

The City Code says:

Section 4.11. - Oath of office and bond:

Every officer, elected or appointed, before entering upon the duties of the office, shall be given the oath of office prescribed for public officers by Article XI, Section 1 of the Constitution of the State of Michigan and shall file the oath with the Clerk together with any bond required by statute, this Charter, or by the Council. In case of failure to comply with provisions of this section within fifteen (15) days from the date the officer is notified in writing of the election or appointment, such officer shall be deemed to have declined the office, and such office shall thereupon become vacant unless the Council shall by resolution extend the time in which such officer may qualify.

 

Richard Wilson has admitted he has not taken the oath, nor has any other attorney of Gockerman, Wilson, et. al.  in this City even though he serves as an officer thereof, here's his circular reasoning as related to Toni through John Shay on June 7, 2011:

You have requested my opinion as to whether the City Attorney must take and file the constitutional oath of office proscribed by the City Charter, Sec. 4.11. For the reasons stated herein, it is my opinion that the City Attorney is not an elected or appointed “officer” of the City and therefore is not required to take or file the oath, although, I might point out, that all attorneys licensed to practice law in the State of Michigan (including all attorneys at this firm) are required to take and file with the Michigan Supreme Court an oath that includes the oath specified in Art XI, Section 1 of the Michigan Constitution.

Sec. 4.11 of the Charter requires the constitutional oath from “Every officer, elected or appointed, before entering upon the duties of the office. . . .”

Sec. 3.5 of the Charter makes the City Attorney an “office”, but, in my view, that does not necessarily make the City Attorney an appointed “official”. Sec. 3.5, for example, goes on to state that the “duties, powers and compensation of appointed officials shall be fixed by Council resolution.” In the case of the City Attorney, these matters are provided for by contract between the City Attorney and the City, not by Council resolution. Likewise, the tenure of the City Attorney is at the “pleasure of the majority of the Council” (Charter, Sec. 10.5); whereas, with appointed officials, they typically may be removed only for cause after notice and an opportunity for a hearing (see, e.g., Section 8(a) of the Open Meetings Act, MCL 15.268). Finally, the City Attorney is presently a Michigan professional corporation (Gockerman, Wilson, Saylor & Hesslin, P.C.), not an individual, and exactly how a corporation may subscribe to an oath is unclear.

The conclusion that the City Attorney is not an appointed officer from whom an additional oath is required, is also supported by these sections of the Charter and the Code. Charter Sec. 10.5 states that the City Attorney is the “legal advisor for the City and for all officers in the service of the City” (emphasis added). Under this section, the City Attorney stands apart from, and is advisor to, “all officers”; ergo, the City Attorney is not himself or herself, such an “officer”. Similarly, Sec 2-80 of the City Code, clearly segregates the City Attorney in subsection (3) from elected City officials in subsection (1) and “Nonelected officers” in subsection (2). If the City Attorney were a non-elected (i.e., appointed) City officer, he or she would be included in the category described in Sec. 2-80(2) and there would be no reason to separately include the attorney in Sec. 2-80(3). Under well settled rules of statutory construction, a statute may not be construed in a fashion that renders any portion of it meaningless, yet making the City Attorney an appointed officer of the City would require us to render Sec. 2-80(3) of the Code meaningless or mere surplusage.

For these reasons, and the fact that attorneys already file the constitutional oath at the time of their admission to practice, it is my opinion that the City Attorney is not required to file another copy of the oath with the City Clerk as an appointed city officer. Let me know if you have any further questions.

 

This is what we are going up against, a legal bamboozler who refuses to accept certain parts of the law if it violates what is happening in reality.  Here is page one of the existing City Code listing the Officials of the City of Ludington, notice the City Attorney at the bottom.

 

Whether John Shay took the Oath of Office is a great question, here's the LDN article 2-11-03 about his first day in office, no mention of the Oath being administered at the meeting.  Nor was there mention between this LDN article 1-7-03 and the above, which stated he was expected to be done with his Almont Village Manager on 1-24-03.  This article also notes details about his contract.  City Councilors take note:   " If the city decides to terminate Shay’s employment, it will pay six months severance, regardless of how he is dismissed unless there are felony charges against him." 

And there is soon to be some felony charges against him as per the violation of this law, section 1 due to denying me the right to vote at my polling place at City Hall.  City Councilors take note, you can save over $50,000 if you choose to not renew his contract next month, and get a better representative of our fine city in the process.

But it looks as if he might not have sworn an oath back in Jan/Feb 2003, so it looks like another FOIA is in order. 

[Willy]

X
Thanks for the explanation and research you have done regarding my question. The reason I asked is because if he took an oath to uphold the Constitution then he clearly is in violation of that oath and that would be grounds for dismissal. As far as the City attorney's requirement to take the oath, I would have to agree with your assessment that his long winded explanation about his duty to take an oath is just so much bamboozling. In my opinion his oath as an attorney has nothing to do with taking an oath as an officer of the City. Two separate issues because taking an oath as an attorney is not the same as swearing to uphold the Constitution regarding his duties in dealing with City issues.

[Marty Redman]

Get rid of the unelected officials from Almont and Manistee and you've got half the battle done I think.  Great job of research.  Do you got a mole in the City Hall or the LDN?

[XLFD]

I don't have a mole in City Hall or the LDN, but I got one on my buttocks. 

Willie, I know I feel a lot better knowing my elected and appointed officials have sworn to uphold the laws of the state and city they serve.  CA Wilson has shown repeatedly through the ordinances and policies he's created that he isn't operating within the laws of this state, city, or country.  So has Shay.  But the City Council seems fine with it.

[XLFD]

Last night, the City Council went into a closed session with the City Attorney to discuss this FOIA appeal.  Only those principals know what they discussed, but I am sure the City Attorney wished to follow a course which the citizens of Ludington would not endorse if their underlying motives were presented in an open session.  If the Circuit Court followed CA Wilson's line of reasoning, the ideals behind the FOIA would be compromised and this one specific FOIA appeal would be relegated to secondary importance.  We sent out this (with a gaffe in paragraph 3, where 'exempt' should be preceded by 'not) :

[Willy]

X

Do they intend to inform you or the public about what took place at this meeting. I'm sure this will be another instance where they will claim attorney / client privilege when there is none. These people need to vacate City Hall ASAP. They are a blight on the City of Ludington. Just imagine, having a secret meeting about a citizen who is  asking questions that pertain to their duties as City officials. This is getting to be a real comedy act the City Council and Shay are performing. I have the highest regards for you and Swiger for exposing the sad and sickly underbelly of Ludingtons politicians. I wished that the citizens of Ludington would wake up and see what they have elected to represent them. A group of silly putty Councilors who are being manipulated by Shay, a hired out of towner, whose best side would be his backside as he leaves town, for good.

[Sohn Jhay]

Do you think that the only information available would have already been provided on the previous requests if the fees had been paid on those?  Is that why Shay said similar requests because it would have contained the same information?  Just asking because the judge would probably rule in the City's favor if true.

[AQUAMAN]

Sohn, have you read the "signs of love" thread of many months ago yet, and if so, what did you understand to be the case regarding the Tye's signage contract? I.e., do you think there was or was not a direct unethical conflict of interest between the DDA Venzke and Nick Tykoski? I again also ask, why is it mandatory for the COL to have 22 Kt. gold painted on its parking signs in the downtown area, esp. when only ONE contractor offers this option, and all the other bidders cannot, or didn't have time for price quotes to do so? Thanks.

[AQUAMAN]

X, it should be noted that the appointment of CM Shay is renewed every year at the city's wish. That means his term ends at 12/31/yr. and makes him a newly appointed employee official in the capacity of CM every single 1/1/yr., thus requiring him to take a new oath every single new year upon being reinstated in this position. If he has never taken that oath, in any year since originally being appointed, I would say his actions in the capacity could and should be challenged as not legal to begin with, as his oath to serve and follow the city constitution was never taken nor pledged verbally nor in writing. Regarding the city attorney, the same should follow for him, and/or his fellow legal firm's members involved with city work. If they indeed are not considered legal officials of the city, then how can any attorney-client privilege exist? Certainly, the COL does not expect us to believe that an appointee in an official position with the city that denies taking an oath for that very office, per the city's constitution, would have any way to make his case without proper and legal authority to begin with. This is getting to be a tangled mess imho, but it's worthy of question, and of course serious legal challenge, if the judge isn't being bored and sleeping thru this all. Of course the COL can keep changing the rules, the makeup of the appointee process, the city constitution, or city policy whenever it gets in a bind and entanglement as they have at present with X. It's the nature of a big fish to fight to the bitter end, but eventually, either the fisherman or the fish wins, and guess who likes like they are coming into the net right now? Not the fisherman, that's for sure.

[XLFD]

I would dare say that by the city law, Shay would only have to renew the oath only if he lost the position and was replaced for a time, and had to be re-appointed afresh.  Just like someone who gets re-elected would not necessarily have to re-oath. 

Having a contracted law firm serve as a City Attorney official really detracts from the accountability of that official, and confuses the statutory powers of that office.  Right now, at least six attorneys can claim the mantle of Ludington City Attorney with all the inherent powers of that office.  All references to City Attorneys in state law, are for individuals.

With all due respect to my own, that's way too many attorneys.