Incompatibility Issues: Officer-Mayor of Ludington

[XLFD]

An issue I brought up at Mayor Ryan Cox's first city council meeting  was that he may be in violation of the Incompatible Public Offices Act by being on the Ludington Police Department as a reserve officer, and being mayor at the same time.   I further developed that later that night by laying out the thesis that his two offices were in conflict, in that he was subordinate to himself as mayor in the LPD role.  I debated the point with a member in that thread, and discovered even more material that made it appear to me that it was so.

 

And even though my assertions in that first meeting about unlawful board appointments went unanswered, the next meeting had the City Attorney Richard Wilson introduce, at the end of the meeting, his opinion on the subject of incompatibility.  In fact he even gave me a copy of this four page opinion:  City Attorney Opinion.pdf

 

As you can read in this opinion addressed to the new mayor, he believes the Incompatible Public Officers Act (IPOA) does not apply to the officer-mayor position he holds.  The first two pages and the top of the third try to say that a reserve officer of the LPD is not a "public office", the latter two pages assume, for sake of argument, that even if it was a "public office", no incompatibility exists that would force him to vacate one office.  Let me first focus on the latter point, thereby presuming that a reserve officer is a public officer, then attend to the other.

If A Reserve LPD Officer is a Public Officer...

 

Attorney Wilson (pictured to the left) mention a court case (Macomb Co. PA v. Murphy) and an Attorney General Opinion (AGO 7226), both of which refer to two situations where the officer was on two separate public entities, unlike this case.  If a member serves two separate entities like a city and county government, you will almost never get a subordination of one position to the other except by special contract, which is the main points in those decisions, and where 'potential' breaches of duty may occur due to those interagency contracts or agreements. 

 

In the court case, Defendant Murphy was an elected trustee of Harrison Township.   She was also the delinquent personal property tax coordinator in the Macomb County treasurer's office.  That court said:  "We conclude that defendant's (Murphy's) positions are not inherently incompatible because only a potential breach of duty of public office arises from the ability of the township to contract with the county for the  collection of its delinquent personal property taxes.   Under the circumstances of this case, defendant's holding of dual offices did not violate the incompatible offices act because the governmental entities never entered into contractual negotiations."

 

The court ruled in that particular case the subordination of one position to the other would not occur, and that barring any intergovernmental contract that 'forced incompatibility' by expanding Murphy's duties, no breaches of duty would occur.  AGO 7226 draws heavy on Murphy to come to the same conclusion in another specialized case involving township and city officers, and the final conclusion actually intimates that in our mayor's case, there would be incompatibility if the township and city were the same public body: 

"... a person holding positions as an elected township supervisor and a city police officer does not violate the IPOA unless: 1) the township and the city have or are negotiating a contract for police services; or 2) other particularized facts are present that demonstrate the individual cannot faithfully perform the duties of a city police officer and township supervisor in a manner that protects, advances, or promotes the interests of both offices simultaneously."

Officer Cox being under control of a Ludington police officer at one of our City's events does not protect, advance or promote the interests of Mayor Cox, in fact, it leads one to believe he is under the direction of the LPD, when in fact, Mayor Cox has ultimate authority over the LPD, as explained voluminously in the Fourth Class Cities Act.

 

 

 

Ultimately, charts like the above and numerous instances of state law, show that the mayor of a fourth class city like Ludington, have the subordination of Officer Cox to Mayor Cox and the conflict in duties often leading to a breach of duties for one office while doing the duties of the other.  I include by reference my previous thread, and further use the following excerpts from the Fourth Class City Act, which are not conflicted by our charter or code.

 

 

Mayor Cox 'is not a law enforcement officer' contradicts the fact that Officer Cox is a 'law enforcement officer'.  Note that Officer Cox 'may exercise within the city the powers conferred upon sheriffs to suppress disorder' by dint of being Mayor Cox.  That's a lot of power for a reserve officer.

 

 

The Fourth Class City allows Mayor Cox to be the appointer of police officers (see below), and he also has the power to suspend or otherwise discipline those officers.  Officer Cox may get an unfairly positive evaluation of that written complaint by Mayor Cox, who coincidentally is among his superior public officers. 

 

 

Under council authorization, Mayor Cox may appoint special policemen from time to time, as well as appoint all the policemen of the city, including Officer Cox.  The city charter of Ludington has no allowance for the city manager to make these appointments.  Before I load on much more to show that Attorney Wilson's reliance on two low-applicability precedents to show there is not a breach of duty or subordination is total hogwash when we presume that a reserve police officer is a public office, I will finish off the refutation of his first point.

 

If a Reserve LPD Officer is not a Public Employee...

 

Attorney Wilson actually has an impressive start in this opinion, until he gets to the first paragraph in page 2, which relies on information that is not available to the reader.  Putting that aside for later discussion, he then tries to assert that a reserve officer is not an employee of the city and thus is not a "public employee". 

He uses the legal definition of "employee" to prove his point:  “[a] person who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has a right to control the details of the work performed.”   Then tells us precisely that the chief of police uses (employs) these reserve officers at his discretion, and that they are under direct control of him and other officers to do what work is required.  If one of these reserve officers in a LPD uniform does something wrong while doing what they feel is within the color of the law, will not the City be ultimately liable for their acts?  

 

 

 

And if we provide money in the budget to buy the police reserves their uniforms, equipment, health services, and training-- stuff that employers generally compensate their employees with-- doesn't that signify that these people are more than volunteers or independent contractors, like our City Attorneys are.   

 

Let's finish this refutation by saying that good attorneys will not generally put out an opinion and keep the supporting material from being accessible to the reader of that opinion.  Wilson has put in footnotes to a legal opinion, definitions and a precedent, but he does not allow us to review and verify the material that he says was given to him by Mayor Cox and Chief Barnett that allows him to make an unqualified opinion that a reserve officer for Ludington is not an employee. 

This part of his opinion is thus an unacceptable proof in regards to any sort of peer review.  We are supposed to take a leap of faith in Attorney Wilson's summary of this undisclosed material.  I corresponded via E-mail with him in an attempt to remedy the situation, and sent copies of my mail to both Officer Mayor Cox and Chief Barnett.  In the sequence (my entries are in policeman blue), he tries to shield this supporting information by claiming an attorney-client privilege.  Seriously.  As an occupier of Ludington's city attorney office he represents the City's legal interests, not any official's legal interest, unless retained for that purpose.  Here he tries to claim the City of Ludington, a public entity whose records (including job descriptions, work records, etc.) are generally available, has some sort of confidential elements in the material Officer-Mayor Cox and Chief Barnett handed him. 

Meanwhile, Officer-Mayor Ryan Cox has remained silent instead of providing some legitimate argument for the position the City Attorney is trying to argue unsuccessfully.

 

    Ryan Cox Swearing an Oath of Office for his office of Mayor in front of the Empty Chair of the City Attorney

 

Richard,

 

I have read your four page opinion on the IPOA and Mayor Cox's two public positions, and I am willing to give it some credence, but in your first argument you refer to 'information' (top of page 2) supplied by Mayor Cox and Chief Barnett which helped you come to the ultimate conclusion that the reserve police officer position was not an employee position.  Without that information you were supplied, the reader of your opinion cannot verify such reasoning beyond what you supply.  If you can once again save me the effort of a FOIA request, could you supply me the full information that you received (via E-mail)?  For as a mathematically trained individual I require more justification for proofs than your normal jurist.

 

This may be important, because I think the second argument using Macomb v Murphy is a bit more questionable.  I do think there is a solution to the controversy of the issue that will allow the mayor to keep both positions and minimize the potential liability to the city for the perceived incompatibility/conflict but it will require an action by the city council (see MCL 15.183 (4)(c)).

 

 

Thank you for your email.  The communications from the Mayor and the Chief of Police to the City Attorney in response to my questions involving the roles and duties of persons volunteering to serve on the LPD’s volunteer reserve police force are privileged communications.  As City Attorney, it is not within my power to waive that privilege.  City Council, or at least the City Manager, would have to take that action.  

I will represent to you, however, that all facts relevant to my opinion, both favorable and unfavorable, are stated in the opinion itself.  The key facts here, of course, are that the individuals are volunteers, they are not certified police officers, their position and authority is not established by City Charter, state or federal law, or City Ordinance, and that they serve without compensation or benefits of any kind.  

Because Mayor Cox was a member of the volunteer police force prior to his election to public office, and because, in my opinion, a member of the volunteer force is not a public official or public employee, the IPOA does not apply and MCL 15.183(4)(c) is not implicated in this instance.  I agree that this section would be implicated if, at some point in the future, Mayor Cox wanted to perform additional services for the City in some capacity, or City Council asked him to perform additional services. 

Richard,

The attorney-client privilege exists between you and your client.  You are not representing Mr. Cox or Mr. Barnett in any sort of legal proceeding here.  Since you (and your firm) are serving officially as the statutory position of "Ludington City Attorney" your first 'client' is the people, and you are showing yourself to be a bad representative of us by not giving us information that should be publicly available, correspondence between public employees deciding public policy, without any sort of legal reasoning that passes muster. 

 

They gave you information that made you draw a conclusion, and you wish to present a 'proof' that leaves off the totality of that information, so the reader has to 'take your word for it'.  That results in a bad proof.  It is kind of like Pierre Fermat writing that he has a nice proof for his famous 'last theorem', but not being able to provide it due to the lack of space he had. 

 

I am going to get that material, or I will presume that there is a violation of the IPOA, and your duty to the public. 

 

 

Of course, Fermat’s Last Theorem wasn’t really a theorem at all until Andrew Wiles proved it in 1995.  More of conjecture, actually, or a good guess.  Sort of like Euclid’s twelfth axiom.  Bk I.  Nice try though.

 

 

Nevertheless, for Wiles proof to make it to the level of an 'actual' theorem, it required very involved peer review of a sort that had negated a host of other supposed proofs of Fermat's Last Theorem by other mathematicians through the centuries. 

 

I dispute the latter part of your opinion on the IPOA, and can not agree with the first argument (thereby accepting the premise you are supporting) if your supporting evidence is kept 'privileged'.   It would be the equivalent of Fermat ducking the issue of proof by saying it would not fit in the margin, or by claiming 'famous mathematician's privilege'.  Your opinion thus lacks any sufficient rigor in that regard.

 

Be that as it may, you address your opinion directly as to a question by Mayor Cox of whom you received material from him and his employer; so if you make the stretch that you are acting in your legal sense to city official(s) (and not in response to a citizen's assertion), it would be to him, not the City Manager or Council as previously inferred.  The taxpayers of Ludington effectively paid for your research based on his question in this opinion; I demand on their behalf that it be rigorously backed by the data you claim exists, and not on faith. 

 

Candidate Ryan Cox ran on a platform of increased transparency, and this is looking like an epic fail in that regard.  I will be putting out a critical thread on the Ludington Torch over the weekend regarding this issue.

At the risk of repeating myself, the attorney client privilege cannot be waived by the attorney.  Only the client can waive it.  As I recall, there is nothing particularly significant in the emails that didn't get mentioned in the opinion.  Ms. Sniegowski will undoubtedly have to ascertain the City's position on this when she responds to your FOIA request, so might I suggest you see how she responds to your FOIA before jumping to any conclusions?   The fact that I can't waive it is not a decision by the City that it won't.

And here is where we stand, in an impasse that seems to suggest that Ludington Police Chief Mark Barnett has his own staff of extralegal volunteer reserve officers and any material about that 'secret force' is confidential information shielded from the knowledge of the public.

 

And that even though the taxpayers provide at least for their uniforms, equipment, health services, and training, as well as suffer any liability for their mistakes, they are not our public employees, just a bunch of yahoos in Ludington police uniforms.  Since they are not public employees or officers, isn't the actual dressing up as a LPD officer misrepresenting themselves as a policeman, as they have no legislative authority to act in that respect on the behalf of Ludington, or any emergency authorization by the mayor?   Isn't there a law against impersonating a police officer?   There's more here than I thought.

[Willy]

Do reserve officers take an oath? If so, then that would make a reserve police officer a City Official regardless of whether he received wages for his services. Officers cannot issue citations unless they are sworn in by taking an oath. Just the fact that reserve officers are in the Police personnal flow chart and they are represented under the police in the City budget makes them a City employee.  If Cox was sworn in as the Mayor then he's obligated to follow all laws and ordinances pertaining to that office. At the same time, if he took an oath when he became an officer he is complied to follow the laws and ordinances regarding that oath. My guess is he is in violation of both oaths by holding both  positions at the same time.  It astounds me that Wilson is still playing the same old game of pulling the "client privelage" act. Nothing has change, just a few faces.

[XLFD]

Your knowledge of what a reserve officer is about as good as mine would be, Willy, because that there is privileged information from the general public.  Do they take an oath?  I don't know, maybe one in regard to their chief.  Do they have any real or implied power?  Not any more than an average citizen according to Wilson. 

Do we really want someone in the mayor's office who may have to measure his loyalty to his fellow LPD officers against the duties to the people he represents in instances where police misconduct may be alleged against innocent townsfolk, such as what happened with LPD Officer Warmuskerken and LPD Officer Sailor during the last term?

[AQUAMAN]

Very interesting situation. It's sad that other evidence supporting the COL proofs is not available. And again, thru a client-attorney privilege excuse, which appears and reappears as CA Wilson wants to apply it, legal or not. As a layman at law, I just don't see it. There is, or would be, and still can be, a definite strong conflict of interest if another Saylor-type incident presents itself. And I would be almost certain, based on the repeated misconduct suits on the LPD, that it will occur during the first term of Cox. It appears that CA Wilson would be willing to do anything it takes to produce the fixed agenda that he continues to defend. This time though, I think it's going to backfire on the COL, just based on instinct and history. I guess we'll have to wait and see when the time comes. It seems to me that if Cox waives this asserted client-privilege information now, he will come out way ahead in the long run. He should also relinquish the position of reserve officer now. Unless of course Cox hires his own personal attorney. But, as we have witnessed time and again, the COL and it's hired guns don't back down easily, and will never admit any lack of transparency, even though they invoke it over and over again. There truly appears to be much more here than what is being hidden from citizens. Cox could put it all to rest right now if he has the courage and wisdom he claimed as a candidate, but will he?

[XLFD]

There may be some serious implications if these reserve officers are set up so as not to be employees or public employees, but we set aside about $2500 of the budget to go out to assist and look like police officers, and yet have nothing in the charter concerning them (as Attorney Wilson says) or any law or ordinance that rules over them. 

 It opens up another can of worms when you argue that they are not employees of anyone other than the police chief-- who can only get that delegated authority to muster reserve forces from the mayor (MCL 92.1 shown above).  Chief Mark Barnett may have an illegal band of auxiliary officers here.

[XLFD]

It's hard to say what the budget line-item for 'health services' cover without seeing some public records, but the amounts are too small for full-fledge health insurance.  I would guess the money may go for physicals, accidents, screenings/tests, and the like.  And this is for the City of Ludington, not Mason County.

[XLFD]

Those are some things that may become clearer when my FOIA requests start coming back.  If you are on good terms with Chief Barnett, and willing to do what looks like mostly volunteer service at city functions, you can qualify for what probably amounts to security guard work, service that may help you get a full time job with the LPD or resume-material for another department, if/when you get MCOLES certification. 

There may be more perks than just some blue uniforms and a borrowed radio, however, I doubt they would assign guns to them due to liability issues.  But you never know.

[Wonder Woman]

I do believe LPD reserve officers are issued a firearm.  On another note, is there any sort of conflict with Ryan being mayor and his wife working for LPD?  I don't know what the chain of command is, or what kind of authority the mayor has over the police force. 

[AQUAMAN]

I think X made a chart on the chain of command on another thread WW. It showed that the Chief is over the reserve officer, as would be expected of course, but, that the Mayor has authority over the Chief and CA and CM. Cox could temporarily take himself out of the reserves I would think while he's Mayor, then be reinstated later after term of office is done. That at least to me would solve the whole issue, and not affect his service either way.

[XLFD]

Arming reserves would be crazy policy as far as liability issues for a City government that scrapped the lifeguard program for that same reason. 

Good question.  Ironically, when we had an Attorney General named Cox, he made a Model Ethics Ordinance for Local Govt handbook which has at the bottom of page 8: 

Section 2 – 12. Anti-nepotism. Unless the [name of governing body] shall by a two-thirds
(2/3) vote, which shall be recorded as part of its official proceedings, determine that the
best interests of the [type of unit] shall be served and the individual considered by such a vote has met the qualifications for appointive office or employment, the following relatives of any elected or appointed officer are disqualified from holding any appointed office or employment during the term for which said elected or appointed officer was elected or appointed: spouse, child, parent..."

This model was never adopted by Ludington, and nepotism is not illegal in public offices in Michigan unless some local governments have adopted their own policy against it.  But even so, Mrs. Cox was appointed to her position before there was a Mayor Cox, so nepotism could not seriously be considered because it was not used to get her the job.  

In similar manner, Ryan Cox is also a public school teacher, which effectively gives him three public 'jobs'.  But there is really no good case to be made to say teaching is incompatible with mayoring or auxiliary policing.

[XLFD]

Here's a link to that site:  MCOLES.  The Michigan Commission on Law Enforcement Standards have some minimum standards that you must meet, and those are linked within.  Pass the licensing examination, and you're on your way to being a police officer.  Be true to your oath if you do go that route, Art.

[AQUAMAN]

Looks like we started out with a thread about the Mayor's possible conflict of interest in holding two employee type positions with the COL, and now it's a job search forum/link? I didn't know dat..lol. Art, can't you call Barnett's office or google this info. for your future aspirations in LE? I mean really, if you aren't happy with being a janitor/waste engineer, then you should pursue it with new education and go to the academy, and also be in your 20's or no older than early 30's. The physical condition requirements are also very stringent imho. Lastly, do watch the movie Serpico with Al Pacino to get an idea of what you could be up against in the future in LE.

[XLFD]

Art,

Don't believe for a moment that Aquaman has an epically proportioned hatred of law enforcement, because like me and a growing number of other people, he has a reasonable expectation of them living up to their dedication to their oath of office and their responsibilities to the public.  The job does have danger, and involves a lot of decisions made in emergency situations; you don't want the wrong type of people in that position.

Like the general public, there are heroes and villains amongst their number.  The villains need to be kicked out of this important public service, not ignored or used as a good example for others.  We should not exempt anyone from our laws or blindly idolize anybody just because they wear a badge.  Nor should we silence fair criticism of their actions and policies.