Jumping the Gun: Kim Cole's Al Haig Moment

[XLFD]

It seemed like the only thing that was going on last week, according to the City of Ludington Daily News (COLDNews) was the swearing in ceremonies of recently elected officials of Mason County from the recent election, meritting front page articles with pictures the last three days of pre-Christmas week, Thursday, Friday and Saturday.

Gee it looks like being sworn into office is fun, it's too bad more local officials don't decide to do so (as seen here and here).  Among those sworn in was Sheriff-elect, and current Undersheriff, Kim Cole, who took his oath on Thursday, December 20, 2012, and he apparently thought that since he had taken an oath to "solemnly swear or affirm that I will support the Constitution of the United States and Constitution of the State of Michigan and I will faithfully perform the duties of the office of Sheriff of Mason County in and for the County of Mason and the State of Michigan according to the best of my abilities, so help me God.” that he was able to assume the role of Sheriff immediately-- replying to a FOIA request appeal I had almost given hope of hearing a reply to, later on that day:

Note the letter says "Your appeal... has been considered by myself, as the head of the public body you made the request to.  Upon my review of your request , I AFFIRM Ms. Fulton's actions in denial of your request."

When Kim took the Oath of Office for Undersheriff on November 30, he actually assumed that office, as former Undersheriff Trenner's resignation was effective that day.  Sheriff Jeff Fiers will not be retired from the role as Sheriff, despite any oath taken by Kim Cole on December 20, until January 1, 2013,as noted in the title of last Thursday's piece, by the Mason County Press repeatedly,and by the law.

As such, he is not the head of the public body as defined by the FOIA section 6, as the head of the sheriff's office is the actual sheriff.  If you will note, that notwithstanding of this fact, Sheriff Fiers can designate the duty of considering an appeal to someone else in the public body (subsection 3), but he never did that in this case, according to Kim Cole's letter.

Thus his first action as sworn-in-sheriff appears to be doing something that he isn't able to do, namely consider a FOIA appeal.as the bona fide head of the public body.  Patience there, Undersheriff Cole, you've still got about a week to go before that.  Is this an omen of what's to come?  I hope not.

But you will notice he does fully back the denial of any scintilla of public records dealing with this investigation of an 'alleged heinous violation', and many of his justifications are warranted, such as the Crime Victim's rights act, but many are not.  I cannot imagine any crime so heinous so as to disallow the mention of the crime and at least some of the details to the public now that it's made it to the prosecutor for action, a public which may not only be able to help them prosecute the case with their knowledge, as more information may come forth, but also a public which may help give Mr. Todd Johnson some exculpatory protection from an overzealous Sheriff's office and Prosecutor willing to break the laws of public disclosure in order to get another scalp without worrying about the details.

And that would truly be as heinous as anything I can imagine; a citizen stripped of his rights and presumed guilty without public oversight of officials once again jumping the gun.

[Willy]

I'm guessing that as Under-Sheriff,Cole can perform all of the duties of the Sheriff. I'm sure the Sheriff has basically turned the reins over to Cole and is letting him get used to the office he will take over next week. I have to agree with most of his reasons for not releasing information.

[XLFD]

As Undersheriff, Cole cannot designate himself as the head of the public body, as the appeal process puts forth in section 10 of the FOIA subsection 1a, without usurping the powers of sheriff.  It would be like Veep Joe Biden start issuing executive orders without the benefit of President Obama's blessing to do so.  Or locally and more cogent to FOIA, it would be like having someone other than the Ludington City Council decide on one of my FOIA appeals to the City.  It goes against statute, and thus is unlawful.

I am totally respectful of the rights of the victim and the accused in not having their personal privacy invaded, but the public is not properly served when investigations are conducted totally in secrecy-- and even though Undersheriff Cole does try to explain away some of the material that needs to be excluded, there are some materials even in the most heinous of crimes that can and should be released to the public, particularly when they inquire about them. 

Otherwise, our descension to a police state is guaranteed, where sometimes-innocent people can be brought up on baseless charges and imprisoned because nobody dares questions the investigations and motives of the authorities.

[Anonymous For Safety]

I see no rules or laws broken here.  The FOIA response is printed on official Sherriff's office letterhead and clearly shows Jeff Fiers as Sherriff.  If Jeff has decided to give Kim 'headship' over FOIA requests then it actually makes an appeal process that much easier for you because you will not have to bust your butt later on trying to figure out how to appeal to Jeff Fiers after he is no longer in office.

 

 

Get real X and stop letting a tree or two prevent you from viewing the forest.

[AQUAMAN]

Anonymous, it's not a question of law or rules, it's protocol for an existing office holder like a sheriff to answer the call of duty on his watch, not an under-sheriff. I can only assume that Fiers saw this particular request as carrying-over into the new year and beyond, and thus handed this over to Cole as he felt was proper and prudent, not law necessarily. So, what exactly is headship? Webster's doesn't list it as any known word. Must be a new liberal expression...lol.

[XLFD]

All Sheriff Fiers would have had to do was tell or send me something telling me he designated Undersheriff Cole as the arbiter of the appeal, and this Al Haig moment could have been avoided.

But let me be clear, Al Haig never really inferred that he was the acting commander in chief, when he said that he was in charge after the assassination attempt of Dutch Reagan.  His full statement showed that he knew the presidential succession, and the big fuss was a liberal press myth, a press that did not like Al. 

[XLFD]

You would have been okay with having Probate Judge-elect Jeff Nellis decide Probate Court cases for Judge Raven these last two months then, A4S? 

I was not looking at ease, I have found often that getting records from public officials is not easy, like it should be.  I have already seen previews that the Cole Administration is going for cover instead of openness, so expect more lawsuits against the County originating from people you have never heard about, like Joseph McAdam-- and a lot more belly-aching from me about County malfeasances. 

I also find many of Cole's rationales lacking serious merit in terms of FOIA precedent.  How exactly does the release of the legally non-exempt contents of the investigation deprive the suspect and the prosecutor to the right of a fair trial?  Will we ever learn by getting just a fragment of this investigation and prosecution that has been going on for half a year at the taxpayer's expense, without any sort of disclosure as to why we are doing so?

[XLFD]

And even though the prosecutor is pressing charges on Mr. Johnson, all that we can get on this investigation is shameless excuses that prevent us from seeing the facts in this case that don't invade the privacy of the alleged victim and accused. 

When the prosecutor and willing police agencies have absolute control over all the records of the  established investigation, they can pick and choose as to what to show the public, and what not to show the public.  The end result is that they can create their own narrative that is likely to lead to a prosecution, not to get what the justice system should be seeking.  Justice.  

It may not be pretty, but we deserve all the facts here that are allowed by law, not ones the prosecuting team want to use to better their chances in court.  And that is exactly contrary to most of what Undersheriff Kim Cole said above.