Ludington City Council 12-2-2013: The Posers

[XLFD]

The City Council of Ludington were instructed to come to City Hall a half hour early for a photo shoot by Russ Miller, legendary Ludington photographer.  This meant I had to get there at the same time to make sure they kept things honest.  For when a quorum of a public body comes together for such occasions, there is often a tendency to discuss public issues amongst themselves as a group, which would be a violation of the Open Meetings Act, which the Ludington Council has shown a reluctance to follow by the letter and the spirit of the law.

 

 

To their credit, they behaved themselves, and if they did discuss anything, they were in groups less than four.  But then the meeting began...

 

The City Council went ahead and passed everything that they revealed in the Daily News on Black Friday.  They raised the clerk's and treasurer's salaries, made way for a sculpture trail, and set aside a portion of Stearns Park (bounded by the inlet to PM Lake on the south, Lake Michigan to the west, the old Coast Guard Station (future maritime museum) to the east, and a line a couple of hundred feet from the inlet to the north). 

 

One must ask:  Why does the Ludington City Council believe it has the power to change our limited and perhaps our most valued public resource, our parklands, when our city charter-- the laws made by and for the people that they must follow-- says they must receive popular support to do so.  How else do you interpret:  "The Council shall not vacate, discontinue, sell, lease, trade, nor divert to other public use any public park grounds without  first securing the approval of a majority of the electors of the City voting theren (sic) in any election."?  That law was created so that the people would have a direct say in what happens to their parks, so that a simple plurality of councilors with ulterior motives could not ruin or exploit our natural treasures.

 

The main topic was the public hearing on the City's budget, and only one person spoke up on the budget, yours truly.  There is good reason for that even though there is a daunting, potential surcharge coming to every property owner here of over $500 to pay off bonds to allegedly upgrade the water and sewer systems so that Michigan Department of Environmental Quality (MI DEQ) standards are met.  At the same time our city's employees are up for two percent raises for each of the next three years, and we pay for fringe benefits to them of around 54% of their generous salary, our City Council also exempting them from the State's health care reform laws the last two years.

 

After City Manager John Shay went over the specifics of the budget for about ten minutes, as he is required by Ludington's charter to do, I went over even more of the charter's requirements that were not met (at 17:45 in).  I offer the transcript after the video, with links to the laws that were violated by the group of posers above:

December 2, 2013 Ludington City Council from Mason County District Library on Vimeo.

"Tom Rotta, 137 E Dowland

Section 8.2 of the Ludington City Charter says:  "The City Manager shall prepare for Council a budget proposal and an accompanying message for the next fiscal year, which shall be presented to the City Council for its approval no later than the first Council meeting in November."  

It's December.  On November 11, the City manager had a required duty to the people of this city to present this budget to this council and the public.  He has failed in that duty for ten years since 2003, his first year here.  

Section 8.5 of the Ludington City Charter says: 

"Notice and Hearing. The City Council shall publish in one or more newspapers of general circulation in the city a notice stating:  1)  The times and places where copies of the message and budget are available for inspection by the public; and  2)  The time and place, not less than two weeks after such publication, for a public hearing on the budget."

 After scouring the Daily News archives at the library for such notice in October and November papers, I found one at the very bottom of page B3 in the November 26 paper.  That was six days ago, not at least two weeks.  It stated it could only be found at the City Clerk’s office during normal business hours, which was closed on four of those intervening days. 

Section 8.11(a) of the Ludington City Charter says:  "The City Manager shall prepare and submit to the City Council a three-year capital program no later than the final date for submission of the budget." 

 

As noted before in section 8.1, that deadline was November 11, two meetings ago. 

 

Section 8.12 of the Ludington City Charter says:  "The City Council shall publish in one or more newspapers of general circulation in the City the general summary of the capital program and a notice stating:  (1)  The times and places where copies of the capital program are available for inspection by the public; and (2)  The time and place, not less than two (2) weeks after such publication, for a public hearing on the capital program.

The only notice for the capital program was on November 26, and it was available to the public for two whole days, today and last Wednesday. 

Section 8.13 of the Ludington City Charter says:  "Copies of the budget, capital program and appropriation and revenue ordinances shall be public records and shall be made available to the public at suitable places in the city" 

 

The copies of the three items were only available for two business days at City Hall and are not available on the city website unless you go into the 'archived minutes' which has been down more often than the Obamacare website over these last few weeks and then go to the council packet for this meeting after going to three intermediate places in the trip, none of which indicate that you are going to see the City’s budget for 2014. 

Is this transparent?  Far from it, the managers of this city defied and violated the City Charter, the people of Ludington’s set of laws for their local government to follow, to avoid letting the people see this budget and weigh it critically before they pass it.  They have been doing this every year, despite a little voice in front of them telling them not to.

 

Our city leaders and the city council cannot cherry pick which sections of the city charter they wish to follow, and which parts they arbitrarily and capriciously ignore, in order to sneak a budget through that gives city employees 2% raises in each of the next three years while envisioning over $500 surcharges for the citizens who are on the City's water/sewer system.  As I see it, our surcharges are effectively paying for these raises, which aren’t merit based.

 

Perhaps if our city council hadn't wasted over $1.5 million in painting our water towers and tanks very prematurely, we would have better fiscal command over the necessary improvements the DEQ may mandate.   But whether it be to ignore the charter on numerous budget sections, or to ignore the competitive bidding process to pay for frivolous actions and improvements, or to ignore a host of other ethical and legal considerations I bring to this body twice a month, I believe the City Hall staff is more deserving of pink slips rather than raises and praises. "

 

The City Rebuts:  Near the end of the meeting (36:40 mark), City Attorney Wilson, trying to show that the City was not violating every single law I mentioned said:  "state law allows a notice of hearing for a city budget to be published at least six days in advance of a hearing or in accordance with your charter...". 

Au contraire, Barrister Wilson MCL 141.415:  "Local units which provide for a public hearing before adoption of their budgets... shall hold a public hearing in accordance with such provision of charter... which shall be deemed to be in a manner prescribed by law."  Wilson and his law firm always has shown contempt for our local city charter through the years they have 'served' the people as 'City Attorney'.  Perhaps this is because they come from outside our county, and now are part of an even bigger law firm based 100 miles away. 

Wilson can liberally interpret MCL 141.412 made for local units without charters (such as some townships, villages, schools, authorities, etc.) that says they can publish within six days, however, even when this route is taken they are mandated to put in their notice (in 11 point type) the sentence:  "“The property tax millage rate proposed to be levied to support the proposed budget will be a subject of this hearing.”.  The City didn't do that in their November 26 notice.  Wilson probably falls back on this section, because some of the smaller local units his firm represents do not have charters. 

 

Not pink slips, nor letters of praise, but hopefully a wake-up call for our officials who have no problems breaking the law (from the November 25, 2013 meeting)

At the 2:10 mark of the video was the only public comment delivered that day, once again by yours truly.  Here is a transcript of that (2:10 into the video), followed by Councilor Gary Castonia's rebuttal of my Danaher property assertions at 36:10 in the video. 

 

"Let me start off by saying that at the last meeting Wallace Cain was mistaken by speaking his piece during the public comment.  It has been my understanding that the public comment period is the time during a city council meeting where citizens air their grievances or compliments to public policies and acts of their public officials.  Wallace Cain has every right to speak out against me in the local media to his heart's content, and he's welcome to argue any salient points on my website, but his grievances with me or my actions should not become a part of the public record, and this public body should caution citizens from using this forum to attack fellow citizens.

Mr. Cain, however, is also a public official who serves on both the Board of Review and the Zoning Board of Appeals of Ludington; he is appointed by the mayor and approved by the council; so his words during the public comment section should be  prefaced with that fact, or he comes off as simply a fawning representative of  the City of Ludington whose time for talking should be better used during the "Comments from Public Officials" section of these meetings.  There he can shout "Amen" with the rest of the City officials over how bad Tom Rotta is for the City of Ludington, because Rotta actually pays attention to what you are doing that is ethically challenged or directly against the law and/or public interest. 

Also, one week ago, City Attorney Wilson defended the City's actions as regards the 808 E Danaher property by saying that the City had a public purpose of buying this lot for additional security for the water tower and for additional facilities for sliding.  In the July 22 council meeting where that purchase was approved there was no public purpose mentioned, just that they would tear down the building and give a lot of that property to a neighbor for half of the costs of demolition.   The stated public purposes Mr. Wilson stated at the last meeting, unstated before then, are ludicrous at face value, as there is no additional security provided by tearing the house down, nor is there any new opportunity for sliding due to the security fence around the tower.   

If the City had let the property be auctioned, as it should have since it still has stated no reasonable public purpose, the City would be getting a large amount of taxes from the new owner, since the City Assessor had put an onerous tax rate on this property in the first place.  Now we have a new empty lot with no taxes and tax money being used to maintain and mow it, and a shady deal made between the neighbor and the City which went against the public interest. 

I further invite City Attorney Wilson to defend his law firm charging the City coffers $363 for the "Rotta Appeal" over this last billing cycle, and noted in your agenda packets on page 134.  We were sent two letters from the firm offering us $150 in filing fees in order to settle what they erroneously believe are what they owe us for court costs and disbursements in prosecuting our FOIA lawsuit against the City. 

We have a list of costs and disbursements that we will be seeking in the circuit court that this has been remanded to when we bettered our position in the Court of Appeals.  The City will undoubtedly spend many thousands of dollars trying to argue against reasonable and trial-tested disbursements, just like it argued unsuccessfully to block the records of the Tye’s Inc. transactions with the City finally released because of our lawsuit.  Who wins?  Our contracted city attorney law firm from Manistee.

Not surprisingly, we have seen no authorization from any official from the City allowing the City law firm to take these $343 actions, and bill the City treasury for such wasted efforts, which amounts to about 250% of what they think they owe us for our prevailing in the case. 

Now, I am often scapegoated by the City for wasting taxpayer money, but I repeatedly come to this forum and speak out on how much of the taxpayer's money is wasted by our City in the meager five minutes I am allowed to speak.  That's part of the public record, but a part that is rarely heeded by our City government's apologists."

Castonia rebuts:  "...Mr. Rotta making a statement "we gave", his quote, was "we give the lot to a neighbor-- he paid for it... he states "no taxes", "we're gaining no taxes from this lot".  Again that's not true.  We are getting taxes from this.  I'm just beginning to wonder what I can believe anymore and what I can't."

 

Au contraire, Councilor Castonia, my full quote was "give a lot of that property to a neighbor for half of the costs of demolition", which was more true than your comment, although to be exact he paid roughly half the cost of demolition plus back taxes.

Likewise, my full comment on taxes was "Now we have a new empty lot with no taxes and tax money being used to maintain and mow it", which we do.  808 Danaher was on two lots, the City retained one and dealt one away.  The empty, public one (the other has a shed on it and is owned privately), will bring in exactly no taxes and cost the public money to maintain it, as stated. 

 

Someone definitely has a short attention span-- believe it or not, Councilor Castonia. 

[Willy]

Well done X. My suspicions are correct. The Council is acting on Wilson's advice and as long as he misstates or misinterprets the law I'm afraid this fiasco of Government incompetence will continue. I'm curious about how the City Attorney is appointed because it is such a crucial position. If the good ol boys want to continue abusing their positions they need a CA who will back them up with erroneous advice so they have an excuse to continue to side step the laws and simply do as they please. 

I hope the Council doesn't put a surcharge on residents all at once. They could do as other cities have done and increase rates to spread out the cost and not burden the citizens with a major one time fee.

[XLFD]

The Ludington Torch is busy getting background information about this upcoming surcharge to see what it really is all about.  The City's version right now is not passing muster. 

City Attorney Wilson is the architect behind the Workplace Safety Policy passed in 2011 which gave both him and the City Manager new powers not recognized or conceived in City or State laws for their positions.  His legal skills, and his commitment to city officials rather to the rule of law, ethics and the people's concerns makes him a definite liability for us all.  The city council will likely renew the annual agreement for his law firm at the next meeting with a raise, because they love his loyalty to them.

[Jane]

these people on the city council are either stupid or lazy or both OR absolute treacherous deceitful liars who break the rules on purpose because they think they have the power to do so.

Any GOOD manager or councilperson should read the charter once a year and review it frequently to make sure they are doing things properly, that would be the right and EASY way to do things. Instead these twits go about doing everything they can to circumvent the charter just for the sake of being contrary to the charter, and even worse hire lawyers to help them break the charter rules. They CHOOSE to do things wrong and then hire lawyers to defend their wrong actions. They are definitely idiots for the nth degree.

It would be so simple to just follow the charter and fire the lawyers. god what a-holes they are.

And why the H should they get raises if the fees/taxes for those who live in the city are going UP?????

What selfish jerks who care only for their checking account and ego and NOT the people they supposedly represent!!

WHY do these people get voted into office, WHY!

[XLFD]

In "XLFD's Budget Message", it was revealed that several substantive City Charter provisions were willfully ignored by the City Council and Manager (who acts on behalf of the council).  None of these people replied to their willful commissions or omissions in the meeting, unanimously passing the budget.  It's not that they don't take me seriously, it's that they don't take the law seriously-- and that's troubling at their positions of power with them having at one time swore to an oath of office (except CM Shay).  Their lone defense comes from a 'City Attorney' who eschews the provisions of the City Charter he is supposed to honor as our City Attorney, misquoting the law.

And then except for Councilor Castonia's "defense" of what the City did to the house across from his, which is unethical and wasteful however way you look at it, they were quiet about the opening salvo.  The City of Ludington Daily News (COLDNews) even gave me a write-up that wasn't even near defamatory.  But they didn't cover the unlawful transgressions of their team.

[Willy]

CA Wilson stated, "state law allows a notice of hearing for a city budget to be published at least six days in advance of a hearing or in accordance with your charter...". Why is there a City ordinance regarding the budget if City officials are not going to obey it. How many citizens were expecting the budget to be introduced the first meeting in November? How are the people supposed to know that the City does not follow the ordinance regarding the budget? How are they supposed to figure out that the City chooses to ignore local laws and instead invoke the State regulation? Talk about twisting legalities to fit their agenda. The City Council seems to have forgotten who they represent. 

Can questions put to the CA  by City Council and his comments to those questions be FOIA'd? It seems to me that if the CA instructed the Council that they could follow State law and disregard local laws then there should be a record or communication between them regarding this issue as well as all issues regarding Council and CA communications regarding City business.

[XLFD]

If the communications are between the CA and others in the City, there is a significant chance that it may be privileged.  I have tried to FOIA specific communications that should not have had that particular privilege (i.e. like billing records, E-mails sent to the CA and other multiple non-attorney recipients) with limited success. 

It's usually an expensive proposition anyhow, as they have tended to over-edit such records, but John Shay originally blocked or blacked-out even the non-privileged records with the CA as a sender, recipient or CC (carbon copy).  It appeared for a time that they were including the CA in their dialogs just so they could keep their E-mails from being revealed.  But the argument against this privilege is if you send an E-mail to the CA and (for example) the rest of the city council, you have effectively sent a 'letter' to each party, and each of those except the CA's would definitely not have that privilege. 

[XLFD]

I finally got around to scanning the COLDNews budget hearing notice, that as you can see, was in the November 26, 2013 paper, and this for the first time.  If City Attorney Wilson believes this fulfills even the State Law he quotes, I'm willing to argue with him or whoever that it doesn't.  It might fulfill his hometown Manistee's charter, but definitely violates Ludington's.

Remember this was put in the midst of the sports section pages on B3 tucked under an article talking about the Thanksgiving Day football games.  Not in a place most people interested in the rough-and-tumble of politics look for public notice of a budget meeting.