Ludington City Council 2-18-2013: Shay Takes Up the Gauntlet

[XLFD]

At this Monday's meeting, I threw down a gauntlet to the City Manager and the City Attorney.  The City Attorney, represented at this meeting by George Saylor wisely avoided dealing with it.  City Manager John Shay, unwisely picked it up and ran with it.  But John Shay is used to not being held accountable by his peers, and doesn't have to worry about the popular opinion of the community, as long as he remains loyal to those peers.

 

Although Shay did touch upon his innocence of perjury at the end and then the reason he denied a FOIA Appeal, making his own accusation in the process of the latter, he did deflect the Oath charge once again by ignoring the situation.  The State Constitution mandates an Oath of office for all executive officers (at whatever level) in this state in Article XI sec. 1.  That is non-negotiable, and yet Ludington City Hall allows its City Manager to operate without an oath and thereby operates 'without the law'.  Remarkably, Mayor John Henderson has never encouraged Shay to do so throughout the ten years Shay has served (and, most of those years, resided) beside him.  Abiding by his own oath of office should prohibit him from doing that.  Allowing someone to break the law once only encourages them to do so again when it's expedient to do so.  But here is the meeting with my public comment (at the 6:20 mark) written thereafter, and John Shay's rebuttal (at the 28:30 mark) at the end.

Good Evening from Tom Rotta, 137 E Dowland Street. City Attorney Richard Wilson at the end of the last meeting in a prepared statement said quote: "Accusing a person of a crime such as perjury is what lawyers define as "defamation" per se, to accuse a person in writing means it's "libel" per se, to accuse a person verbally of a crime is "slander" per se" end quote.

Lawyers who know the law, unlike Richard Wilson, do not say such things. "Defamation" is defined as "Any intentional false communication, either written or spoken, that harms a person's reputation. My repetition here of Mr. John Shay being guilty of perjury seven times is based on the truths of the matter. I fully believe that he swore a false affidavit last February certifying that the records he gave me completely fulfilled my Freedom of Information request, while knowing fully well it did not.

As such he is guilty of willfully swearing falsely, and hence guilty of perjury, even if it hasn't matriculated through the court system, and I will say that with utmost confidence and conviction until his tenure of office here in Ludington has ended.

Instead of having someone else defend his name after being accused of perjury for the seventh time, and now eighth, why doesn't John Shay try to defend his own name by saying that he did not willfully swear falsely last February. He may do so today very easily by just getting up during the "comments by public officials" section of this meeting and declare he never committed perjury and give any reason he sees fit as to explain his noted transgression. He can take a couple days, and write something up for his defense of same, after consulting Ludington's stocked stable of City Attorneys and Risk Management Attorneys and make it sound legally impressive.

But until Mr. John Shay does this convincingly, I will come up here at your meetings and claim he's a perjurer, because of the simple fact that he did commit perjury, and that this is not a quality you look for in someone who's managing the City that you live in and love. He has served ten years unapologetically not taking the Constitutionally mandated Oath of Office and keeping it on file, which is against the law itself. He has dodged the Open Meetings Act at least twice, continues to make the Freedom of Information Act more restrictive, and is proving over and over again that he is a liability to this city of mine.

City Councilors, if you leave this meeting without Mr. John Shay saying unequivocably that he did not commit perjury last February, be warned that the citizens of this fair town may just start holding you folks accountable too for the company that you keep.

In parting from this topic, if we use City Attorney Wilson's definition which said that just "accusing a person of a crime" is guilty of defamation, then, by his definition, he was saying I was guilty of defamation. Defamation can be a criminal charge, and so he was effectively accusing me of a crime-- the crime of defamation. Using his provably false definition, he was guilty of defamation himself on a private individual.

But anyone can look up the actual definition, and be soothed that City Attorney Wilson is not actually guilty of breaking the law-- this time. He and his fellow attorneys from Manistee also continue to serve Ludington in the office of City Attorney without taking an oath and keeping it on file with our City Clerk. And Attorney Wilson has justified that in about the same way he justifies the definition of defamation, libel and slander-- erroneously, and without any legal backing.

And they have proven they have no professional standards, as they allowed themselves to represent the City in front of Judge Richard Cooper for four months without allowing the other side to know that Judge Cooper's son was part of their team that came forward. All of you fellows from other counties are serving my City with distinction.

In this session, their malfeasance is further on display. I have appealed a freedom of information response denying me the right to inspect the records concerning a fellow citizen' complaint voiced here in December, sent it to all of you folks to the front of me, but it isn't on your agenda tonight. Will the City have to pay thousands more in legal fees using the taxpayer's money just to try to keep me from inspecting these records as I requested? You people are stewards of the records we pay you to make, you should allow us to inspect them as per the law.  [Shay touches on why he denied this appeal after denying me the right to inspect the copies, which will be touched on in detail soon.]

Today, the revised spending policy on the agenda is to clarify that the City Manager can exceed his spending authority in the event of an emergency and to notify the council when an emergency arises. [My time ended here, finishing this thought...]  A previous FOIA has shown that the City has not clarified what defines and constitutes an "emergency", yet claims fixing a sewer nearly two months later is one."

John Shay on perjury (28:30 in):  "Mr. Rotta brought up during the public comment a couple of issues, one again, one's accusing me of perjury and asking me to definitively state that I did not commit perjury.  I did not commit perjury and frankly, no matter what I say or write to you will never change your mind to that fact, so I'm not going to waste anymore of the taxpayer's time and money doing that [his word is enough?], but I did not commit perjury and as I see it I will just have to keep putting up with the unsubstantiated attacks that you keep lobbing the City's way [I am defending the citizen's rights as was shown in your flagrant disregard for the Open Meetings Act; you sir, are the one attacking the citizens of this town, their property and rights, and that's substantiated].  I guess that's the way it's going to have to be.

John Shay on FOIA:  "You brought up the issue of the FOIA Request.  He requested E-mails between MDOT and the City over a pothole situation [the request was for any correspondence, not just E-mails, I guess I'm not the only one who makes mistakes].  The City granted the request [it did not] and asked him to submit a fee of $3.25 for that request.  He's refused to do so, as is his right, but part of the City's FOIA policy allows the City to make copies of original records in order to protect those original records from alteration or destruction or any type of modification, and that's what he's done [Here he makes an untrue allegation, I have never done anything with original records, that could be a misdemeanor  MCL 750.491] It's his prerogative I guess, to file another lawsuit over $3.25 when we are complying with our FOIA policy.  [it's over violating state laws of disclosure, not the money] So that's the updates on both of those issues.  [And he should add:  "who cares whether I take an oath of office which will lock me into working to uphold the Constitution, instead of looking out for number one and my friends."]

In John Shay's defense, I can understand his dilemma of trying to prove his innocence of perjury, I had much of the same dilemma when he and his friends tagged that Letter of Trespass on me.  They had the substantiated fact that my website was "insighting a mob mentality" which made one of their employees feel uncomfortable; I only have a sequence of court documents prepared by Shay and the City Attorney law firm that show he tried to pass off a fictitious set of records as a complete response to my FOIA request, and two other times where Shay certified that a record didn't exist (and was later produced) and referred to a record that was never produced but satisfied a prior FOIA request.  This will be gone over in detail shortly, and show why the man should not to be trusted as the head of any City.

[Willy]

I see you didn't pull any punches at Monday's meeting. I'm surprised Shay answered your challenge without consulting the attorney.  You do realize that they have already asked the attorney about the swearing in requirement so it's obvious the attorney told them that it was not required. Either the attorney has erred in his response to whether Shay or himself are required to be sworn in or they know something they are not revealing to you. Their silence about this issue is puzzling.

[XLFD]

I pushed the envelope more this time so that John Shay would respond, and hoped for Dick Wilson to ramble through his usual pompous set of words indicating my naivete and his mastery of the law, but his fellow shyster, George Saylor was there.   My surprise equalled your own at Shay's quick, undeniable response that no perjury was committed, though I wasn't surprised that he didn't try to elaborate on his innocence of same.  If he did he would only encourage that more of my next meetings speech would refute whatever he brung up, or obviously show that he did actually have the intent to swear falsely.  That denial won't become as well known as Bill Clinton's denial of having sexual relations with Monica Lewinski, but just as true. 

As if the State Constitution and laws weren't enough, you can just look in our City Charter, section 4.11: "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."  

City Manager and City Attorney are City Offices the people that serve are City Officials, and they are appointed, see the cover page of the most recent Charter.   Our City Hall has negligently ignored this provision of our Charter, and this law from our State Constitution since at least the advent of the Gockermanistee firm coming on board, and John Shay has no Oath on file-- according to two FOIAs sent his way.  The attorneys claim they are not officials, just contractors (when it best suits their own selfish purposes. 

 

[AQUAMAN]

Concerning that new proposed project at the West Lud. Ave. sidewalk via DNR trust funds, I can't say I can remember any formal open meetings to the public for comment since this was recently brought up in the last few months. Someone else help here with dates and locations? Was this many years ago with Tom Coleman as crony chairman of the planning commission? If so, it's dated and mute in substance now, when applications for funds are only now being proposed. I also have not seen any drawings/architects renderings which illustrate exactly what the project looks like. Anyone else? Concerning Shyster Shay, do we now take his word that he has never ever perjured himself, just because he staunchly denies it? Does he have any physical proofs/documentation/emails/anything that make his case? For that FOIA request, did the requester get his duly authorized credit of $20 against the charges above and beyond $3.25 per the CM? He never qualified that statement with proofs either again. And lastly, if you don't take an oath of office, can you violate ethics and Michigan laws to achieve desired objectives and agendas ordered by the hierarchy? In other words, by not taking the oath, can you pretty much do as you please, and not have to worry about the aftermath of your actions, because you are not a duly sworn in office holder? Perhaps the City Attorneys can claim contractor status, I'm not sure, but I think not. But, as for the City Manager, he is certainly required by law to take that oath, and by refusing/ignoring to do so, puts his job and appointment in nullified territory, imho. However, it would be up to the powers that be, the City Council and Mayor, to advance this motion, which by all indications of praise and admiration for the CM, will never come about. A lot of unanswered questions if you ask me, way too many, esp. since it appears they were trying to address and remedy the questions of late, and instead, create many more imho. Doing this just magnifies the lack of transparency and fair governing that every citizen should expect from these people. Where does it end then? I guess it never can for the inquiring and trusting public that has to be wondering themselves by now, if not long ago.

[XLFD]

The West Ludington Avenue Project has been a secret the two-headed Johnster (Shay and Henderson) have kept for nearly a decade, it was briefly mentioned in notes of various boards a couple times each, but never has there been any sort of diagrammatic, any discussion of where the two hundred thousand of local funds would come from, or any sort of survey addressing what the citizens would want done to that area, if anything.  All I really know is that this ten feet walkway is envisioned, and some semi-permanent 'beer tent' or the like being dreamed about, no doubt having Budde Reed's bottling company ready to supply it. 

 

Every time a parkland is used for a purpose other than people enjoying the natural setting of it, the community should have the ability to know when the caretakers of that parkland plan to alter it and add their two cents worth.  A public hearing noticed on the weekend before the Monday night's meeting just doesn't cut it, and how can a citizen comment on something they know nothing about.  

Having the City Council treat you like an idiot for not knowing what you're talking about is exactly what these people foster by keeping everyone in the dark when they have a willing City of Ludington Daily News ready to report anything they want any way they want, and a website where they could post the proposed plan anytime they wanted these past two years.  But they didn't, and they still haven't even after being berated for it by that Rotta guy.

 

According to Shay, the new FOIA policy does not accept the affidavit I sworn to and filed with the City last year which I drew up and includes a clause that says if my fortunes change I will alert the City, or be guilty of fraud.  Nothing in their new policy precludes disqualifying my old affidavit, nor is there any precedent for making such affidavits renewable after three months, as they have done.  The end result is that they have tailored a policy that blatantly violates established FOIA law.