The Place Where Ludington Talks
Ludington City Council Meeting 2-10-2014: The Repeal of Incompatibility
The agenda showed very little happening this night as far as city business being conducted. An Easter Egg Hunt road closure approval and a minor change in Consumer's Energy contract with the City were the first orders of business.
The annual police report for 2013 was scheduled next, but an agenda change was made at the last minute, for the possibility of the City receiving a sizable grant ($632,000) from the Michigan Department of Transportation for developing the Old Coast Guard Station Building and nearby area, with a match of a quarter of that by the Mason County Historical Society already secured. This is a Transportation Enhancement Program grant, and while it is possible the City may get the grant, they'll probably have to do some good marketing for it. We will be checking this out with MDOT to make sure the City of Ludington is kept honest.
The 2013 Police Report was rather long (from 15:40 to the 35:00 mark, and another minute or two to answer a question. If you listen to it, you will find him referring several times to reserve officers as if they were employees officially sanctioned by the charter or by ordinance. That will be touched on more, even more so than my speech did. What started off as a simple question as to whether the mayor had an incompatible office by being on the reserve LPD force has turned into a more interesting situation of what exactly is our reserve officer force and who do they ultimately answer to?
The last part of the agenda was to accept resignations of certain officials and the appointment of new ones. For those not aware of why those were changed, it was because of what was revealed here two meetings ago, which the new administration took to heart. This is a good sign that the new mayor is at least partially committed to living up to the charter, something I doubt Mayor Henderson's hubris would ever allow.
But, I still believe he has a need to do more homework if he wants to keep on the path of lawful behavior and tell us why he feels there is not only no incompatibility between his two offices, but also what he feels about the reserve officer programs very legitimacy. These guys are allowed .40 caliber handguns, have no minimal training guidelines publicly known, and exist under the authority of the police chief, not by any law.
But my speech (3:50 in, and recounted in full below the video) not only deals with this issue, but with why it would be best to repeal two recent ordinances that can only be detrimental to the liability and safety of our fair city. The City Attorney (40:00 in) corrects me at the end, and he is absolutely right in his assertion that we are established under a Home Rule City and not a Fourth Class City. I didn't directly say that we were, just that the rules under them give explicitly these rules to the mayor.
Attorney Wilson fell into my semantic trap, however, as I was hoping he would, when he explains that Ludington is a Home Rule City (by section 2.1 of the charter) and that our mayor has only the powers that our charter give to him, and no more. With parallel reasoning, Police Chief Mark Barnett would only have the powers granted to him by our charter, which does not include mustering his own personal police force. The only state or local law that does allow an official in a city our size to do that without a special charter provision or ordinance is restricted to the mayor in the Fourth Class City Act.
"Let me start off by commending the current administration's efforts to stay within the framework of the Ludington City Charter, by making appropriate choices in the personnel movements they are making tonight to make the various boards conform to the rule of law.
At last meeting, I was offered the City Attorney's opinion about whether the mayor's other position, as a reserve Ludington police officer was compatible with his mayoral office. He said in his written opinion that there was no incompatibility, at first using an argument for saying a reserve officer was not a public employee or officer, citing material that was withheld from my viewing by a claimed attorney-client privilege. That part of the opinion is specious, without the supporting material, as there are plenty of indications that a reserve officer is a public employee of Ludington.
If you look at the 2013 Annual Police Report in your councilor packet, you will find the LPD's organizational chart, which has the reserve officers in the mix (show chart). By no means is this full proof, but if you look at the annual police reports of this year (in your packets) and the previous years you will find the reserves duties and actions for the city being extensive, and part of our budget going to equip, train and maintain this group.
In the last four years cycle, we had an LPD officer shot and two officers in separate incidences taken to federal court on brutality issues. If these were reserve officers involved, are we to believe that the City of Ludington would not be liable or responsible for their injuries received or given, since our attorney opines they are not employees of Ludington? Are we to believe that they can wear Ludington police uniforms, do police actions under the Ludington chief's authority, and have constitutionally-undefined powers and duties assigned by the Ludington chief, but not be considered Ludington public employees?
The City Attorney also opines about the two positions being compatible even if the reserve officer is considered a public employee, but this is controverted by many sections of the Fourth Class City Act, which pertains to cities of our population. This Act says among other things that "the mayor is not a law enforcement officer", that the mayor has the authority to appoint policemen and special policemen when emergency or necessity directs it, and that the mayor may suspend any police officer at any time for sufficient causes. Our city charter does not assign such powers to any other office. Therefore it is clear to me that there is a subordinate/supervisory role and a breach of duties when holding both offices, and thus they are incompatible.
I applaud Ryan Cox's wish to serve his community in multiple roles, as a mayor, a police officer, and a teacher, but if he continues as mayor, it is better in terms of risk management for him to put his officer job on hiatus for now. We avoid unnecessary liabilities, fractured chains of command, and conflicts of interests, if he does. We also deserve from this council, some sort of definition for what the reserve officers powers, duties and employment status actually are instead of allowing them to exist without specified powers, duties, and limitations.
Similarly, the Workplace Safety Policy was revised and passed last meeting, but it still fails in several ways. If this administration is serious in keeping aligned with our charter, they must revisit this policy. Section 7.1(2) of our charter says Ordinances must be passed "for any action by city council that provides for a fine or other penalty, or establishes a rule or regulation for violation of which a fine or other penalty is imposed."
Calling it a policy is a misnomer, it needs to be passed as an ordinance, as it establishes penalties (and powers) otherwise unavailable to City Managers and Attorneys by law. But as I said last meeting, there is no need for this legislation that threatens and intimidates the public from participating in the democratic process. Other constitutional remedies exist to fix any problem that is envisioned by the penalty portion of the policy to those that are perceived as a threat. As it is now, a threat can be as broadly defined as the City Manager wants it to be in his quasi-judicial role, and he has power given to no other public officer anywhere else in this state.
[This is about the time I was silenced by the mayor telling me my five minutes were up, who shortly thereafter, allowed the police chief, his boss, to prattle on for over twenty minutes.]
Lastly, the Michigan Supreme Court made a ruling last week against the City of Wyoming, that effectively established that the medical marijuana act cannot be superseded by local ordinances and zoning plans that effectively go against the initiated state law's directives. Two years ago, this council passed a medical marijuana ordinance that did just that, and this needs to be repealed also, as it would be a potential liability for Ludington taxpayers if it were to be enforced and/or legally challenged. I hope the City Attorney can look at that ruling and advise the council accordingly, before someone from Dowland Street takes up that challenge. Thank you."
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