Ludington City Council Meeting February 24, 2020: Humility and Hubris

[XLFD]

After two previous meetings lasting over two hours each, the February 24th meeting of the Ludington City Council lasted only a merciful 45 minutes.  It could have lasted a bit longer had the annual reports of the DPW/Motor Pool, city marina, and water treatment plant been personally presented by the supervisors of each as normally done, but they accepted these reports by reference without any comment (they are found on pp. 74, 78 and 88 respectively of the council packet).   Whether it was due to the desire of brevity or due to not wanting to revisit the tragic death of the WTP supervisor in November was left unstated.

                                WTP Supervisor Kurt Malzahn giving his annual report to council in 2018

Other than the normal routines and consent agenda entries, there were not a lot on the docket other than some non-binding reports out of committee not acted upon.  The one exception was the award of a $150,000 contract to Hallack Contracting for repairing the drainage issue around the maritime museum.  With engineer contractor Fishbeck, et. al. in control, this project went from a project costing $80K to $100K in October 2017 to an estimated $100K for the 2019 budget, to one that two of three contractors wanted over $250K to do this spring in 2020.  

The competitive bidding process works and saves a lot of money when used properly.  City Manager Foster did an excellent job in describing what this project entails, yet didn't necessarily explain how the project jumped up in costs.  

There would be only one public comment this evening, it would be from myself regarding a regrettable course of action that the city council forced me into by their inability to first, follow a fairly basic Open Meetings Act (OMA) law and second, admit and correct the mistake so that the public can view what took place at two closed sessions, neither session in objective compliance with the OMA.  

The recent visit and lectures by 'civic engineer' Charles Marohn seems to be influencing the thoughts of several city officials.  This may be good or bad, depending on their understanding of Marohn's ideas.  His name has been invoked at recent committee meetings, and Mayor Steve Miller would talk of a walk through downtown where Marohn had suggested there was a palpable break in continuity (not the mayor's terms) at Filer Street as one moved south on James which could be cured by better filling in the open space (highlighted areas below) with filler; L-shaped planters were the City's choice and the mayor reported they had got the property owner's approval.  They enthusiastically supported the effort.

 

I would base much of my comment on Marohn's principles of humble observations, and how the city council had refused to follow that script when they made one more poor decision at the last meeting with them declining to settle an easily-solved controversy because of their misplaced and enormous pride.  Here's how that went:

XLFD:  "Perhaps the most profound and difficult part of Chuck Marohn's four step process for strengthening a town is the first step which involves humbly observing. True humility is not thinking less of yourself rather it is about thinking of yourself less.

So when we humbly observe the issue concerning the two closed sessions in November and December, humbly examine the law, it's plain to see that neither closed session was permitted by law. Pride and hubris is concerned with figuring out who is right, humility is concerned with figuring out what is right. When the council unanimously voted at last meeting in forcing this issue into the court system, they illustrated that it was all about hubris, not humility.

Rather than humbly negotiate the issue like the new city manager and attorney advised, or admit that they as a council made a mistake and could make costless reparations for that error, they want to send it to court, where the result will be the same, except that tens of thousands of dollars will be wasted defending what is arguably a moot point against the City. The only contested issue will be whether some of you intentionally violated the law or whether you just exercised extreme negligence in your public duties.

If you instead chose the humble path, you could have authorized the release of the minutes of those two unlawfully closed sessions and had the clerk provide those minutes to the public. By law, the clerk is only obligated to not disclose minutes of a closed session. But when those sessions are properly recognized as what should have been open sessions, that duty of non-disclosure under the open meetings act is lost while the duty of disclosure under the FOIA is gained.

Humility could have shut the meter off, and showed that the City was ready to act with transparency and accountability. The Council's hubris will insure that the meter will keep running for a couple of years and define their legacy as one of shame and opacity, as tens of thousands of dollars will go to defend unlawful acts of non-transparency." [END]

My e-mails sent to the councilors, the city manager and the old and new city attorneys illustrate how I have bent over backwards and did every other contortion imaginable to get an outcome that both sides can be humbly proud of the conclusion.  My talks with the latter three officials named have been seemingly productive.  But it comes before the council and they lack the cojones to admit a mistake and feign that they are powerless to make the city clerk give up non-exempt public records. 

In case you haven't been following the problem over the course of the last few months, you can either look at meeting recap articles beginning in late November or this brief summary:

1)  All present councilors at the 11-25-19 meeting, a small quorum of 4 of 7, go into closed session using section 8e of the OMA.

2) They come out and make a decision 4-0 to settle a lawsuit they discussed in that session.

3) The settlement papers are signed and notarized that night, closing the settlement.  City attorneys state they will be filing a dismissal with the court promptly

4) The next day, I point out that section 8e requires 5 of 7 councilors to approve a closed session.

5) This makes the closed session invalid, it does not make the subsequent vote in open session to settle invalid, as that required only a majority of the quorum present.

6) Someone decides that the city can correct the mistake by re-enacting the vote to enter closed session under section 8e and they go into closed session again at the next meeting.

7) I inform the council in public comment on 12-9-19 and previous e-mails that such a remedy is flawed, in that the settlement terms (including financial payment stipulations) have already been decided and section 8e would not apply.

8) The council votes on 12-9-19 to go into closed session under 8e without explanation, spends 13 minutes talking over who-knows-what with their counsels.  Nothing is voted on afterwards.

9) A FOIA request for the minutes of the two improperly closed sessions are denied, the FOIA Coordinator citing they are exempt because they were closed sessions.

10) I appealed that ruling to council under the fact that neither were legit closed sessions.  

11) The council denied the appeal, effectively claiming their sessions were legitimate closed sessions and hence non-disclosable by the OMA except through litigation.  

12) The council would later stymie negotiations and would only affirm their denial of the public records, pridefully ignoring any blame for holding two unlawful closed sessions.

Remember this pride and prejudice when they bellyache about how much this court case is costing the citizens later this year and in succeeding years and prove once again that these selfish individuals bathe and believe in their own hubris.

Editor's Note:  As of press time, the video of the meeting is not available, we will be adding that when it is. 

[Freedom Seeker]

One thought about "consultant" fees. Why Fisbeck to look over bids and decide, rather than our own committee? Maybe the "extra" $150,000ish up from $80-100k to $250k accounts to Fishbecks cut, if this ties into the "explanation"? We could employ a city engineer for a year for just this one "cut." Craziness in consulting I fear is going to conduct catyclismic chaos for citizen's checkbooks coming soon.

[Du Wright]

Never-ending increases in city debt, and a city council that lacks concern about flagrant spending, and increase in fees and taxes and assessment to pay for infrastructure, new school and party Plazas downtown, James St. West end, splashpad, and the maintenance of all these. The city is in huge debt hiring consultants to look for more ways to get more out of the taxpayer. Now the stock market crashes ten percent this week. We could be in for hard economic times and the city continues to blow money like there is no end to the good times and parties. During hard economic times tourism revenue is one of the first things to take a hit. We need a consultant to teach the city to cut costs and save money instead of thinking the taxpayers can keep footing these increases!

[XLFD]

Great points, not to mention a pretty good rise in home evaluations in Ludington by the new, young assessor, Jared Litwiller, making it extra tough for homeowners (and especially non-homestead ones) to retain a foothold in their economic class-- if they aren't in trouble of keeping their house outright.  

[Du Wright]

It seems to me that we need someone on the team who understands finances and how to be concerned with the budget. Also someone skilled with engineering. It seems we've paid huge amounts out to all sorts of consultants in the last couple of years. A consultant to figure if we're paying enough in city water fees. A consultant to figure wage increases. A consultant to hire a city manager. A consultant to set city goals. A consultant to consult about engineering projects. What next? Our city is run by consultants and attorneys. Why do we pay a city manager big bucks?

[Freedom Seeker]

Maybe we should hire an expert consultant to figure out if all these consultants are raising fees and taxes enough. Oh wait. They just did that--hired a woman consultant to report that the last consultant didnt raise water and sewer rates enough. Now we need 7.5 percent increase per year. "How depressing." Maybe the city council and manager hire the consultants to give the citizens the bad news so they don't have to do it themselves. No one wants to be the bearer of bad news, so let's hire an unknown consultant to do that. Yes, that's a good idea. The citizens will have to believe and blame the consultants, not the city management, mayor or city council that way.

[XLFD]

Most city governments are designed so as to deflect blame away from the elected officers, that's why they adopt the city manager system.  So consultants are just another way to do that, or relieve some of the pressure of the other hired professionals at city hall.  

I think if Charles Marohn was a bit more frank, he would probably rally against consulting businesses, professional managers, economic development directors, and other optional help that municipal corporations employ and who regularly drift them away from the path of smart development.  But don't get me wrong, I see a lot of potential value in our current city manager to get the City back on the right track after having been off the track for years.  

Speaking of which I had a vanilla fizz with Mitch at the Red Rooster today and talked of a few things including some questions I had about the maritime museum fix.  According to Mr. Foster, the added costs of construction is primarily market forces in the construction agencies in our area.  The demand is high, the supply of able workers is low, and getting worse.  

[stump]

You have to figure that the consultant gets a % of the job as a commission . So , boost the job quote , whats another $150,000  Who will really notice?

[Willy]

Good posts all. Thanks X. At least Mitch is talking to you and that's a good thing. Isn't it nice that the museum has turned out to be so profitable. Every town on the great lakes has a maritime museum. There are 36 in Michigan alone so what make's Ludington's so special. That $150,000 is a great investment. Folks can now keep their shoes dry while walking inside the museum. More money down the rat hole. Let's also add planters on Ludington's streets and their maintenance to that rat hole list. Who do the Council think they are working for and don't they ever wonder about who voted for them. Rocks are not as dumb as some of these councilors. Sorry, didn't mean to be mean it's just that this kind of idiocy keeps happening over and over. I hope Marohn's trip to town didn't cost the tax payers any money unless his expenses were put on the City's credit card.

[AQUAMAN]

Well said everyone. Example: James St. Plaza/Lunacy Park; the engineering company, Prein and Newhoff, GR, is getting about 20% of the $2.4 Million as their crooked cut, and the DDA, Heather, is getting another 10% for their crooked cut. That alone is about $720K that goes down another 2 rat holes, and for what? The present city council and Mayor are totally out of financial control nowadays, and getting worse by the month.