Ludington City Council Meeting, January 28, 2019: At Opposite Polls

[XLFD]

The clock finally ran out on Steve Brock at this meeting that lasted a little over an hour.  But before the usual gifts, proclamations and other send-offs were allotted to the now-former, interim city manager at the end of the meeting, there were some noteworthy controversies.  The first controversy began during the first public comment period when new Mayor Steve Miller limited those commenting to speak only about agenda items, precisely what he said at the previous regular meeting.

Just after Fourth Ward Councilor Krauch left for Missouri, the June 25, 2018 LCC meeting had an interesting unanimous vote whereby they allowed the first comment to cover any topic:  "Moved by Councilor Winczewski, seconded by Councilor Cain, to drop the requirement that the 3-minute public comment period at the beginning of the council meeting be on an agenda item... Motion carried."   Public bodies like the city council, by the Open Meetings Act sec. 3(1), are the ones who establish rules and regulations for their own meetings, not a mayor who touts communication in rhetoric while trying to limit it in practice. Mayor Candidate Steve Miller was at this June meeting, but apparently not paying attention.

I didn't touch on that in my comment, I had too many other things to cover starting at 2:40 in, I have included links and errata to illustrate my points, and finished the last sentence that was clipped by the Mayor calling time while I was in the midst of putting our lost public dollars in a national perspective.

January 28th, 2019 Ludington City Council meeting from Mason County District Library on Vimeo.

XLFD:  Briefly stated, the movement of the polling location of Fifth Ward to the new fire station should be looked at with more deference to the self-evident problems existing for such a move, dealing with parking, traffic interaction, safety, and ADA compliance.
Beyond that, I have a FOIA appeal you received dealing with the applicants for the city manager job and any requests for confidentiality made by those candidates. I received the cover letters and resumes of the three finalists, and among those records, only Mitch Foster explicitly requested confidentiality. This effectively mirrors Jeff Mueller's assertion in a memo that wasn't supplied in my FOIA request but responsive to it, that some of the candidates requested confidentiality.

When some of the candidates explicitly request confidentiality, the city council may view those applications in closed session, when they don't request confidentiality, you violate the Open Meetings Act by discussing their application in closed session. So if you stand by your FOIA response, you are ultimately admitting that both Van Ess and Reagan never expressed to this council in their paperwork that they wanted confidentiality.
I don't know whether this council reviewed 10 or 37 resumes and cover letters in their secret process, but if they didn't review the exact same number of requests for confidentiality, they were reckless in the realm of transparency in violating the Open Meetings Act. Those applicants without confidentiality clauses should have been put aside and discussed in open session, their applications should have been available through my FOIA request.

This ain't a good way to start out a new year. Contrary to the statements made at the end of the last meeting, there is no deputy treasurer serving during 2019, Steve Brock was mistaken. In the budget it is claimed that the part-time assistant to the treasurer has had more hours added with no justification given. But there is no part time assistant as of September, this position is a full-time assistant treasurer, and this move, which costs the city around $33,000 additional dollars, mostly in fringe benefits, was made unilaterally by Steve Brock without any council oversight or approval. That seems to be clearly against the city charter, chapter 10.
In perspective, the $4.4 trillion federal budget was held in limbo for $5.7 billion in dispute for wall funding, this increase of local spending for this assistant treasurer would have been the equivalent of four times that wall funding. This needs to fall under purview of the council and the mayor when the process is abused by somebody like Brock who should know better. [End Comment]

Three topics, the first of which I touched lightly upon because I had noticed that Fifth Ward Councilor Angela Serna had expressed some strong reservations about the polling location on social media, and I didn't want to have it appear that she was carrying water for me when it was her own independent belief that the site was just bad and hazardous. 

Normal people see this, but the rest of the officials who have all drank the same Kool Aid, defended the location, alternating between Donald Trump's go-to line ("Let's see what happens.") and Nancy Pelosi's:  "You have to pass it, to find what's in it."  When Councilor Serna put up a spirited defense of her points, including two alternate sites to look at and consider, they marched the fire chief up to the podium to ask him his thoughts, and gave the police chief's unqualified approval a lot of weight.  The council eventually passes this 6-1, with Serna voting an emphatic "no".  This was worth the price of admission, a councilor actually caring for the welfare and convenience of their constituents.  Check out the debate starting at 19:40 into the video with Clerk Luskin defending her choice, and Serna giving a well-reasoned rebuttal that falls mainly on deaf official ears.   

My second topic dealt with a FOIA appeal that officially was received by the council at this meeting, to be decided at the next meeting.  You will note there is nothing in the councilor packet introducing this formally to the council, as they will note later, their FOIA Coordinator, who is a local attorney, will draft an opinion (being paid $125/hr. or more by the City) trying to justify their untenable denial.  Their inability to admit their mistake will likely launch a FOIA/OMA lawsuit in order to get the non-exempt records they are keeping from the public and to penalize them for violating the OMA so brazenly.  

The last topic is rather important, which is why I keep bringing it up, but I have learned that Brock unilaterally okayed the creation of the full-time assistant treasurer position adding over $30,000 to the budget without a council vote.  The proper mechanism is to bring such a move in front of the council where they vote on it at a public meeting.  Not even Brock touched this subject, but the council, by ignoring the problem, effectively are allowing the city manager and future city managers the ability to create and define positions outside the purview of the council and add tens of thousands to the budget without any kind of oversight.  

The committee reports only had a couple of rather routine acts (beyond paying the bills and getting the police activity report), where they rezoned 106 E. Foster into effectively a parking lot and approved/formalized adaptive reuses of existing buildings in various zones.  These have a little more explanation in the council packet.  

The main things happened after the committee reports, which is a good sign since the standing committees have come under some well-deserved negative attention in a lawsuit initiated by a couple of citizens who claim they are doing things inappropriately.  For a long time, the committee reports have had the effect of introducing topics to the full council and public during the weekend before the meeting action is to be taking place on it.  If public policy is not already decided in these committees before that, with no input from the full council or public.

After deciding on the new fire station as the new polling place, they selected Jackie Steckel as the 'acting' city manager between Brock's departure, which happened yesterday, and the new city manager is approved, which would be Mitchell Foster.  Provided he passes the background check and provided nobody files an OMA violation lawsuit versus the City for their illegal acts at the January 10 closed session.  

Steckel's acceptance of the position at this point and her unwillingness to accept the title back in July, have many critical thinkers believing that the hiring of the interim city manager was to allow for the raiding of the treasury by city officials, aided by their expensive 'compensation study' (since discredited) which surprisingly said most everybody was underpaid or at the low end of their pay range.  Whether he resisted the urge to raid or not, Brock will go to Florida with a healthy dose of that money for his time and a couple of well deserved nicknames that he didn't get from his Farmingham Mills days.  

The next item was setting up a Recreational Marijuana (RM) Ad Hoc Committee, and it seemed that Mayor Miller was channeling some RM in getting through this portion of the meeting.  This is set up to be a committee to research, review and report back to council its findings.  Numbers of members, selections of citizens and scope seemed a little hazy, even after a few minutes of discussion.  Three councilors volunteered for the committee Kathy Winczewski, Dave Bourgette, and Angela Serna.  Some interested citizens will meeting in some future meeting and decide on their representatives, a couple of more city officials will round off the panel (see p 42).  This was a first presentation, hopefully it will be better presented at the next meeting.

After acknowledging the FOIA appeal, Ludington Planning Commissioner John Terzano rose during public comment to thank Brock for his service and for his help with the LPC.  The meeting then devolved into a Brock love-in, as he received a proclamation (Brock-lamation) from the mayor and accolades from a couple of councilors.  Councilor Winczewski gave a PSA on running water during the cold spell to save pipes (no credit with the city) and Mayor Miller thanked all who made it through the terrible weather to show up.

[Du Wright]

In regard to the organization and documentation of the Marijuana committee, it appears that the city council is maybe learning a lesson in that they at least are appointing the committee according to Charter 10.11, something they apparently didn't do with the splash pad committee.  All the splash pad committee meeting were conducted in private by private individuals according to former fourth ward councilor.  No difference with these private individuals, imo.  Any committee advising the city council, a public body, should be properly appointed by the public body per charter and OMA law.  

That's progress!  Properly appointed subcommittee, properly noticed, and open meetings involving the public!

[XLFD]

One could look at this as progress in some regards, and contrary to what city officials believe, I do like to look at the positive side of things.  But it strikes me more as chaotic, in that this committee is set up as a strictly advisory committee given only the scope of actions to research the topic and attempt to clinically look at the issue and offer a report to the council on their findings.  As such it wouldn't need to comply with the OMA, yet they have taken great pains to say that the OMA would be followed and even followed section 10.11 of the charter's mandate to set this miscellaneous committee up with an ordinance. 

And yet in the same month this promising attempt at transparency for a committee only given latitude for researching and reporting, they hold the Committee of the Whole meeting where they go into closed session in order to preserve confidentiality of applicants names, review and consider applications of those who are not on record of wanting confidentiality, and have three/five picked before they come back into open session after 135 minutes and immediately agree on those candidates for interview without any discussion.

And in the same month that it's found out that the policy that is putting Austin Morris through police academy by loaning him several thousand taxpayer dollars was developed without approval by the city council at an open meeting, but rather in a committee not following the OMA.  And in the same month where it is learned that a full-time assistant treasurer position costing the taxpayers over $33,000 more each year was made without any approval by council, not even at the standing committee level, on a whim by Steve Brock.

So, I am strictly struck dumb by the fact that they maximally stress transparency concepts on a marijuana committee that is constructed as strictly advisory, while doing their secret policy-making and deal-making when they go out of their way to avoid following the OMA in using standing committee meetings, closed sessions, and unlawful executive decisions.  It'll be true progress when they follow OMA for those decisions.

[Freedom Seeker]

Dumb struck is new for you, X!  The fact that someone is trying to be transparent is a start!  Frankly, I don't remember any order from the council to draft the ordinance either, and/or where was this discussed?  In the end it is good, but you would think that an involved council would have had a meeting to draft the ordinance (probably Wilson did it in an office in Grand Rapids?).  But that aside, I'd like to talk about advisory.  You say that an advisory committee doesn't have to be open to the public.  That's no where in the OMA is it?

The OMA says, "All meetings of a public body shall be open to the public and shall be held in a place available to the public." (MCL 15.263(1)).  That is the intent.  "Advisory" gets confused with high-paid lawiars trying to justify OMA wrong doing (keeping public out of the decision-making process).  The word "advisory is not in the OMA.  "Advisory" also is a bad choice of name for a committee, because it is quite difficult to "advise" without deliberating or making a "recommendation."  All "decisions" should be made in meetings open to the public (MCL 15.262(2)).

"All deliberations of a public body constituting of a quorum of its members shall take place at a meeting open to the public."  (MCL 15.263(3)).  Maybe there is an issue here with only having three council members, but, the Marijuana Committee is a public body, doing a public function.  It would have to be argued the "intent" of the ordinance, and clearly the city council voted to have these meetings open to the public, etc, with citizens participating.  And in this case, the quorum would relate to the Marijuana committee.  Final decisions will be made at the city council, it appears in all matters.  The Marijuana committee is not able to make any binding decisions out of control of the city council, and all of the subcommittee meetings will be open to the public, so the public, like the city council, now has opportunity to hear all deliberations, if they wish. 

I think it is a step in the right direction. 

[Du Wright]

You got good points about inconsistency, XLFD, but it looks like the intent of the Recreational Marijuana committee is to be open to the public.  That's the way it should be.

[XLFD]

Dianne,

It is the best idea to make this RMAH Committee follow the OMA at its inception because then you cover all the bases if a question arises about whether there was deliberation and decision-making actually taking place inadvertently.  I agree with both you and FS to a point, but I hope you can admit that AG Frank Kelly opined in AGO #6935 that (citing another AGO on the topic, and showing why the seminal Booth v. U of M Board did not apply):  

"Based on the wording of the enacted version of the [Open Meetings] Act and the intent of the legislature as indicated by the changes from the original form, it is my opinion that the Act does not apply to committees and subcommittees of public bodies which are merely advisory or only capable of making "recommendations concerning the exercise of governmental authority". These bodies are not legally capable of rendering a "final decision". In other words, a subcommittee which can only make recommendations to the public body for final decision is not required to hold its committee meetings in public hearings."

Ultimately saying:   "That the Open Meetings Act was not violated when an advisory committee formed by the Ionia Board of Education to study eligibility standards for participation in athletics excluded the public from a committee meeting."

Which is why I think that if the RMAH Committee simply does studies and research and reports back to council with findings, they will not need to follow the OMA if they stay completely on that line.  Since they plan on following the OMA, that should not be an issue.

[Du Wright]

True, X.  What is good here is that parameters are set:  that the committee is only advisory in nature and that the meetings will be open.  I may agree that there is a conflict in calling them advisory.  I believe a problem with Michigan OMA doesn't clearly cover "advisory bodies," the real problem was in the initial definition of public body inherent with a governing or proprietary function.  Wherein a public body wants to create a subcommittee that is advisory only and open to the public, I believe under Michigan OMA, this ordinance defines it well.  How else would you create an open and advisory subcommittee under Michigan OMA parameters?  Excuse my excitement in my first post, if that troubles you, I was focusing on the fact that the subcommittee was designated as Open and that is good. 

P.S.  The problem if a subcommittee was created advisory in function and NOT open to the public is the risk of violating the OMA by stepping over the line of "study and report" to "delibetate, decide and advise" and having to distinguish between those while excluding the public from those "studies."  The intent of the OMA is to let the public be aware of how decisions are made and to have a say in those deliberations. 

[AQUAMAN]

Regardless of what Funk and Barnett say is a great place for a 5th ward polling station, Serna sure brought out some very important and safety related issues as this goes forward anyhow. I truly appreciate the fact that Serna did her homework on this, and the rest of the council appears to be doing just as they have in the past on important issues, and that's nothing. They all vote like sheep, and don't bother to check into the locals' wants and needs, other options for voting elsewhere, and there was over 500 people affected by this decision alone. It might not happen soon, but that decision will someday backfire on this council. I was also a little disappointed with another temporarily appointed member getting such awards and pats on the back for only 6 months on the job, big deal. It's obvious, Brock simply followed Shay's opinions and advice on the short job, and that didn't improve anything imho. I finally also recommend Mayor Miller study his first public comment rules that changed so that anything, even not agenda related items, may be discussed, sad start in that regard, and kinda snarky to boot.

[Wonder Woman]

I watched the video....is it just me, or did Steve Miller try to silence or scold Angela Serna every time she spoke? He didn't say anything to the other counselors.  And the facial expressions and non-verbals from some of the other counselors while Serna was speaking was a bit uncalled for.

[Freedom Seeker]

Yeah, it seemed like it, Wonder.  And Mrs. Miller speaks like she had the last word, but Angela retorts something like "this is about my Ward.". I hope Angela wakes the rest of the council up to think for themselves, think for the citizens, and think right.  Thanks Angela, stir it up when it needs stirred.  Meanwhile let's just wait for an accident to happen.  Like downtown, from the DDA minutes, someone apparently tripped over a piano anchor on the sidewalk and had an accident.

[XLFD]

WW, I looked over the exchanges once again on video to make sure, but having been there I sensed that the mayor was not content with the dissent by his 'body language', tone, and 'tells'.  In fact, I think that part of his weekly message (in the MCP this week), was subtly sending a message in a passive-aggressive way, but I also wonder is it just me who thinks so when he says:

"Regardless of personal opinion or level of interest, considerate discussion and debate amongst the members, with concerted emphasis on respectful engagement is the standard I will highly encourage, and will reinforce as a personal focus to become more adept at maintaining.
While the councilor-at-large is elected by a citywide vote, each councilor is responsible to the constituents in their particular ward. And, when it comes time to consider the merits of any specific issue, each council member is faced with an internal debate: How do I express my reasoning/vote? What’s best for my ward, individually, or what’s best for the city, collectively?
Just as decisive votes are not going to be universally appreciated by every city resident, some votes during council meetings will not be unanimous. And, I look at that as a positive. Differing, passionate opinions and ideas, appropriately positioned, stimulate greater expression, and hopefully instill a greater understanding, on everyone’s part.
Council was not voted into being to express a solitary line of thinking. Seven members bring seven distinctly separate avenues of reasoning. Sometimes, they mesh in absolute agreement. Other times, they’ll clash. In both instances, the responsibility of professionalism and decorum rests uniformly on every member.
Election to sit on council is an honor and a privilege. It also comes with the unwavering responsibility to demonstrate the voice and action befitting the trust of the voters accepted when taking office."

That ending paragraph is hard for me to decipher into anything meaningful, but I think it's directed at a newly elected member who has shown an independence that is concerned for the people, as well as the City.  FS, Councilor Brandy Miller used her own rhetorical weapon by trying to close discussion by effectively saying 'let's see what happens and if nobody gets killed let's keep it that way'.  

[Freedom Seeker]

I find Steve Miller's comment above common knowledge and wishy-washy.  His other weekly addresses have seemed meant to encourage, but in this one it seems like he's running out of inspiration.  Seeing how Angela has pretty much backed Steve Miller, maybe this is directed more at the other council members who like the "moos" all the same--as in moo, moo, moo, moo, moo, moo, moo, with the usual boring moo, NOT moo, moo, moo, moo, moo, NOO, moo.

[AQUAMAN]

I noticed that too Wonder Woman, Miller is going to obviously carry on the same as his 3 predecessors, and don't be surprised that he comes unglued on X soon too, sad, and disgusting. Btw, where was the City Treasurer Tom Ezdebski? He's new and already missing meetings???