Ludington City Council Sept. 14, 2015: Public Service for Inadequate Public Service

It wasn't on the Ludington City Council packet agenda, and it hasn't been in any of the local news outlets since Monday except for this one in the straightforwardly named FOIA Lawsuit Initiated Against Ludington.  But even though its existence was ignored by the public officials for the full length of the 40 minute meeting and by the local media (at least until they get City Hall's press release telling us how baseless it is, when it's nothing but base), it's still out there at the end of the week. 

On my part, there was a little bit of choreography by performing the initial service of process during the public comment period by two of the people peripherally involved with the lawsuit.  It may look like a bit of showboating, but the city's legal team has precipitated this course of conduct in the initial service of process.  I have used certified mail, return service requested to do so on one of my previous lawsuits, but the good folks of the city took a look at the return address and refused the letter, as anyone has the right to do with such mail. 

The city's legal team also complained when my agents hand delivered court process to the city clerk during city hall's normal business hours, and have tried to claim such service is not proper, without legal citation on their part.  So it just makes sense to give them process where they cannot deny they received it properly, because the service airs on Ludington TV.  My two servers were very motivated to do their job.

This was the major moment at the city meeting, and it will not be addressed objectively by Ludington city officials or their friends in the media, because they have the losing legal argument no matter how they spin the results when I wind up winning once again.  The only question is whether the local courts will decide on punitive damages for them. 

Fueling the rumor mills, Mayor Ryan Cox was absent and replaced by Mayor Pro-Tem Richard Rathsack who had a few faux pas along the way.  Chief Barnett led off with an appeal to the Supreme Being for his fellow public officials, noticeably leaving off any praise for those who aren't, finishing ten minutes before I criticized the unprofessional acts of two of his poorly trained police officers in the public comments (transcribed and delivered in full below under the video). 

I arrived with my two process servers a little late due to the extra travel time I had to do, arriving during Deb Mannikko's public comment, which touched caustically on the ramifications of the rental inspection program and asked several questions which remained unanswered.  Anybody who knows her, knows that she cares deeply about the people she rents her multiple properties to, and the arguments she has been bringing to the table are sound, unlike the majority of the officials deciding this issue.

Deb's 75 second speech allowed late-arriving me to have my comments and my service, and ask my own questions.  Neither of our questions or other commentary received replies by the officials at any part of the meeting.

What else of importance happened at the meeting?  They approved some health care changes to new hires that are members of the SEIU public service union, designed to lessen the city's obligations to post-employment benefits.  They then formally approved a contract with the Franklin Holwerda Company for emergency services to replace the water treatment plant's filters in case of failure during the time they are improving the Water Treatment Plant, which will cost about $3600 over the next three years.  Insurance.

The next official event was to clarify for legal purposes the street right-of-way abandonment the City made in 2011 with Floracraft.  City Attorney Wilson noted their were several problems with the property descriptions which included references to railroad tracks that have been gone quite a while.  It's explained in detail in the council packet linked to above.

Councilor Winczewski then described why it was a good idea to create a charter amendment to submit the city budget to the council/public at the second November meeting rather than the first.  The news she fails to tell us, is that the current city manager has not followed this charter provision since his first year, and has received exactly zero grief from his employers on the city council during that time.  I hope this gets put on the ballot, for if it would be rejected by the voters, which it should, it would make John Shay's willful charter violations even more meaningful.

Lastly, they made the official nod to rezone the old Paulina Stearn's Hospital property from government service to waterfront.  So as you can see, the five topics that came up on the agenda were uncontroversial and for the most part, mundane and uninteresting.  Which makes it odd that the local newspaper avoided the words and actions by the public who attended and spoke or served court papers.  Why upset the public with non-agenda news.

September 14, 2015 Ludington City Council meeting from Mason County District Library on Vimeo.

" (4:50 in) Permit me to ask a question of the city attorney regarding the pending rental inspection program that his law firm is drafting in its final form before it will likely come to this council for a vote.  When Manistee adopted their own rental inspection program about 15 years ago under this same law firm, it was introduced much like our current proposed program is. 

We could argue over the regulatory need for this program, which doesn't seem to exist, since no specific tenant complaints about Ludington rental units or landlords were reviewed by the committee.  We could argue over the constitutionality of the program, as there is no language in the ordinance that allows a tenant their right to refuse a government inspection of their living quarters absent a warrant, without the tenant being summarily fined and/or imprisoned.

But perhaps the best argument against the program is its cost.  The City of Manistee on the recommendation of fired City Manager Mitch Deisch discontinued having the program oversaw by the building inspector earlier this year, citing a tremendous loss of revenue in running the program.  They hired a contractor known as the Spicer Group to take over the rental inspections, who have summarily hiked up the price and explicitly stated they follow the international Property Maintenance Code.  This code has clearly defined limits of ceiling heights, room dimensions, and several other hard limits on what's allowable or not in both new and existing buildings.   The City of Manistee is now effectively out of the inspection business, except for future liabilities of their hirelings, and more money is taken out of landlords hands which reduce their ability to make meaningful improvements.

So the question for the city attorney, is if this is what has happened over at Manistee and is likely to happen here in our future, then how could it possibly be in our city's best interests to adopt a rental inspection program? 

You councilors will have probably forgotten all about a FOIA appeal I made to you in March about certain police records that were declined because they were allegedly part of a police investigation whose disclosure would interfere with law enforcement proceedings.  I shared with you not only the law, but also Michigan Supreme Court precedent that said the FOIA Coordinator and Prosecutor Spaniola were utterly mistaken in denying the totality of an arrest report and associated records using generalizations that defy the public policy of this state which establishes full disclosure of non-exempt material.  

What's troubling in this immediate case was that the arrestee was also not provided with the records generated by the police and which needed to be provided to him by the prosecutor through the discovery process, namely the arrest warrant and any search warrants and the affidavits used to obtain them.  Such exclusions not only point to FOIA violations, but also prosecutorial misconduct. 

Perhaps even more troubling is the actions attributed to the two LPD officers involved in the search and arrest, Dave Krause and Tony Kuster.  The LPD has a search and seizure policy, which these two officers willfully ignored repeatedly on the date of March 10, 2015 when they invaded the households of two innocent parties without their consent in a search for Gene Foster.  Officer Kuster, who is the school resource officer, allegedly grabbed a woman's phone and looked through it extensively after his home invasion despite her protestations.  Neither officer ever exhibited a search or arrest warrant to her or the other apartment's renter. 

Is this the future of Ludington, where government agents freely enter the homes of our innocent citizens and search their belongings without any warrants?  Is this the type of behavior we want our ever-increasing burden of tax dollars to fund and protect?   

No answer is needed beyond your actions, but in the meantime, please accept this service of court process for the lesser FOIA violations from those whose rights you have trampled over, Mr. and Mrs. Gene Foster.  If you need an extra copy of the lawsuit, I will be posting it on the Ludington Torch later tonight.

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Congrats on that move X. It is funny to watch them squirm in their seats after the 9':30" mark when they were served. I bet they would have given anything to end the meeting right there.  They all looked like they were puckering up wished they wiped better and they stayed that way until the end of the meeting. You really ruined their fun.

And an extra roll of paper to the COLDS for making no mention of this. The Daily News remains a gutless herd. Nothing more than a PR dept for the City. Perhaps they should start printing on TP, then the community would at least have some use for the paper.

And a second congrats for getting it done within the allotted 5 minutes. This is the first time I can remember seeing that happen. Might I suggest you show up occasionally  with an extra posse just to keep them off balance on whether or not they will be served them again.

I had to make sure I had the time to finish my comment, to properly introduce the service, so I kept it short this time.  I have finished within five minutes before, but only like once or twice.  I hate to let any of my time go to waste.

Mayor Cox's absence threw us for a loop, as he was going to be the one served (Michigan Court Rules permit initial service on a city to be done either to the mayor, the city clerk, or the city attorney.  Since we effectively have no city attorney, just contracted shysters from Manistee who admittedly aren't city officials, that left the city clerk, who was served off camera.). 

I filed the suit just after 4:15 PM that day, so the magpies over at the county courthouse may not have had the time to alert their pals at the city of what was coming up the pike, being that they were more concerned about the work day ending. 

The last thing I want to hear when I enter the council chambers is the collective sound of a whole lot of butt-clenching by our city officials, so I'll keep the posse away unless my feelings change-- which it could.

I watched the video, and truly that was an awesome maneuver on serving the COL by all involved parties. Like I stated earlier, may you and the Foster's prevail in seeking justice.   

 

Excellent move X. This seems to be the only way to get their attention. I'll bet they will be consulting with Wilson on how they can prevent this from happening again. A big thanks for your efforts.

Thanks in return for understanding the matter, along with shinblind.  For those who haven't been paying attention over the last seven years, the City of Ludington has been secretive in their meetings, business, and records.  During that time, I have been trying to get some of these records, that should be available through the Freedom of Information Act.  Many show that the Open Meetings Act and several other laws and charter provisions have been routinely violated by our city hall, led by John Shay. But all too often, the local personalities believe they can block release of those records, and often do so against public disclosure laws. 

Here, three 'responsible' attorneys paid for by the city (and ergo by the people and property owners of Ludington), tried to assert an arrest report, an arrest (and/or search) warrant, affidavits for those warrants were 'investigative records', which they aren't.  The law and the courts have decided that issue already, and the defense mounted by the city's attorneys amounted to saying the records were restricted because Prosecutor Paul Spaniola said so.  He doesn't have that power to subvert the law and the decision of the Michigan Supreme Court. 

"What's troubling in this immediate case was that the arrestee was also not provided with the records generated by the police and which needed to be provided to him by the prosecutor through the discovery process, namely the arrest warrant and any search warrants and the affidavits used to obtain them.  Such exclusions not only point to FOIA violations, but also prosecutorial misconduct."

XLFD...I quoted your above statement due to the fact via my sources this appears to be a common occurrence within the Mason County Court System.  The Courts via Prosecutor Spaniola and Assistant Prosecutor Middlebrook in Mason County refuse to provide the alleged defendant a copy(copies) of the alleged charges against said defendant....further stating the defendant needs to acquire these documents via an attorney!  

The Prosecutor and Assistant Prosecutor refuse to provide police reports, etc...to the alleged Defendant after being arraigned.  This is wrong on so many levels.  

And if you hadn't noticed, the police report was made and in the hands of the prosecutor the very day after the arrest (stamped March 11 on Exhibit 8 of the lawsuit). 

There has been a lot of irregularities in this prosecution that has been documented, and will come to light when the time is right, and as you say, crap like this is regularly performed by our zealous prosecutors.  And as you have intimated in another post, the public defender (David Glancy) should perhaps be renamed as an assistant prosecutor, because of his willingness to forgo justice for his clients in the name of expediency.  This has become apparent in several cases I have been observing, including Gene's.

Meanwhile a "plea deal" has been offered to a Defendant without any documents for a Defendant to defend themselves due to the refusal of the Prosecutor's Office to provide police reports.  The Prosecutor's Office is so beyond eager to get a case off the docket, they don't give a flying rip!  The Prosecutor's relies on the Police reports, and realistically the defendant is already guilty.  No such thing as "Innocent until proven guilty," in Mason County.  The cops have already sentenced you! 

Say it ain't so. But this sh!t happens, and occurs frequently by the Prosecuting Attorney's Office in "Pure Ludington," at the "Pure" Mason County Court House.  "Pure Mason County."  LOL

Mr. Mayor Pro-tem, do you know the dif. between Tykowski and Tykoski? Or anything else going on around you? LMAO!  Then at the 26:11 mark, Shyster Shay having memory failure about 2011? Blank and scratching head? Holman again at 38:36 mark voting "you bet your a__? Final misc. business Chief Barnett says nothing about the false arrest and failure to produce documents for a FOIA regarding arrest records and warrants apparently never issued? And officers entering a house and abusing citizens without ANY search warrants or arrest warrants?  Well, I guess they never expected someone to have to file another LAWSUIT that wasn't necessary, if the law had just been followed, and Sheeple weren't being led around by a Shyster City Attorney and Mgr.! Good to see someone out there that is following up on the legalities of city operations, and doing something to negatively affect the lawbreakers in  city council these days. 

Paul Spaniola and David Glancy, both lawyers involved in this mess, have failed in their professional conduct.  In section 3.4(a) of the Michigan Rules for Professional Conduct it says:  "A lawyer shall not unlawfully obstruct another party's access to evidence; unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value; or counsel or assist another person to do any such act."

These knowledgeable experienced lawyers withheld warrants and their affidavits from Gene Foster in providing for his defense.  They withheld those and Prosecutor Paul even kept the arrest report unlawfully from the public (represented by my FOIA request).  As you infer, this isn't an isolated incident.  The informal firm of Glancy and Spaniola are super at gaining convictions, without any seeming reservations about trampling over the constitutional rights of the accused.

what gets me about city "manager" Shay is that.......... WHERE can you work (other than his job) that you can do something illegal (suits are not brought unless someone feels that the law has been broken) , get your employer sued, cough up settlement money AND STILL KEEP YOUR JOB...??.... TIME AND TIME AGAIN!!!!!!  Can anyone tell me the amount of lawsuits brought against the city over the past 8 years....? here is an idea ...QUIT DOING ILLEGAL THINGS and lawsuits will go away......

snide,

you are spot on in your comment that I quoted...

"what gets me about city "manager" Shay is that.......... WHERE can you work (other than his job) that you can do something illegal (suits are not brought unless someone feels that the law has been broken) , get your employer sued, cough up settlement money AND STILL KEEP YOUR JOB...??.... TIME AND TIME AGAIN!!!!!!  Can anyone tell me the amount of lawsuits brought against the city over the past 8 years....? here is an idea ...QUIT DOING ILLEGAL THINGS and lawsuits will go away......

All the naysayers of XLFD filing suit...are not thinking outside of the box!  What a somewhat easy way to make a $1,00.00 bucks is to request the same info XLFD requested, and be denied by the various entities that refuse to follow the law and provide the FOIA documents.  

If enough lawsuits are filed...perhaps the corrupt COL and the prosecutor's office would receive a wake-up call and follow the law.  Just saying....

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