Noticegate: Conspiracy, Cover-ups and Collusion in Ludington OMA Lawsuit

If Watergate taught our country anything, it was that small crimes committed by government officials can often become large, serious crimes when the officials try to cover things up.  In Watergate, some operatives of then-President Richard Nixon broke into the Watergate complex in the summer of 1972, Nixon won a landslide re-election that fall.   In the course of investigating this break-in, it was revealed that President Nixon had a tape-recording system in his offices and he had recorded many conversations.

 

After a protracted series of bitter court battles, the U.S. Supreme Court unanimously ruled that the president had to hand over the tapes ("the smoking gun") to government investigators; he ultimately complied. Recordings from these tapes implicated the president, revealing he had attempted to cover up the questionable goings-on that had taken place after the break-in. Facing near-certain impeachment in the House of Representatives and equally certain conviction by the Senate, Nixon resigned the presidency on August 9, 1974.  Before that three articles of impeachment were drawn up:  obstruction of justice, abuse of power, and contempt of Congress.

 

The saying "It's not the crime, it's the cover-up" originated with Watergate.  It is not clear whether President Nixon knew anything about the break-in before it happened, nor whether their sole purpose was to bug the headquarters or burglarize it.  The problem involved the President's suppression of the facts and the evidence.  The second Open Meetings Act lawsuit I have with the City of Ludington is beginning to look reminiscent of the Watergate period.

 

On May 20, 2013, I reported shortly after the 1:00 PM Ludington City Council meeting that the council had violated the Open Meetings Act after being warned.  When the video came out, there was no controversy as to whether the posted notice was not on the bulleting board, as needed by the OMA for proper notice.  Even though a notice had been put out in the newspaper on May 7 and the city's website, there was never any indication that the notice board ( at the city hall and courthouse) had any notice thereon, except for a 6:30 PM meeting for May 20.  Nor did the notice board, newspaper, available agenda, or website have any indication of what was to take place at this meeting other than it was to have the Foster School Third Graders attending.

 

The absence of the public notice at the city hall for this 1 PM meeting was a violation of the OMA, probably what one may call a 'technical' violation, but it deprived everyone who used the courthouse and city hall boards for meeting notice the opportunity to know when this meeting was to occur.  A simple error of omission which led to my warning in front of the council, and their ignorance of the warning, effectively making their violation an intentional act in defiance of OMA statute, and liable under several sections of that act.

 

But now it looks like this escalation of crime, has been escalated once more.  A likely clerk oversight, led to a willful violation by six city councilors and the mayor, and now has led to even more serious repercussions, involving what looks to be a clear case of obstruction of justice, and conspiracy that includes a widening cast of characters trying to say that there was absolutely no crime involved. 

 

The City officials' attorney from Michigan Municipal Risk Management Association (MMRMA), Allen Vander Laan, crafted an answer to my original complaint and a line of reasoning in his Motion for Summary Disposition that, in a nutshell said that there was never any violation of any part of the OMA because the City Clerk swears in an affidavit that she posted a notice for the new meeting time on May 7 at the bulleting board.  I can only swear that I saw no notice at City Hall except the notice for the 6:30 PM meeting on May 20.  I had not been at the city hall since the prior meeting.

 

Therefore, in my response to the summary disposition, which I urge to be dismissed for the wanting of a full hearing over disputed claims, I laid the groundwork to show that the Clerk's sworn claim indicated some more serious crimes were afoot.  I include my second argument in my response brief which covers why this is the case.  See if you can analyze through the legalese to be able to see the points I try to make, I will attempt a quick summary at the end, along with including the City Officials' (Defendants') Motion for Summary Disposition, along with supporting evidence, and my Brief in opposition to the Motion for Summary Disposition. 

 

The meat of the matter, however, is right here, and may lead to more serious charges leveled against more corrupt-looking city officials.

 

 

 

 

ARGUMENT 2:  It should be noted that the plaintiff does not believe there is a case to be made that the lack of public notice's absence from the city hall board was intentional, it was either an accidental oversight or an unlawful removal of that notice by an unauthorized individual.

 

Section 6.1 of the Ludington City Charter (Exhibit G) states:  "Special meetings shall be called by the City Clerk on the written request of the Mayor or any two elected Council Members.  Public notice of special meetings shall be given in accordance with the Michigan Open Meetings Act (MCL 15.261 et seq., MSA 4.1800(11) et seq.)... Such notice shall be delivered at least eighteen (18) hours prior to said meeting. Business to be conducted at a special meeting shall be limited to the business indicated in the request and included in the notice of such a meeting." (Exhibit G, emphasis added).  

The May 20 meeting was a rescheduled regular or special meeting by MCL 15.265(4) and thus required the 18 hour notice with the business to be conducted therein included in the public notice of the hearing by Ludington's City Charter.  The business of this meeting was not published thereon, or in any publication, which deprived the public from knowing what was to take place at the May 20 meeting, if they had indeed caught the notice on the City's web page or the small blurb hidden in the May 7 newspaper. 

Such denial goes against the City Charter's rules which is authorized by  MCL15.261(3):  "Nothing in this act shall prohibit a public body from adopting an ordinance, resolution, rule, or charter provision which would require a greater degree of openness relative to meetings of public bodies than the standards provided for in this act".   The charter stipulation that the city needs to include the business to be conducted at a meeting is thus relevant when figuring whether the OMA has been violated.

 

"The OMA should be construed broadly in favor of openness; exceptions should be construed narrowly, with the public body bearing the burden of proving the applicability of an exemption" Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 223, 507 N.W.2d 422 (1993).

 

Furthermore, there is an actual disputed issue as to whether the notice was ever posted at the Ludington City Hall.  Defendants submit an affidavit by City Clerk Deb Luskin who was assigned that task, notarized on May 21, 2013, saying that she posted the notice in the afternoon of May 7, 2013.  They have shown no evidence that the City bulletin board had that notice for any amount of time, and concede that the public notice was absent on the afternoon of May 20. 

 

Accepting these two 'facts' as true, the posting on the 7th, and the lack of posting on the 20th, one has to come to the conclusion that the notice was removed from that board in the interim.  If it was removed without authorization, then a misdemeanor occurred (MCL 750.491).  The plaintiff, knowing only the facts that the notice was absent on May 20, had no knowledge of the City's claims of posting any notice until they answered his filed complaint and saw the clerk's affidavit saying she posted on May 7.

 

The City Clerk and at least the City's Assistant City Manager (who notarized the affidavit) knew on May 21, 2013 that the two 'facts' should have indicated criminal activity in creating that affidavit.  They, and all other knowledgeable city officials, had the responsibility, the duty, to consult with an available infallible witness to determine how this crime was committed.  Particularly, since an individual had made a public accusation on May 20 that the public body had failed to abide by the law and was liable for violating the OMA-- and willfully if they went ahead with the agenda's inclusions, which they did.

This infallible witness available to them is the City's security system camera in the City Hall lobby pointed at the posting area, which is maintained by the Ludington Police Department (pictured in Exhibit H, apparent view from Exhibit I). 

    Exhibit H

      Exhibit I

After Defendant's brief has maintained the veracity of the clerk's affidavit and the belief that once posted, the City's requirements for posting notice is met, even foreseeably if the notice is taken down before it should, Plaintiff has asked for 1) a 'still shot' from that particular camera on the afternoon of May 7, 2013 showing the City Clerk posting notice. 2) a 'still shot' from that camera on May 20 showing plaintiff  looking at the posted notices. 

They could not produce either, claiming neither existed (Exhibit J).  Plaintiff was also prohibited from seeing a current view from the camera, being told that the requested 'still shot' did not exist, but said I could come in to watch recent video.  This denied plaintiff's request for either a still shot or hard copy of the video, and makes plaintiff unable to supply a definitive view from the camera to this court due to the public records being withheld unlawfully by the defendants.

However, as Exhibit I shows, the camera is centered on the north door of the City Hall and was trained there before that day.  At the meeting of March 24, 2014, the defendants, minus Taranko and Henderson who were not re-elected this year, vetoed an appeal to them to supply this record in their capacity to handle Freedom of Information Act (FOIA) appeals (Video Exhibit K, record of the 3-24-2014 meeting available at library site, File Exhibit K, meeting minutes, pending release when made available and approved). 

The available ‘still shot’ or video file is a “writing” as defined by the FOIA, and should be readily available.  This shows a willingness to this day to block crucial evidence as regards to their having participated in an illegal act, i.e. the intentional violation of the OMA, as per section 12 of that act.  This signifies a degree of obstruction of justice worthy of notice, by defendants.

So if the City Clerk posted notice on May 7, swore an affidavit on May 21 to that effect, why did city officials fail to fulfill their duty to find out who took down that notice through the camera footage, and prosecute them forthwith for this misdemeanor offense?  Why did they not save the footage of the City Clerk posting notice on May 7, knowing there was a good possibility of a pending lawsuit against them?  Why did they not observe the recorded and stored video before they either recorded over it or otherwise got rid of it, so they could find out what happened to their notice? 

The only logical conclusion can be is that the City Clerk never posted such notice and therefore, that nobody took it down as they infer.  The perfect witness, the lobby's security camera with that period's footage, would tell us a much different story than what the defendants would have us believe.

 

The question of posting is thus reduced to the word of the City Clerk against the word of a common citizen who saw only notice of a May 20 meeting at 6:30 PM on the board, instead of the impartial surety of the videotape, because of the conspiratorial (MCL 750.157a) actions of the defendants' fellow city officials in not saving the video to prove such affidavit and discover what happened to notice allegedly posted, along with defendants and their fellow officials blocking a FOIA request to affirm that it would have indeed caught all action that happened at the bulletin board. 

 

Contrary, to the defendants' assertions, plaintiff can and does dispute the premise that meeting was properly posted thirteen days prior, and wants answers as to why this vital evidence was not preserved, and why salient camera footage is being held unlawfully from plaintiff’s FOIA request by defendants and other city officials.

 

At the same time the clerk’s affidavit was made, the footage needed to be preserved, as it wasn’t it shows complicity among the responsible officials of covering up the unassailable truth.  I submit that the only meeting for May 20, 2013 ever posted on that board was the 6:30 PM meeting in the upper left corner on the morning of May 20 (which was never held at the meeting site), making the 1:00 PM meeting which took place, where public policy was deliberated and decided upon, an illegal open meeting, where each of the seven elected defendant participants named in this lawsuit willfully carried on these actions after being apprised of the deficiencies and their potential liabilities.

M4SD OMA 2.pdf 

COL Brief 4SD.pdf 

COL B4SD Exh.pdf

XLFD's BRIEF IN OPPOSITION

The overall conclusion then is either the clerk decided to perjure herself in a sworn deposition saying that she posted a notice on the bulleting board, or alternately that she and at least the Assistant City Manager Jackie Steckel and anyone else knowledgeable about the Clerk's affidavit, knowingly shirked their public duty to determine who took the public notice from that board and failed to keep the video proving at least one crime available for likely litigation. 

Furthermore, the resistance/rejection to the recent FOIA request, when the requested record is obviously an available non-exempt public record, by five of the defendants plus others, shows a basic obstruction of justice, much akin to the withholding of the Watergate tapes by Richard Nixon over 40 years ago. 

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It's practically undeniable.  I will be posting the E-mail exchanges between myself and the City tomorrow to show how they blocked the release of documents, as per Exhibit J. 

This was the FOIA appeal I had docketed in front of the City Council on March 24.  None of the five city councilors involved in the suit noted any sort of conflict in deciding the appeal of what they effectively knew was non-exempt public records that could only incriminate them further.

Is signing an affidavit standard procedure for proof that a notice was posted or was the affidavit initiated because of your response to a lack of a notice? This is important because if it's not standard procedure it seems odd that an affidavit was sworn out so soon after the meeting which shows that the "video recording had either been reviewed already and was incriminating against the City or the recording did not exist.

Signing affidavits about posting a notice is not standard procedure, and it was either due to my point of order or the threat of an impending lawsuit that I made known here on May 20.

This proves that nobody checked to see if the notice was posted 18 hrs prior to the meeting as required by law. I think it's irrelevant that it was posted on May 7. The City is indeed in violation even if the Clerk had posted as stated in the affidavit because the notice is required to be observable for at least 18 hrs prior to the meeting. The reason I say that is because an earlier posting of a meeting does not meet the qualification of the 18 hrs, only the 18 hrs is important. It looks like the Council is throwing the Clerk under the bus.

To my knowledge, it has been an untested point of contention in OMA precedent that if someone posts notice for a meeting well before a meeting is to take place and then it is removed prior to the meeting so that it is not there for the immediate 18 hours before the meeting, whether this would be a violation.  An older Attorney General Opinion held that if the public cannot see the public notice at the public body's office for at least 18 hours prior to the meeting then a violation has occurred. 

Since the defendants' brief has nothing other than the clerk's affidavit swearing she posted it on or about 1:30 PM on May 7, there exists no proof in that brief that it was up there for any time period, and should fail on that regard, as you put forth, Willy.  

I just read your Plaintiff's response in the other topic. I am impressed with your ability to put forth a lucid and capable argument for a judges consideration. My hat's off to you. I also read where you put forth the idea I stated above and that being the importance of the 18 hr minimum that the notice was required to be posted and verified within that 18 hr time period. I might add that I needed a shot of coffee to get thru that long post. Again, excellent work.

Just think how much soda pops it took for me to research and write it.  All volunteer work, by the way, Chief Barnett and Funk.

Allow me to plagiarize (kind of) a few words:

Seeing that we are going after public officials.  I was a member of the public reserve for just about fifty years, actually a little over fifty years.  I gave up holidays weekends, to go and help the community.  I know that that don't mean nothing to Ludington officials, but I resent what they said about us.  We are here to help the community.  I wish we could get more public reserves to do that. 

With their type of attitude, and the way they cut people down, I don't know why anybody would volunteer for it, but... I did it for over fifty years and I never felt I was a vigilante, I thought I was helping people, and I commend you s. todd for what you said.  I just wish they would figure out something to get out there and help the community instead of bashing everything that we try to do, but I really resent that for the fifty years that I gave the city up, the weekends, the holidays, for every year I gave up the Fourth of July, never gave one up for my family.  I worked.  And that's all I got to say; I don't know what else they are going to do.

If you look closely, the shirts/coats hanging in the second picture are not completely arranged in order from smallest to largest, though it does look like the job of someone who is very anal-retentive and has a lot of spare time in the winter when they're not applying for grants.

Maybe it's the white shirt variation of the "LAC 2nd Graders heart Mayor Henderson" left behind by the old mayor on a visit.

When you look at the picture, you can almost hear the chant:  "Mmm, mmm, mmm, Mayor John Henderson; Mmm, mmm, mmm, Mayor John Henderson...."

Judge Wadel found for the defendants today at summary disposition, saying that they "substantially complied" (see defendant's brief) with the OMA statute.  The defendants did not need to show that they had such notice up for one hour, let alone eighteen, they did not need to explain how why they did not preserve the evidence of a possible crime while they had Asst. City Manager Jackie Steckel notarizing Clerk Luskin's affidavit, the main point of the intentional act of non-compliance after notification was thus nullified.  "Duly noted"

Judge Wadel was thoughtful in his deliberation, more well-versed on the OMA than one would think, but I think his overall decision left a little to be desired in terms of why this city was to put out conflicting information about meeting times, dodge FOIA requests, and willfully violate the OMA in spirit and by rule of law.  Rulings like this only allow the OMA to be further eroded into meaningless legislation.  Wouldn't it be nice to argue "substantial compliance" when you are caught speeding or the like?

The City Manager, Asst. City Manager, and City Clerk, all took an hour and a half off of their busy day to attend the summary disposition, along with two of the defendants, Les Johnson and Kaye Holman. 

I can, but to my current understanding, the appellate court would be the 51st Circuit Court, the court I tried to avoid by restricting the scope of the lawsuit.  Rob Alway didn't totally get the story wrong in his MCP write-up, however, he said nothing about any of the sidereal issues about why the City did not save the camera footage of the lobby as a bit of relevance that was considered by the court, but did not carry much weight into the decision.  

The judge kind of threw me for a loop when he said that those cameras are put their for 'security reasons' they aren't necessarily put there for verifying their officer's affidavits.  Yet, he conceded that he believed Ms. Luskin's affidavit and that I was correct that the notice was gone on the day of the meeting when I got there.  Hello!  A public notice is missing, making the City potentially liable for big bucks in OMA damages and criminally liable, and 'security' doesn't include seeing who removed the notice?!  I don't buy this, and I wish my side had more influential people other than myself and my girl in her work duds.

The City has invested all that money of yours in cameras to spy on the people at their city hall and their public bathrooms, and yet the footage is somehow unavailable to the public, and flood gated by Chief Barnett, who is more worried about you seeing his camera angles, than seeing what city officials don't want you to see.  And all those city officials that came with the attorney you paid for, who blocked FOIA requests (coordinated by another expensive attorney you pay for) to keep the 'still shots' away from me, knows that the footage would've been damning to them, as it would have proved their own collusion.

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