Open Meeting Actors: Prelude of OMA Two

[XLFD]

In my previous Open Meetings Act lawsuit with the City of Ludington, the evidence was substantial that in 2011 the City Council of Ludington-- together with support from the City Manager, Assistant City Manager, and mayor-- conducted business via a secret E-mail scheme to authorize nearly $100,000 of non-emergency sewer work on Brother Street.   

That lawsuit was started one year ago, and was settled with a stipulated judgment that admitted the City made decisions and deliberated outside of an Open Meeting, and therefore was in violation with the law.  It was almost comical how the City tried to spin the judgment, saying it was just a technical violation and that the sewer work had been done as an emergency repair, even when it wasn't started until about two months later, after three scheduled City Council meetings. 

This was not only put out by the City, but the editorial staff of the City of Ludington Daily News (COLDNews)  was only too eager to join in.  Both of those shameless defenses were further chronicled in OMA-Ha-Ha and exposed for the ridiculous rationalizations they were.  These justifications didn't really start coming out until the City of Ludington caved into the fact that they had no winning result in the OMA lawsuit, and consented to the plaintiffs reasonable demands for accountability. 

For the latest Open Meetings Act lawsuit, the violation is based on City Council members and the mayor refusing to consider that they could not lawfully deliberate and make decisions in a meeting that had not been properly posted for the public to be aware that the meeting was taking place at a special time.  Unlike last time, when I hired an attorney to take care of the details, I decided to conduct it on my own (reserving the right to use attorneys for appeals, if necessary), because the lawsuit is basically cut and dried from the video evidence of that meeting, if we accept the basic fact that the meeting was not posted, a fact that can be verified by City Hall's own security measures. 

I made the lack of proper posting known at the start of the meeting, described that the council would be in violation if they made any deliberations and decisions at that meeting, and my point of order was never challenged, that day until Thursday of this last week, as noted in the COLDNews . 

 

I could nitpick the facts and assumptions of this particular article, but I will only challenge some of the major statements and points, most that are put out by the COLDNews as established fact and incontrovertible legal opinion.  But they are very easy to refute.  I will start by putting a check on the quotes of the three notable authorities quoted in the article:

 

City Attorney Richard Wilson:  “Case law is clear the public body itself violates the Open Meetings Act if anyone does. The public body is the city council itself in this case,” 

Wilson reads section 10 and section 11 of the Open Meetings Act and sees that the public body is correctly the defendant in actions that invalidate or enjoin compliance with actions that take place in an illegal meeting.  This is not what I'm seeking, it's to penalize city officials under section 13 by who willingly violated the act by acting on ordinances and resolutions when presented with the fact that their meeting was not posted properly. 

You will note that the action is against the public official(s), not the public body, just as it is in section 12.  Judge Wadel does have the option to invoke section 12 penalties on these officials in his ruling, which could add up to $1000 extra on each defendant's penalty.  With a liberal view of the section, he could sanction the five that were previously sanctioned in February by jail time up to a year.  I don't think they should be jailed but should apologize profusely and sincerely to the people that they serve for breaking the law twice.

Wilson:  “I think this is just going to be a waste of your time and my time and the taxpayers’ money.  Mr. Rotta was even at the meeting, so even if there was a fault in the notice it did not hurt him.  As far as I know, everyone who is normally (at council meetings) was there, as well as many third-graders sitting on the floor.”

Noting section 13 of the act again, plaintiffs do not have to show they themselves were 'injured' by the violation, just that the OMA was violated.  This will only waste taxpayer money if our City leaders actually choose to use public funds to defend their unlawful acts during a public meeting.  It seems immoral to me to have these officials do so, when the video evidence clearly shows they acted against the will of the people.  Now they intend to rob the people's money to pay for their shysters? 

 

City Manager John Shay:   City Manager John Shay said he is sure the meeting in question was posted properly as far as being posted on the bulletin board.  Following that incident, Shay said, the city put up a glass door with a lock on it over the meeting notices at city hall.  “You can see it but you can’t touch it,” he said about the change in posting notices.

 

Rob Alway of the Mason County Press was at the May 20 meeting and wrote this article, so was the author of this latest piece, Kevin Brasiczeski, who both left out the 'point of order' in their write-ups, or about whether the notice was there or not.  It wasn't important to them.  Contrariwise, on the afternoon of that date, I wrote a piece on the Flagrant OMA violation and then showed the video the next day in Morality Lessons.  The City made no comment as to whether the notice was there until John Shay's statement here.

His comment seems to suggest that someone had definitely put up the notice, but then someone took it off before the meeting.  That is a serious charge, and since he admits to putting up the glass door shortly thereafter (which is true), they apparently were afraid of this happening 'again'. 

Here is the problem with his assertion.  The area the bulletin board is at, has cameras pointed at it.  Therefore, someone unauthorized tearing off a public notice should have been on camera.  If it had been me, you can imagine the prosecution they would have sought for this violation.  Nor would I try such an unethical, foolish act.

But if they were certain it had been put up, they would have already looked over this footage and know whether there was someone who took it down (or put it up, for that matter).  I do applaud the City Manager putting up this locked glass door, so that any future time they forget to put up their public notice, they cannot make the obnoxious claim that some person took it down. 

 

79th District Judge Peter J. Wadel:  ...said the first attempt was turned down because, “it’s not a district court case. The jurisdiction for Open Meetings Act cases is in circuit court.”  This morning, Wadel said, “he has pled a theory that he believes gives district court jurisdiction.”

I hate to argue against a judge, outside or inside a courtroom, particularly one who will be making the decision, but this is an argument that does not hold.  My venue statement:   "This court [district] has jurisdiction by statute pursuant to MCL 600.8301(1) in that it is a civil suit for less than $25,000, as violation of MCL 15.273(1) limits awards to $500 per defendant and plaintiff does not seek invalidation of policy or injunctive damages."  Even though the Open Meetings Act limits certain judicial remedies to the Circuit Court, there is nothing that says it has jurisdiction over all Open Meetings Act civil suits.

In my thread, 79th-district-court-refuses-to-file-open-meetings-act-lawsuit, I present five OMA cases resolved or to be resolved in Michigan State District Courts (three of those filed squarely against public officials, not a public body).  Either they are doing it wrong, or the original assumption was wrong.  Apparently, he must have been listening to the legal acumen of Prosecutor Paul Spaniola, who dictated to the district court on Tuesday afternoon that they should not accept it.  

If his honor suggests it was I who pled a theory that gives district court jurisdiction, I did not.  I just insisted that the law and precedent was fairly clear and concise on the matter, there were no theories involved.

 

To COLDNews reporter Kevin Brasiczeski's credit, he did not mangle the claims in my lawsuit too much, meaning that he received a copy of my suit or was told about it.  This is incredible since I didn't put out the claim on the Ludington Torch until after their Thursday paper went to press!  This means I handed in my lawsuit to the district court at 4:20PM the previous day, and by the next morning, Brasiczeski got the claim before the public officials would have been served their copies via certified mail!   

Such leaking of the information to the press before the seven defendants get served their summons and complaint is rather unethical of the 79th District Court to be doing.  (To be continued).

[Willy]

It sure would be interesting to know how Brasiczeski got hold of your lawsuit before the City Council members recieved it.  Another reason not to trust the Courts.

[Willy]

Eye

That is correct.

[XLFD]

Canon 3, A, 6 of the Michigan Code of Judicial Conduct: "A judge should abstain from public comment about a pending or impending proceeding in any court, and should require a similar abstention on the part of court personnel subject to the judge's direction and control."

In the COLDNews, Paddy Baker, the Magistrate and senior court administrator of the 79th DC not only tells them that the court 'turned away' my initial filing (because they had a misreading of statute) but allows them the full lawsuit prior to its service to the city councilors.  And then Judge Wadel makes an inaccurate claim.

It makes one lose confidence in the fairness and impartiality of the court.  As Canon One states:  "An independent and honorable judiciary is indispensable to justice in our society. A judge (and his court staff)should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved.  A judge should always be aware that the judicial system is for the benefit of the litigant and the public."