Openly Disobeying the Open Meetings Act, pt. 5: Ludington City Council Abusing Discretion

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Let us say you work for a local government here in Michigan.  Perhaps you're a police officer or a local official that makes decisions that impacts others.  Now let us say that in the course of your duties, you are said to violate the law or take away the liberties of a fellow citizen, such as one enumerated in the State or Federal Constitution or Bill of Rights.

Let us further say that citizen files suit against you in a court of law alleging you have aggrieved them through your actions taken in your official position.  The suit, or at least part of the suit, is against you alone, alleging that your actions made you personally liable for their hurt.  Does the public entity that employs you have a duty to employ attorneys/counsel to defend your actions taken in your official capacity?  Think about that for a moment, considering under what conditions it may be desirous to allow this beneficial service, and under what conditions it may be against the public interest to do so.

Rogue's Gallery:  Bell California Officials Recently Arrested/charged for Various Crimes Against the Public Interest:  Top row:  Vice mayor Jacobo, City Councilor Artiga, CC Mirabal, Mayor Hernandez  Bottom row:  CC Bello, Cit Manager Rizzo, CC Cole, Asst. CM Spaccia.  Mayor Hernandez's arrest had the police use a battering ram to secure.  CM Rizzo is tagged with about $4.3 million in misappropriations for himself, not bad with an $800,000 a year salary.

Most of the court precedents in Michigan on this subject stem from a seminal ruling by the Michigan Supreme Court one hundred years ago.  The Michigan Supreme Court in Messmore v Kracht, 172 Mich. 120, 125 (1912), was faced with a matter in regard to reimbursing a deputy sheriff for the legal expenses he had incurred in successfully defending himself in a civil action which had arisen while acting within the scope of his employment.

In Messmore the Supreme Court held that it was within the discretionary powers of the board of supervisors to indemnify the plaintiff for the legal expenses he had incurred in his successful defense of a civil action arising from the exercise of his official duties. In doing so the Supreme Court stated quite clearly that:  "We think it was within the discretion of the board of supervisors to allow this claim, and it is not for the clerk of the board to nullify their act."...

After no other significant interpretations, sixty years later the Michigan Appeals Court continued to reinforce this motif in SONNENBERG v. FARMINGTON TOWNSHIP (1972)  "We hold that a municipality has the discretionary authority to indemnify a police officer for the expenses he has sustained in the successful defense to criminal or civil charges which arose out of and in the scope and course of his employment for the municipality. The trial court was therefore in error."

In Messmore, Sonnenberg, and all other similar precedents, the courts of Michigan have ruled that if a police officer in service to the community is sued for some incident occurring while they are acting in their official capacity, the public entity they serve is not forced to defend their actions, nor are they forced not to defend their actions.  It is up to the discretionary powers of the board that oversees the expenditures of the public entity.

In July 2009, there was an arrest made by the Mason County Sheriff's Office with a Ludington Police Officer on Ludington citizen Joseph McAdam.  I have read the court documents with an open mind, and could not find any reasons why the officers used a great deal of force on someone who was following police orders by walking away from a traffic stop on his mother, before being gang tackled by 'peace officers'.  In this status update on the case that was filed in Federal Court against all police individuals involved and the public entities they were part of it claims that the City of Ludington was dropped as a defendant by the plaintiff on page two.  Further on this document it clarifies that a little:

But documents in this same status update dated beyond December 2011, show that then LPD officer Warmuskerken is still being represented by City of Ludington's risk management law firm.  They would continue to represent the former LPD cop when the City Council violated the Open Meetings Act by making a motion to go into closed session to discuss the status of this lawsuit, without claiming any reason for doing so allowable under the OMA before doing so.

That was explained here:  Openly Disobeying 2.  It may be considered a technicality to not explicitly state the reason for going into closed session, but it is a violation of the OMA nonetheless, and shows the City's reluctance to follow this law of open governance which has happened often between the notorious violation in the Byers incident, and my recently filed OMA lawsuit.

This conference that occurred between Attorney Vander Laan of the City's law firm and the City Council showed that the City still had its brand in the fire.  It showed they had the ability to make a decision that would influence the legal counsel of an individual, Warmuskerken, rather than the City whose liability was waived in 2011.  Who made this decision, that could cost the City taxpayers tens of thousands of dollars in legal fees, and when did they make the decision?

As stated, a decision to allow City of Ludington's legal eagles to defend an individual would fall upon the discretion of the Ludington City Council voting to determine whether to back Officer Warmuskerken or let him fend for himself.   No matter what they decided, they would have to deliberate and make that decision in a meeting open to the public, as per the OMA.

When was that done?  Never, according to the City Council minutes of the last two years.

Who made that decision?  Not the proper authority, the Ludington City Council, who have not made any deliberations or decisions on the particulars of this case until they held the unlawful closed session this summer where Vander Laan talked to the City Council about trial and settlement strategies of an individual of whom it had never been legally decided to retain for Officer Warmuskerken by the Ludington City Council.

In fact, Warmuskerken's only mention in the City Council occurred back on August 10, 2009-- being introduced to the council favorably by LPD Chief Barnett as a new seasonal officer for the department.  This was less than one month after he allegedly gang tackled a Ludington citizen with two MCSO deputies, gang-tasered the same individual, cuffing him for some unknown offense, helped seize and delete that citizen's I-phone recording of the events, then went along to the hospital to once again deploy his taser on the citizen who was handcuffed to a hospital bed and not presenting a threat to anyone as related here:  Joseph McAdam's complaint

I, for one, would like to hear whether my city councilors condone such behavior done by Officer Warmuskerken (much of it caught on tape) by their vote on whether to spend a whole lot of money on this officer's defense, when the City of Ludington no longer has any liability in this incident.  But apparently someone has already earmarked taxpayer money without a proper decision being made.

In a similar vein, my own federal lawsuit against City Manager John Shay and the City of Ludington should have also required a vote of the Ludington City Council before the City's risk management attorneys came forth to defend Shay.  John Shay gets reimbursed by the citizens of Ludington with a salary of over $100,000 and benefits close to $50,000.  A reasonable person, even a Ludington City Councilor, may rationalize that Shay can afford his own attorney when he engages in managerial malpractice.  Even when the Council is also culpable in making policy that seems to violate state and federal laws. 

For the Messmore precedent does not only extend to police officers but regular officials of the City/Township/County as well, as determined in this case and others:  EXETER TOWNSHIP CLERK v. EXETER TOWNSHIP SUPERVISOR (1981)

"Accordingly, a municipality, such as a township, in general possesses the discretion to determine whether (1) counsel for the township shall represent a township official sued in his or her capacity, (2) to approve retention of private counsel paid for by the township, (3) to indemnify the official for expenses incurred in defending the action, including attorneys fees, or (4) the township board may decline to provide legal representation or indemnification for such official. The exercise of discretion by a municipality is generally reviewable by the courts for abuse of discretion. See Law Dep't Employees Union v City of Flint, 64 Mich App 359; 235 NW2d 783 (1975). Cf. Wendel v Swanberg, 384 Mich 468, 475-476; 185 NW2d 348 (1971)."

Not bringing these decisions up for a vote and deciding to force the taxpayers to pay legal fees for officials who may have behaved badly, makes Ludington City hall once again in violation of the Open Meetings Act and/or has made someone exert unconstitutional power in superseding the powers that are vested in our city council by the state and our charter.  Either one is unacceptable to those who expect accountability in their officials for their actions and their use of our money.

Another Rogues Gallery?  CC Holman, Rathsack, Taranko, City Manager Shay, Mayor Henderson, City Attorney Wilson, CC Johnson, Tykoski, Castonia

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are we surprised? 

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I shouldn't be, but I am continually surprised at the lax regard for local process that the City of Ludington has developed since getting a full law firm of six associates out of Manistee to act officially as our one City Attorney. 

After receiving a 70% raise of what we used to pay our old, and only, City Attorney, this law firm has made the City act as if they are above the law.  It is beyond the time we hold them accountable for their lack of ethics-- but we cannot as they have only to answer to City Hall who gets their legal advice from these guys.