The Appearance of Impropriety, pt. 1

[XLFD]

The judgment I have been seeking for  concerning a simple FOIA request was scheduled for summary disposition Wednesday, March 7, 2012, ironically exactly six months after the original request on September 7, 2011.  After numerous briefs and motions by both parties during that period, the plaintiffs, me and my girl Friday, along with George V. Saylor III, one of Ludington's numerous City Attorneys finally sat in court with the Circuit Court Judge, Richard I Cooper, starting the process the plaintiffs have waited so long for.  Read carefully all the material and links to see whether you can gauge what caused the issue at the end.

 

Ignore, Delay, Ignore, Obstruct, Thwart

That process has been incompletely detailed elsewhere, but to summarize, we received a reply from our request to effectively see the business records between the City of Ludington and then-City Councilor Candidate Nick Tykoski and his businesses on 9-13-2011.  The reply referred to four previous requests and said the request was duplicative and multiplicative.  No records were sent, and no way to receive them were given.  After numerous inquiries by both plaintiffs, we got an administrative appeal scheduled to take place on 9-26-2011 in front of the City Council. 

I had personally sent our full brief explaining our position to the City Council, and was assured by the City Clerk, Deb Luskin, in writing, that my brief would be part of the public record of this meeting.  I had asked the City Manager to receive written permission to come to the City Hall that night, such as was needed due to the Workplace Safety Policy passed by the City Council and the Letter of Trespass drafted by him that said I needed such permission to enter onto City Hall or LPD property.  I wasn't given any, but my lady was given a certified letter from the mayor inviting her to attend.  With noone to escort her to the ball, she wound up declining that invitation by not showing up.

Mayor Henderson started that meeting by striking the FOIA appeal from the agenda, and striking a power point presentation dubbed "Rotta/Swiger's FOIA Requests".  We later learned that was a presentation that looked to show how insidious we were for making FOIA requests to the city. 

We waited over the statutory ten business days without any response, to begin a filing in Circuit Court, commencing a civil action as per the appeal protocols in the FOIA.  We got a date for an injunctive hearing, filed the court paperwork, sent the summons and complaint to the City Clerk and found that Judge Richard I. Cooper was to be our jurist.

 

Full Court Stall

 

We wanted to get this resolved before the election, but for our first try to get it adjudicated, we had filed no "Notice to Appear", as we had thought the Court Clerk was to contact the defendant as well as they did us after a court date was set.  Then we found out at the second proposed hearing that we hadn't apparently served the defendants properly as pointed out in this letter that Richard Wilson sent to the court administrator  2011 11-10-11 RMW.  Our second scheduled court date was pushed back further, my fledgling attorney skills really kind of sucked, I guessed. 

We also received this letter from Judge Cooper  2011 11-10 RIC pushing it back to December 13th, or so we thought, in our naivete.  Expecting a review that day, we met with George V. Saylor III, in a jury conference room and ironed out the details of the civil action we had started.  This had been made into a full civil case with discovery, witness lists, etc. with those such things taking 60 days to complete.  So much for our expediency.  A few days later, the court date was sent to us, 3-14-2012.

During this time, we as plaintiffs seeking information from a City government who wouldn't allow us to get it legit, made us both answer interrogatories, requests to admit, depositions (one blocked by a Motion to Quash), and prepare numerous filings ourselves.  Without a doubt, most of the defendant's material was needlessly insulting to our character, and designated to divert attention from the claim.  It's within the rules, but not very pleasant.

Even though we were cooperative with them, they decided that they would use court rules to block any use of discovery on our part, not allowing the two people who acted as FOIA Coordinators for Ludington, John Shay and Richard Wilson, to answer anything we sent their way. 

They then had the nerve in mid-February to make motions seeking to sanction either me or my girl for the following: avoiding a deposition (albeit legally), not completely answering interrogatories (but with proper objections), and for me impersonating a lawyer (perish that thought).  The only thing we were really able to discover from them, were that they were fine in acting like spoiled jerks out to get a lot of extra money for this 'special project'.  But that has been on display before.

 

Affidavits From a Scoundrel

 

A new FOIA from us was sent shortly after the City Manager tried to give us 11 records that we had already seen before in this brief, and certified via an affidavit that it was a complete response.  It wasn't; my new request was for nine invoices referred to in DDA Financial Records (I had previously gotten through an FOIA).  I can't say whether CM Shay crapped his pants when he got caught in this fib, but in short order, we received ten records from CA Saylor on 2-22-2012, yet still not complete, followed by some more in the morning and afternoon of 2-24-2012, roughly two dozen new records, many showing Heather Venzke and John Shay signing the invoices that Tykoski's companies made for them to sign.  

Among all these records, there was never a contract-- not a one-- between the City and Tykoski's companies, even though Tykoski's companies looked to make a cool $150,000 over TIF time from making and putting up 25K gold painted signs around the downtown.  What a gig: no contract, no competitive bids, and no need to hold costs down because the fiance has the people's checkbook. 

Each such revelation of new documents were delared to be a complete response, it began to have a bit of Vaudeville about the whole thing.  A brief ( SBrief pt1) filed with the court by Saylor at the end of the next week, had another affidavit by John Shay telling me the FOIA response was satisfied, with the corresponding phrase from CA Saylor that the "plaintiffs' FOIA appeal was moot". 

But during that same time, we had the opportunity to review the DDA's Heather Venzke's PPO application at the courthouse, and found  this record among her various supporting documents that was totally new to us, and fulfilled the original request.  We prepared a voluminous, but to the point, supplemental brief ouselves and got this to the court a couple of days before the supplemental hearing. 

Eventually after a brief interlude with CA Saylor in court on 3-7-2012 (this Wednesday), we found that this missing record was actually two documents (a check stub and a statement) ran together, and copied unto one page.  The lower document was given to us in late October.  As many pages of the Ludington Torch and public records that should be only present at her office (such as check stubs and invoices) was included in the PPO application, one could likely presume that Mrs. Tykoski Heather Venzke, at that time, had ran off all the copies at her office at the City Hall.  In effect, she reviewed the Ludington Torch at work, and printed out a couple dozen copies such as this on the public's dime, and more than likely, on the public's time.  Maybe she could declare it was all for the matter of workplace safety. 

 

Hangin' With Judge Cooper

 

Our Wednesday morning court appearance was delayed by some prior courtroom drama.  In traffic court, a young man was a bit upset when he came from his appearance before the judge (not Cooper) out into the hall.  He had been hauled into court (actually he probably requested his own hearing) to contest a traffic ticket he was given for not dimming his lights one night when a policeman drove by, wheeled around and ticketed him.  I was once a passenger in a car that was stopped for the same thing before, but the driver wasn't given a ticket.  This guy who just lost was a bit miffed, and very eager to explain, without prompting, the farce he had just been subjected to.  After he paid the fine, he said he was going to wipe his behind with it as he headed down the stairs.  I felt his pain.

We finally got into court and took our seats.  Although both of us and Saylor had been in the hall for over a half hour, he was not his usual gregarious and glib self, so I thought something may have been up.

Judge Cooper had us take our seats and the court case began.  The judge went over the basics of the case and then paused, then laid a bombshell on us about an appearance of impropriety...

        (To be continued in part 2, where we find out what Judge Cooper meant.  Can you figure out what this appearance of impropriety is before its revelation in that thread?)

Check that out here and its follow-up here.

[XLFD]

Dale,

I'm fairly sure you're an insider, but you did get the correct result.  I have generally respected and liked Judge Richard Cooper in the past, but let's be real; how can you let a FOIA appeal go on for five months with the knowledge that your son is qualified to act as City Attorney for the defendant and plead their case, without some disclosure of that fact immediately to the plaintiffs requesting expedient disclosure throughout the case?  It lends the plaintiffs to review the actions and inactions of the court up to March 7, 2012.

[Sweater Cows!]

Wow! I did not think about the fact that this has had a 6 month lag period where the judge did not recuse himself.

[XLFD]

Larry, I can't shake your beliefs I'm sure, but what about the lack of disclosure for six months of the appearance of impropriety? 

If I was a judge and my son was one of the party's official legal counsel, I would let the other party know right away (particularly in a FOIA case) and give them the opportunity to disqualify me from being a fair arbiter of the case. 

If I was a Circuit Court Administrator or Clerk who knew the facts, I would point out to the judge that they may wish to disclose that fact as soon as possible.  Judge Cooper's son's name was always at the top of the letterhead the attorneys filed.

If I was a seasoned attorney like Richard Wilson and George Saylor, I would have let the other party know that the Judge's son was an associate of my law firm.

I was willing to give Judge Cooper 100% benefit of a doubt back in October, and would have upped that to 110% if he had made such a statement then.  But his silence over that period speaks volumes, particularly with the complicity, ferocity, and stridency of Craig Richard Cooper's law firm throughout the process added on. 

[Lisa O'Brien]

If the new Judge does his job - he will rule according to the law not personal feelings.

[Lisa O'Brien]

Yes - it would. Today I'm choosing to wear rose colored glasses.

[Willy]

Dale

If that were the case and I wish it was, there would not be a Torch forum nor would X be involved with defending himself againts the corruption that exists in our local government.

[AQUAMAN]

What kind of convoluted post is that Dale? Spin-doctoring the issues does not clarify them, it just serves your continuing purpose to confuse, and evade.

[XLFD]

Dale/Larry,

It looks as if you are getting confused as to who you are posting as.  That can happen when you're sharing a computer or a persona. 

Nevertheless, if I was an able and ethical judge coming onto a case like this I would be expecting the plaintiffs that have filed a complaint six months ago to be upset with the way things unfolded, and recommend to them to seek disciplinary action against at least the law firm that filed numerous motions that were meant to threaten and intimidate the plaintiffs from seeking their relief, which was to look at documents that the record now shows were arbitrarily and capriciously withheld. 

At least that's how I would look at it, but I'm biased towards ethical behavior.  Are you two/one?

[AQUAMAN]

X, at least your bias towards ethical behavior is for the positive, not to elude and evade it at every turn. At this juncture, I would advise the city to dole out the $500 fine, kiss and make up, and stop all this nonsense from snowballing into the far far future. But, that doesn't happen with Shay from all I've witnessed since he's taken office around here. If I was Mayor, I would have had this conversation with Shay over a year ago, and told him, you can't win them all, and furthermore, keep your enemies closer, it may pay off in the end. P.S. I've seen that posture of Judge Cooper, same as the picture above several times, it always wound up with him being in a position of weakness and admitted wrong, not very often seen either.

[XLFD]

Aquaman,

Even though I stayed over an hour after the meeting and had a fairly positive and mediative conference with City Attorney George Saylor to get some sort of process whereas the plaintiffs would be able to get reasonable compliance with the FOIA from the defendants, I doubt we'll resolve anything with the unreasonable City leaders.  This involved us even agreeing to an unheard of limitation on the amount of FOIA requests we could make per month, which seems to be a major sticking point for the City Manager. 

But we haven't heard anything from the City Lawfirm since our Wednesday, 3-7-12, non-hearing, even though Saylor planned on getting back to us with his leader's replies to our negotiations.  Nor has the Circuit Court contacted us with the new judge, or the new game plan.  We'll begin our new campaign on Wednesday, if we don't hear anything tomorrow. 

And you're totally right, Aquaman, the defendant should pay the $500 now and avoid the loss later, but they won't.  The oily barristers of the City Lawfirm will continue to tout their excellent chance of winning over or outlasting the plaintiffs.  But that ain't happening.