Why Have an FOIA Policy When You Don't Even Follow It?

[Eve Alone]

I made a FOIA request recently in which I went down to the City Hall to inspect the W-2 Forms of all city employees in 2008, finding a few interesting things in the process.  I sent the following request last Tuesday in an effort to get to the bottom of how the City Council's salary went from $50 per year in the 1990's to its current rate of $3600, yes that is a 72-fold increase.

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Sent: Tuesday, January 11, 2011 3:20 PM
To: John Shay
Subject: FOIA Request

When the current charter was adopted on August 4, 1992 the City Clerk at that time noted in section 17.10: "The Mayor shall continue to receive an annual salary in the amount of Three Hundred Dollars ($300), and each Council Member shall continue to receive an annual salary of Fifty Dollars ($50), until such amounts are changed by the Council in accordance with the provisions of this Charter." Those provisions noted that this shall be done by ordinance and shall not be increased during their terms of office.

Under provisions of the Michigan Freedom of Information Act (MCLA 15.231 et seq; MSA 4.1801 (1) et seq) I am requesting, preferably in electronic records sent to this E-Mail address, public records detailing all ordinances passed since that time (August 4, 1992- present) wherein the mayor's or city council's salaries were raised, and the minutes from the meeting wherein it was passed.

If you determine that some of the requested information is exempt from disclosure, please detail what is being withheld and cite the exemption under FOIA.

If fees to comply with this request exceed $20, please contact me at this E-Mail address with those fees enumerated.

As provided under FOIA, I would anticipate my request being filled within five working days of receipt of this letter.

 

I received this reply early this Monday:

 

From: John Shay <[e-mail]>
Cc: Richard Wilson <[e-mail]>
Sent: Mon, January 17, 2011 8:24:39 AM
Subject: RE: FOIA Request

Dear Ms.  

I have attached the City of Ludington ’s response to your FOIA request.  The itemization of the $114.51 fee is as follows: 

It took City Clerk Deborah Luskin 3 hours to search through all of the public records since 1992 to locate the public records you requested.  At $38.17 per hour (wages and benefits combined), this amounts to $114.51. 

Upon receipt of your payment in full, the City will release the records that you have requested. 

John Shay

City Manager

City of Ludington

The attached response said the request was granted, and to remit $114.51 to cover costs; it also said it was denied, requested records exempt from disclosure because a public record does not exist under the name given or by another reasonably known by the FOIA Coordinator.  Is he saying no such ordinance(s) were discovered?  Review by me and XLFD noted other disturbing things.  I replied Monday afternoon and gave some of our newspaper friends a copy:  

 

	John Shay <[e-mail]>; Richard Wilson <[e-mail]>
	k holman <[e-mail]>; tom rotta [e-mail]; [e-mail] FOIA%2520Policy-Revised%25202010%5B1%5D.pdf

I am confused.  I have attached a copy of the City's amended FOIA policy sent to me on December 22, 2011.  Section 5c of that policy says that a 'good faith deposit' is required for requests that the FOIA Coordinator determines to be over $50 that is to be no more than one-half of the total fee determined.  You can only request that the amount be paid in full if I failed to pay that deposit once requested.  You demand payment in full immediately.

 

You have also claimed a partial denial of this request, yet you have not included in your reply an explanation of the partial denial or a brief description of public records not provided, etc. as the new policy demands that you provide (section 7 a-e). 

 

You have also claimed I owe this money because it would take the City Clerk, Ms. Luskin, three hours to compile my request.  For this type of request, I find it difficult to believe that Ms. Luskin is the lowest paid employee/clerk capable of retrieving such material, although this again is what you are required to charge me for under the current FOIA policy, section 5b. 

 

The three hours seems also like a lot of time for a professional of Ms. Luskin's caliber, since a quick review of the city ordinances (which I would presume are on computer files) should turn the applicable ordinances quickly with a 'search' of key words.  And then just sending the associated  minutes through e-mail.

 

I have told you in the past that I qualify to be indigent and can provide an affidavit for that fact.  I am just a private citizen of this town who wonders, along with a growing amount of others, how the salary for City Councilors climbed from $50 per year a few years ago, to the current level of $3600, a 7200 percent increase.  The fact that you wish to charge me over $100 for this information speaks volumes.

 

Please clarify your positions on my above confusions, and consider this an appeal of your decision if you cannot.  Attorney Wilson, I request this to be brought before the Ludington Board of Ethics for the above misuse of the FOIA Policy by the City Manager.

 

 

 

[Edie Lindsey]

I have to concur with RJE, Eve, there was no need to call Manistee's finest Ludington City Attorney heartless and soulless.  It is redundant.

How Clintonian this letter is!!!  The meaning of "it" in your sentence is clearly defined.  The CA's  letter is pure bullsh "it".

[AQUAMAN]

Go GIRL!

[XLFD]

That's the same idea I had when I first read it, Edie.  It depends on what the meaning of the word "is" is.  It is perhaps redundant to say good post to you and all others who are concerned on this.  Feel free to drop me or Eve a message on strategy or tactics, because sometimes we do get caught up in the outrage over how easily they trample over state and local laws and ethical standards.  And we're just on the foothills...

[Willy]

I got to thinking. ouch. If a City Councilor needs information about past ordinances or any other City business do they look up the information themselves or does a staff person do that for them? How do they gather information and do they need to file a FOIA? Would it be possible to request information thru the Councilor in your district so that a FOIA would not be necessary. I don't know how a Councilor could refuse a constituents request for information. If they refuse then they're not doing their job.

[Guidothesemipsuedocaptitalistpig]

That would be a real interesting experiment to make. It would give us also an indication of how far down the corruption may go also?

[XLFD]

The city clerk is required to keep a complete Ordinance Book 'detailing' all the local ordinances passed by the City Council.  What is put up on the web as the city code does not include all the ordinances. 

http://library.municode.com/index.aspx?clientId=11919&stateId=2... 

If it is, then there has never been any such ordinance to raise the mayor's or city councilor's wages since 1992.  And that surely cannot be possible, can it?

RJE, I have contacted city councilors via the mail on at least three different occasions, respectfully addressing them in sending out 17 letters in total.  I have got no response, ever, though I asked pleadingly for a response each time.  I have got two E-mail responses to even more occasions.  I once got a nasty no-response from Mr. Castonia, and a response from Ms. Holman once long ago to give her a call.  I told her I preferred not to use that medium, and haven't heard from her since.

I have a current FOIA in progress, to inspect the City Clerk's Ordinance Book. 

[XLFD]

I recently received confirmation from FOIAC John Shay that there is no ordinance in the books regarding a salary increase for the City Council (or Mayor) in the public records of Ludington.  The money that is illegally procured by our locally elected representatives each year, could pay for the lifeguard program with enough left over for a couple of seasonal employees.   Think of that when they discuss 'beach safety' in February.

[Willy]

I'm a little confused again. Do you mean there is no past ordinance regarding how and when raises can be given to the City Council and Mayor or do you mean there is no newly created ordinance that adresses the recent pay raises?

[XLFD]

I see your confusion, RJE, my statement could be taken either of two ways.  Eve already pointed out the section that says the salary for the councilors shall remain at $50 until such amounts are changed in accordance with the Charter.   Here's what that charter says: 

Section 5.4. - Compensation and expenses [of Mayor, Council Members, City Clerk and City Treasurer]:

The City Council may determine the annual salary of the Mayor, Council Members, City Clerk, and City Treasurer by ordinance. The salaries of the Mayor and Council Members shall not be increased during their terms of office.

Being that John E Shay has told me there has not been any such ordinance raising the salaries of the councilor (or the mayor, who's went from a stingy $300 to a respectable $8000 plus), there is some looting going on by the elected officials one would infer.  Here is what John Shay, who is helping me blow the whistle on this city council scam, said in reply to a request to inspect the full ordinance list: 

"Almost all of the City of Ludington ’s ordinances of a general and permanent nature are reflected in the City Code, which is available on the City’s website for your inspection.  This applies to all ordinances except those ordinances used to adopt millage rates, establish the City Clerk and City Treasurer’s salaries, and to authorize the City Manager and City Clerk to sign multiyear agreements.  All ordinances that were adopted prior to 1984, and to the extent that they are not included in the City Code, have been repealed or amended by the City Code.

 

If you wish to inspect all ordinances used to adopt millage rates, establish the City Clerk and City Treasurer’s salaries, and to authorize the City Manager and City Clerk to sign multiyear agreements, then it is estimated that it will take the City Clerk about two hours to complete this search at $38.17 per hour or $76.34.  A deposit of $38.17 would have to be paid before the City conducted this search."

I have a new respect for Mr. Shay.  The only people that could remove him from office and who have raised his salary over $100,000 a year, the City Council, now has their dirty little secret out, and he didn't stonewall that fact like he has other embarassing facts before.  Of course, charging nearly $80 just to allow a citizen to look at the compiled laws of his city is ridiculous, and this newfound respect is just as quickly lost!

[Edie Lindsey]

Let me get a couple things straight X:

1)  Why does it cost anything to look at the city's complete ordinances?  Isn't this discriminating (as Eve pointed out) against all the poor folk who can't afford it?

2)  Is it just me or am I the only one concerned that the other clerks (with smaller salaries) 'working' for the City of Ludington cannot find the complete list of ordinances? 

3)  As per 2), I find it scary that the only ones able to check the ordinances that involve contracts that the City Manager and City Clerk enter into just so happens to be the same two people. 

4)  Last I saw, a couple years ago, the CM was getting around $80,000.  The salaries have reportedly remained static since then.  How do you get the salary to be over $100,000?

5)  Hate to burst your bubble, but Mr. Shay probably had no idea he was confirming your thesis about the City Councilors salaries. 

6)  Did you notice a new member that signed in today has the same name as a city councilor?  Perhaps she can set us straight. 

[AQUAMAN]

Used to be a time, just a few years back, when I could go to the City office and request a free booklet, or minimal fee, $1, to get a "printed book of city ordinances". Did this change? This usually was no big deal at all, and they welcomed any citizens to have one. This book, to the best of my knowledge, never covered council nor mayor salaries either. Awry?

[XLFD]

Aq, they still have booklets at the office that tells you all of the important ordinances concerning dogs, house numbers, laws unique to the city, etc. and they give them out free still.  Also, the City Clerk has recently (in the last month) archived more of the City Council minutes, back to 2004 and old Planning and Zoning Appeals Boards, which I thank them for, but hope for more. 

Edie, your first three observations/questions are ones I have.  A thread on the CM's salary is forthcoming from this quill.  Shay very likely was oblivious to his help on Salarygate, and... I did notice.