Privileged Closure Without Closure.

[XLFD]

Why is your local elected representative keeping secrets from you?  A city councilor or school board member should openly discuss all matters of public policy out in the open at one of their public meetings, but for some reason all the ones the Ludington Torch follows violate the law (and the public's trust) and talk about unnamed things during closed meetings. 

If I was a member of a local public body and some administrator suggested that we needed to go into closed session I would be an automatic no vote unless the reason was obvious and clearly explained in the open meeting, additionally making certain that such purpose was explicitly allowed by the Open Meetings Act (OMA) as one of the grounds to go into closed session.  This commitment to transparency has led me to file several OMA lawsuits against local city governments, and threaten a lot more, as their members do not share my fidelity to open government practices.  Transparency is fundamental and should be a reflex for all entering public service.

This is the story of two local public bodies who share no allegiance to doing things out in the open, and who are content in doing the wrong thing so they can squeak and skitter about along with the rest of their cockroach colleagues in the darkness of their self-imposed exile from the light of public scrutiny.  It probably will come to nobody's surprise that the city clowncil of Scottville was one of the offenders, their recent history of silencing the public at meetings and running afoul of the city charter illustrates their disdain for their electorate and all others.

On August 28th, the clowncil met to consider actions and had at the end of their meeting, a closed session put on the agenda without any further explanation in the packet of why it was being conducted other than legal opinion on potential property RFP.  One look at the purposes allowed by the OMA to go into closed session has nothing that covers such a rationale.  The eventual motion to go closed is captured precisely in the minutes (see p. 3):

But agendas do not need to cover the permissible purpose in full, for those at the meeting in crafting the language for the motion to go into closed session have the final say.  Fortunately, Scottville citizen Eric Thue recorded that meeting as I was entrenched at Ludington City Hall exposing and berating their most recent overt fraud scheme on Ludington taxpayers.  The video shows their well-paid but truly negligent city attorney from Grand Rapids trying to use section (h) for the purpose, which allows a public body to consider material exempt from discussion or disclosure by state or federal statute in closed session.   

The attorney, and the rest of the rubes, fail to explain or show why his opinion is exempt from disclosure in this instance.  Zero officials are on record for requesting the opinion, whatever it is concerning; zero officials are on record claiming any sort of attorney-client privilege for this opinion.  If it is just one attorney's opinion over what may be a potential property RFP, can anybody, anybody, explain why it needs to be a privileged communication when request for proposals (RFP) on behalf of a city council/commission are always considered a matter of public record?  And when they aren't treated as such, why is it almost always a sure sign of corruption?

Had I been a member of that commission (for any commission with me on it wouldn't be a clowncil), I would have first asked why we were spending a lot of money in legal fees on a written legal opinion of an RFP, then ask why would we justify going into closed session to discuss an RFP that has never been given any kind of legitimate attorney-client privilege by the commission, and if I heard that the attorney, city manager, or other official invoked a privilege for the City of Scottville that was never theirs to give, I would suggest they familiarize themselves with their actual powers, then chastise them for making the rest of us look like a clowncil by their use of the commission's power to keep secrets that need not be kept from the people of Scottville I represent.

Describing why you as a public servant are closing discussion in front of the public is far from being a novel concept.  One who reads the original rationales behind enacting the OMA in Michigan during the mid-1970s realize that the government intrigue in the Watergate scandal needed to be addressed as it was emblematic of what was happening across the country.  Courts would consider interpretation of the OMA falling on the side of having the strictest open government implications.  

In a 2003 decision (Herald v Tax Tribunal/CoGR), the Michigan appeals court ruled in situations such as these: 

"(the public body) must state on the record those documents it deems exempt under the FOIA together with the associated FOIA exemption justifying the document's nondisclosure, describe those documents unless description would defeat the purpose of the nondisclosure, and complete this process on the record in open session before conducting the closed hearing."

This reasoning has been used in many court decisions since, including some within the last year.  If someone can suggest why a request for a proposal, normally part of a fully transparent competitive bidding process, should have any part of it be exempt let alone all of it, please give an example and explain why.  

The Ludington Area School District (LASD) didn't even match Scottville's standard at their last gathering, and I mentioned it in the last paragraphs of the recap of the 8-21-23 meeting.  Scottville at least gave us a very minor indication of what material they would review (personal property RFP), but the LASD chose just to claim they had a basis to shut the doors for attorney-client privilege. 

But they do not.  The OMA allows the public body to consult directly with its attorney in closed session under section 8(e), but restricts this to only cover pending litigation and even then, only when it would be financially detrimental to them if it was discussed openly.  Attorneys can be invited into closed sessions to help with the permissible purpose at hand but are ethically bound not to go beyond that.  

To my knowledge, the district has no pending lawsuits and subsequent communications with the superintendent indicates that he and the board did not receive any written opinion for their review, claiming the record I sought (which I presumed was a written legal opinion) did not exist.  Furthermore, he said:

"However, at times we have to have discussions with our attorneys. Those discussions can be protected by the Board's attorney-client privilege and the closed session was in accordance with 15.268(1)(h), which was stated before going into the closed session."

The OMA does not allow for 'protected' discussions between a public body and its attorneys, it allows them to discuss pending litigation with financial implications, to help review and consider written material that is legitimately exempt from disclosure to the public (using the Herald standards in open session), and otherwise assist them with the other limited purposes allowed.  The school board failed to do so.  

As the superintendent denied my FOIA request for the record(s) they claim was exempt, they will hopefully take up my appeal at their next meeting as I have asked them to do, otherwise this will go to the local court and I will win.  If none of those school board members accede to providing at a minimum the information that our courts have claimed is necessary beforehand to go into closed session under 8(h) and a public apology for their omission of this at their last meeting, they may find themselves in the same position as Councilor Les Johnson has found himself for raising our taxes by $300,000.  

[Freedom Seeker]

... "squeak and skitter about along with the rest of their cockroach colleagues in the darkness of their self-imposed exile from the light of public scrutiny ...." That is the best description I've read for the apparent corruption going on in all the local government boards you are reporting on, X.

Imo, until a majority of the public gets on "board" or on their boards arses to be interested or affected by these decisions, you may spend your life fighting an unending battle, but I think you are right, and I think you are one man making progress with a few more jumping on board now and then. Thank you Eric Thue, and others who are now seeing these issues as well!

[XLFD]

It probably won't get me the Pulitzer Prize for poetry, but I thought it was good imagery to describe our typical local government members, the few exceptions to the rule are unfortunately too timid to clean the kitchen.  The recalls happening in Scottville, PM Township, and potentially Ludington (if Councilor Johnson's appeal of the Election Commission's decision is denied on September 19th) are much needed calls for the Orkin professional to come in and spray.  The exterminators still need to show up, however.  It looks promising in PMCT that there will be changes made but they are farther along the process. 

In Scottville, once they get the signatures authorized sometime in the near future, one hopes that a good Spencer alternative shows up for the May election and battles her for what will be a 6 month term, renewable in the fall.  Thue is out of those considerations since he is the only person that is going to be on the ballot this fall for the recently open term and will be on the commission then, fighting against the entrenched quorumption known as the current city clowncil.  My poetic license allows me to crash quorum and corruption together and get away with it (except from that annoying spell-checker looking over my shoulder), much like I ran clown and council together for poetic effect.

[Willy]

Thanks X. This kind of information never reaches the printed pages of the LDN or screen pages of the MCP. Very good information to know. Every time these people pull something like this, I wonder if they are stupid, ignorant or just don't care how they carry out their duties and obligations. They are like a pack of rogues running our institutions. I also liked your comparison to scurrying creatures.

[XLFD]

I second Freedom Seekers appraisal on your political cartoon.  November of this year may be a pivotal election time for a couple of local public bodies that have had recent issues reported in these internet pages.  PM Charter Township may see a transition over to a new person as supervisor (and treasurer) which may rescue them from their recent funk which triggered two recall elections against the perceived problems.  In Scottville, Eric Thue will win their open commissioner seat barring any last-minute historic write-in effort takes place.  If Thue can weather the unprincipled quorumption over the next year, 2024 may be a year when other changes take place.  Maybe Make-believe Mayor Marcy Spencer will be recalled in May, maybe she will just be voted out in November, along with other cockroaches on the commission who shouldn't be there.  

You can either cross your fingers for these developments or keep that trigger finger on your Raid, Torch version, to keep them in view.

[Freedom Seeker]

Excellent cartoon, Willy!