Ludington City Council Meeting, November 11, 2024: Where There's Smoke...

[XLFD]

A look at the agenda packet of the 11-11-2024 Ludington city council meeting shows no true action items, but then one looks at the video of the meeting and sees it lasted over 72 minutes, indicating that citizens may have co-opted the agenda, and they did.  Of note, it was the first meeting where the new Ludington City Manager Kaitlyn Aldrich took her seat.

Other than a proclamation recognizing poll workers near the meeting's end, they would have another first reading of the 'Parks smoking ordinance' and another roundabout debate featuring councilors Large, Terzano, and Stibitz, ending with another stint for it back at the committee level.  The intent of the proposed law is to prevent outdoor smoking at city parks, but it is so misguided and mangled that one hopes it eventually dies of lung cancer.

Personally, I am not a smoker, I do not encourage smoking, and I think it's a nasty habit that has the potential to negatively affect other people; but I also believe that adults can choose this nasty habit and enjoy it when they are not negatively affecting others.  Someone sunbathing at Stearns Beach may light up the smelliest cigar ever, but if there is nobody close enough to them to even smell it, they should be left alone.  With this law, they could be harassed by beach patrol and told to move to the parking lot and/or the public sidewalk, where a lot more other people are, but the proposed law says it is legal for smoking.  

The rationale used for this law is strictly based on health issues, so if councilors seriously need to draft some law to feel good about themselves, let's draft a law that recognizes the right to smoke and the duty to do so out of the reasonable range of other non-consenting folks outdoors (such as a radius of 30 feet).  And while you're at it, tell us about how all that smoke coming out from the top of the SS Badger is so healthy for Waterfront Park-goers when there is a south wind with a bit of a downdraft.  If you've ever got a good whiff of that, outdoor smokers don't seem all that bad.

But the public would take the spotlight during the comments this evening, with former longtime city attorney of Scottville, Tracy Thompson giving an inspired speech at the beginning of the meeting (9:50 in) that sent shock waves against the proposed Unified Development Ordinance (UDO) and how it would fundamentally change the character of Ludington by allowing apartment complexes virtually everywhere and fly contrary to many of the restrictive covenants that are in effect throughout the city, likely making legal challenges in the future when this UDO zoning structure and policy come into effect.  This is definitely worth listening to if you're still confused about the UDO and it's aims.  "A lot of work for attorneys," he would end with.

It was a tough act to follow but I had something to say about a violation of the Open Meetings Act by the Personnel Committee and the public trust by our police chief, one of the dodgiest dogs I've ever ran into:

XLFD:  "According to the notes from the October 28th Personnel committee meeting, the committee granted Officer Marshall Law a residency waiver for the city's requirement that police officers live within 20 miles of the city limits.  The committee does not have that power.  Section 2-31(d) of the city code says:  "standing committees are not delegated, and shall not exercise, any governmental or proprietary authority or perform any governmental or proprietary function."  The personnel committee's duties listed in that section include reviewing and recommending actions regarding finance and personnel issues and they have no power to grant waivers of employee requirements.  This city council does, not a lesser body that by its construction does not have such authority, as it would then have to comply fully with the Open Meetings Act, which it doesn't in practice.  Before declaring Marshall Law a city cop, this public body needs to waive that residency requirement.  Please add it to the agenda and consider that tonight.

A year ago, Chief Jones told local media that the LPD would rely only on private donations to purchase a [K-9 unit] and the equipment associated with it, including a vehicle.    The Friends of Ludington Police, a nonprofit organization chaired by our former city manager was committed to funding the costs of establishing and maintaining a K-9 program.  At committee level last year, Chief Jones said that the first year's expenses of the K-9 unit were fully funded, and yearly expenses would be covered by the non-profit Friends of LPD group.  The chief said as a direct quote in the media:  "We are not expecting the funds for this unit to come from the city’s general fund."

Imagine my shock and surprise when I see in the payment of the bills, payments made from the general fund purchasing $79 worth of dog food and $727 worth of pet insurance.  Thief Jones is not only a public extortionist, along with our city attorney, and a plagiarist, but also a bold-faced liar, which I already knew from his past fraud and deceit at the expense of our city's integrity. (END comment)

A councilor would question my interpretation of the OMA at the end of the meeting, but not this violation, and of course, they would not do the correct thing and do what the Personnel Committee did without authority to do so.  It's as if they are daring someone to call out their impropriety at court rather than do a simple correction. 

It's sad that when me and another citizen called out the city's standing committees for three ways they were breaking the OMA, that they have reverted back to outright disobedience of all three recently, three years after they agreed they would correct them in our settlement terms.  These people aren't breaking the law easily and repeatedly to do business that improves your city experience, they're doing so because they feel above the law.  

As for Police Thief Chief Jones' charges to the general fund for the new K-9 unit, the misappropriation would never be addressed, meaning that they were caught and no defense that they could muster would sound reasonable.  Jones has no honor; he will borrow money from the general fund even after he tells us that that will never happen.  

Following these two firebrands were a couple of sycophants, Gene Kyle, city official, equating the city as being transparent just because they record their meetings (try to make a comment on social media, FOIA a police body cam, and listen to and verify how they routinely violate the OMA, Gene, and then get back with us and tout the city's transparency then).   Then Chuck Sobanski, touting his own faux title of Fourth Ward mayor, formally welcoming the new city manager.

But then it was back to firebrands.  Jeff Henry continued addressing the legitimacy of the Michigan Waterways Commission, an entity that has filtered down a lot of money to the City Marina and Harbor View Marina in Ludington.  In his court-of-claims case, he is making headway in jousting with the DNR over the MWC, originally with a show-cause complaint in an effort to affirm the repeal of the MWC that happened in 1959, never to be reversed, and a recently filed monetary claim.  The end result could make our public marinas actually and truly operate as enterprise funds, rather than be generously subsidized by a legally nonexistent entity.  view it at 19:30 into the video.  

The last comment came from Anna (no last name given but for some reason, the mayor didn't harass her as he has done to others).  She would ask other questions about the UDO after complaining about the significant blight in her Third Ward neighborhood.  She and Thompson would be reminded that a UDO meeting was scheduled to be held the next day at 4 PM and were encouraged to attend and learn.

Bob Budrow, noted local realtor, would start off the second comment period with warnings about the new UDO and how it is viewed by "opportunists", those who would come in and exploit any laxness of the UDO as they have done in other communities when a UDO comes in and replaces traditional restrictions in the old code and in restrictive covenants.  

Three others beside myself would talk.  Jeff Henry would thank the interim city manager for access to city records and for listening to his concerns.  Les Johnson would give updates from what the county was preparing to do the next day, and Lyla McClellan let us know that the canvassing board was still counting votes (they should have a result for the write-in filled city treasurer race pretty soon, for similar reasons they would need even more time to figure out the MCC School Board write-in situation.  For me, I gave another instance where councilors were playing fast and easy with the OMA.  

XLFD:  "On page 35 of the packet you each have a copy of the October 29th meeting notes of the Parks Committee, where you have the presence of all three members of that committee along with Councilor John Terzano.  Four of our seven members of the city council was there, a quorum of the council, and the notes reflect that they were discussing matters of public policy likely to come before this council at a later date.  This included the smoking ordinance that we had the first reading of tonight, where we should note, Councilor Terzano had quite a lot to say about at the October 14th regular meeting.

Back in 1982, legendary Attorney General Frank Kelley originally issued opinion #6074 on the Open Meetings Act, an opinion that has been quoted by many Michigan judges, AGs, and public bodies since in rendering legal decisions and setting policy.  It says:  "if a quorum of the members of a public body engage in discussions or deliberations, or otherwise enter into the process of addressing and resolving particular issues of public policy pending before that public body, at such conference or gathering, discussion may not be conducted without complying with the Open Meetings Act."

There was a gathering of a quorum of the Ludington City Council, present for the purpose of deliberating toward a public policy, as shown by the meeting notes.  Whether all participated directly or indirectly is not relevant, a quorum of this council was present and policy matters were discussed, this council is a public body, and the meeting should have been noticed as a meeting of the city council {END comment].

After this, Councilor Winczewski would alert us about how great the city was because of our trees, without explaining why some of our county's eastern townships with a lot more trees per mile weren't maybe greater using that logic.  She did this before Vietnam veteran John Terzano (thank you for your service, sir) put the bamboo splinters under the fingernails of the council's declared enemy, perhaps because he was additionally unsettled by the Budrow and Thompson statements against the integrity of his beloved UDO: 

Councilor Terzano: (1:10:00 in) "As what was said before, I was at the Cemetery, Parks, and Recreation Committee-- as a member of the public.  As a member of the public, I can attend any open meeting that I want; what I can't do is engage in the discussion, which I DID NOT DO, MR. ROTTA!  Why don't you get your facts straight:  I DID NOT SPEAK AT THE MEETING!  OK?! 

 

Prompting an answer, I asked a simple question, pointing to the lectern:  "Can I defend myself?" He quickly said "No".  "Then please allow me to sit here and be attacked," I diplomatically offered.  Mayor Barnett would jump in then and stop Mr. Terzano from making a bigger fool of himself.

For had I been allowed to elaborate, I would have granted him some leniency, rather than yell at him.  His idea of what the OMA allows and doesn't allow in gatherings of a quorum of a public body is slightly off, and I do not hold him at fault for his common misperception.  I offered a standard opinion by a respected attorney general that has withstood changes in the OMA over time, here I will offer case law to show that Mr. Terzano's viewpoint is not correct.  

But first off, his claim that he was there as a member of the public is meaningless; the fact exists that he is a member of the city council and he can't remove that hat when he goes to a meeting where three or more of his peers are talking about public policy to eventually come before the full council for vote.  This gathering, a so-called advisory committee meeting not noticed as a city council meeting, had a quorum of that latter public body in attendance.  

In Ryant v. Cleveland Twp. (2000), the appeals court developed a legal test using the OMA statute and AGO 5437 for what is a 'meeting' of a 'public body':  "the following elements must be present:  (1) a quorum, (2) deliberation or rendering of a decision, (3) on a matter of public policy."

At the committee meeting we have established there was a quorum of the city council present, and that among other things, they were discussing the outdoor smoking ordinance, a matter of public policy for the council to decide on at some point.  With these two as given, we just need to show that deliberation occurred in this situation.  

As noted, Terzano had expressed earlier in October that changes should be made to the ordinance in a regular council meeting, and so his presence in the audience, even if he wasn't actively engaging in deliberations, was passively affecting the discussions, witness the notes saying:  "The committee believes the changes address the concerns that were brought up by City Councilors...".  One presumes that Terzano, the prime advocate for changes, was involved behind the scenes helping redraft the ordinance, and we presume for simplicity's sake that this was done lawfully.  

Choose any meeting of the council and you will find that, with the exception of the most controversial topics, a quorum of councilors usually has no input on a matter of public policy.  One can't recall when a consent agenda decision has elicited a quorum deliberating over it.  As seen in the packet's agenda of the last meeting, all of the handful of other decisions were made without deliberations being made by a quorum of councilors.

Which has us look at Mackel v Markey (2016), where three members of a public body sued the other four members.  In deciding this issue involving email 'meetings', the appeals court opined:  "The language of the statute does not state that the quorum is required to deliberate, but rather that the quorum be convened for “the purpose of deliberating.” MCL 15.262(b)...  if we were to read the statute in question as requiring the entire quorum to actively engage in the discussion, we would be reading a requirement into MCL 15.262(b) that it does not contain."

The court would find the defendants guilty of violating the OMA in a majority of the five instances that occurred, all with just the presence of a quorum in 'meetings' where one or more were passively involved.  Terzano did not have to attend this meeting and risk OMA violations that seem apparent, he could have listened to the meeting's recording, set up his own recording equipment then leave, asked a committee member, or be satisfied that the notes reflected what happened.  Instead, he showed his ignorance by saying that he could not violate the OMA if he did not speak at a meeting where the three elements of a meeting are present.  It's a risk that shouldn't have been taken when he had known that he would be attending, he could have had the city clerk notice it as a city council meeting where no decisions were scheduled to take place.

The city council has a city attorney, imperfect and crooked as he is, and two members that have been longstanding members of the bar association.  They shouldn't need constant primers on the Open Meetings Act and they shouldn't be constantly in blatant violation of it, as has been the issue these last two years especially.

[Willy]

Thanks, X for the information regarding the Council meeting. I think your take on the smoking ban is accurate. It makes no sense banning smoking outdoors surrounded by fresh air. Anyone who has been at the beach during fourth of July celebration remembers how the air is thick with toxic fireworks smoke and of course when the Badger's coal dust smoke filters thru the air filling the area and causing all to breath in air smelling like a blacksmiths shop. Are these smokey conditions being addressed. Of course not, because they are attached to fun activities that bring money into the community.

As far as the K-9 situation is concerned, I cannot understand why a small town would need such a service. I can think of any number of reason a large city would require trained dogs to help law enforcement but not a back water town like Ludington. A K-9 unit requires special training not only for the animal but also for the dog's handler. Both are expensive and time consuming. Not a good idea.

The OMA situation in Ludington seems to be an open wound that will never heal as long as there are politicians who have no compulsion to do the right thind and thinks the public can be damned. I appreciate your dedication, X, to get these politicians to get their act together.

The picture below is an actual photo of just how much the smoker Badger can affect air quality on or near the beach. I have other photos that are even worse but this one makes a good point of how far reaching the effects of smoke can be.

[XLFD]

Wow, the black smoke is looking denser the further it gets away from the ship, you sure there is no doctoring going on with that picture?  Speaking of doctors, the ordinance as noted indicates only the negative health effects of secondhand outdoor smoke, yet one using such logic should be also suggesting that our internal combustion engines in our cars and trucks shouldn't be operating in our public spaces either (some of the more radical like Moonbeam may already believe that).

Those who aren't so radical might say that auto exhaust has less particles and emits less carbon monoxide than a similar amount of smoke from cigarettes, and that is likely true; however, you won't survive seven minutes in a closed sizable garage with a gasoline-powered car running, and yet most could play a full night of Euchre with three of their buddies who smoke in that same garage and survive with little more than a headache at worst.  

Look out for the future news story where the new K-9 unit gets sicced on a smoker who happened to be in the wrong place, as our young cops haven't historically been known to understand the concept of proportional response or excessive force.

[Willy]

Nope. No doctoring. The only way I can explain the difference is that the wind was out of the SW so the smoke to the right was actually much closer than the smoke to the left.

The picture below has the same variations in darkness. It might be the amount of smoke coming out of the stacks at any one time. Any way these photos do show your assumption regarding a downdraft keeping the smoke from rising.