Rotta v. Henderson, Holman, et. al., OMA 2: PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

[XLFD]

STATE OF MICHIGAN

IN THE 79^th DISTRICT COURT FOR COUNTY OF MASON 

  File No.:    13-14818 GC                                      Hon. Peter J. Wadel

 TOM ROTTA,

 137 E  Dowland

Ludington, MI 49431

[phone]

Plaintiff, pro se, 

Vs. 

Mayor JOHN HENDERSON, City Councilors KAYE HOLMAN, WALTER TARANKO, LES JOHNSON, WANDA MARRISON, NICK TYKOSKI, and GARY CASTONIA

Defendants,

Allen C. Vander Laan, (P33893), Andrew J. Brege (P71474)

CUMMINGS, McCLOREY, DAVIS, and ACHO, Attorney for Defendants

2851 Charlevoix Dr. S.E.- Suite 327

Grand Rapids, MI 49546

[phone]

 

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 

I. Introduction

 

Plaintiff is a former employee of the City of Ludington who resigned from his volunteer firefighter position late in 2008 due to what he saw as a growing culture of corruption that has only gotten worse in that public entity since his departure.  Plaintiff started the website The Ludington Torch in 2009 as a supplementary news agency of the area that could better bring public awareness to the problems in the City of Ludington and other regional government agencies. 

By 2010, the Plaintiff was confronting some of the non-transparent policies of local governments and in 2013 prevailed in court or favorably settled with the City or its agents in matters of the Open Meetings Act, the Freedom of Information Act, and in a Federal lawsuit regarding a draconian policy that Ludington passed which violated First, Fourth and Fifteenth Amendment rights of himself.

In March of 2013, Plaintiff confronted a meeting of the Ludington Area School Board noting that the meeting notice wasn't posted at their principal office, just like what happened here.  Like in this case, Plaintiff notified the board that their meeting was not properly posted and would be in violation of the Open Meetings Act accordingly, if they continued with that meeting.  They properly rescheduled their meeting so that they would not be in violation of that meeting, unlike what the Ludington officials did here (Exhibit A).  As in this case, they tried initially to establish that they had put up a notice, but the dust on the window where they said it would have been showed there had been nothing there for quite a while.

Just two months later, on May 20, 2013 there was no notice posted at the City's principal office, the City Hall at 400 S. Harrison, before a special meeting of the Ludington City Council.  Before that meeting's business was conducted, I raised that as a point of order, and told them the stipulations of the law as regards the Open Meetings Act, how they could avoid breaking that law, and the liabilities they could face by making decisions and deliberations at that meeting.  It went unheeded, and the normal business went ahead without any further comment regarding my caveat.

As one of the defendants was running a contested race for mayor (Councilor Taranko), I withheld filing this lawsuit until after the November elections so as to make this action seem less political, as I could still do so within statutory time limits. 

Our media, the defendants, and their counsel, have framed this lawsuit improperly (perhaps by design) by focusing on non-sequiturs.  They look at the undisputed fact that the public notice was not posted at the principal office the morning and afternoon of May 20th, and believe the meeting was properly posted because it was publicly noticed elsewhere, and have posited that the city clerk had posted it on May 7 and somehow, sometime, it had disappeared in the intervening period since they tacitly agree it was not posted the day of the meeting.

The defendants look at the undisputed fact that the lack of proper public notice at their principal office existed that day and called to the attention of the City Council by the plaintiff complete with warnings concerning violating the OMA before they commenced with deliberating and deciding public policy.  The defendants say their ignoring of the posting insufficiency and of the warning was not intentional and willful, while it most certainly was.  In their brief they fully ignore this aspect of the suit.  This brief will clarify why the defendant's motion for summary judgment should be dismissed, and clarify the damage done to the public, represented clumsily by the plaintiff, for the decision to go through with an unlawful open meeting by defendants. 

II.  Statement of Facts

On May 6, 2013 meeting, the Mayor asked to change the regular meeting time for the May 20 meeting from 6:30 PM to 1 PM, it was unanimously voted for.  All litigants were present.  It was recorded, this is Video Exhibit B  (available at library website or as a link this plaintiff can supply this court)  and File Exhibit B (same as Defense Exhibit 1) is that meeting's minutes as recorded by the City Clerk, both on the attached CD.  City Clerk Luskin, who is not a litigant, has signed an affidavit saying that she posted a public notice at the City Hall, sent a notice to the local paper to publish a notice for that meeting, and posted notice on the City's website.  Plaintiff recognizes the last two actions as factually provable by the record, and the first as potentially so.

On May 17 and 18, no mention of the Monday meeting was in the Ludington Daily News or the Mason County Press, nor was there an agenda at that time on the City's website for the meeting.  Both regularly issue an article on the agenda of the upcoming meeting on the Friday or Saturday editions before the meeting.  The Community Calendar in the May 18 edition of the paper (Exhibit C) shows no meeting on May 20 for the Ludington City Council, though they mention many lesser board meetings. 

Thus there was confusion to the public as to what was going on, depending on how they got their information on public meetings.  According to the website notice and the previous meeting vote, the May 20 meeting was to meet at 1 PM; the newspaper had no meeting agenda or meeting taking place on May 20 (as of May 18), and according to the bulletin boards at the Mason County Courthouse and Ludington City Hall on the morning of May 20, the meeting was still scheduled for 6:30 PM (Exhibit D, bulletin board pictures). 

A meeting did take place at 1:00 PM to accommodate the third graders, and an agenda was available at that meeting which shown that they did have business (passing ordinances, a resolution, and approving a contract bid-- see Exhibit E, May 20 meeting agenda) to take place that required there to be an open meeting, properly noticed.  After the Plaintiff made a public comment he stated: 

"Section 5(4) of the Michigan Open Meetings Act states that for a rescheduled regular meeting of a public body, a public notice stating the date, time, and place of the meeting shall be posted at least 18 hours before the meeting in a prominent and conspicuous place at the public body's principal office.   

A perusal of the City's meeting announcement board directly behind me had no such public notice at 11:20 AM this morning, or presently, for this meeting.  Hence, to go forth and have deliberations and make decisions on public policy in this meeting would be a direct violation of the Open Meetings Act and I suggest the city council do what's morally right and amend its agenda accordingly."

The only response to this statement was Defendant Henderson immediately thereafter saying "Duly noted."  The meeting went forth as planned with all deliberations and votes taking place that were noted on the agenda (see Video Exhibit F, May 20 meeting, relevant recording starting at 38:00 in (link available at library website on request), also File Exhibit F, minutes of the May 20 meeting, same as Defense Exhibit 7).  No effort was made to refute the assertion of the lack of a posted notice by any defendant or any other officer.  Nor did the City Clerk or anyone else say publicly at that point or at anytime until after this complaint was filed nearly six months later that it had ever been posted at the City Hall. 

III.  Standard of Review:

A motion for summary disposition must necessarily fail if the defendants, as the moving party, do not establish the absence of any genuine issue of material fact or if the plaintiff, as the opposing party, establishes that there is a genuine triable issue. Lyons v. New Mass Media, Inc., 390 Mass. 51, 453 N.E.2d 451 (1983). In other words, if any material fact is disputed, summary judgment must be denied. 

In applying this standard, courts view “the inferences from the factual record … in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

The party moving for summary disposition has the burden of showing that there is no genuine issue of material fact.  Thus, for purposes of this motion, Plaintiff is entitled to the presumption that everything pleaded in the complaint is true and to every inference that may be drawn therefrom.

IV.  Argument and Analysis:

 

    A.  The Open Meetings Act (OMA) standards for posting proper public notice is clearly established by legislation and was clearly not followed by defendants on May 20, 2013

 

“[T]he purpose of the [Open Meetings Act] OMA is to promote governmental accountability by facilitating public access to official decision making and to provide a means through which the general public may better understand issues and decisions of public concern.” Kitchen v Ferndale City Council, 253 Mich App 115, 125; 654 NW2d 918 (2002).  This accessibility is denied the public when special meetings are held without appropriate, accurate, and timely notice given to the public.

The necessity of public notice is stated in the preamble of the OMA MCL 15.261 et. seq.:  "AN ACT to require certain meetings of certain public bodies to be open to the public; to require notice and the keeping of minutes of meetings...".  The timeliness and parameters of such notice are further articulated in the OMA in sections 4 and 5.   

Consistent with the Legislature’s clearly expressed preference for transparency in government, the OMA also repetitively insists that a public body apprise the public of its meetings.

According to subsection 4(b), “A public notice for a public body shall always be posted at its principal office..."  Thus, the public body can conform with all other statutory and charter provisions for satisfying public notice, and still not properly notice the meeting if they fail to post at it's principal office.

Subsection 5(1) dictates that “[a] meeting of a public body shall not be held unless public notice is given as provided in this section by a person designated by the public body.”  Therefore, if a public body is apprised that proper public notice in accordance with law is not fulfilled, they must either cancel the meeting or adapt their gathering to something which cannot be defined as a 'meeting' under the OMA.

A “special meeting,” like the meeting at issue here, demands the posting of “a public notice stating the date, time, and place of the meeting . . . at least 18 hours before the meeting.”

When construing a statute, this Court must ascertain and effectuate the Legislature’s intent, as expressed in the words of the statute. Bloomfield Charter Twp v Oakland Co Clerk, 253 Mich App 1, 10; 654 NW2d 610 (2002). In discerning legislative intent, we endeavor to give effect to every word, phrase, and clause in the statute. People v Hill, 269 Mich App 505, 515; 715 NW2d 301 (2006).  By enacting the OMA, the Legislature signaled its intent that public bodies would endeavor to foster public participation in government.

The objective of OMA is to permit citizens to witness and actively participate in the mechanics of their government. But citizens unaware of scheduled meetings are effectively shut out of the decision making process. To maximize the public’s ability to learn of pending governmental actions, the Legislature selected specific public notice periods for all public meetings, including an 18-hour period applicable to special meetings. The definite notice periods identified in the OMA embody legislative judgments concerning the window of opportunity that must be made available to the public to learn of an upcoming meeting.

Construing the OMA as a whole and harmonizing its terms, one should conclude that the Legislature originally intended that the public have access to a “public notice” for the entire designated 18-hour period before the meeting.  This was re-emphasized in 2012's amendment to OMA law specifying "A durational requirement for posting a public notice of a meeting under this act is the time that the notice is required to be accessible to the public." MCL 15.265(7). 

A public body posting a notice on their interior notice board just before closing on Friday for an 8:00 AM Monday special meeting has thereby clearly not complied with the posting requirements, as the public has not had any opportunity to see the notice, and especially not for 18 hours. 

Likewise, if the public body puts a public notice up, and it disappears off that board sometime before the meeting, the posting requirements cannot be said to be in compliance unless that public body can show that it was available to the public for at least 18 hours.  One could adjudicate that its absence in any of the immediate 18 hours before the meeting would also show non-compliance, particularly when a conflicting schedule is posted. Courts are bound to discover and to apply the Legislature's intent, when interpreting statutory mandates. In re Certified Question, 433 Mich. 710, 722; 449 N.W.2d 660 (1989).

Here, the City of Ludington incontrovertibly had notice for only the 6:30 PM regularly scheduled meeting on its notice board on the morning of May 20.  The Clerk maintains by affidavit that she posted a notice of the special meeting time on the board on May 7.  One must therefore conclude that either the public notice was removed without authorization between May 7 and May 20, or that the City Clerk was mistaken about her actions on the affidavit notarized on May 21.

Neither of those two possibilities indicate that the public posting requirement for the Ludington City Council's 1:00 PM meeting was  complied with as per OMA section 4(b), and ergo, for them to meet and conduct deliberations and make decisions at that time was in violation of the OMA, and was intentionally done after plaintiff gave his own ‘public notice’ of the problem.

 

B.  Lack of public notice is not the main issue here, but it is a disputed issue  

It should be noted that the plaintiff does not believe there is a case to be made that the lack of public notice's absence from the city hall board was intentional, it was either an accidental oversight or an unlawful removal of that notice by an unauthorized individual. 

Section 6.1 of the Ludington City Charter (Exhibit G) states:  "Special meetings shall be called by the City Clerk on the written request of the Mayor or any two elected Council Members.  Public notice of special meetings shall be given in accordance with the Michigan Open Meetings Act (MCL 15.261 et seq., MSA 4.1800(11) et seq.)... Such notice shall be delivered at least eighteen (18) hours prior to said meeting. Business to be conducted at a special meeting shall be limited to the business indicated in the request and included in the notice of such a meeting." (Exhibit G, emphasis added).  

The May 20 meeting was a rescheduled regular or special meeting by MCL 15.265(4) and thus required the 18 hour notice with the business to be conducted therein included in the public notice of the hearing by Ludington's City Charter.  The business of this meeting was not published thereon, or in any publication, which deprived the public from knowing what was to take place at the May 20 meeting, if they had indeed caught the notice on the City's web page or the small blurb hidden in the May 7 newspaper. 

Such denial goes against the City Charter's rules which is authorized by  MCL15.261(3):  "Nothing in this act shall prohibit a public body from adopting an ordinance, resolution, rule, or charter provision which would require a greater degree of openness relative to meetings of public bodies than the standards provided for in this act".   The charter stipulation that the city needs to include the business to be conducted at a meeting is thus relevant when figuring whether the OMA has been violated.

 

"The OMA should be construed broadly in favor of openness; exceptions should be construed narrowly, with the public body bearing the burden of proving the applicability of an exemption" Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 223, 507 N.W.2d 422 (1993).

 

Furthermore, there is an actual disputed issue as to whether the notice was ever posted at the Ludington City Hall.  Defendants submit an affidavit by Ludington's City Clerk who was assigned that task, notarized on May 21, 2013, saying that she posted the notice in the afternoon of May 7, 2013.  They have shown no evidence that the City bulletin board had that notice for any amount of time, and concede that the public notice was absent on the afternoon of May 20. 

 

Accepting these two 'facts' as true, the posting on the 7th, and the lack of posting on the 20th, one has to come to the conclusion that the notice was removed from that board in the interim.  If it was removed without authorization, then a misdemeanor occurred (MCL 750.491).  The plaintiff, knowing only the facts that the notice was absent on May 20, had no knowledge of the City's claims of posting any notice until they answered his filed complaint and saw the clerk's affidavit saying she posted on May 7.

 

The City Clerk and at least the City's Assistant City Manager (who notarized the affidavit) knew on May 21, 2013 that the two 'facts' should have indicated criminal activity in creating that affidavit.  They, and all other knowledgeable city officials, had the responsibility, the duty, to consult with an available infallible witness to determine how this crime was committed.  Particularly, since an individual had made a public accusation on May 20 that the public body had failed to abide by the law and was liable for violating the OMA-- and willfully if they went ahead with the agenda's inclusions, which they did.

This infallible witness available to them is the City's security system camera in the City Hall lobby pointed at the posting area, which is maintained by the Ludington Police Department (pictured in Exhibit H, apparent view from Exhibit I).  After Defendant's brief has maintained the veracity of the clerk's affidavit and the belief that once posted, the City's requirements for posting notice is met, even foreseeably if the notice is taken down before it should, Plaintiff has asked for 1) a 'still shot' from that particular camera on the afternoon of May 7, 2013 showing the City Clerk posting notice. 2) a 'still shot' from that camera on May 20 showing plaintiff  looking at the posted notices. 

They could not produce either, claiming neither existed (Exhibit J).  Plaintiff was also prohibited from seeing a current view from the camera, being told that the requested 'still shot' did not exist, but said I could come in to watch recent video.  This denied plaintiff's request for either a still shot or hard copy of the video, and makes plaintiff unable to supply a definitive view from the camera to this court due to the public records being withheld unlawfully by the defendants.

However, as Exhibit I shows, the camera is centered on the north door of the City Hall and was trained there before that day.  At the meeting of March 24, 2014, the defendants, minus Taranko and Henderson who were not re-elected this year, vetoed an appeal to them to supply this record in their capacity to handle Freedom of Information Act (FOIA) appeals (Video Exhibit K, record of the 3-24-2014 meeting available at library site, File Exhibit K, meeting minutes, pending release when made available and approved). 

The available ‘still shot’ or video file is a “writing” as defined by the FOIA, and should be readily available.  This shows a willingness to this day to block crucial evidence as regards to their having participated in an illegal act, i.e. the intentional violation of the OMA, as per section 12 of that act.  This signifies a degree of obstruction of justice worthy of notice, by defendants.

So if the City Clerk posted notice on May 7, swore an affidavit on May 21 to that effect, why did city officials fail to fulfill their duty to find out who took down that notice through the camera footage, and prosecute them forthwith for this misdemeanor offense?  Why did they not save the footage of the City Clerk posting notice on May 7, knowing there was a good possibility of a pending lawsuit against them?  Why did they not observe the recorded and stored video before they either recorded over it or otherwise got rid of it, so they could find out what happened to their notice? 

The only logical conclusion can be is that the City Clerk never posted such notice and therefore, that nobody took it down as they infer.  The perfect witness, the lobby's security camera with that period's footage, would tell us a much different story than what the defendants would have us believe. 

The question of posting is thus reduced to the word of the City Clerk against the word of a common citizen who saw only notice of a May 20 meeting at 6:30 PM on the board, instead of the impartial surety of the videotape, because of the conspiratorial (MCL 750.157a) actions of the defendants' fellow city officials in not saving the video to prove such affidavit and discover what happened to notice allegedly posted, along with defendants and their fellow officials blocking a FOIA request to affirm that it would have indeed caught all action that happened at the bulletin board.  Contrary, to the defendants' assertions, plaintiff can and does dispute the premise that meeting was properly posted thirteen days prior, and wants answers as to why this vital evidence was not preserved, and why salient camera footage is being held unlawfully from plaintiff’s FOIA request by defendants and other city officials.

At the same time the clerk’s affidavit was made, the footage needed to be preserved, as it wasn’t it shows complicity among the responsible officials of covering up the unassailable truth.  I submit that the only meeting for May 20, 2013 ever posted on that board was the 6:30 PM meeting in the upper left corner on the morning of May 20 (which was never held at the meeting site), making the 1:00 PM meeting which took place, where public policy was deliberated and decided upon, an illegal open meeting, where each of the seven elected defendant participants named in this lawsuit willfully carried on these actions after being apprised of the deficiencies and their potential liabilities.   

C.  Each defendant willfully went through the May 20 meeting as if it was a properly noticed open meeting, even after being informed and warned at that meeting of the legal consequences of it not being properly noticed

 

In plaintiff's statement made before all members present in his point of order mentioned in the complaint before the business of the 1:00 PM May 20 'meeting' was to take place, he explained the insufficiencies of the situation and the consequences for continuing to conduct the proceedings as if it was an open meeting. 

Under such a point of order, the city council had a duty as public officers who have sworn to uphold the laws of the State to make a finding of fact on such an important point.  Section 3.2 (Exhibit L) of the Ludington Charter says "The Mayor shall preside at meetings of the Council", and as such is the parliamentarian of the proceeding unless he designates that to someone else. 

His only response "Duly noted.", a vernacular phrase whose meaning is "I hear and understand." was the extent of any fact-finding, makes Mayor John Henderson also liable even though he engaged only in deliberations and presiding at the 'meeting'.    A review of the rest of video of the May 20 meeting, has no other reference to plaintiffs point of order, while the defendants in their official capacity deliberated and made multiple decisions concerning public policy. 

Defendants being apprised of the law and the consequences, and not varying the intended agenda or behavior scheduled for the afternoon meeting which they conducted as if it was a legally noticed meeting, acted intentionally in defiance of the OMA, and therefore are not only liable for up to $500 individually under MCL 15.273(3) in exemplary damages to the plaintiff, but also liable for up to $1000 individually MCL 15.272(1) to the State, which the plaintiff has declined to pursue being that he is a private citizen and not a prosecutor, and that he is not convinced the intentional behavior was done with criminal intent. 

The reasons why the defendants failed to suspend the meeting's business to make sure they followed the law is more of a speculative exercise, but as this is an issue of intent there can be several reasons why they may have waived their duties under the OMA to continue.  First, they had an audience of about 100 third-graders from Foster School and their teachers for a civics lesson, and to vary from the agenda would be having to admit they erred, whereas to continue on would be to effectively 'save face' at that meeting.  Second, they may have wished to avoid dispute as they were considering a contested change to the Adult Day Care Ordinance, where citizens had at other meetings commented unfavorably on the proposal.  Third, they had the first reading on an outdoor dining ordinance and the approval of a dredging contract, both of which needed timely endorsements before being effectuated.  Fourth, they have shown a reliance on their City Attorney Richard Wilson on matters of legality; as he remained mute, they may have considered it acceptable to continue. 

 

D.  The injured party in this lawsuit is not only plaintiff, but the public at large, Plaintiff is acting as prosecutor, however damages sought are exemplary

 

Damages asked for are exemplary or statutory when awarded by statute MCL 15.273(1), which by definition are damages requested in a lawsuit when the defendant's willful acts were wanton or grossly reckless.  On the afternoon of May 20, 2013, all Defendants individually acted deliberately in a way that ignored their public duties as participants in the public body known as the City of Ludington to follow the rules of the OMA.   It survives the three pronged test from People v. Whitney, 228 Mich App, 255-6, 578 NW2d 329,341 (1998), contrary to defendants' analysis, as they did have knowledge that they would be committing an act violative of the OMA if they were to proceed, or completely ignored their duty to find that they were not in violation of the OMA.

This also fails the substantial compliance arguments in their analysis, because the violation in plaintiff's claim does not concern the technical violation of there not being a posted notice on the morning of May 20 and who knows how long before that, but of the defendants' deliberate actions after being made aware of the 'technical' violation.   The City Clerk is not a defendant; plaintiff's case does not rely on her either forgetting to post the notice or someone taking the notice down at some point without authorization, it relies on the defendants not being in compliance with MCL 15.263(2) and MCL 15.263(3) once those deficiencies were pointed out.

The lack of proper public posting according to the OMA statutes for rescheduled meetings, and the lack of the business to be conducted at this special meeting in the notice posted on the website, in violation of the Ludington Charter, deprived the plaintiff and all other individuals in Ludington who relied on the City Hall notice board or the courthouse notice board  for noticed meetings the ability to see the meeting time had been moved.  

The lack of a Ludington Daily News article on the meeting or a spot on their 'community calendar' in the week preceding the meeting, contrary to the usual policy of many year's duration, led to many, including myself, being at least confused as to whether there was a 1:00 PM meeting, a 6:30 PM meeting or no meeting on the day of May 20, 2013. Likewise, no agenda or councilor packet was posted on the website or anywhere else, keeping the public in the dark as to whether this would just be a matinee for the kids or a public meeting where serious matters took place.  It was the latter, and I only learned of this myself by going to that gathering. 

   

 

E.  Conclusion

 

For all the foregoing reasons, the court should deny the defendants their motion for summary disposition, and consider in light of the evidence suggesting at least an intentional violation of OMA by defendants and subsequently of most of them denying rights under FOIA as regards withholding relevant records considered relevant to this plaintiff's prosecution of this lawsuit (in their March 24, 2014 denial as a public body), and in accordance with MCR 2.116 I(2), to render judgment in favor of the plaintiff. 

 

                                                                        Respectfully submitted,

 

____________                                                ____________________________

Date                                                                Tom Rotta

[XLFD]

This brief goes along with the newly 'featured' discussion about Noticegate.  It was delivered to court and defendants last Tuesday.  Our Summary Disposition hearing will be on Wednesday morning.

[AQUAMAN]

I see that there is two corkboards for displaying notices: 1) the one to the south side has a gold frame and is encased with a glass front, and has a lock on it; 2) the one to the north is a lot bigger, and is open all around. Can we determine exactly which board they regularly post to? I would assume it should rightfully be the locked one, because it's formal and legal city business of an important nature that prevents it's theft or loss. If it's the other board, there's no true means for it to be protected, as one would assume the city clerk would want and need to do for city business. This may make all the difference in the outcome of the suit.

[XLFD]

At the time of May 20, 2013, they had not put up the glass-fronted and locked case, so effectively all notices were unsecured; however, the camera was there to catch any shenanigans.

The installment of the case for protecting the posted notices is very welcome, because now they cannot make some claim that some unauthorized person took the notice down.  If they had this before May 20, my case would have even been more of an open-and-shut case of intentional violation of the act by the six councilors and mayor.