Ludington City Council Meeting 1-26-2015: Ignorance Wins the Day

[XLFD]

The meeting of January 26, 2015 of the Ludington City Council lasted only about 25 minutes, and as is usually true in such a short meeting, little of interest was bandied about.  The council approved sign placement in the right of way for a summertime Ludington Area Council of the Arts event Maritime Magic without the usual input from Councilor Holman who always complains about signs in the right of way, unless it's her own campaign signs. She and illegitimate councilor Michael Krauch were absent.

Then two administrative tasks were voted for unanimously, one involving an agreement with the Ludington Area School District (LASD) which detailed how public money would be doled to the public bodies.  The other dealt with a plan to set aside money each year with the revenue generated by the Cartier Park Campground for a new rest room facility.  Both ideas seemed reasonable enough, and you can evaluate that yourself with the meeting's council packet.  They also made a late appointment of Sonja Sieward to the Zoning Board of Appeals.

The meeting was only significant in that the appeal of the City's FOIA reply scheduled at the end was more relevant than usual.  The synopsis by the local newspaper, the City of Ludington Daily News (COLDNews) written by Kevin Brasiczewski stated: 

"the council denied an appeal of a response to a Freedom of Information Act request.  The request was filed by Tom Rotta and Shay recommended the council affirm the responses by the city's FOIA Coordinator, Carlos Alvarado.  Shay noted it was Rotta's 258th FOIA request.

Rotta had asked for the entirety of two citizen complaints against former Ludington police officer Matt York and any investigations done and any written evidence in support of or against the complaints.  He also asked for the missing pages of York's deposition."

In true Kevin B. fashion, he printed the City's defense of their non-disclosure and left out the reason why the people should have access to the records as I put forth in the entirety of my public comment. 

"Alvarado denied the first request and stated 'Unless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance, public records of a law enforcement agency, the release of which would do any of the following (ix) Disclose personnel records of law enforcement agencies.' 

Alvarado granted part of the second request and denied part of the request.  He stated there was a need to redact information protected from public disclosure."

The request and Carlos Alvarado's four page rationale for denial begin on page 35 of the packet including the sworn affidavit from Chief Barnett:

Attorney Alvarado's main point is that the citizen complaints equate to personnel records and uses the 1992 case of Newark, which involved a much different type of request than mine which stated that true internal affair investigations fell within personnel records, that may be exempt if the public body successfully states why disclosure is not within the public interest. 

But as I can see the need for exemptions from some internal investigations, Alvarado never included any rationale for non-disclosure in his reply to me, necessitating the appeal.  Chief Barnett's blanket statement about internal investigations also fail to do this except in general terms, which have typically been shot down in court.  I asked for citizen-initiated complaints involving a sexual assault and brutality that should have been investigated like they would as if I made a complaint against a non-police officer, with the records available as I point to my own court precedent in my public comment starting at 2:10 into the meeting. 

As always I invite my treasured readers to supply their own comments about whether these records of former Officer York should be disclosed or withheld, and supply your line of reasoning.  The Ludington City Council unanimous vote tells you what they believe, even though they fail to say anything regarding it like they have for the last dozen or so appeals. 

I continue to be amused that the city manager states that I have made 258 FOIA requests (over a seven year period) as if asking for public records is somehow a drain on public resources and detrimental to the public safety.  He also gives me credit for a lot of requests which were not mine, suffice it to say I am only around the 200 requests mark.  It's kind of like giving the regular player credit for a home run when the substitute batter hits it.  I'd like to go to FOIA Cooperstown on my own legitimate numbers.

January 26, 2015, Ludington City Council from Mason County District Library on Vimeo.

I would like to remind the city council that the state has recently passed a FOIA reform bill which will make several parts of the current city FOIA policy unlawful when it goes into effect in July, you may wish to adapt it accordingly in the meantime.  I will use the balance of my time to defend my FOIA appeal on the agenda.

I became aware of two different citizen initiated complaints alleging a sexual assault and use of excessive force against former LPD officer Matt York's when reading his deposition in the Travis Malone civil lawsuit filed against him, LPD Officer Aaron Sailor, and the City of Ludington.  I sent a FOIA request on these two citizen complaints filed against him, and were denied them.  I am on the belief that the disclosure of these records are in the public interest and withholding them from the people is a violation of the FOIA.   

In your packets, FOIA Coordinator Alvarado referenced three court cases as precedent in establishing to this council that the citizen complaints and their investigations should be classified as police personnel records, thereby exempt from disclosure if the public body can show non-disclosure would be more in the public interest than disclosure. 

In his reply that has been appealed, Mr. Alvarado mentioned no justification concerning such public interest; to his credit, he has since attained a sworn affidavit for this appeal from Chief Barnett indicating the belief that the disclosure would be detrimental to the public interest, but the Michigan high courts have already established precedent that indicates the contrary, and this precedent has came after the three cases cited by Mr. Alvarado, reviewing a request a lot more similar to mine.

The immediate issue of the availability to the public of citizen initiated complaints was directly looked at by the Michigan Appeals Court in Federated Publications Inc. v. City of Lansing twice.  In their original opinion the court stated:

"Disclosure of the citizen initiated complaints furthers the public interest in ensuring the efficiency, fairness and comprehensiveness of defendant's internal affairs investigations.  [Note also what it says about police department-initiated investigations as well]

They also believed that most department-initiated complaints were fair game and defended it when they received the issue back from the Supreme Court of Michigan on remand for other issues involved in the suit.  All citizen initiated complaints were disclosed by Lansing as a result of the litigation, as were a significant amount of department-initiated complaints.

Let me offer a personal anecdote.  In December, I was on a Ludington sidewalk in front of a vacant lot when I was attacked by two black lab dogs.  After fending them off, I was blindsided in an assault and battery by the owner of the two dogs.  I contacted the LPD, made a statement, and the next day they interviewed the assailer.  For the record,no enforcement action was made, even though the dogs were not on a leash off their property and I had marks from the man's assault still on my chest at the time I reported the encounter to the LPD officer.

Yet still I was able to get the police report that included the investigation, along with the tapes of the man's police interview and my own from the police via the FOIA.  Had this assaulter been a police officer, and the FOIA Coordinator used the same rationale he used for denying this request on appeal, I would not have been able to get the report or the interview CDs.  And yet, finding the details of a police officer's assault on a citizen is much more in the public interest than one which happened at the hands of one citizen on another.  Does it make any sense that the occupation of the assaulter should be a reason why a record is exempt? 

When a citizen initiates a complaint against a police officer, they allege something improper or illegal has occurred, it is just like a complaint against any other person, they should be classified as normal investigations.  The citizens lose confidence in the police when the police use unlawful means to protect their own from public scrutiny; in effect a two-tiered justice system is created.

Former Officer Matt York had complaints alleging excessive force and a sexual assault; the people should know whether these complaints were actually investigated or swept under the rug, like what happened in the Travis Malone incident, as seen in the citizen initiated investigation which I do have.  

Sergeant Dean Schultz managed an inept LPD investigation, which only sought input from the three cops at the scene.  The input from Malone and the four or so other eyewitnesses who wore no badges were never pursued even though Schultz was given their names and Travis Malone himself was incarcerated and available.  [Here's where my five minutes were up, I conclude after the video]

"Sergeant Schultz knew nothingk, nothingk, about conducting a fair investigation in the Malone case.  The public paid dearly in the eventual civil lawsuit, which would likely not have happened if the LPD had disciplined, well-trained officers that respected the law of the land and the rights of its citizens even when they're kids.  Thank you."

The after-meeting events were a lot more interesting than the meeting.  I was approached by Chief Barnett at my seat just after the video stopped and he insisted on me 'coming clean' on saying that his department did not do any enforcement actions as regards my complaint, when they supposedly did. 

For three minutes or so we back-and-forthed about what constituted an 'enforcement action' and what didn't.  I stand by my words, and wrote a researched note to Chief Barnett yesterday further explaining why my point was valid. 

This is someone who looked at a video where an innocent citizen Joe McAdam was leg swept down to the pavement, then was repeatedly tased while getting sat on and brutalized by three heavyset cops, and a chief who at the very least tacitly agreed with the idea to charge McAdam with five counts of assault on the officers, with no discipline ("enforcement action") for the real batterers as seen on tape.  Selective enforcement is a violation of your oath of office, Chief. 

Frankly, I could have had a video and witnesses of the event I was involved in, and the LPD and county prosecutor would only be more pleased with themselves for not doing anything about it, and able to replay these dogs and their owner attacking me.

As stated to Chief Barnett and the officer I talked with, my main concern with the whole situation was that two grown labs unleashed, and out of the control of its owner, attacked a grown man walking down a neighboring sidewalk without any provocation.  What happens the next time when the victim is a young kid?  Chief Barnett, will you devote an invocation in memory of that kid at the council meeting afterwards wishing you could have done more?

After that, Attorney Wilson motioned to me from his seat and asked for the precedent I used in my comment, and I exchanged that with him, as I was allowed to recover from Barnett's heavy browbeating.  On exiting the meeting room, Councilor Winczewski initiated a conversation, mildly chiding me for something in general I had said, which she wasn't able to specify.  I left her with my own general impression of City Manager Shay, which was not favorable, before managing to get away.  Next time, I have to bring along the video camera so that I won't be so approachable, I guess.

[Willy]

Is this about 2 private citizens making a complaint about York or 2 civilian employees of the police department?

[AQUAMAN]

It's nice to know that new FOIA coordinator Alvarado is continuing in the tradition of (the Chief's agenda) citing old court cases as his reasoning for backing up the LPD's reason for again, declining to give out public information to the citizenry about citizens complaints against police officers. Redact this and that too along the way, then give any phony excuse to the requester that his FOIA request is denied. It's also nice to see Chief Barnett is still protecting all of his officers so well, even after they are not employed any longer, and of course, to keep fellow officers from tattling on one another, which they do as routine anyhow. That statement wasn't "notarized" though Chief, so it doesn't really have any legal authority to it, as Alvarado and Wilson both should know. If any good decent law-abiding officer is accused by the public of a sexual assault and excessive force, the public should know. But, Barnett doesn't want his squeaky clean image tarnished. Denying that important information warrants suspicion and scrutiny all the more I say. Absent again is Holman, probably washing that greasy hair at long last. Then Krauch too, well, he's new, so he can miss anytime he desires? I thought he desired the job, and therefore, lacking any family or personal emergency, should be in attendance. It would seem to me, the Mayor could at least expound in some small way the excuse for these councilor absences, esp. in the dead of winter, with nothing really of importance is going on. But, the same lame statement is always made, both excused.  I guess it's not the public's right or business to have any definitive excuse, as long as the Mayor says so?  Newsflash: hey, you councilors, if you can't spare the 30-45 minutes every two weeks to attend these mtgs. and represent the public at large and your ward, please step down, and make room for someone that does!!!

[AQUAMAN]

To further address that new restroom at Cartier Park. I didn't notice Shay giving any specific details as to how he arrived at an estimate of a whopping, get this, $160,000 (2-3 years old), to construct a new bathroom facility. We are talking about what it would cost to construct 2 new modest smaller homes for that amount of money. This Park is only open from May-October for campers, people wanting and expecting a rustic, airy, natural environment and experience. Need we construct a new Hilton Hotel Sauna Resort for these visitors? In addition, $25,000 per year, even with matching funds, puts that project out at a distance of at least 4 years, not a couple, as Shay said. So, why the hurry now? And why is the COL expecting the DNR trust fund to always come to their whim and desires so often, as they have already so many times in the past with matching funds? Connections? I truly believe a nice, big, and clean/updated facility could be built for a lot less $$$. Perhaps even half, or about $80,000. Will competitive bidding be done? Or, will some sneaky underhanded bid process be used, so that a favored contractor from the outside, again gets the nod? If this is such a priority, why don't they get those "cash reserve funds" on the trial balance a jiggle, and release them to pay for the whole project right away? It certainly could easily be done, but, dirty side-show politics must prevail I guess. Does anyone else find what will probably end up being a $200,000 bathroom for a seasonal local campground a little unnerving? How many of us homeowners have one that costs that much? Anyone?

[XLFD]

Frankly, I must be getting jaded, Aquaman.  If we believe that John Shay spent over $100,000 wisely to make the North Stearn's Park bathroom handicapped compliant, then he will get an absolute deal in spending $200,000 to make a new restroom/shower facility for Cartier Park. 

The reason why the City of Ludington cannot get a good deal is a reason that has been pointed out repeatedly here.  They do not follow the competitive bidding process.  They sometimes have a few people bid on a project if it's demanded by the State, but then they don't choose the low bidder.  That's goes against our city charter and is as unethical as all get out. 

Other times, such as in water tower painting, they don't get any competitive bid, just get a contractor who will accept $1.2 million over a time period of ten years for a project that could cost about a fourth of that and not have to be done for at least ten years.  If Shay was managing my company, I would fire him on the spot; but he's the city manager and we the citizens have no say over his future, and the councilors adore his boyish charm.

[XLFD]

I hope Councilor Krauch wasn't sore because I keep referring to him as an illegitimate councilor, but if he really wants to become legit, then he has been given the opportunity by the State of Michigan.  In May, the citizens of the State, including our good friends in Ludington's Fourth Ward, have a vote in whether to raise the State sales tax from 6% to 7% in a special election. 

Technically, unlike the November election, the May election isn't a regular election so our charter does not mandate him to run for his office then, like he needed to last November.  But this is one way he can get a popular mandate rather than a 'temporary appointment', which is now unlawful, to his office. 

As for Carlos, just like Judge Susan, they swear no oath of office for their tasks, they can charge the city $125 an hour for writing long dissertations about why an exemption is valid, even when the most current and applicable rulings say they are wrong.  It's okay, since the councilors and the COLDNews will totally ignore the reason why this is in the public interest. 

[XLFD]

To answer your question, Willy, according to Officer York on his sworn deposition it was citizens making complaints from outside the police, and that hasn't been contested by the City.  The one complaint by Travis Malone's mother will be revealed in short order and that is only in my possession because it was part of the City's brief in that Federal case.

Under way is another appeal to the council on them denying the people the opportunity to see the LPD's Use of Force Policy and their Search and Seizure Policy, which were also part of the city's brief, but declared forbidden for anyone to see.

[Willy]

The reason I asked is because of the Chiefs sworn affidavit. The affidavit gives the impression that the complainants were from the police's personnel because it refers to employees. So I'm assuming since these are private citizens that complained, there must have been other officers who witnessed the incident and were questioned on the matter thus the reference to "employees". Either way the information should be released because York is a public employee and if the problems happened while he was on the job, the citizens have a right to know what transpired. The one condition I would agree with is that the complainants names be withheld.

As far as the foolishness of Shay's comment about the number of FIOA'a you have requested and the numbskull reporting by Brasiczewski, it is clear that those in charge are still trying to discredit your efforts to have the truth revealed. The shameless comments by Shay are inexcusable when voiced at a public meeting. His comments degrade the meaning of an open and free society but the approval received from the local media of those that choose to rule against the Constitution is disgraceful beyond words.

[AQUAMAN]

Well thought out and said Willy. I guess what X should reference into the future is the number of times that Shyster Shay has perjured himself too. Why not? It must be into the hundreds of times since the last 10 years he's been milking Ludington taxpayers for over $1 Million in salaries and benefits. Of course the local courthouse, as expected, must turn their head and not press any charges on that individual, it's standard protocol, even when he's caught red handed in lie after vicious lie.

[Willy]

That's a good point Aquaman. X should also keep track of the number of times Shay and the Council have mentioned how many FOIA's he filed and it wouldn't hurt to mention the dollar total the City has wasted using attorneys to try and sidetrack the spirit of the FOIA. Each time X must request information the appointed attorney continues  racking up the amount of money wasted. So the next time Shay opens up his cavity of ignorance and states X has filed __ amount of FOIA's X should add the rising dollar amount the City is spending trying to keep that information from him and the public and how there would be no cost or need for an attorney if the City would only disseminate the information by simply handing it over.

[AQUAMAN]

I think Willy hit on a very vitally important point, that of $$$ spent to answer FOIA requests by expensive attorneys, and also Shay, when any common clerk could have handled this for practically nothing. I suggest that X, or any other FOIA requester, get information as Michigan FOIA laws prescribe. That of the lowest paid office clerical help that is available. Shay is using these FOIA requests like a "bully pulpit" situation. The more requests are denied, denied in part, or are answered with documents not requested, the more FOIA's that are required by the requester to have his answers. I liken the entire fiasco to that of a game that Shay promotes: keep the water boiling, and keep stirring the pot, or cat and mouse game. That certainly isn't what we pay Shay for, and not what is professional. But, when you look directly at this man Shay, what else can you expect? He wants to keep a circus atmosphere in all this, so he can appear the good guy, when he's the one that is tainted in mind and soul.