Ludington's Public Comment Prohibition is Unlawful

[XLFD]

At the February 22, 2016 Ludington City Council meeting, they unanimously approved of changes to their public comment rules that would change the old rules from a five minute period per person at the beginning with no restrictions on what you comment on, to a new system with two rules replacing the old one that amounted to:

1)  Splitting the five minutes into three minutes at the beginning of the meeting and two minutes at the end, per person.

2)  Restricting the initial comment to be only on agenda items

Prior to this, it was brought up for consideration two meetings previously, and whereas I voiced some acknowledgment before and at this meeting that there should be a public comment period at the end of the meeting as our other Mason County governments have, it appears that Councilor Krauch, who initiated the proposal, has put this forward as a way to try to minimize and control the discussions between the public and the public body. 

The change, however, looks to be unlawful, a view that I will detail right after we look at what happened at this meeting which made it a new rule for the Ludington City Council.

The Public Comment:  Two Acknowledge Indirectly the Right of Free Speech

Between them commenting on their issues against the West End Project the two speakers who immediately followed me during public comment offered their perspective on the prospect of the new rules proposed for public comment

Tom Tyron:  (8:00 in)... the first five minutes are going to require you to speak on agenda items.  I find that contrary to the rights of individuals to speak on anything.  I would think that this is a failed effort of restricting conversation for individuals that have issues other than what is on the agenda. 

Yes you can do it at the end of the meetings, but what, you want to reduce that to 2 or 3 minutes.  It seems like it would be more specific for someone to speak at the beginning of the meeting if they have an issue with the city.  I think if you don't allow them to speak on anything other than what is on the agenda, I think that's a problem with the whole concept of democracy, and I request that you allow anybody to speak on whatever issue they choose."

Don Fallis:  (immediately after) "I agree with what Tom Tyron has just said, that we as citizens of the city pay our taxes and have a right to speak to the council about anything.  As long as it can be on the agenda, but anything that could be non-agenda..."

February 22, 2016 Ludington City Council from Mason County District Library on Vimeo.

The City Council Votes:  Councilors Avoid Free Speech Debate

At 1:09:00 into the meeting the council takes up the issue with Councilor Krauch presenting it, saying that public comment is not the only way that citizens can communicate with the public like through phone call and E-mail.  Word has it that Krauch is the worst offender with answering his phone and responding to anything.  I have never in my many, many E-mail communications to them, received any reply from a councilor.

Krauch has said he has been to other bodies who have adopted the same policy he introduces but has yet to name them or explain how this necessarily provides a benefit to the public by restricting their range of materials to speak upon or why they can only speak up to two minutes on a matter of public policy outside of the public body's agenda.

Councilor Katie Moonbeam weighed in and offered that former Councilor (and COLDNews manager) Paul Peterson likes the idea, and she figures it was worth a try to see how it works.  Councilor Krauch denied it limiting the discussing thereafter saying once again it works in other public bodies to get the focus proper. 

Councilor Rathsack followed wanting an expansion of times to 5 minutes at the front for agenda items, and 3 at the end.  Councilor Holman was wary, but more assurance came from Krauch indicating how well it works at these other unnamed agencies.  Mayor Cox added that he thought it may make some stay for the full meeting rather than leaving after they say their piece.

Then City Manager Shay asked City Attorney Richard Wilson about the issues brought up by the public concerning democracy, freedom of speech, etc. and asked whether it was, in respect to the initial three minute period being limited to agenda items, legal to do so.

Wilson replied back.  "Certainly... what it would be is simply the person would be out of order, and that would be the response of the chair, if the comments started to wander into something that was not on the agenda.  The mayor using his discretion could gavel the person and remind him 'please keep your comment to agenda items and if you want to talk about, whatever it is you want to talk about, you'll have two extra minutes at the end of the meeting to do so'.  You're not abridging free speech by segregating the topics, and when you allow those comments to be made during the course of a meeting."

Richard Wilson's "Certainly' is Certainly in Question by Michigan Authorities

Wilson totally avoided the question posed by John Shay as to the legality of limiting the topic to agenda items, instead preferring to address what would happen if a citizen was so foolish to address something other than agenda items in their initial three minutes.  Citizens Tyron and Fallis' points were well made; the reflex of any individual with a civil-conscience, even John Shay, is to wonder about the rights of the individuals to speak on issues that are on their own agenda in front of the public body that has some power to do something about it-- even when it doesn't get placed on the body's agenda.

The answer to that legal question is not that hard to find.  The progenitor to the right is found in our federal Constitution's Bill of Right's in the First Amendment:  "Congress shall make no law... abridging (i.e. curtailing the right of) the freedom of speech...".  This has been adapted over the years, and laws have been made that curtail in some respects the right to speak freely in certain situations.  But it is the foundation of the laws that come afterwards that clarify this right.

Fast forward to 1976 when the Michigan legislature passes the Michigan Open Meetings Act and we find in MCL 15.263(5) that "  A person shall be permitted to address a meeting of a public body under rules established and recorded by the public body."  Before this, uncodified, 'natural' law permitted such behavior as commemorated in this Norman Rockwell standard denoting the freedom of speech.

The OMA law, however, may seem to give the public body the power to establish rules that may otherwise interfere with the First Amendment rights of their citizenry by the way it is worded.  But the legislators never meant for those established rules to do so, and when it came time to interpret that OMA provision, the first to weigh in was 37 year 'eternal' Michigan Attorney General Frank Kelley (below) in an opinion clarifying the OMA the year right after it was passed. 

In Attorney General Opinion (AGO) #5183 Kelley made this legal observation: 

2. Rights of the Public to Address the Meeting

Section 3(5) provides that a person shall be permitted to address a meeting of a public body. The section further provides that public bodies may establish rules which regulate the conditions under which the public may address the meeting. These rules must be reasonable, flexible and designed to encourage public expression and not discourage or prohibit it.

The rules regulating the right of public address may include such controls as [1] the length of time any one person may be permitted to address the body, [2] the portion of the agenda set aside for public address, and [3] a requirement that persons wishing to address the public body identify themselves and make it known ahead of time that they wish to address the body in order to facilitate the planning of time allotments to various portions of the agenda.

Kelley never mentions that it is the public body's ability to control what you address being in the agenda.  Unfortunately, it does not expressly prohibit that either, other than saying such rules for comment be reasonable, flexible, and expression-encouraging. 

That same year Kelley weighed in further on this part of the OMA with AGO 5218 which says in part:  "The act does not contain a provision regulating the subject matter which may be covered by the speaker, a logical assumption may be made that the subject must relate to business that is within the public body's jurisdiction."  Concluding:  "It is, therefore, my opinion that a [public body]may not limit the subject and issues that certain persons may cover in the course of addressing the meeting".

In Michigan case law, the matter has rarely came up.  When it has, judges have used the AGOs mentioned above to help interpret this section of law, such as in LYSOGORSKI v. CHARTER TOWNSHIP BRIDGEPORT (2003), where they used it to show the plaintiff's complaint was insufficient for an OMA violation.  I have found nowhere that the OMA section is interpreted otherwise, or anywhere that refutes AGO 5218 in established case law.

Therefore, the highest authority on the subject indicates that the Ludington City Council, or any other Michigan public body, can not limit your public comment to agenda items in your course of making those comments.  Certainly, it does abridge your freedom of speech without any compelling interest to the city, other than silencing what you can comment on (except for two minutes after the meeting's business has been held). 

As if to emphasize that quelling effect, listen to my public comment at about 3:00 into the meeting, where I cover five different topics, all relating to highly relevant and timely Ludington public policy issues, and yet all that would lie outside of the agenda as written, so that I would have to condense it even further into two minutes. 

The city council has their own agenda which they desire to shove down your throat; each citizen has their own agenda, they deserve the right to publicly declare them to the usual agency that interferes with it.

[jfc123]

I seen this and thought the weak council should have called it the "how do we quiet Xlfd Rule". I can not believe it passed! Guess public comment is not worth anything since people spoke out against it and they were basically ignored/dismissed. Krauch and the email thing, but he wont respond to any of my emails? Just like the west end project that will move on, although a taxpayer spoke out against it!

If you have not seen this meeting watch it, it is so ridiculous how the col council demeans those who they represent!

I am shocked, this is one of the first meetings I have watched and only had time for bits and pieces. Is Ludington a dictatorship under Putin rule?

More to come....all I can say is wow! This is not the Ludington that I loved as a child and passed the love on to my kids, this Ludington is a complete mess!

[XLFD]

On February 28, 2011, the Ludington City Council voted unanimously for a Workplace Safety Policy, a Shay-inspired way to keep me from prying into his public shenanigans and publicly disgrace me by labelling me as a dangerous person who was banned from the Ludington City Hall, the Ludington Police Department, and a private residence that I had never ever visited before. 

What had I done, pointed out a very unethical and illegal process wherein Councilor Nick Tykoski got a potential $150,000 signage contract for those gold-plated way-faring signs in the downtown without bidding for it and while being on the signage team of the Ludington DDA planning this Godsend for his struggling company.

Five years later almost to the day, they have once again drawn a line in the sand to make me not verbally trespass on the sanctity of their agenda at these meetings.  It is almost comical how Shay and Wilson try to frame the new policy in their little pre-rehearsed skit.

Ludington has big problems at the top, it has had this for at least about 8-10 years, and it is only getting worse.  If you love your nostalgic vision of Ludington and want that for your kids, you need to become part of the effort to change it back to those high standards and ideals we once had. 

[shinblind]

This power grab by the council limiting public comment is a complete sack of shay.

What would prevent them from running "agenda lite" meetings 2-3 times in a row bringing up almost no issues and then having an "agenda heavy" meeting, bunching up a lots  of issues and limiting the public's time to comment to 3 minutes?

This is nothing more than an executive order by a power hunger petty bureaucrat with an axe to grind.

And with a few underhanded maneuvers will be a  complete abrogation of the public's First Amendment rights.

What will be the next executive order?  Making Ludington a gun free zone? 

[Willy]

It's no coincidence that this action comes on the heals of X's legal victory. Instead of fixing Ludington's problems the Council stays awake at night trying to come up with ways to flex their spiteful muscles and direct that toward X. They think of this  as an in your face slam. A good name for this would be "The Rotta Rule" because it's obvious he is why it was enacted. What should have taken place is an expansion of time for citizens to comment, not a split of time. 5 minutes to voice any concerns regarding any subject at the beginning of the meeting and 3 minutes at the end for the same purpose.  How unfortunate that the citizens have such a spiteful and childish group of people running the City. "Ludington on the Lake" has a group of "Losers on the Lake" in control of the City.

[AQUAMAN]

Very well said all, and I esp. like "The Rotta Rule" example. It's quite accurate, esp. given the timing of the last lawsuit LOST BY COL! They have all become enamored and fixed on this equation of hushing up X, and anyone else that doesn't agree with their "fixed agendas". Btw, how is everyone supposed to know the agenda subjects before the meeting, go to their website? What if they revise their agenda at the start of the meeting, like they have many times of recent meetings? What if part of their revised or planned agenda goes into back room secrecy, as we have also seen of recent? Lots of unanswered questions that should be addressed to the public. But, it coitantly won't be as long as Shay and Wilson come up with these ideas, state they are legal doing it, and shove them down the public's throats without any controversy. This is warped and contrary to all we know as Americans. Someone needs to get a public petition against this asap, with several hundred signatures, to stymie this effort at loss of freedom of speech.

[AQUAMAN]

Of note also is the usual fanfare of miscellaneous business at the end of the meeting. This is when Shyster Shay and Warped Wilson get in the "last word" on anything that may make the COL look bad in earlier moments of the public comments section. To wit, my example is the COL lawsuit that they lost to Tom Rotta, Plaintiff. To quote the city attorney: "it was more of a win than a loss to the city". How in the HELL does he equate that? Well, look at how shifty and unethical this man is and continues to be for years, and only then, can you equate a loss as a victory. SHAME ON YOU WILSON, LIAR, PANTS ON FIRE is all I see again!! As I have said over and over again, these people consider themselves as PERFECT, they DON'T make MISTAKES!! And NEVER WILL ADMIT IT PUBLICLY, EVER!! Even after a local Judge said so in the court,and in writing for all to view. Talk about NARCISSIST IDIOTS!!

[XLFD]

If he was a Packer fan like yourself, Richard Wilson may have portrayed their loss in the playoffs to the Cardinals was more of a win than a loss, because they were ahead after the third quarter and had more total yardage, among other favorable stats on comparison.

But a loss is a loss and in this court battle, I prevailed and won back all my costs, disbursements which could have been considerable if I hired a lawyer, but I didn't.  They lost $200 to me, they lost at least 20 times that to their lawyers in defending their illegal behavior done contrary to the public's interest. 

So-- Wilson is claiming a partial victory because the prestigious law firm they hired was able to avoid punitive damages since their indigent pro se adversary could only prove that the city's actions were merely arbitrary, but could not reach the high threshold of capricious behavior.  If that's what they call a victory nowadays, I hope they are similarly victorious in the next legal soiree.

[Willy]

Wilson's like the fat lady who just lost a beauty contest. She's trying to convince people she won and thinks people are to stupid to figure out what really happened.

[XLFD]

I think I see the City Attorney sneaking out from between the City Council and City Manager.  As jfc123 points out, the city attorney's clarification about court news reminded me of someone from twenty years ago:

But Baghdad Bob wasn't an attorney, so this Richard Wilson is even more infamous.  Someone I know referred to him as Douchebag Dick, but I think that's an insult to perfectly respectable women's hygiene products.

[jfc123]

Found these two things regarding public comment:

http://bloomington.in.gov/documents/viewDocument.php?document_id=1558

Wow what a nice way to represent the people that voted you in and YOU SERVE!

Next:

http://bloomington.in.gov/media/media/application/pdf/7507.pdf

Very clear, concise, and understandable. Respectful of those that may want to comment, also seems that they actually encourage it. I know it is a bigger city, 60 k vs 8 k but maybe treating their citizens like human beings could have a lot to do with it!

Watching this last council meeting, the first thing I thought was cut our loss and get out! Oh and why not raise the transient rate by $10 a night since you are basically owning a monopoly by not cleaning the bayou or representing any of the 5 marinas that are suppressed. We have been dead since 2008. If all the taxpayers are squeezed out who will pay these taxes?

This city attorney is a blast! Wow what a great man, didn't even know what case his firm lost to a  simple citizen, (as they refer to him) and claim a win?  How the hell can an attorney for a city not be able to name it properly and need to be corrected by a mayor? Also, why does a city of 8k residents need so many lawyers on staff? Is something up or something wrong that they are worried about?

This council is not for the people. They just laugh at the citizens. Their arrogance sitting up there and their body language towards comments is absolutely pathetic. There are some that sit on council that are also looked down upon apparently because their objection to the public comment was completely ignored.

Finally for this response, and there is more coming because of the disgusting disrespect I seen and will point out very soon. 4th ward council Krauch mentioned there are other ways to contact them and spoke of email? Well he does not respond to any of mine, maybe that's why he likes that method because there is a delete button? The environmental group(joke) also never responded, guess their husbands told them not to?

How the hell can the money people in Ludington support this type of BULLSHIT! Don't they think they would be better served by trying to make a community like Bloomington IN and growing the community and expanding their own business and not like this council by oppressing everyone and making them feel as though they are not worth their own comment they may want to make for 5 minutes at a council that serves 8000 people?

Lets plant trees and flowers not dig holes for hard working people and business owners!

[jfc123]

One more thing, is it just me or were the two guys that were giving the reports thrown under the bus by the col council? "So your telling me our city water is ok?" Yes sir was their response? Guess who if something is found will be FIRED? They are definitely good chess players.

Looking forward to speaking to, or hearing from the man from 102.7 

I extend an offer to these two gentleman that said all is good and include the mayor and council to come over for a bbq and bring their kids/grandkids to enjoy the bayou with us since everything is all good down there. I expect to have a lot of leftovers since they are all to afraid to put their money where there mouth is! If it is good for us and the locals why don't they come and prove it?

[XLFD]

Drew Rowley, WMOM's news editor, gave a very poignant public comment and showed he has been either paying attention to the alternative news media in Ludington, and/or doing his own research. 

A very brave position to be forwarded by someone from the local media, I expect he will get some indirect pressure from the city to make him think twice about coming forth again.  Back when I ran for the city council back in 2011 and campaigned against the City Proposal of 2012, Michael Tanis, the previous news director of WMOM, had similar courage.  I think more of the citizens are getting clued into what's going on behind the scenes here in 2016, simply because the last five years have only proven what I was saying back then and more.