Ludington City Council October 9, 2017: A splash of Vitriol

[XLFD]

The agenda was sparse on content, but the Ludington City Council meeting of October 9th was anything other than sparse in content by the time it adjourned nearly an hour later.  The only things on the menu for this night was to approve placing LACA signs in street right-of-ways (a surprisingly contentious issue on some nights, not this one), Mayor Holman issuing a proclamation for fire safety week (which she didn't), and the city manager giving a public statement on the September 26th listening session (which he sidestepped).  

The first public comment commenced with me giving a clinic on the Michigan Open Meetings Act (OMA) after a brief apology and reason for missing the listening session.

October 9th, 2017 Ludington City Council meeting from Mason County District Library on Vimeo.

"Besides Councilor Krauch, was there any other councilors who weren't able to attend the session?  [nobody raised their hands].  If six out of seven councilors were present at the session then there was a quorum of councilors at this session there for the purpose of deliberating toward or rendering a decision on a public policy.

As such, the listening session was a meeting of the Ludington City Council by the definitions found within the Open Meetings Act.  Because of that designation, I have noticed that the City has not been diligent in following the rules that come into play. 

One could say the city council was in substantial compliance of the Act in publicly noticing the meeting in various venues, however, on the agenda and according to my sources at the meeting there was no opportunity allowed for the public to individually address the council using the normal rules of 3 minutes before and 2 minutes after the agenda items.  

It's tellingly ironic that in a structured listening session called to order by this council to listen to what the public thinks that you do not take the time to listen to what the public thinks, in direct violation of the Open Meetings Act, section 3, subsection 5.

Had you listened to what the public thinks at the last meeting, two Fourth Ward citizens had several observations about the splash pad that were ignored when the city talked about it later.  Liability and legal issues about the city's use of golf carts on the breakwall were ignored.  At the end of the meeting, four spoke up about other topics important to them that were similarly ignored by councilors at the end of the meeting and since.   Should we really believe this council wants to listen to what the public really thinks or just go about doing unpopular, inefficient, or nonsensical things and letting the public pay the bill ?

Beyond that, the special meeting also seems to lack any official meeting minutes, which should have been publicly available this last Friday (section 9, subsection 3 of the OMA), and should have been included in your councilor packets which was sent out that afternoon.  Why are they not available in your packets, and why isn't the approval of these minutes on your agenda at this meeting as required by section 9 subsection 1 of the OMA?

Thanks for listening."

Two others also spoke.  Terri Horacek brought up two points, the first regarding why Sargent Sands trucks were always singled out when transportation issues is being talked of, she then listed over a dozen other companies who used big trucks in the area.  Her second point was questioning why the city wasn't shutting down the breakwall during high wind events in the fall.  

Dianne Seelhoff praised the city for its listening session and the competence of the MML facilitator, with hopes that the city would continue such listening practices in the future.  She alerted the council that they should expect scrutiny and accept such scrutiny from the public.  

Shortly after getting into the meeting, Mayor Kaye Holman, who appeared to have some problems talking, excused herself shortly after 10:30 into the meeting, and had Mayor Pro Tem Les Johnson take over the meeting.  She would not come back; LPD Chief Mark Barnett left with her, and left the meeting twice more before it ended. 

For those concerned about her health, I did unexpectedly see Mayor Holman at the local credit union on Thursday afternoon, looking chipper.  MPT Johnson carried on her duties admirably, and it was he who delivered the fire safety proclamation.  

Open or Shut Case?

As they began to discuss the listening session, the OMA question was the first thing addressed by City Attorney Richard Wilson at about 22:15 into the meeting, where he proposed that if the notes for that meeting accurately reflected what happened at the meeting, then to be safe, it would be proper to approve those as the minutes of that session/meeting.  MPT Johnson opined that he didn't think it was a 'meeting'  but Councilor Rathsack moved to accept the list and approve it as a meeting and Councilor Bourgette seconded.

Councilor Winczewski was offended that this meeting would be considered anything more than what it was, a listening session, and that the public was heard.  "I didn't think it was that kind of a meeting."  Councilor Krauch apologized for missing it, but believed it was proper to approve them as such.   Wilson urged that exercising an abundance of caution was the best practice in defending his position.  When the vote came Winczewski and Johnson voted against it, Johnson not sure whether he should retract it since he was acting as mayor.  If the mayor pro tem had read the charter, he would have known he had that ability.  

Thus, the rough notes of the meeting (seen here) magically became the minutes.  It should be noted in the OMA, MCL 15.269 says:  "Each public body shall keep minutes of each meeting showing the date, time, place, members present, members absent, any decisions made at a meeting open to the public...".  You will notice there is not a mention of any of those required fields in the notes. 

I thought of rising for a point of order to address those failings, but I was still reeling from the last time I did during the Mayor Cox regime and was rebuffed without a chance to say my piece.  The Ludington City Council approved very incomplete minutes (that looked like very rough notes), which is sad because City Clerk Deb Luskin who was at the listening session and writes commendable minutes could have easily drew some up to be safe.

A local judge may rule differently, but given the factual background of this session, and from the summaries I have heard from four attendees, this was an open meeting.  We could look at several Attorney General Opinions that have concluded sessions like these were 'meetings' (such as AGO 6636), but if you are more compelled with higher court cases you need go little further than NICHOLAS v. MERIDIAN CHARTER TOWNSHIP BOARD: 

"Meetings with a quorum present held to deliberate a public question must be held at a public meeting.   Thus, if members of a public body gather, a quorum being present, for the purpose of deliberating, the meeting is subject to the provisions of the OMA even if there is no intention that the deliberations will lead to the rendering of a decision on that occasion."

John Shay himself said in a memo leading up to the event:  “The city council desires to increase community engagement through respectful and engaging dialogue with the citizens in an effort to proactively identify and address important issues."  The 'session's agenda' also indicated all present, including councilors, would be talking about the city's master plan and included ten bullet-pointed topic areas.

Sounds like they would be in deliberation over 'Important' public policies to me.  And while the members of the various groups likely got to talk over issues that meant something to them, they were not given the opportunity to individually speak as MCL 15.362(4) allows.  When you think that all the city leaders had to do was have somebody take minutes and give the attendees an opportunity to speak to comply with the OMA, even if they weren't sure this was a 'meeting'-- it would have Wilson's 'abundance of caution' if it was ever called into question.

Now it just makes them look foolish, with Councilor Winczewski and Johnson leading the parade with their denial of the session being a meeting.  The rest of their discussion about the September 26th meeting, dealt with how they would deal with the raw data in the notes, whether it should go to council or a subcommittee.  They decided on a work session of the full council at a future meeting, with Rathsack voting against.

Back in the Lead

Second public comment was led by Chuck Sobanski whose main point was suggesting the splash pad be put at Stearns Park.  C. Dale Bannon followed with an enigmatic reference to the avenue restriping.  Terri Horacek continued with a hope that the listening session would be listened to, and that the US 10 hazards would be listened to (Wallace Cain made light of that earlier). 

The purposes of minutes are letting those people who couldn't attend to know who was there and what was discussed at the meeting and I didn't see that among your notes. 

But beyond that, I would like to update the councilors on the lead in our drinking water issue.  Our county has had the first or second highest rate in the number of young children with elevated blood lead levels in the last four years of record (2012-2015).  The Ludington zip code has always had higher rates than the county.  Our city manager and utility maintenance supervisor have both confirmed that there are many lead goosenecks, symptomatic of 80 plus year old municipal water systems, around town in the city's pipes daily supplying our families with the lead-contaminated water within them.  Our council up to this point, is in denial of that fact, as expressed by Councilor Winczewski.

I have monitored the water system work in the Fourth Ward, in particular the pipes they have taken up and replaced, and have seen and photographically documented many lead goosenecks like the partial one I brought in the day Mayor Holman drank my yellow water.  During this time, I put that same lead pipe in Ludington tap water for six hours and sent the water off to Grand Rapids to be tested for lead content.  The results were off their charts, they phoned me shortly afterwards to warn me not to drink the water from the source I got the water from.  Many Ludington citizens with young kids cannot help but do so.

Mind you that this tested water was more diluted with lead than what sits in the goosenecks outside many resident's homes overnight, ready to be poured into a formula bottle or a Kool-aid pitcher after one or more uses of the bathroom gets the worst contaminated water to your tap.  [Two minutes came faster because I lead off with a quick defense of my OMA assertion, I would have finished]  Lead levels off the charts due to the goosenecks and their reaction with the chlorine used in our water.  It's sad that the only reason we are replacing some of these pipes is due to the need to provide greater quantities of water to the cogeneration plant, and not for the public's safety. 

Please adopt a policy to identify where our problem pipes are, and cost-effective ways to begin replacing all of the city's lead pipes.  Allow citizens the right to opt out of the forced city water supply monopoly if they suspect or know that the city's supply line to their residence has lead goosenecks thereon.  Thanks for listening."

Diane Seelhoff expressed her fears of having a lead gooseneck (she probably has one, I have noted others along the 100 block of Second Street, the end of Washington Avenue, and 100 block of Sixth Street, while her section was not replaced).  She offered a balancing act of praise and dismay at the COLDnews, praise for the editor who ran her complete comments, dismay that her comments were poorly summed up by their on-scene reporter.  She warned of challenges ahead and the need for unity.  

At 46:50, Councilor Winczewski made her case to be the leader of fools by commenting on the lead issue with some poorly researched pronouncements.  

Wink:  "I also got a lead gooseneck from Fourth Ward, and I cut it in half.  Mr. Rotta, the lead goosenecks at this point in time, 80 years, have a coating of lead oxide on the inside of it.  Now, I'll bring my lead gooseneck next week and I'll share that with anyone who wants to take a look at it. 

That lead coating, that lead oxide, does not allow free lead ions to get into your water.  So unless you have a corrosive going through your water system, which we don't have corrosive going through our water system, you won't have lead coming into your drinking water unless there's a reason that coating is gone. 

They also, Home Depot offers free water testing kits.  I was just out there, and you can pick one up free and send that in and it will be tested to let you know if you have a problem or not, so if someone thinks they have a lead gooseneck they can also do that home testing.  Also the health department will test your water if you have any concerns about that too. 

So as far as we know right now, the lead goosenecks are not a problem.  If you feel it is, let your water run for two minutes and it will go through.  But I will bring that lead pipe next week so you can actually see what the coating looks like.  It's coated so it's protected." 

Not to be outdone, City manager Shay said his usual piece about the ineffective DEQ method of lead testing:  

Shay:  "We have to test our water under DEQ regulations right now for lead and copper every three years, we just completed the latest round of testing and our water plant said its come back with non-detect for lead.  It's about 20-22 homes the DEQ has to approve on a list of properties for testing, because they are wanting to see properties that are likely to have potential lead goosenecks. 

They don't allow you to test twenty homes that were all built six months ago, you know they wouldn't have lead in there.  We are complying with those regulations and any water project, just keep in mind that the city ordinance, the city water line from the house to the street is the homeowner's responsibility. 

Having said that, when we do a road project when we are replacing utilities like we've been doing in the Fourth Ward and up by the high school, we will replace not only the water main but the water service line from the main up to the property line to make sure we have new utilities underneath the road.  And our standards now is that when we replace it, we replace it with a 1 inch copper water service line up to that point.

Wink:  "And I did call the health department months ago when we were having lots of questions about the lead with children, and I said where is this lead coming from, because it doesn't look like it's coming from the water.  And he said there is two areas in Mason County where that lead is coming from. 

Number one is there is still a lot of lead paint, a lot of the homes still have lead paint in them, especially he said, window sills.  A lot of that, another thing he said is that people don't realize we used to use lots of lead in our gasoline and a lot of factories around here still, they used to, put out a lot of lead.  There's a lot of lead in our soil.  So as our kids are playing, especially by streets and stuff, he feels that those are the two areas where the kids are getting lead exposure."

Chronologically, here's where they are mis-lead-ing you:

Lead oxide scale inside of lead goosenecks can still allow free ions of lead to leach out, it's just at a smaller scale (inadvertent pun).  Reviewing my own lead pipes, most have dark scale inside them, some are flaky.  It must be noted that mostly insoluble lead oxide is also poisonous, and likely resulted as an interaction between the chlorine in the water and the pipes, along with some lead chloride being produced, which is also poisonous. 

Likewise, researchers looking at Flint and Washington DC found that in systems that have switched from chlorine to a less oxidizing agent like chloramine, that protective coating begins to dissolve and the drinker not only has more free lead ions leaching out, but particulate lead oxide too.  Yet chlorine is the disinfectant that the City of Ludington uses in their water, and anybody that knows chemistry knows chlorine is quite corrosive to most metals and skin, contrary to the councilor's claim.

The 'free lead test kit' at Home Depot is another myth, check for yourself at the local outlet.  It may cost under ten dollars at the Depot, but you still will have to pay a $40 lab feeto get the results.  Very different from free.  Likewise if you go to Health Department #10, like I did to get their last lead test kit, they will give it to you, but you still have a $20 lab fee to the Grand Rapids lab I sent mine to.  They won't come out and test your water on your whim at no cost to you.

Running your water for two minutes is not a solution either, in fact it's more likely to get you poisoned.  Here are experiment results from a house which had a lead service line in its basement, where they first took an immediate sample from the tap, then let it run so as to get a sample where the lead pipe's water would be, and then ran it longer to get back to the water main.  You can see a big difference.  Two minutes of running your water from the tap may get you that lead service line water.  

The Flint researchers suggest running it longer, depending on where you believe the problem piping is at and the flow rate of your tap.  The lead oxide scale surely didn't protect that house or the ones in Flint-- it surely won't protect you here.

Shay reiterated his line about the DEQ testing, it should be noted that several DEQ members have been charged by the attorney general for their negligence in Flint's water crisis, while others close by have ignored the 2012 major raw sewage spill in the PM Lake where Shay ordered bypass pumping into those recreational waters. 

The 'first draw' method will never show a significant result unless there is a lead pipe or some other lead connection near the tap.  He is correct that due to a stealthy 2011 ordinance our then-new attorneys from Manistee wrote, the owner has a financial responsibility in repairing it, i.e. "When the service line develops a leak between the curb stop valve and the city main, the city shall have the right to repair or replace such line and bill the property owner for the work on a time and material basis."  Their 100 year old obsolete lead and galvanized pipes break you get charged.

Winczewski's last attempt was to divert the problem away from the city's lead pipes by claiming some unknown guy from the health department-- the janitor maybe-- claimed the lead may come from lead paint and leaded gas from long ago and in our factories.  There's no denying that these could be factors anywhere, but they belabor the questions:

1) Why do we have over ten times the instances of elevated blood lead levels (EBL) in our kids than counties which have older houses and higher incidences of leaded gas being used recklessly in their past?  Consider both Presque Isle and Ontonagon Counties, with higher percentages of older houses, had zero out of nearly a thousand kids test with EBL while Mason County had 11% of their young kids test high in 2013?

2) If the councilor had salvaged one of the many lead goosenecks from the contractors pile of 2017 road work refuse in the Fourth Ward, why is she still in denial that there's lead pipes between the city's water plant and the mouths of your kids? 

When Councilor Winczewski brings her half-pipe next meeting, I suggest we cap off one side, fill the rest with city water at the beginning of the meeting and have her drink from the pipe afterwards, to show us how safe it is.  Maybe she'll politely excuse herself like the mayor did at this meeting.

The Vitriolic Finale

Capping the night of the weird official behavior came Councilor Krauch who delivered a soliloquy just after Councilor Moonbeam's last lead myth.

Krauch (15:35):  "If I can make one comment, there was some public comment regarding the splash pad at Copeyon Park.  I think it's important to reiterate the committee worked with the splash pad committee over a number of months and a number of different proposals different sites were proposed, looked at and reviewed and it really did come down to Copeyon Park in being the most appropriate location for that and reflective of the need to have development investment in that part of town something that our local folks who live and work and play here year round can enjoy easily.
There are a lot of opinions about the splash pad, both positive and negative about it being in Copeyon Park, and when you come forward in public comment and you are free to say whatever is on your mind in the second public comment period, whatevers on your mind in relation to agenda items in the first public comment period, but you know when you come forward with false facts, when you come forward with vitriol, when you come forward in attack mode... quite frankly, I'm going to discount it.  I don't care.  I'm not going to respond to attack, I'm not going to respond to falsehoods, I'm not going to respond to nonsense. 
And we had false facts put out months ago, exorbitant costs for water to run the splash pad which were absolutely wrong, which created all kinds of negative.  We had false facts, false allegations about why diseased trees were cut down, and the allegation that those diseased trees were cut down because we wanted to put a splash pad there.  No, the diseased trees were cut down because the diseased trees needed to be cut down.
So when you come forward in public comment, I encourage you to, I appreciate it, I want to hear from folks, but please understand that we're not always going to agree, we're not always going to respond when what is put forth is flat out false, or vitriolic, we're just not.  [pregnant pause, glare] Thank you."

Krauch's comments seemed to be directed at a self-corrected figure of water usage made by Dianne Seelhoff, who wasn't exactly privileged like the councilor to chat over the splash pad for months before commenting on it.  It also seemed directed at a claim I have made over the cutting down of trees in Copeyon, trees that would have been directly in the way of this larger model of the splash pad they envision, with only a small portion of those trees diseased, an even smaller portion needed to be took down.  

City officials can say all they want that these trees were not cut down in preparation for the splash pad, it doesn't alter the fact that the splash pad committee had a spot picked out that would've required removal of the trees, and removal of even more so that the kids wouldn't get cold by playing in the shade.  The premise is strengthened greatly when you see that they planted replacement trees in Copeyon, but planted them so as to block the view of the electrical substation, not anywhere near the area they took the trees from.  

This is one of the few times I can remember since 2006 that the City of Ludington has taken the less shady stance, and actually let more sunshine in.

[XLFD]

Dianne,

Consider asking, early this week, John Shay respectfully for a little extra time at the next city council meeting to present your slide show.  They have a projector for power point presentations if you have enough savvy to create one of those.  Krauch is the chair of the parks committee, he definitely knows those trees had to come down, diseased or not, to put the splash pad in.   Krauch is a lawyer that reminds me of the Jim Carrey lead in the movie Liar Liar in that he cannot seem to function without painting outside the lines of truth.   Maybe you can finagle his son to make a wish at his next birthday to have his father tell the full truth at council meetings.  That would be a hoot.

[Willy]

That is funny X. Carrey did a great acting job in this movie even though he's a bleeding heart liberal leftist from Canada. Ever since he stuck up for Kathy Griffins humorless Trump head fiasco, I refuse to support or watch anything he his involved with.

[jfc123]

Last year when we met with the parks committee Krauch was not present, no surprise, he has been absent to us all along. It is when we negotiated weed control for us but Shay wanted it for the whole PM Bayou, to be fair, and unfortunately we were left with the whole bill since the others are refusing to pay sadly! The WHOLE bayou was treated but no support, sad statement about community! Shay even mentioned one name saying good luck getting any money out of him, ugggghh. Cant blame the city, they agreed to half.....

[XLFD]

I appreciate the questions that undoubtedly many others have who haven't wrangled with city government as much as I.  The city council has five committees composed of three councilors each that they pigeonhole city problems into before it generally reaches the full council:  here are the existing Standing Committees.  

If you do the math at least one councilor has to be on three of these committees (15 committee members/7 councilors), it happens to be Brandy right now.  The 'Parks' Committee actually is the 'Cemetery, Parks, Recreation/Waterfront' Committee so this has been considered a waterfront issue rather than a public safety issue (which is another committee).  This is where public policy is shaped and discussed in detail. 

It's one of the reason you rarely see the councilors say much over a topic, that's all been done at the committee level, and you can make an enemy or two in your own subcommittee if you chastise their work in another committee at a city council session.  

[AQUAMAN]

Dianne, good question, it's in our Torch archives, the complete story, and the cost. Hey X, wasn't that about $50-60K the COL got from FEMA or Michigan? jfc123, that's a shame, your own Bayou marinas won't help at all, I will to some extent if you give me a fair figure, it's only right to do imho. And I'm NOT in the Bayou at all, over 2 football fields away. And if you ask Shyster Shay, it's the Parks Committee that decides all this, and the other Krook Krauch is the head of that as far as I know these days.

[Brad]

Wolverine was in Ludington too.  Though not sure if there was a tannery here.  But Handy Things and other factories dumped in sewer and in Madison St dump (40s-50s?) and Conrad Rd dump (50s-60s? Closed by DNR 1971)

[XLFD]

I was interested in the Conrad Road dump and sent FOIA requests off to the parties involved with monitoring the site.  I will try to share some of that info on my Facebook Ludi-Leaks site when I get the time.  

Brad, do you know where the local Wolverine site was at or near? 

[Brad]

Wolverine was on Rowe and Whittier.  Also heard stories of it being on 220 E Dowland before it was on Rowe.  Always heard it called "Wolverine Shoe factory", but recently heard it was mostly coats.  According to GR news the contaminates were not just from tannery processes but also clothing treatments.

[XLFD]

220 E Dowland would be in the Merdel (Carrom) plaza today, do you know if Merdel assimilated Wolverine's old building in one of their expansions or did they scrap it?

Seems to me that a shoe factory might use tannery processes on the leather of their shoes and boots, but the two areas you mention have their share of environmental hazards from other concerns.  It's too bad that the MI DEQ isn't better at sharing their information with the public about these things.  When I visited them a few years back to look up the 'proposed fire station property' at 428 E Dowland, I found they have quite a bit of information in their records that should be available to the public, but isn't without a FOIA request and a potentially costly bill if you can't make the trip to Cadillac.

I hope the next governor does an overhaul and reformation of the MI DEQ, it's been failing at doing its core job, and needs a dose of fresh ideas and faces.

[XLFD]

Here's what I have, I haven't been thorough with the FEMA money accounting, but I did research these tidbits in the meeting minutes where it was discussed (from a 2016 post)

Minutes reflect this in January 26, 2009:  "City Manger (sic) Shay explained that the City received $47,276.57 today which represents the federal FEMA reimbursement of the June 13th storm related costs. The City has not received the State portion yet nor the Federal Highway Administration share, of $288,000." 

He then stated in March 23, 2009:  "the City did receive reimbursement from FEMA of $57,000, and will receive $286,900 from the Federal Highway Administration for this storm."

In June 22, 2009:  "City Manager Shay informed Council that we have received the final payments on the storm damage from the Federal Highway Administration. Total reimbursements received were $286,000."

I haven't seen any accounting of these funds in the available public records.

There is two other salient links in that post started by jfc123.  A COLDNews article which said the city was going to spend $140,000 in dredging the bayou-- that never even partially materialized, and a DEQ Newsletter from 2008 which explained the FEMA involvement.  

Whereas, I think it would be interesting to find out the back story of how the money was managed and spent, I would think the politically active private marina owners in the neighborhood would have been pursuing this angle.  It would likely require some FOIAs to state and federal agencies as well as local FOIAs to verify what happened.  The COL would probably come back with the defense, "we spent the available money on priorities, and ran out". 

Which doesn't answer why they would leave their street remnants in recreational waters.

[XLFD]

If you want to relive that hour, here is a link to that meeting:  Kaye Holman: Freedom of Information Fighter, I even transcribed the true rant that Kaye did that meeting way back in 2012.  

"We have approximately $6500 in fees, $6500 in fees, but you get a credit if you're indigent (point, smirk), you get a $20 credit (point, smirk) if you're indigent."  Internalizing all that faux outrage over the years may have led to that health issue she had at the last meeting.

[stump]

Some how $140,000 comes to mind for what the city got for clean up of the bayou.   But maybe that was another  some how missing monies.