Hiding Behind Signs 3: FOIA Discovery!

[XLFD]

A FOIA request dealing with inspecting the contracts and receipts between the City of Ludington and the then City Official/City Councilor Candidate Nick Tykoski's company  between 2008 and 2011 which the City would not divulge or assign a fee cost for was related in the thread Hiding Behind Signs.  Read, or skim that if you remember it,to get a background. 

 

We at the Torch then appealed to the City Council, and was promptly denied any sort of administrative appeal process as illustrated in Hiding Behind Signs 2.  Again take a quick glance at that, for even more background.

 

We then began the second appeal process, in the Circuit Court to find out why we were not getting any documents or any sort of acceptable FOIA response from the City Manager in Going to Court.  Because we thought the FOIA law was clear, our complaint points were strong, and the City was in arrears by not following the FOIA, we decided to go without a lawyer and save the City (i.e the taxpayers) the costs of any  attorney fees on our part.  An original court date of November 2 was made, but due to a misunderstanding between us and the court where the defendant was never given a court date, this date had to be rescheduled for November 17.

 

But starting election day, the lead City Attorney of Ludington, Manistee's Richard Merlin Wilson, drafted a document that started the City's counter-offense.  This 11-8-11 letter had in it the following:

First off, I see nothing in the FOIA appeal process that claims it is a "civil action", but it does say in Section 10: "The court shall determine the matter de novo [afresh] and the burden is on the public body to sustain its denial." and "An action commenced under this section and an appeal from an action commenced under this section shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way."

  

Allowing pre-trial answers to the complaint, discovery and counterclaims is not expedient, nor does the FOIA claim the FOIA appeal process is a civil action.  Besides with plaintiff discovery, should I not get to see what I originally requested-- the Tye Sign's FOIA?  And what would be up with a counterclaim?  Is the City now wanting to sue me and/or Toni for making FOIA requests? 

 

I hang my head in shame for the City I live in to announce it, but the answer to that is "Yes".  Here is their list of Affirmative Defenses:

 

I expect a line of defense from the City of Ludington, but this defense is ridiculous and fraudulent.  Here is a quick refutation of every one of the five defenses.

 

1) As in the original request Toni has asked to inspect certain records.  The City has not made available those records either by granting her those records or establishing any fee for those records.  The records differ from a request she made in January, which we paid for in full.  And even different than I, a totally different person, made last year.  That is a clear denial of allowing us to see these records.  The City Council then passed on their duty to judge it in the administrative appeal.  Which led us to this impasse.

 

2)  As stated the only FOIA request prior to this made by Toni that overlapped this request was on January 24, 2011, which she paid for.  This was a totally different request that involved competitive bidding on the DDA signage contract with no mention of Tye's Inc.  This assertion is slanderous as she has paid that charge.  Barrister Wilson, I am a different person, but this was not my request of last year and the charge then was illegally based.

 

3)  FOIA requests about a City Official's company and his possible benefitting from unfair contract awards is excessively and unreasonably interfering with the discharge of the City's functions... oh, please.  Take a minute to look in the file folder or computer file dealing with "Tye's Signs" and allow us to inspect it.  How's this appeal after appeal working for you?  It sure is a waste on my time, and trampling on the public's right to know about their new councilor-elect.

 

4)  The City Attorney boldly lies here: the records have yet to be offered for any price, and Toni has asked for them only on this FOIA and its appeal.  The chain of replies is in the "Hiding behind Signs" thread where FOIAC John Shay never offered these records nor stated any price.  By Section 5, FOIA, (2) and (3):  Failure to respond to a request pursuant to subsection (2) constitutes a public body's final determination to deny the request. In a circuit court action to compel a public body's disclosure of a public record under section 10, the circuit court shall assess damages against the public body. 

 

5)  More slander.  Toni does receive some public assistance and has a notorized affidavit of indigency filed at the Ludington City Hall.  John Shay arbitrarily allows her to have the $20 off it affords at times.  At other times, like for the January 24 request, he disallows it capriciously. 

 

Five out of five times, they make assertions without proof, just a tax-dodging lawyers word for it who hasn't even filed an Oath of Office with the City.  "Scheme to defraud" ?  Those are strong words, Dick.  Since Toni has got her affidavit approved, there has been absolutely no duplication of her requests to mine. 

 

At the bottom Richard prays that the honorable court dismiss plaintiff's complaint with prejudice [barring the plaintiff from filing another case on the same claim], grant to defendant its costs and expenses in defending this action, including a reasonable amount for attorney fees and other just and reasonable awards.

 

Here is how open, honest, and thrifty our City Hall is.  We will likely now have to get an attorney to handle all the extra bother the City has put in our way, and when we win, guess who's going to pay the court and the attorneys for the City's reluctance to show these documents?  We all are, and yet why doesn't the City Manager freely let Toni come in to inspect these documents?  Is he just hiding something, or is he just being an obstructionist who is upset for having an occasional extra duty of hunting down documents?  Someday we may find out.

 

But Saturday's LDN dutifully reported that the City Council is going to go into a closed session on November 14, Monday night, to discuss the City Attorney's letter in full.  If any of you in the Council have a soul, please help Toni and the public at large to get this information which the City Manager has claimed privileged. 

[XLFD]

Sohn,

Similar does not equal identical, just as on a person level, Toni does not equal Tom.  If persons A and B ask for similar information, they both deserve a determination of fees, if any, by the FOIAC.  For Toni's January FOIA she paid for, she received faxes for bidding on contracts sent to four sign companies, and the minutes of a DDA meeting.  She would not receive these by her current request, though she would get the bid from Tye's Inc. that existed before the bidding took place in her latest request as well.

Set theory says that if set A is a subset of set B, and set B is a subset of A, only happens when A and B are equal sets.  The set of records Toni's first request, and this request were not equal, neither were my request (iterated thrice) of last year and this request.  Thus calling them "duplicative" is a definite misnomer, just like calling "Sohn Jhay" and "John Shay" the same would be.  Definitely, intersection of views are present, but they are different people.

 

[XLFD]

Willie,

The City Attorney noted in Monday's meeting that the closed session of the CC meeting was by section 8h of the Open Meetings Act, namely "To consider material exempt from discussion or disclosure by state or federal statute".  It wasn't specified at the meeting, but it was to review and discuss the CA's written letter that he scribed on 11-10-11 (having to do with our FOIA appeal, and the City's intentions).  This is permissible to do under the OMA for a closed session, though it is recommended by the MI Attorney General to also note whenever possible the nature of the material so discussed in the minutes. 

They do not need to inform me or the public about what was discussed, nor will they.  It's Funny; one side in this skirmish has been open to discussing the matter out in the public and pointing to laws and the facts in the matter to decide it, and to reveal the documentation for full public view on their website.  The other side goes into closed meetings and hinders, obstructs, and delays the release of vital public records legally demanded for inspection even though by law they are supposed to. 

[AQUAMAN]

It's called, make up the rules and the way they are interpreted as you go along. Thus, making the COL the winner at any and ALL junctions in the course of the story. The same story must prevail, that of Not Losing at ANY COST and ANY INTERPRETATION. Unless you want to spend thousands of dollars to rebuff it, and maybe, just maybe win, in a Sticky Appeals process much much later.  But that too, must get muster in the local court, with a local judge, that also must get the same muster from their paycheck at the end of the week, from the same public trough. Bottom line as we can ALL see is that the COL will NEVER give IN, no matter the fault, guilt, nor obligatory messing of the Law, and policy, and City Constitution, it MUST WIN, at ANY Cost, to SAVE FACE, and Further the Agenda, that of supporting the powers that reign over Ludville. And with unscrupable ways in the election process. How do we actually know that this most recent election process was above-board all along, since the numbers are obviously against any and all newbies that ran for office. I didn't see one that lost, to the contrary, all the incumbents, and hand-picked unopposed people won hands down. That in itself, should prompt some inquiries, or at least raise some eyebrows to say the least.

[XLFD]

When one considers that the Ludington City Manager, the Mayor, the seven City Councilors, the City Attorney and the City Clerk all knew that I lived in the Third Ward after I applied in March for the councilorship, and was forced thereby to vote at the Ludington City Hall, and yet not a one of them decided to make any effort to see that I would be able to vote, Aquaman's assertion is not that far-fetched. 

Especially considering all the pleas that I and my attorney made for them to revoke their policy/letter and the very public protest I made on the date of the candidates public forum.  One needed only look in the back of Code Enforcer Jerry Welton's car to find more supporting evidence, a half dozen "Rotta" yard signs and no other candidates signs, while the next day there were more than a half dozen of other candidates signs still out in the right of way, and more to come. 

I stand by the assertion that we all had the right to put these temporary signs out in the ROW without interference, as well as they were otherwise conforming, and am indignant about the City's assertion that the ROW in citizens' private lots are the City's property.  The City's power has its limits, even if they refuse to admit it. 

[AQUAMAN]

Want to see a good turn, tell everyone to stop mowing and maintaining what the city claims is their right of way on their property. You get a couple hundred or more property owners doing this and see how the city DPW/Welton reacts. I'd like to see the look on their faces, I already know one man that did this and boy, did they do a 180 turn-around after they got sick of looking at high grass/weeds near the roadway of a busy street. Chuckle...

[XLFD]

I'm going to challenge the City's assertion of their ownership of the right-of-way this winter, and then challenge the City's assertion that temporary signs cannot go here. 

 

The former is absurd, since private landowners in the city have their lots extending to the middle of the street, and thus own their side of the street and their right of way.  Obviously, people can use that street and your sidewalk as they pass by, but you should have a right to control who parks on the street in front of your lot, and put conforming signs and other things in your ROW if they don't cause pedestrian or vehicle traffic problems.

 

If they determine they actually do own your ROW, despite your title deed that says otherwise, it would be time for some coordinated counterattack to fight that land grab.  Consider that sec. 18-35 of the City code says:  "Upon the discovery of a prohibited condition existing as set out in sections 18-32 and 18-33 [growths of weeds and grasses over 10 in. tall, bushes and trees from extending over sidewalk] the city manager, or his or her designee, shall notify the owner of the property as shown on the tax rolls of such condition and require that it be remedied within ten days."

Well, if the City owns that ROW of yours, they are the ones responsible for the nuisance weeds, grasses, bushes, and trees there.  But the City wants your land, and wants you to tend it for them.  Outrageous.