The Appearance of Impropriety, pt. 1

[XLFD]

The judgment I have been seeking for  concerning a simple FOIA request was scheduled for summary disposition Wednesday, March 7, 2012, ironically exactly six months after the original request on September 7, 2011.  After numerous briefs and motions by both parties during that period, the plaintiffs, me and my girl Friday, along with George V. Saylor III, one of Ludington's numerous City Attorneys finally sat in court with the Circuit Court Judge, Richard I Cooper, starting the process the plaintiffs have waited so long for.  Read carefully all the material and links to see whether you can gauge what caused the issue at the end.

 

Ignore, Delay, Ignore, Obstruct, Thwart

That process has been incompletely detailed elsewhere, but to summarize, we received a reply from our request to effectively see the business records between the City of Ludington and then-City Councilor Candidate Nick Tykoski and his businesses on 9-13-2011.  The reply referred to four previous requests and said the request was duplicative and multiplicative.  No records were sent, and no way to receive them were given.  After numerous inquiries by both plaintiffs, we got an administrative appeal scheduled to take place on 9-26-2011 in front of the City Council. 

I had personally sent our full brief explaining our position to the City Council, and was assured by the City Clerk, Deb Luskin, in writing, that my brief would be part of the public record of this meeting.  I had asked the City Manager to receive written permission to come to the City Hall that night, such as was needed due to the Workplace Safety Policy passed by the City Council and the Letter of Trespass drafted by him that said I needed such permission to enter onto City Hall or LPD property.  I wasn't given any, but my lady was given a certified letter from the mayor inviting her to attend.  With noone to escort her to the ball, she wound up declining that invitation by not showing up.

Mayor Henderson started that meeting by striking the FOIA appeal from the agenda, and striking a power point presentation dubbed "Rotta/Swiger's FOIA Requests".  We later learned that was a presentation that looked to show how insidious we were for making FOIA requests to the city. 

We waited over the statutory ten business days without any response, to begin a filing in Circuit Court, commencing a civil action as per the appeal protocols in the FOIA.  We got a date for an injunctive hearing, filed the court paperwork, sent the summons and complaint to the City Clerk and found that Judge Richard I. Cooper was to be our jurist.

 

Full Court Stall

 

We wanted to get this resolved before the election, but for our first try to get it adjudicated, we had filed no "Notice to Appear", as we had thought the Court Clerk was to contact the defendant as well as they did us after a court date was set.  Then we found out at the second proposed hearing that we hadn't apparently served the defendants properly as pointed out in this letter that Richard Wilson sent to the court administrator  2011 11-10-11 RMW.  Our second scheduled court date was pushed back further, my fledgling attorney skills really kind of sucked, I guessed. 

We also received this letter from Judge Cooper  2011 11-10 RIC pushing it back to December 13th, or so we thought, in our naivete.  Expecting a review that day, we met with George V. Saylor III, in a jury conference room and ironed out the details of the civil action we had started.  This had been made into a full civil case with discovery, witness lists, etc. with those such things taking 60 days to complete.  So much for our expediency.  A few days later, the court date was sent to us, 3-14-2012.

During this time, we as plaintiffs seeking information from a City government who wouldn't allow us to get it legit, made us both answer interrogatories, requests to admit, depositions (one blocked by a Motion to Quash), and prepare numerous filings ourselves.  Without a doubt, most of the defendant's material was needlessly insulting to our character, and designated to divert attention from the claim.  It's within the rules, but not very pleasant.

Even though we were cooperative with them, they decided that they would use court rules to block any use of discovery on our part, not allowing the two people who acted as FOIA Coordinators for Ludington, John Shay and Richard Wilson, to answer anything we sent their way. 

They then had the nerve in mid-February to make motions seeking to sanction either me or my girl for the following: avoiding a deposition (albeit legally), not completely answering interrogatories (but with proper objections), and for me impersonating a lawyer (perish that thought).  The only thing we were really able to discover from them, were that they were fine in acting like spoiled jerks out to get a lot of extra money for this 'special project'.  But that has been on display before.

 

Affidavits From a Scoundrel

 

A new FOIA from us was sent shortly after the City Manager tried to give us 11 records that we had already seen before in this brief, and certified via an affidavit that it was a complete response.  It wasn't; my new request was for nine invoices referred to in DDA Financial Records (I had previously gotten through an FOIA).  I can't say whether CM Shay crapped his pants when he got caught in this fib, but in short order, we received ten records from CA Saylor on 2-22-2012, yet still not complete, followed by some more in the morning and afternoon of 2-24-2012, roughly two dozen new records, many showing Heather Venzke and John Shay signing the invoices that Tykoski's companies made for them to sign.  

Among all these records, there was never a contract-- not a one-- between the City and Tykoski's companies, even though Tykoski's companies looked to make a cool $150,000 over TIF time from making and putting up 25K gold painted signs around the downtown.  What a gig: no contract, no competitive bids, and no need to hold costs down because the fiance has the people's checkbook. 

Each such revelation of new documents were delared to be a complete response, it began to have a bit of Vaudeville about the whole thing.  A brief ( SBrief pt1) filed with the court by Saylor at the end of the next week, had another affidavit by John Shay telling me the FOIA response was satisfied, with the corresponding phrase from CA Saylor that the "plaintiffs' FOIA appeal was moot". 

But during that same time, we had the opportunity to review the DDA's Heather Venzke's PPO application at the courthouse, and found  this record among her various supporting documents that was totally new to us, and fulfilled the original request.  We prepared a voluminous, but to the point, supplemental brief ouselves and got this to the court a couple of days before the supplemental hearing. 

Eventually after a brief interlude with CA Saylor in court on 3-7-2012 (this Wednesday), we found that this missing record was actually two documents (a check stub and a statement) ran together, and copied unto one page.  The lower document was given to us in late October.  As many pages of the Ludington Torch and public records that should be only present at her office (such as check stubs and invoices) was included in the PPO application, one could likely presume that Mrs. Tykoski Heather Venzke, at that time, had ran off all the copies at her office at the City Hall.  In effect, she reviewed the Ludington Torch at work, and printed out a couple dozen copies such as this on the public's dime, and more than likely, on the public's time.  Maybe she could declare it was all for the matter of workplace safety. 

 

Hangin' With Judge Cooper

 

Our Wednesday morning court appearance was delayed by some prior courtroom drama.  In traffic court, a young man was a bit upset when he came from his appearance before the judge (not Cooper) out into the hall.  He had been hauled into court (actually he probably requested his own hearing) to contest a traffic ticket he was given for not dimming his lights one night when a policeman drove by, wheeled around and ticketed him.  I was once a passenger in a car that was stopped for the same thing before, but the driver wasn't given a ticket.  This guy who just lost was a bit miffed, and very eager to explain, without prompting, the farce he had just been subjected to.  After he paid the fine, he said he was going to wipe his behind with it as he headed down the stairs.  I felt his pain.

We finally got into court and took our seats.  Although both of us and Saylor had been in the hall for over a half hour, he was not his usual gregarious and glib self, so I thought something may have been up.

Judge Cooper had us take our seats and the court case began.  The judge went over the basics of the case and then paused, then laid a bombshell on us about an appearance of impropriety...

        (To be continued in part 2, where we find out what Judge Cooper meant.  Can you figure out what this appearance of impropriety is before its revelation in that thread?)

Check that out here and its follow-up here.

[Sweater Cows!]

Seriously that is not nice leaving us hanging like that!

[XLFD]

I wanted to see if anyone could figure out the mystery by Sunday.  There is enough information in the thread to perhaps see the Appearance of Impropriety.  It isn't obvious.

[Sweater Cows!]

The first link says in it's contents that the COL's Attorney's had a phone conversation with the court clerk on a monday, a monday after which the court clerk had been served with notice to appear for teh Nov hearing.Why would the COL attorney be having a phone convo with (the court clerk) and therefore know about the hearing even though not having been served for it and then say thanks you for your help and cooperation? Is that the appearance of impropriety?

BTW, I am not saying the court clerk did anythng wrong, just trying to guess something that may not be standard, but of course maybe that is standard for that person to talk to the different attorneys just to handle the scheduling for the court. I don't know, I suck at "what comes next questions".

[XLFD]

I think you are confusing the Court Clerk with the City Clerk in your analysis.  Toni served the City Clerk the summons complaint and notice to appear by dropping it off, but technically she could not serve the documents for first service, by Michigan Court Rules.  A party cannot serve the initial process, it should be done by process server or certified mail.  Dick had all the stuff he needed, but by law, he had not been served properly. 

On the Monday he called, Dick Wilson wasn't representing the City of Ludington as their counsel for this matter, as he hadn't come forth until Tuesday in that capacity.  Depending on the topic of conversation, there could have been an Appearance of Impropriety (A OF I for FOIA), but this wasn't the one divulged in the first minutes of the court.  Good guess, and you're not that far away from it.

[Lisa O'Brien]

XLFD,

You stink - just kidding. But seriously your going to make us wait till Sunday?

[XLFD]

I came close to stinking that day, as I very nearly crapped my pants after I learned about this A OF I.  Sunday, unless someone solves the riddle before that.  Insiders, please don't issue any spoilers.

[Willy]

Is it this document that the judge thought gave the appearance of impropriety? There's a discrepancy regarding the invoice #74. At the top it shows that invoice regards 5 Kiosk signs for $9552.76 while at the bottom it shows #74 involves 1 sign at $19,105.52. The invoice mentioned in the Sbreifpt1 shows an invoice #8009 for the 5 Kiosk signs. Another thing that seems unusual is that the amount for the Kiosk signs is exactly 1/2 the cost of the $19,105.52 sign. I'm not an expert but the dates don't seem to match up, from invoice dates to receipt of invoice date. These all could be my misinterpretations or mistakes made when the invoices were produced.

[Sweater Cows!]

I don't think so but could be wrong, within those invoices somewhere it shows that the 19K payment was to be paid in 2 parts, half as a deposit and half at completion, I think that is what you seeing.

Edit, the invoice above is the "final payment" of the half of the 19K as it is written at the bottom.

[XLFD]

The appearance of impropriety by Venzke, Tykoski, and Shay in most all the records is a moot point, and may be addressed at a later court date.  That record you show was a document put before Judge Raven in a PPO application, that had the upper part of a record obscured, and no explanation of how or why it was doctored. 

I believe Heather provided that record so as to 'disprove' the allegations that were within the threads that she also provided of myself and others.  I never got that point of her application, however. 

No doubt she was so distraught about me publishing a link to the City Assessor's records, she couldn't think clearly.

[Sweater Cows!]

Well, we know about all the obvious appearances so this has me stumped.

[XLFD]

Here's a quick hint that doesn't necessarily give it away.  Judge R. Cooper effectively was disqualified from hearing our case because of this appearance of impropriety. 

[Willy]

Could it be that the judge has excused himself  due to his involvement in this forum, either by being mentioned regarding your situation or is it possible that he has observed or at least checked into the Torch to see what is going on here or is Aquaman really Judge Cooper?