Open Letters Over Closed Sessions

[XLFD]

The January 13, 2020 Ludington City Council meeting didn't have a lot of topics under consideration being that there had been four weeks between the last meeting. Other than the regular issues of choosing a mayor pro tem (the six councilors present, nominated and elected unanimously the absent Councilor Les Johnson again for the task) and setting hearings regarding Legacy Park and rental rehabilitations for February 10, there were only reports and the topic of a FOIA appeal by the usual consumer of city information, your humble reporter.

I would make my case during the first comment period after commenting favorably on their draft of a new handbook for city officials to help them out with navigating as a public servant. I then addressed the FOIA appeal:

January 13th, 2020 Ludington City Council meeting from Mason County District Library on Vimeo.

XLFD: (3:15 in) "… I once again have a Freedom of Information Act appeal coming before the council, which you will vote to uphold or not. The issues you should be considering tonight have less to do with the FOIA than it has to do with the Open Meetings Act (OMA). We all should know that minutes of a closed session are not available through FOIA, that seems to be the extent of the FOIA Coordinator's defense of his non-disclosure. Conversely, section 9 of the OMA says that minutes of open session meetings are public records available for inspection, which we should all know.

Hence the controversy is about whether the city council was in legitimately closed sessions at the two meetings. On November 25th, four councilors voted to go into closed session when it required five votes to do so. A quorum of the city council deliberated over the settlement terms at a venue that wasn't an open meeting, and yet not a properly convened closed session. If you vote to withhold these minutes, you are effectively saying that the session was lawfully closed when it clearly wasn't.

On December 9th, on bad legal advice, the council went into closed session to effectively reenact their deliberation process they botched in November. The City had no active legal case at that point, ergo it had no reason for going into closed session. Once again, a quorum of councilors kicked the public out and deliberated for about twelve minutes ostensibly over a decision that had already been made binding at the prior meeting. If you vote to withhold these minutes, you are effectively saying that the session was lawfully closed when it clearly wasn't.

if I and/or others should decide to try these issues in court, your vote to withhold the records from the public tonight will earn you a spot on the list of defendants as an official who intentionally failed to comply with open meetings law. [END]"

I had little to no illusions that four of the six councilors present would vote to release the public records, rather they would look at what the city manager and the FOIA Coordinator recommended, and have City Attorney Wilson slam the door shut by offering up a legal opinion that would miss the point. I wasn't disappointed.

This meeting's minutes and video reflect that Wilson would admit the first session was not held in accordance with the OMA, yet could find no precedent saying that the minutes would be available. He also stated that the second closed session was legit because the lawsuit had not yet been finalized by the judge's signature. They are very poor legal points when you consider that there is plenty of precedent regarding the first point (in favor of transparency), and that the statute cripples the latter point to irrelevance. Without even a question by Councilor Serna, the vote was unanimously against disclosing the records. I had summed it up in layman's terms in Two Illegal Closed Sessions, I had hoped it would have made city officials think it through more clearly.

They would disclose that the FOIA Coordinator Carlos Alvarado had made a memorandum, and I was able to get this after the meeting. Alvarez's main point was that he had found a precedent LOCAL AREA WATCH v. CITY OF GR where summarized, LAW took a FOIA case to court over closed session minutes, and should have instead brought an OMA case, strengthened by FOIA denials.  A mistake I won't make.

This was not nearly as strong as a result that I had in my back pocket. Shortly after noon on Friday I sent a letter with my intentions and just a touch of my legal authority I amassed over the intervening days, addressed it to the councilors, sending copies to the mayor, city manager, and city attorney.

"I have pretty much given you notice this Monday that there will be a lawsuit filed if you did not continue to ignore the charade that you have not violated the Open Meetings Act (three of you doing so twice) or that the minutes of those unlawfully closed sessions are not available to the public. I will begin working formally on the summons and complaint after 5 PM this upcoming Monday unless I hear word from Mitch, telling me that four or more of you have contacted him and wish to accept the responsibilities I outline below.

You will note that Councilor Winczewski is not addressed. This is because she will not be a party in this lawsuit like the other six of you will be. This is because the initial infraction that took place in November is likely to have been unintentional. In December, however, the law was explained to you, the law was available to you, and yet you decided to follow the terrible legal advice of the city attorney(s) to not only reenact the decision to go into closed session (which was proper enough), but go into closed session for 13 minutes without any disclosed and recognized reason for doing so.
Compounding that bad decision, you then blocked the FOIA request for the minutes of those unlawfully held sessions this Monday, again on the bad advice of attorneys who couldn't find any legal precedent on the subject and so opted to choose secrecy over transparency.

I've got a fine outline of my case right now, but at its backbone is the precedent attached, there are several others I will draw on once this gets underway and need to show you have violated both OMA and FOIA. In this case we get the following pearls of wisdom: "The trial court concluded that the meetings were held in violation of the OMA and that the minutes should be disclosed under the FOIA. We affirm. " and "Accordingly, we conclude that the trial court correctly ruled that the January 29, and February 3, 1988, meetings were held in violation of the OMA and that the minutes of those meetings were public records subject to disclosure".

These are just summations made by that court, to get the full flavor of the judgment please read the full decision. This precedent has been used in at least 15 other higher court cases since without alteration of its findings. To say there is not established precedent for minutes of unlawfully held closed sessions is just not very diligent.

You six councilors individually, along with the city clerk or mayor (who will serve as the COL defendant), will get served a summons and complaint at an upcoming city council meeting for your part in intentionally defying the OMA on December 9th. I will win the case or favorably settle, you will be responsible for the City's expenditures for defense in your losing cause as you were the ones that broke the law intentionally, not me.

Rather than go through the motions, I offer you the opportunity to provide me the minutes of the two unlawful sessions, and express proper contrition to the public at the January 27, 2020 meeting for your two violations of the OMA. If you think this is a fair pre-lawsuit arrangement, please contact your city manager expressing your interest in settling this issue by the afternoon of January 20th. If I hear nothing from him, I will presume you wish to put misplaced pride before your duties to the City and its citizens and draft my lawsuit replete with violations of FOIA and OMA.

Thank you for your consideration."

Less than ten minutes after I sent the E-mail, Wilson sent a response back to me giving the councilors some legal advice:

In Wilson's haste to get his message to the councilors, he (probably mistakenly), hit reply rather than forward and I was his primary recipient, rather than someone he wanted to relay the message to. This had happened once before when his colleague had a day of deposing me and another as plaintiffs in a FOIA lawsuit and Wilson sent an E-mail to me instead where he wondered whether his partner made either of us cry. I definitely couldn't let his error go unanswered, since his advice was erroneous too, sending back an E-mail about 90 minutes later:

"Using your reasoning, it was a violation of OMA when Mayor Miller discussed 'impeaching' Councilor Serna this last summer with each of the other councilors in individual session before the meeting where the council did it so seamlessly and without divulging relevant data to the public. Where were you then, counsel?

If each councilor independently makes up their own mind that they would serve the City better by capitulating on their lawless stance regarding their violations of OMA then of FOIA, then telling Mitch (only) of their decision should not be in violation of the OMA. The link provided is advice from an MML power point describing an 'informal canvas' and its legality.

I'm tempted to once again say 'terrible legal advice', but if there is any councilor who wants to end the illegality, directly contact me instead of Mitch, if you must meekly follow the city attorney and you're actually afraid of violating the OMA when you actually aren't (this time). I doubt whether more than one of you have the character to do so, anyway.

As for characterizing my negotiations as threats, according to Black's law dictionary "A threat has been defined to be any menace of such a nature and extent as to unsettle the mind of the person on whom it operates, and to take away from his acts that free, voluntary action which alone constitutes consent.". I just can't figure out where the threats are in my offer of clemency. Please, advise."

I will know by this evening whether the city council wants to waste $60,000 more for their legal resources for their defense of the indefensible, wherever they decide that money comes from, or whether they do what normal people would do in the same situation and say (in their own words and as a group):

"We messed up. We broke the law; we tried to make it better, but we only made it worse. Because it's the law, and it's the right thing to do, here are the records we tried to illegally hold from you, the public, made when we were conducting our business illegally.  We will do our best in the future to follow the law as your public servants."

[Freedom Seeker]

What gets me is, it's not just "messing up" it's like Richard Wilson can't understand, maybe doesn't have the research skills to find the law, or just doesn't try. Maybe he is too busy to piddle with Ludington. Our councilors and staff can only be advised as good as the legal counsel is. No excuse for them, really, but these laws and reasons for going into closed session are pretty obscure. And mostly I wonder, how is it that a citizen (XLFD) without the legal resources like Wilson has, can find a lawcase that related to this specific issue when Wilson said there is none to be found?

I think COL should transfer the FOIA responsibilities and legal advice (at least initial review) over to Tom Rotta. I'm sure he could save the city at lot of money. But I'm afraid their deep-seated hand-picked hatred would never even consider that.

The city did a huge disservice to this community when they decided to attack Tom Rotta, rather than use his skills. And it continues with those hand-picked to continue the agenda. Blinded by hatred.

[XLFD]

I have been their informal FOIA consultant for the last eleven years-- in my own way. 

The best FOIA advice I can offer the City of Ludington or Manistee is to follow the former Scottville City Manager Amy William's advice who paraphrased:  provide the records, don't sweat about fees and most exemptions when the request is reasonable.

[stump]

That's pretty funny about Willson sending you his view on the OMA and what he advised the council to do. That brought back a memory I had years ago .  I  had a law suit against a person in town and that persons attorney, one of this towns prominent ones   sent by mail [ no computers at that time ] his full case strategy  to me instead of his client. Needless to say my attorney loved that information and I won the case.   I would have thought with the new City Manager that the shady Shay Lawyers contract wouldn't have been renewed. I can see Wilsons response to the council as a money maker for him.    Who gets paid if it goes to court?   Wilson.     Who gets paid if it's a win in court?   Wilson.   Who gets paid if the city looses? Wilson  . He can play the game laughing all the way to the bank. The City just doesn't need someone like this.

[XLFD]

Yours is the point I made frequently during my first lawsuit with the City regarding FOIA, where Wilson and his usual replacement Manistee CA George Saylor III, made out like bandits charging the City of Ludington as much as $330 per hour for effectively defending the untenable position that was shot down in the Michigan Court of Appeals.  Tens of thousands of dollars later, the dishonored Judge Richard Cooper allowing his son's law firm to present this case in his court for half of a year later, we prevailed but came out in the red, just not nearly as red as the City or how their faces should have been in embarrassment.

[Willy]

Wilson thinks he's on a gravy train because some silly City officials can't wipe their butts and think at the same time. It's high time for the CIty to hire someone who represents the citizens not just the Council. I have never understood why any meeting would not be subject to the OMA because, after all, it's the citizens business that is being discussed and everything should be on the table. Great Job X.