Openly Disobeying the Open Meetings Act, pt. 6: When in Doubt, Air it Out

[XLFD]

I am always surprised not only by the absurdity of what City Attorney Richard Merlin Wilson says, but also by how gullible all the Ludington City officials in front of me are to his strange ramblings of legal nostrums and elixirs.  I thought he would be more careful in his meanderings after massacring the meanings of libel and slander in trying to say a citizens reiteration of what he knew to be factual material fell in that category (if the perjuror was not a public official like Ludington City Manager/Perjuror John Shay), earlier this year.  

 

But he equaled that legal gaffe in the April 22, 2013 meeting, when he talked of the Open Meetings Act and the City's Risk Management Authority's duties.  Following the meeting video are my words, followed by his retort at the end [with my refutations/comments in red following], and then a synopsis of actual law and court precedent that illustrate the foolish talk that took place that day.

  

 

(4:15 in)  Tom Rotta "...At the last regular meeting, this city council went into closed session under section 8e of the open meetings act to "consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation"  They specified this was based on the lawsuit of Burns (a citizen) vs. Sailor (a Ludington police officer). 

In the suit which alleges assault and battery by Officer Sailor, as well as violations of plaintiff's rights under the color of law, we find that the City was never a defendant in this case, and the City council never made a decision to assist the defendant in this case.  So why was our City Council going into a closed session to consult with Officer Sailor's attorney about this case, why did John Shay attend a mediation session representing Officer Sailor, and why would such a consultation have a possible detrimental financial effect on the City-- who was not a party to this suit?

Therefore, the City violated the Open Meetings Act by providing Officer Sailor legal representation without the deliberations and decisions of that choice taking place at an open meeting of the City Council, and then violated the OMA once again by going into closed session unlawfully when the consultation would not have a detrimental financial effect on the litigating or settlement position of a public body, as 8e necessitates, since it never was a party to the suit and never committed to aiding the officer."

 

 

(37:50 in) City Attorney Dick Wilson:  "I would also like to comment for those of you who may be wondering about the Open Meetings Act issues that were raised.  This has come up once before, under the Open Meetings Act, the City of Ludington does not have to be named as a named party in the lawsuit in order to use the exemption in the OMA that allows us to be in closed session [that issue is not at dispute, and never in my narrative.  This is a typical attorney trick of obscuring the issue]. 

This City pays a lot of money for an insurance policy that covers city officials, city employees, and under that policy a lawsuit against a city employee, whether it's the janitor in the City Hall or a city police officer, triggers what lawyers refer to as a "duty to defend", and the insurance company that we pay the premiums to, has that duty, regardless of whether the City Council takes some special action such as "we want you to defend this police officer" [More subterfuge.  This isn't entirely accurate; the duty to defend may extend to employees, but there are several variables that may drop this duty, such as if the suit is related to conduct outside of the person's public service.  Moreover, even if you have the most comprehensive insurance policy, you still have the option to not use their services-- for instance, if you weigh the variables and decide your premiums may be higher in the future if you take their services, you may opt to defend yourself.]

We have a contract with the insurance company that says that "we will do that no matter what".  That's what we pay the premium for [that policy has been requested by a FOIA since he seems reticent to go through what this policy actually says].  Your homeowners insurance has a "duty to defend" you if your neighbor sues you because your dog bit him, regardless of whether or not you take some formal action to request your homeowners policy to provide that defense [your insurance company cannot defend you unless you contact them and make an agreement for them to represent you.  Plus, in this case, if we consider Officer Sailor as our dog that did the biting, we have to notice that a person has responsibility for his own actions, unlike your dog!] 

It's something that you do when you enter into a contract, is authorize the insurance company to defend it, and so the theory that unless we take some special action to have our insurance company defend the city employee is a non-starter.  You took that action when you purchased the policy of insurance, probably many years ago then simply renewed over the years [no insurance agency volunteers such service until you contact them, and decide to utilize their counsel.  This is your discretionary decision to do so.  If you happen to be a public body and one of your employees are sued, someone makes that decision, and that decision is made by the legislative body; in this case, the city council, which needs to make all decisions in an open, public meeting.  Messmore]

The municipal insurance company, MMRMA, it's the MMRMA policy provides a lot of coverage to a lot of municipalities in the state of Michigan.  It is simply acting in accordance with the contract that the City entered into. [MMRMA has a good track record, but its website and web pages do not reflect Dick Wilson, it does say:  "MMRMA encourages active member participation in the settlement of claims and lawsuits and direct member involvement in all aspects of the program."  I don't believe their contract with Ludington will reflect what Wilson asserts.]

The financial impact, there does have to be a financial impact or the potential of a financial impact to the city, or on the settlement or on the negotiations that are involved with the lawsuit in order to utilize that exemption under the FOIA. [As seen here MCL 15.268(e)] that impact is reflected in the fact that you are going to pay $100,000, the first $100,000 of liability comes right out of the City's premiums that are paid to the insurance company, and as that retainage, or deductible amount is lessened by use, the City is obligated to replenish that [The financial impact must be very real, not 'potential', the law uses the word "would" not "may".  But if the parties already had a mediated settlement, which court records said they did, all that would have been discussed is the acceptance of that settlement.  Consider the cases:  1) if they accept the settlement as negotiated, the meeting fails the financial impact test, as that is the expected payout by MMRMA.  2) if they don't accept it, and decide a lesser payout is warranted, then that decision would be a positive impact if accepted by the other party under further negotiation, and fails the test  3) if they decide a greater payout is warranted (ha, ha), then 8e also would not suggest a closed session.  Lastly, 4) if they don't accept it and want to take it to court, there is no financial impact involved in that decision.]

And so in the case involved two weeks ago, we went into closed session, that will have an impact on the City because that will take money if we settle the case, it will take money out of that retainage that the City has put in for that purpose.  So both Allen Vanderlaan who is the attorney in that matter and myself confer on these things and it's the unanimous advice of your city attorneys, both general and special, that going into closed session for that purpose was absolutely appropriate under the OMA; comments from the public notwithstanding [and clearly stated laws and court precedent notwithstanding.]. 

That is what legal wizard, Richard Merlin Wilson says.  Here is what Michigan legislators have passed regarding this topic.  This is the actual law word for word, with some parts emphasized for clarity: 

MCL 691.1408 (1) (emphasis added): "Whenever a claim is made or a civil action is commenced against an officer, employee, or volunteer of a governmental agency for injuries to persons or property caused by negligence of the officer, employee, or volunteer while in the course of employment with or actions on behalf of the governmental agency and while acting within the scope of his or her authority, the governmental agency may pay for, engage, or furnish the services of an attorney to advise the officer, employee, or volunteer as to the claim and to appear for and represent the officer, employee, or volunteer in the action. The governmental agency may compromise, settle, and pay the claim before or after the commencement of a civil action. Whenever a judgment for damages is awarded against an officer, employee, or volunteer of a governmental agency as a result of a civil action for personal injuries or property damage caused by the officer, employee, or volunteer while in the course of employment and while acting within the scope of his or her authority, the governmental agency may indemnify the officer, employee, or volunteer or pay, settle, or compromise the judgment."

Likewise in Openly Disobeying the OMA pt. 5, the opinions expressed in court cases on this topic since over a hundred years ago to the present have all said the same thing, whether it be Messmore v Kracht, 172 Mich. 120, 125 (1912),  SONNENBERG v. FARMINGTON TOWNSHIP (1972), EXETER TOWNSHIP CLERK v. EXETER TOWNSHIP SUPERVISOR (1981), or a host of less-often quoted cases involving one or more public employees in a lawsuit:  a municipality in general possesses the discretion to determine whether (1) counsel for the municipality shall represent a municipal official sued in his or her capacity, (2) to approve retention of private counsel paid for by the municipality, (3) to indemnify the official for expenses incurred in defending the action, including attorneys fees, or (4) the municipal board may decline to provide legal representation or indemnification for such official. The exercise of discretion by a municipality is generally reviewable by the courts for abuse of discretion.  I have looked for the converse in court precedent, or even in Michigan Attorney General Opinions, but the same theme runs throughout.  Insurance companies shouldn't make the decisions here, the municipal board (City Council) should.

 

Insurance representation is a service chosen by the municipality, not the decision-maker of what to do.  The Ludington City Council needs not only decide how to settle these lawsuits (as they have done in several closed sessions over the years), but other decsions that take place at the beginning of the lawsuit process. 

 

Thus, the City Council has the discretionary authority to pay for, engage, or furnish the services of an attorney, compromise, settle, and pay the claim, or indemnify a police officer for the expenses he has sustained in the defense to civil (and criminal) charges that arose out of and in the scope and course of his employment for the municipality.  In this case, the governing body, the Ludington City Council, would have had the duty to the people they supposedly serve to figure out whether Officer Aaron Sailor was acting within the scope of his authority when he entered the residence without exhibiting a proper warrant, and whether/how the other allegations would hold in court. 

I know that if I was on the city council with the information I know of, I would have supported the innocent citizen whose property was unlawfully invaded, I would have supported the other innocent citizen who was pushed and obviously hurt by the actions of the invading officer (Aaron Sailor), and not supported someone who had violated their oath of office by violating the Fourth Amendment of the US Constitution before he assaulted and battered one of my citizens. 

I would further have made it abundantly clear that such actions should not be condoned by any means, ever, in Ludington.  Like city councilors, mayors, and other elected officials, police officers should get out of my city if they don't follow the law and put the welfare of the good people they serve and protect first, instead of engaging in concealment of the crime tactics all around.  Ms. Burns and Ms. McCann have not been the only people victimized by our scofflaw police force and shadow-hugging city hall, the people of the City of Ludington is paying the blood money for this settlement, and continues to pay a police officer that could hurt some other innocent citizen the next time he gets blinded to common sense by adrenaline.

[Willy]

So what you are saying is because the City had the option of providing or not providing legal assistance to the defendant, the City then was obligated to make that decision in an open meeting and not behind closed doors? That decision along with other decisions regarding the lawsuit itself should have been discussed in an open meeting, correct? 

[AQUAMAN]

I think the COL had the option or obligation to negotiate and work with the insurance company attorneys on this on the phone, fax, or wherever they wanted. Instead, they resorted to bringing the matter to the City Council meeting, then going into closed secret sessions about the matter. The moot point of having placed a material amount of retainer for a deductible with the insurance company withstanding. That's a requirement that is there whether a litigation is made or not, irregardless. Like any claim to the insurance company, the deductible isn't applied until a settlement or claim is entered into and satisfied. The fact of the matter that we, the COL taxpayers, have had similar instances of police brutality happen recently, over and over again, both with the MCSO and LPD, should strike a tone of fear and anxiety into most citizens. On the financial side, it should shake the citizens into wondering wth is wrong with the present system of LE hiring practices, and of course, procedural activities in the field when making searches, arrests, and questioning innocents as well as suspects. When it smells like spoiled fish, need we ask if it's ok to eat?

[XLFD]

Here's the alarming thing about these recent revelations on procedural error and police brutality in Mason County that have led to federal lawsuits being filed recently:  the victims have been apparently innocent of any wrongdoing: 

1) Martin Schiller had a son who was a renegade, but he was unlawfully searched seized and arrested by current sheriff Kim Cole.

2) Joe McAdams, mother was stopped for suspected DWI, innocent of wrongdoing himself, he was tackled while walking away from a police, multiple tasings/police brutality, unlawful arrest, etc., issues that have yet to be decided

3) Shelly Jo Burns, allegedly pushed hard from behind after a LPD officer forced his way into her sister's house without a warrant displayed, injured.  

 

Each of these people were minding their own business, and were themselves not guilty of anything other than being related to someone who was afoul of the law.  Each of their very valid claims have been basically ignored until they were settled.  It would seem a local newspaper would come out against such things.  Naw, they have more important things to do like bash a local guy who catches OMA violations being made by local agencies, and makes FOIA requests to keep these rascals in some degree of check.

[XLFD]

Yes, Willy, just like they had an obligation to make a decision about whether to settle the lawsuit at the price mediated between the two parties attorneys, which the City did discuss in the closed session, they were similarly obligated to decide whether they would indemnify Officer Sailor by using the MMRMA, use the City Attorney to do so, or allow Sailor to defend his own self.  This is why we have these lawsuits catch the people by surprise two or three years later.  The City of Ludington for some reason wants to keep the people in the dark about all these lawsuits they're involved in.  So much that they will shirk the Open Meetings Act and common public decency to do so. 

 

Everyone on our elected City Council and our Mayor should discuss the issue of choosing to defend a public employee sued in a public open meeting when they happen because it is proper.  And because it makes the whole gang look like they are hiding things themselves and villainously crooked themselves when they come out of one of these closed sessions and say in open session:  "Motion to accept the attorney's recommendation." and then "approved unanimously" shortly thereafter.   This is abhorrent to having an open meeting in the first place. 

I mean, how open would we think a meeting that consisted of "Motion to accept the resolution City manager Shay mentioned in the memo dated April 7, 2013"... "unanimously accepted" be?  That's what our City's legal team and administration wants to work for, and it's why we need a change in both.