My Victory in Defeat at Mayor Barnett's First Clarity Hearing

[XLFD]

This afternoon, I had a clarity hearing for the recall petition against Ludington Mayor Mark Barnett, and the short story is that the petition language failed.  But that's kind of boring and really isn't all that accurate in the grand scheme of things.  When the three-person Election Commission panel (made up of Probate Judge Jeffrey Nellis, County Treasurer Andrew Kmetz, and County Clerk Cheryl Kelly) rejected a simple-to-understand factual phrase of "still-unsupported anecdotes" as either an opinion or not clear enough, I couldn't help but think shortly thereafter of sports analogies.

Many will remember the 16th game the Detroit Lions played this year, a 1-point loss against Dallas, for the referees botching a call by saying Taylor Decker, who seemed to have caught the winning 2-point conversion, was ruled an ineligible receiver.  But more memorable to me was that Detroit was moved back 5 yards and their head coach, Dan Campbell still went for the win rather than the tie that would have sent the game into overtime.  They failed, but a penalty by Dallas gave them another chance, and another opportunity to go for the easy tie, rather than a win.  They failed and the time ran out. 

This in turn reminded me of a 30-year-old golf movie called "Tin Cup".  Tin Cup, played by Kevin Costner, finds himself tied with his romantic rival and tour hotshot, played by Don Johnson after 71 rounds of golf at the US Open.  Rather than play it safe, Tin Cup takes risks:

And winds up not only with the most impressive 'twelve' in US Open history, but the woman as well.  How does this football and golf tale tie-in with my own quest of seeking a recall on a small-town mayor?  Both Tin Cup and Coach Campbell stubbornly have faith in their ability to get it in the end zone or the tin cup and even though the scoreboard and leaderboard shows they have lost the game, they have won something more than a mere game in the process. 

And that's how I feel after this afternoon's exercise, where I took over 15 minutes to make my case for not only my petition language, but explained in detail the reasons why Mayor Barnett's activities were improper for one in his position.  His defenses amounted to objecting to five bits of terminology that he believed weren't clear.  Among these were saying that he couldn't 'direct' council to do anything, because nothing in the charter allowed him to direct their actions.  I guess telling councilors they must have a deer cull twice is not the same definition of 'direct' that he is used to.  He was somewhat irritated that my comment went beyond the language of the petition (and into his corrupt behaviors).

Ultimately, the commission would unilaterally decide that the phrase "still-unsupported anecdotes" was either unclear or an opinion.  I didn't understand what the issue was, to me it means what the three terms normally mean in the English language, it literally means 'a story regarded as unreliable or hearsay still not borne out by evidence or facts.'  Hearsay is a legal term, when Barnett talks of hearing reports of deer attacking dogs and entering houses without any proof behind his assertions, nor does he witness it himself, it is hearsay.  When he hasn't backed it up then or since, it's still-unsupported.  I just can't find opinion or lack of clarity in the terms.  Clarity hearings are supposed to err on the side of the petitioner, but their reasons for denying this just didn't add up-- if you were just looking at language.

The election commission made a mistake in their judgment, and I take it as an affront to democracy that they would do so the way they did, but when one sees me, effectively considered an outcast or activist asking for permission to go onto the next step and telling my supporters to stay home, and then see Mayor Barnett, County Commissioner Les Johnson, Assistant City Manager Jackie Steckel, Community Development Director Heather Tykoski (don't these last two people have day jobs on Wednesday?), and a host of other folks mostly sympathetic to the mayor in the media and other official capacities, I can't help but feel that the commission made a calculation and decided that they would rather make most of the crowd happy and find against me.  That's a bad calculation on their part if they want to be done with it all.

Frankly, I'll keep asking for another golf ball and keep swinging away until the balls are all gone or I've made it into the 18th hole.  I'll keep trying for a two-point conversion, not forgetting that I was gypped out of the two points the first time.

Additional motivation has come from the MCP, with Rob Alway doing his best job of one-sided reporting.  My favorite part of his article is where he says:  "Rotta did not stay to answer reporters’ questions."  Funny, I stayed in the courtroom talking with the COLDNews editor David Bossick and their new reporter, Marcos Iafrates after the hearing, I saw no other reporters around, just propagandist Little Robby fanboying on the mayor in the hallway.  

According to the MCP, my 20-minute presentation "attempting to explain his reasons behind the application" didn't merit anything newsworthy, but a three-minute line of defense by Barnett merited full coverage, even though most of it was puerile and involved him doing his best gaslighting on definitions of straightforward language. 

I will say my monolog is long-winded, pedantic at times, and thorough about the reasons why the recall's reasons applied to the mayor.  But I wanted to get it in the record that what the mayor had done was worthy of being recalled, and I will not stop in this quest because of an election commission that wants to find any reason to deny this and future petitions going forward.  Nope, I will concurrently appeal their ruling to the circuit court and submit a new petition in the meantime that will discuss Mayor Barnett's corrupt actions even more explicitly.

In the meantime, here is my opening comment, explaining the need for recall, an account of Mayor Barnett's actions, and why those actions merit a recall election.

XLFD:  "The recall process is a mechanism that was first used during the Roman Republic and first authorized in the State of Michigan approximately 120 years ago.  Often considered as an instrument of direct democracy, it seems preferable to characterize the recall process as an instrument of empowered representative democracy.  Recall does not question the idea of having representatives, nor does it give citizens direct legislative or initiative powers.  What recall aims for is rather to improve representation by making representatives more responsive to the aspirations of citizens.

In general, a recall provides for continuous accountability, so that voters need not wait until the next election to rid themselves of an incompetent, dishonest, unresponsive, or irresponsible public official.  Electoral representation is based on the assumption that voters should be able to get rid of unsatisfying representatives, and the recall is supposed to make this easier, thereby increasing the incentives faced by representatives to care about public opinion and conduct themselves in a lawful and ethical manner.  

With this understood, I thank the Election Commission of Mason County for convening to consider my recall petition on Honorable Mayor Mark Barnett.  I come here fully understanding the large tasks in front of me even should this panel approve the petition and that ruling survive the rights granted by statute open to Mayor Barnett to appeal that decision. 

I and other like-minded individuals will have to get nearly 1000 validated signatures among the electors of the City of Ludington, we will be facing a mandate from that pool of people which saw them elect Mayor Barnett in 2022 over an incumbent mayor who had did a satisfactory job during his tenure.  We will have to endure a lot of gaslighting by the elites in this town.  And then we have to hope for some other citizen to come forward and provide a clear alternative to Mark Barnett on the ballot, and then hope they get the majority of votes.

Yet hard work and feeble hopes do not deter me from this effort.  I only need to look at neighboring Pere Marquette Charter Township and what they started just one year ago in this chamber with similar mountains in front of them.  In one year, their hard work and strong faith has paid off in a big way, in my honest opinion. 

There is no reason to change a clean diaper, you change the diaper full of poo.  The same idea goes with public officials.  In just one year of being mayor, Ludington's sequicentennial year, Mark Barnett with his charter-limited power has taken some courses I cannot agree with, nor would a plurality of citizens, but this alone would not send me to the county clerk's office looking for a recall petition.

What has motivated me to take this course of action is the following sequence of events.  Eight months, after the 2023 deer cull was voted down by council 4-2, Mark Barnett read the following prepared statement in front of the city council, transcribed from a video of that meeting, adding this to the agenda during the course of that meeting:

"Since council last considered the deer population issue within the City of Ludington, I believe that we have all become aware of the public safety concerns that are generated.  Some of those safety concerns are the presence of fawns attracting larger predators due to the food source, and we have some sightings of those predators in the areas where the deer are residing or living.  Second is adult deer attacking pets and property owners, in at least one incident, the adult deer entered the property owner's home as the owner was attempting to bring their dog into the house during the attack on the pet.  Increasing numbers of deer in the 3.2 area of square miles in the City of Ludington increase the potential for spread of chronic wasting disease and Lyme Disease.  The deer within the city are losing their natural fear of humans, this creates concern regarding interaction with people and vehicles moving about the city,

This is a public safety concern.  Committee and council action must be taken so that funding will be included in the 2024 budget.  I am asking the council tonight to initiate and approve a motion directing the public safety committee to work with the city manager to create a plan for the deer cull located within the City oi Ludington, and further that the plan approved by the public safety committee would come before council no later than November 1st, 2023 for full council consideration."  

This passed unanimously without comment or question by the council, lending credence to my suspicion that the very controversial topic had been discussed by council outside of an open meeting and outside even of committee meetings.  I had advance notice from a very reliable source that this would come up before the council again which is why I commented for three minutes that night with a prepared statement on why the cull should not be reconsidered.  

We must also recall (no pun intended) that the council as a whole suffered a PR nightmare last year after they were strongly considering parking fees at the beach and ultimately backed down due to widespread dissatisfaction among the people.  The city had conducted a non-scientific poll in 2022 which showed that 49 respondents liked seeing deer in the city, while 12 did not.  Their own poll showed that over 80% of the people were unlikely to support their cull.  I conducted my own poll with neutral language that was shared among local social media entities popular among concerned citizens of all stripes and found that 73% were against the thought of a deer cull.  

The mayor added this declaration as a last minute agenda add-on, after apparently round-robining approval from individual councilors and when the next Public Safety Committee meeting was held, the mayor was singing the same tunes, leading the deer cull charge.  The meeting notes indicate he said the cull "needs to be done", He felt "there is no longer a question as to whether a deer cull is necessary or not."  Yet, no plan was put forward or prepared at that meeting, nor was any included in the councilor packets for the October 23rd meeting of the city council.  The only thing decided was that they would put aside money in the 2024 budget for the deer cull.   

For three weeks after this, the city never solicited the public for locations to hold the deer cull and most understood that these locations would be city-controlled properties, as the city was the only ones named as cooperators in the previous year's contract with the USDA.  But then a work initiation form came in for Mayor Barnett's neighbor [show paper] followed by the mayor himself [other paper] the next day for their private properties.  Both properties abut the western border of Oriole Field, 'school grounds' according to state and federal law and are thus inside a school zone, defined as within 1000 ft. of school property.  

When Ludington submitted their own work initiation form the previous year for the school forest property where our elementary school is physically located [show paper] beyond fraudulently declaring it private property instead of school property, and fraudulently certifying that they had control over the property, located in PM Township, they had a special consideration in line 19:  "The cooperator [the city] agrees that it has reviewed the area where the activities will be conducted and certifies that either:  1) the area where activities will be conducted contains no school zones as defined by 18 USC 921 and 922 or 2)  that all schools that have a school zone within the area where activities will be conducted have approved the program's activities as described in this agreement and work plan."

Having been to all meetings of the school board and thoroughly reading their board packets, I can certify that last year the school board never even saw the agreement and work plan and so they never approved it.  I bring this up not to impeach the city's actions last year, which were execrable enough, but instead offer it up to highlight one of Mayor Barnett's ethical lapses that is not developed in the recall language.  

For the work initiation forms that were signed by the city manager and the mayor's neighbor had the special consideration clause that required school approval in school zones.  Mayor Barnett's form is conveniently missing that clause, Perhaps Mayor Barnett will tell this panel today why his neighbor had that clause in her contract, effectively making her property ineligible for the deer cull, while the mayor's form, signed the next day, did not.  Fortunately for the city and the mayor, the work initiation form has you certify a lot of information but does not have you liable under the penalty of perjury if you fail to fill it out truthfully.  

The point made on the recall petition is clear enough.  The city contracted deer cull services with a contractor.  The Cooperative Services Agreement is between two parties, the city and the USDA, and explicitly states that culling locations must be in control of the City of Ludington.  The CSA does not apply to service to private parties, though it does not preclude the USDA entering into CSA's with other entities, who then would be liable for costs.  Mayor Barnett and others are trying to piggyback on the city's contract, and that is inherently unethical and in violation of city's prohibited conduct of public officers.  

To illustrate this first, let's say the city contracts with Orkin to remove gophers and moles from city property and parks.  That's fine, they are using public funds for a public purpose, nobody wants to trip over a mound at the local park.  But when a city official uses his position to get that same service for himself and his neighbors piggybacking on that same public contract so they effectively get a free service, that is definitely improper and unethical.

The Ludington City Code section 2-72 (a)(1) in relevant part states:  "No officer shall participate in a decision in his or her capacity as an officer knowing that the decision will provide such officer, a member of the officer's immediate family or a business with which the officer is associated, a financial benefit of more than a de minimis nature which is distinguishable from the benefits to the person as a member of the public. An officer who makes or participates in making a decision under this subsection which places or may place him or her in a potential violation of this subsection, shall deliver a written statement to the governmental body of which such officer is a member and to the city clerk disclosing the potential conflict of interest and explaining why, despite the potential conflict, he or she was able to participate in making the decision fairly, objectively, and in the public interest."

Other sections of that code apply if we look at the mayor's reception of services valued at $19,500 as financial gain for himself and his friends, which it is.  Excerpted subsection (a)(3) states:  "No officer shall make an unauthorized use of his or her public position to obtain financial gain." and (a)(4):  "No officer shall make unauthorized use of any confidential information received through holding such public position to obtain financial gain."  

I would not normally go into such detail to explain why Mr. Barnett's action as part of the public record were unethical, if not illegal, but I have already witnessed his attempts at minimizing this recall effort in the local media.  In a radio interview he proclaimed:   "The [petition] language seems to leave in mind that it's just one spot, it's my yard, and I'm benefitting by public funds, and that's just crazy.  That's just not the case."   

What's crazy, is that he actually believes he is not benefitting from having every citizen pay for a deer cull on his property and the property of his friends and neighbors, when the CSA contract clearly states it's only for property under control of the City of Ludington. 

So, when he additionally says:   "I own that property, I understand, I know that there is deer there and that's part of their traveling route so it's just up to the people that will do the management to help.", his imperial sense of entitlement to the deer culling service becomes evident.  There are hundreds of better privately-owned spots for deer culling operations in the city limits, but none of them were given the opportunity to have the CSA between the city and the USDA improperly apply to their property.

In summation then, the record provided to the commissioners prior to this hearing supports the language in the petition that refers to the factuality of what happened on the record.  My lengthy presentation hopefully has made clear that Mayor Barnett's course of conduct, at least at face value, was improper enough to raise concerns about his actions during the first year of his term.  We must all be mindful that this hearing is not establishing facts to the degree of a trial, but in making decisions as to whether the language is clear enough, without opinion, and whether a reasonable person could identify, through knowledge or research, the course of conduct that is the subject of the recall.  

I myself may not fall under the textbook definition of 'reasonable person' but it is clear to me that in this political process of recall that the mayor has engaged in multiple actions over the course of his term that would be not only improper, but unethical, illegal, and against the oath that he swore to.  My petition reflects some of that clearly and accurately.  Thank you."

[Willy]

I think you did an excellent job of presenting your case to the board and I'm glad you are not giving up. You have definitely pointed out the problem with Barnett's involvement and you have covered why the need for the recall in a well thought out and written statement. I'm convinced you are correct. I'm curious about the language that the board is questioning. The phrase "still-unsupported anecdotes". Exactly how is that phrase used in your petition? As far as Barnett claiming he cannot direct the council to do anything is not correct. He is part of the Council proceedings and is the entity who runs the Council meeting. Plus he has a vote equal to other Councilors to break a tie. One could say that there is nobody, not even another Councilor who can "direct" a Councilor or Council to do anything. Barnett is definitely in a position to have a great deal of "influence" on any thing that comes before the Council.
I would be interested in reading the petition wording if you are allowed to post it. It's no surprise that the usual cast of characters showed up to support Barnett. I'm surprised Shay wasn't there. I beg to differ with your last paragraph. You definitely, in my opinion, would be considered a reasonable person. Reasonable - Having the faculty of reason - Possessing sound judgement.
As far as I'm concerned you made your case which only needs a little bit of tweaking on the language.

[XLFD]

I noticed I left the language of the petition off right before publishing this article, but I had a hard time inserting it to look organic, so I left it out, as one of the links (to the MCP) had the language and that is: 

"“At a 9-11-23 Ludington council meeting, Mayor Barnett, citing still-unsupported anecdotes, directed the council to move to create a plan for a deer cull in committee and bring it to council for approval before 11-1-23.  Moved and passed.  No plan was ever created, but council timely approved funding a cull for $19,500.  Barnett did not disclose that the public-funded cull would be held on his private property, within a school zone, nor has he got required school approval.”

It is grammatically and factually correct, so I still don't get the rejection.  It's like the panel thought that Joe and Mary Voter wouldn't be able to figure out what an anecdote is or may interpret "still-unsupported" in more than one way.  In the past this panel used a metric that allowed language to pass that could be questionable as to the validity but figured out to be either true or false after research.

Barnett spoke of deer entering houses, attacking dogs, and spreading diseases without verifying those claims in any way.  I have researched those claims and what I find is no CWD or Lyme Disease in Ludington (some cases of Lyme in Mason County) and nothing, not even in the MCP, about deer attacking dogs or aggressively entering homes.  Reportedly, Terry Grams talking with Barnett, had him admit he had no numbers or names to support his claims.

Using synonyms of my language, 'citing still-unsupported anecdotes' means 'mentioning still-flimsy urban legends,  You swear an oath to uphold the state Constitution and halt an instrument of empowered representative democracy, because voters may have different ideas about what 'anecdotes' are, or even crazier, think it's opinion?  Anecdotes and anecdotal evidence have legal definitions, to use Mark Barnett's idiom, it's just crazy to deny such language as unclear.  

But I have decided not to relitigate this in an appeal, as I would have to file a court case and order up transcripts (costing hundreds of dollars) that will only go to help encourage and finance further bad judgments by the Election Commission.  Instead I am solely going for Barnett Recall 2.0 in which I am prepared to be more direct in my language.  So if I once again am tempted to use the phrase "still-unsupported anecdotes", I will use the more easily understood term "lied" and explain at the hearing that there has never been any of the two diseases mentioned contracted in Ludington.  Guess why the mayor didn't bring a witness to a deer attack on a dog or a deer breaking and entering into a home, nor any sworn affidavits from such people?  Simple, they don't exist as he painted them.

I played nice and lost.  Next time I will be a lion, and the mayor will be a lyin' reprobate that violated laws that apply to his conduct as an official.  How clear and factual.

[XLFD]

Here is my first try at Barnett Recall 2.0.  You know I'd love to add a lot more, but this was cut to fit in the three lines provided for reasons.  Any suggestions, mindful that if you add something you got get rid of something else-- and that "unsupported anecdote" is an opinion to our Election Committee:

Mayor Barnett failed to disclose that he would personally benefit from Wildlife Management (WM) services provided strictly to the City of Ludington by the USDA through a Cooperative Service Agreement (CSA).  After advocating for restarting WM in committee and council meetings, he signed a USDA form falsely claiming he had his own CSA and stands to have WM performed on his private lot paid for by the general fund.   

[Willy]

Most of the petitions I have signed over the years were basically simple and to the point. Is it really necessary to include naming all the Government agencies? Also wouldn't it be more to the point to include in the petition that what Barnett has done was illegal and or unethical.
My version would be:

Mayor Barnett illegally failed to disclose that he will personally benefit from the City of Ludington deer kill plan, which will be paid for by taxpayers. After advocating and promoting this plan he signed a USDA form falsely claiming he had been approved to include his property. His action violated {insert code violation here].

[XLFD]

I like your take, and I would love to keep it simple, but I see a couple of potential issues with your language.  An adverb like 'illegally' (even 'unethically') would be hard to get by this panel, even when you later list the laws (ethical violations) claimed to be involved.  I could also see 'advocating and promoting' coming into scrutiny as they may parse the use of both words to describe his speaking out for it.  I could see one or more saying "He did advocate for it, but I don't see any promoting he did." or vice versa.  

I would love to replace WM with 'deer culling' and CSA with 'contract' to make it more readable and understandable, but whenever I try that it leaves some extra vulnerability for the clarity hearing.  When we're circulating the petition, we can fill in the gaps and explain the close proximity to school grounds additionally.