Ludington City Council Meeting, December 18, 2017: Open, Close and Not too Close

[XLFD]

Noticeable at the December 18, 2017 Ludington City Council meeting was the absence of Councilor Richard Rathsack for the third consecutive time. Also of note was that there was hardly anybody in attendance beyond the city officials normally in attendance, and even some of those were gone, like Councilor Krauch and Fire Chief Funk. The two county commissioners that serve the city were present, John Terzano, who would be appointed to the Planning Commission, the cameraman, the media of the COLDNews and WMOM, Chuck Sobanski, and my right hand girl, sitting to my left.

It was a light schedule this evening, with reappointments and new appointments for the new year being the main course, all unanimously appointed/reappointed. A closed session was scheduled to discuss financing of the House of Flavors wing of the WWTP, and a PILOT ordinance was to be extended to the developers of the bowling alley block.

Mayor Kaye Holman muddled through the night with some confused moments scattered through the meeting. After the invocation, pledge and approval of the agenda, I approached the microphone for the first public comment, where I touched on Councilor Winczewski's lead presentation of the previous meeting, and why John Shay was not viable. It's unfortunate I cannot lay out a full case in a couple of minutes:

XLFD: "Unfortunately, Councilor Winczewski spoke at the end of the last meeting about lead pipes, so I wasn't able to warn those present who handled the lead to wash their hands thoroughly with soap and water, as the literature recommends. A host of self-serving, inaccurate information was doled out by the councilor and city manager, which no other official seemed comfortable in refuting so please look at my website for a full analysis.
One major point, in the councilor's goosenecks and the dozens I've seen unearthed during the course of this year, there wasn't a white coating in the pipes, indicating that the city used a proper amount of phosphates, but rather a yellowish red intermittent coat of lead oxide, which offers little more protection from exposure than what she called 'shiny' lead. I begin to think our water does not come from Lake Michigan, but Denial River instead.
33 months ago I proffered this council ten strong reasons why they should fire John Shay, I could amend that with at least ten more strong reasons at this point, all based on performance of his job, all that can be rationally supported by facts and public records. I cannot fathom why such an abysmal record would be supported by this council, except through fear of the repercussions for not towing the line and breaking up part of the gang. Sad, that fear is our city's primary motivator, that secrecy is our city's primary protocol, and that conformity to corruption is our city's primary objective.
So you may forgive John Shay for costing the taxpayers millions of dollars for not abiding by the competitive bidding process, or for allowing the city attorney to overbill for three years until they were caught, or for conducting business and initiatives illegally outside of the public view, or for ignoring the infrastructure at the public's peril until the DEQ came a-knockin', and still be able to sleep well at night. I couldn't do that.
Sadly, this council's Finance Committee abets and allows our city officials to spend public money without any control. Having reviewed the city's credit card usage over the last two years, I can't help but notice that our credit is being used for many non-public purposes. There are dozens of instances where our city officers use the city's credit to purchase their own items without a compelling public interest.

For example, last November, Shay and Chief Barnett caught a late lunch at Jamesport Brewing Company, enjoyed it enough to leave a 20% tip, and put it all on their city credit card. They charged their lunch and gratuity to us, apparently because they were allegedly discussing contract revisions. They both have offices we maintain, they both are paid more than fair wages and benefits to afford their own meals. Both gentlemen should be aware of the laws regarding the use of public credit, and why this was highly unethical of them, if not illegal. Thank you."

The culture of corruption is so strong in Ludington government that no city official and none of the three local media representatives even bothered to verify the charge. Many would say this is a violation of the Michigan Constitution (Article VII, Section 26) and otherwise MCL 15.342(3) which says: "A public officer shall use funds under the officer's official care and control judiciously and solely in accordance with prescribed constitutional, statutory, and regulatory procedures and not for personal gain or benefit."

You may be interested in knowing that this wasn't represented as a meal purchase in the "payment of the bills" during last year's second December meeting (see p. 151) when the two rogue's lunch and tip were officially paid by you the taxpayer, but as a "meetings/supplies expense" charged to the " (city) manager's office". There's no way you can't say that John Shay did anything but steal this money from the City of Ludington.

This is done regularly by him and others with city credit cards, even those who should not have them, like independent contractor Jen Tooman; but nobody in the regular media or at city hall bat an eyelash at the deed so it becomes OK.  This behavior is consistent with Shay and Barnett, who sees no problem about them or others stealing from the Shop with a Cop donations last year. 

In case you were wondering, the first expense above, a $359.40 charge for the same type of purchase was legitimately getting labor law posters. The $50 for a funeral planter for Dave Weston, not likely.

I was followed immediately by former councilor/current county commissioner Gary Castonia who had what sounded like a very sore throat. When you hear what he had to say, you could probably figure out why Castonia had a very sore throat. "John Shay is the best city manager I've seen as far as the budget and doing things the right way... Mark Barnett's a great chief... the city attorney, they're doing a great job and I hope you reappoint them all."

Not too surprisingly, the next order of business was approving the hiring of the city attorney and the prosecutor as the city attorney for criminal prosecutions. Both were unanimously accepted by the five councilors present. Next year's regular council meetings were scheduled.

Approving the New Year's Eve fireworks became an issue among councilors, with Councilor Cain worried about the fire hazards from the spent fireworks in the downtown, and Councilor Winczewski also stating a fear of problems that may arise though noting the fire chief had eased some. Cain would vote against it. The payment of the bills would follow, with a couple credit card charges similar to the above within it.

Due to my monitoring their credit card charges, you can see they're being a little more honest with their use of the city's credit to purchase food, as if having 80% of their wages in fringe benefits wasn't enough.

The city council had no discussion in unanimously approving their sugar/donut/pizza daddy back as city manager, Mayor Holman did her best to kowtow lower than Commissioner Castonia (21:15). Following the appointments of the DDA, Planning and Tree Advisory Boards, which meets before the city council next year and is traditionally appointed at this meeting, the police activity report was received. Then came the scheduled closed meeting.

I had originally planned to make a 'point of order' about the closed session being held outside the confines of the law (the Open Meetings Act (OMA)) just before the vote to go into executive session, but was a little gun shy after Mayor Cox had silenced me the previous time I tried. Councilor Bourgette made the motion to go into closed session, Attorney Wilson briefly explained it was being done under section 8(h) of the OMA. The video ends just after the vote to bring the city attorney, manager, clerk and treasurer into the meeting as well.

As about twenty minutes passed, we lingered outside, without any catered donuts, delivery pizza, or other amenity the City usually offers its own. Chief Barnett never did tell me how his lunch date with John Shay went and why it was legal and proper to charge it to the people of Ludington.

After the meeting re-adjourned, Councilor Bourgette made a comment about some undisclosed written agreement and how much money the City would save over the course of 40 years of over $600,000 by having an interest rate higher than their rural development loan is. Interestingly, the City of Ludington is effectively acting like a bank, something which could be considered in arrears with the previous Michigan Constitution article. Home Rule Cities were not created to make money from private companies through loans. The upgrade, if we believe Shay, is to up the BOD treating capacity at the WWTP by 50%.

Councilor Les Johnson did conscientiously stress that the public would be left with the bill if the House didn't follow through with the deal. The terms of the deal were left to the public's imagination. Johnson would vote against it. And public comment came open again, and I spoke at 11:00 in.

XLFD: "Tonight Ludington violated the public's rights consistent with the Open Meetings Act with a closed meeting predicated on a legally insufficient confidentiality agreement.

In Herald Company v Michigan Tax Tribunal, the public body asserted that the FOIA 'trade secret exemption' provided the basis for nondisclosure of the financial information at issue because the material was for use by them in developing governmental policy, and therefore, they closed a public meeting. The court, however, found that the underlying tax assessment challenge was simply a tax determination involving a single taxpayer, lacking the policy-making potential contemplated by the Legislature in drafting this exemption to the FOIA.
As it did not involve the development of governmental policy, the FOIA exemption did not apply and ergo, neither did there exist a reason to discuss it in closed session. The superior court further declared that a defendant using exemption 8(h) must state on the record those specific documents it deems exempt under the FOIA together with the associated FOIA exemption justifying the document's nondisclosure, describe those documents, and complete this process on the record in open session before conducting the closed hearing. This was not done here tonight for what was effectively a 'credit rating check' on a private business.
It is only fitting that tonight this public body with its long history of open meetings act violations shall once again be challenged in court by two stalwart Ludington citizens who hope to make this city hall accountable and transparent. You have each received and ignored a letter of demand from my co-plaintiff to explain away or correct your several violations over other issues. You have nobody but yourself and the culture of corruption that has taken hold at city hall to blame. Merry Christmas."

At which point an OMA lawsuit concerning the city's subcommittees and the splash pad was served to the mayor. The lawsuit was generated by Dianne Seelhoff and myself, who have seen numerous violations of the public trust being carried out at the committee level. Chuck Sobanski followed, thanked whoever put the decorations up near the Fourth Ward Market. He expressed concerns that Edgar Struble's property at the west end of Second Street was shrink-wrapped and a bit of a problem.

Attorney Wilson ended by trying to 'cure' what he thought may be the closed session's OMA insufficiencies at the end, with a reference to the FOIA section 13(f), which doesn't exist, he should try section 13(1)(f) next time. But that falls far short. The documents the City allegedly looked at was from a confidentiality agreement between the public and private entity, and they weren't used to craft government policy. They were used to decide the creditworthiness of the House of Flavors.

After adjournment, the mayor and city manager talked perceptibly about why some people needed to get a life, with an askance look over at the camera. On the way out, I wished the cameraman a Merry Christmas and told him how I appreciated him staying at the meeting (regardless of what the mayor said).

[AQUAMAN]

I must say I'm again surprised at the reckless support of the City Mgr. for re-appointment in 2018, as well as the City Attorney. And again, Mayor Holman makes direct improper and unethical conflict of interest verbal support by her references to same. The City Mgr. part takes place around the 21-23 minute marks as prime examples. She states she is in total support, and Shyster is so wonderful, also goes on to say Shyster Shay helped her with so much the last year of her term in office, blah, blah, blah. Why doesn't she just do her own homework, and learn how to be a Mayor on her own abilities? As for the OMA lawsuit, X went way out of his way for months to warn all of them their conduct and procedural errors were noted, and should change. They simply ignore this, just like other improprieties that continues unchanged year after year. Then we have Moonbeam again on tirades about this, that, and the other thing. Get tired of her rants of ridiculous narcissism that also continue into infinity, due to her mindset of never being wrong. And lastly, where is Rathsack, for the 3rd or 4th mtg. in a row, and Krauch too? If they are indeed very ill, then resign, and let someone capable and healthy take the council seat. If not, then they are irresponsibly cheating their constituents of representation, and should be ousted by the rest of the council, but, that will never happen with the current lack of leadership and professionalism there now. Thank you again X for your scrutiny and actions for a better Ludington.

[AQUAMAN]

Oh yeah, and I almost forgot, when the 2% increase to pay was announced for 4 city employees, how come only the Treasurer and Clerk's amount of compensation was made public? Shyster Shay and Warped Wilson's was undisclosed on the record, how come? Their pay rates are much much higher, and should have also not been kept secret, but publicly known by all.  No transparency again is being continued, and their pay checks are not exclusive to being likewise.

[Willy]

Great post. I enjoy reading your Council meeting reports X. So much information sprinkled with a tad of good humor. I especially loved your "Merry Christmas" statement after pointing out how corrupt the Council behaves. That would make a great banner to hang over Ludington Ave during the holidays "Have a corrupt Merry Christmas and New Years, A Ludington tradition".

Aquaman, you are exactly right when you say Holman should do her own work. The fact that the Council and Mayor praise Shay so much is that he, in fact, does their work for them just as Legislative staffers do all the work for Congress. All that is required is their penning a signature to what has already been decided by others. That's why we have so much ignorance in Government as well as the citizens who keep electing the ignorant.