Farce Majeure

[XLFD]

At noon on January 17, 2019 Manitowoc Mayor Justin Nickels issued a press release notifying the public of his concern that the sailing season for the SS Badger car ferry may be compromised due to the City of Ludington (COL) declaring a force majeure on contracts it had with the City of Manitowoc and Lake Michigan Carferry (LMC). He explained that the COL could not support the high costs of the project absent the federal government's ability to disburse money to contractor's receipts during the government shutdown (which would last until January 25th).

This was echoed in media over in Wisconsin at the time, in the Manitowoc paper, Green Bay, and the Seehafer News, and yet even though the action took place across the lake, only one Michigan medium covered what could have been a significant development affecting the local economy of Ludington, that was here with our article COL Files Force Majeure.

Our local journalists did not think it odd that Manitowoc's mayor would be issuing what should have been Ludington's press release to issue. I would ponder that day: "Our mayor, holding office hours, has not said anything about Ludington's action, which arguably should have come before the city council for discussion in front of the public." Yet, at the beginning of the next week, LMC put out its own release saying that the work is being done and funded through short term financing, without revealing the financiers.

What is quite depressing at the beginning of "Sunshine Week", is that the declaration of a force majeure should have come from a properly informed Ludington City Council (along with an informed public), but instead it is seen in a review of the public records that the action was driven by the Community Development Director (CDD), who acting upon a simple question from a contractor, influenced the city attorney to immediately create a force majeure notice, immediately signed by the interim city manager who also had no authority to do so.

The city council should immediately censure the city attorney and the CDD for usurping powers that only the council had under the terms of the contract. Amazingly, this contract was only shown to the public since last Friday when it was put as the last entry in the 3-11 Council Agenda Packet. Note it refers to the party claiming it.

The parties in the contract between the two cities were those two city's legislative bodies, not the attorneys for those cities who would not be able to act for their client without the client's (council's) approval:

The client in this case is the "City of Ludington" our charter tells us in section 13.1 that in this case the power to enter into contracts is vested with the council and in section 13.2 that:

Among other clauses that express the city council alone has the authority to make decisions on behalf of the "City of Ludington" corporate entity. On October 22, 2018, this contract was passed by resolution of the city council (p.21-22), in which the following was part of and shows the full extent of the powers of the city manager:

The city council since that meeting (see the minutes here), has not authorized any officer to do anything, outside of the established duties within the contract, beyond signing and delivery of the agreement.

Yet here's what the public records I received through FOIA show. A letter from the contractor to the CDD of Ludington, Heather Tykoski (Carrie Voskull also is a contractor with Foth Engineering).

Heather brought in ICM Steve Brock, a Lake Michigan Carferry (LMC) executive, into the conversation when she replied:

The attorney consulted with the ICM and the CDD in an internal E-mail shortly thereafter:

Now, this is the time they should have realized that none of them individually had the power to take that step and had they told the contractor that the council would take up the force majeure at the next meeting on the 28th, they would have saved a lot of effort since the federal shutdown ended the 25th and Foth has experience working with government entities and would be professional enough to understand how they work.  Instead, the three would take power into their own hands for the debacle that was to play out.  

This deletion was originally made under the aegis of 'Attorney-Client Privilege'.  I challenged it, and the appeal was originally placed on the 3-11-2019 meeting agenda, but they thought better of it and I eventually received this:

If I was a vindictive person, I could take this to the local court and show them that the redacted material was definitely not covered by the attorney-client privilege and likely get a $1000 judgment for an arbitrary and capricious FOIA violation, but I'm just happy they came to their senses for once.  Following a few other interoffice E-mails, Wilson whips out  the Notices of Force Majeure just an hour later:

Heather recommends others and advocates in making a press release (which never happens for Ludington) to which the attorney replies:

ICM Brock would sign them the next morning, here's what they looked like:

It sure looks official, it claims the City of Ludington declares this event, but it never did.  Steve Brock was never given authority to sign this notice on behalf of the City of Ludington.  It was a lark taken by the city attorney which could have cost the City of Ludington plenty-- it still could.  This notice was put in an E-mail sent from the city attorney:

Shortly thereafter, the CDD did her usual routine of begging the state for more money.  The next day, Manitowoc Mayor Nickels made his announcement and maybe some in the Ludington City Council were finally made aware that they had declared force majeure.  But they hadn't.  If I was a councilor, I would have been incensed that a 'legal contractor' made that decision for me, but all seven councilors have been silent for nearly two months, while even more citizens become aware that they are not doing their job as our elected representatives.  

I made note of this at the meeting last night, March 11th, at the end of my second public comment, where I said, in part: 

"I have learned through the FOIA that when Manitowoc Mayor Justin Nickels issued a press release on January 17 that the City of Ludington had declared a force majeure for their intercity contract, that he was in error. City Attorney Wilson unilaterally declared that force majeure for the contract with zero input from our elected city council, the actual party to that contract and the only one who could claim it. That contract just happens to be in the council packet, look at clause 3.07, that claim is the city council's, not a contracted attorney without council permission. Why are contractors making such important decisions for the City of Ludington fully outside the council's and mayor's purview?"

Nobody bothered to answer that question or even defend the city attorney acting outside the law.  Such is the depth of corruption, neglect, and ignorance that is rooted in the Ludington City Council.

[Freedom Seeker]

Thanks, X, for the in-depth review of how the choke to force majeure happened.  It seems the COL is so deep into so many grants that no one but Heather could make sense of them, Capitol or capital.  Like with John Shay, the city was so unaware of details and afraid of his leaving because of so many projects going at one time.  Heather, reporting to the city manager, it seems should have reported the initial conversation to the CM who should have reported it to the Mayor and then considered an emergency city council meeting if they were all so choked up.  But you are right, had they waited until the next city council meeting, the shutdown would have been over, but who would know that?  Heather acted as mayor and counsel with direct red line email to Richard Wilson.  This is how our government works.

What is revealing and scary is that it seems that our grants are so high that we can't pay them if they fail because our debt is nearly maxed out.

Meanwhile, if the city council and their electors don't know this, we can all live in happy bliss forever skating on fake ice and looking forward to another leveraged grant for a new fishing dock in Copeyon Park tangled together with the splash pad project, which according to Heather we cannot have one without the other.  That's grant-writer extortion heaped on the people of Ludington, almost as bad as putting crying children in front of the city council.  Meanwhile the councilors seem to be blindly ignorant about government transparency.  Or are they keenly sly about covering up?

[XLFD]

You bring up some good points including the one about how were we to know the shutdown would be over by the next meeting.  Wilson should have explained that the city council would be deciding whether to declare force majeure at the next meeting based on the reasons stated, copied the council and the mayor with an update, and assure the other party that city officials would be trying to mitigate the problem in the meantime to the best of their ability.

[Willy]

Excellent journalism X. You might want to give the LDN a few pointers and possibly hold a seminar on how to operate a news gathering organization because they sure have no clue on how to operate one especially when it comes to ethics. These are the people in charge of running the City and they cannot even determine what is or is not legal. Wilson has to go. If the Council cannot see that then they need to go. Tykoski is a minor player in the City's gears but she sure acts like she's the boss. Either those in charge of the City are just plain ignorant or they are crooked as a corkscrew. They had better take some classes on how Government should run in an efficient and ethical way before Ludington looses it's shirt in a lawsuit. This is what we get when mixing private businesses with Government. This LMC mess is the latest in a long list of corrupt behavior. Who is actually in control here?

[XLFD]

I may be wrong, but I see a power vacuum at the head of the City that has been there for at least a couple of months.  Acting City Manager Jackie Steckel is in charge, but I don't think she can harness the will of Heather because she's just too nice and compliant to have a take-charge style that Heather would respect.  It's going to be an ongoing issue if the prospective CM Mitch Foster doesn't rein it in quickly and firmly. 

The arrogance and behavior she displayed last night was instructive.  I believe it was FS who labelled it a "Mercedes mentality".

[Freedom Seeker]

There may be a minor power vacuum at the city manager level temporarily, but Steckel is probably doing a better job than Shay could have because she knows local history better and she doesn't have so much ego.  I'm sure she might have a struggle correcting Tykoski on anything, however, and that is one of the biggest jobs of CM, keeping  staff in line and following order and rules.  IMO the greater vacuum has been at the Mayor level.  According to our Charter chief executive officer.  I think Miller has a better understanding of this than the previous.  Shay, IMO, acted as both CEO and CAO and thus cut the people out of government.  But the Mayor and council allowed him so the Council is as much to blame.  

[Freedom Seeker]

I also see your point about the temporary vacuum of order.  If John Shay had been here and Tykoski brought the original memo to his attention, would he have properly directed to the Mayor and council?  Hard to know, probably not looking at some of his past performance in overstepping administrative responsibility.

 It does appear that Tykoski cut Steckel out of an important conversation.  Would Steckel have directed the original communication to the Mayor?  Who knows, maybe there was a verbal direction missing here.  Hard to believe that Tykoski drafted the "precarious situation" on her own authority, but not inconceivable by her past performance, either.  She and John Shay together made a great team cutting the Council and the public out of decisions.  

At any rate, what a web we weave when we don't follow protocol and procedures.  But then, maybe it is good that our senator and MEDC know what a precarious situation we are in financially.  Maybe MEDC will realize that every grant we get to upgrade a public project must be supported by local tax dollars which puts us deeper into a precarious situation.

[Freedom Seeker]

It looks like in this case Wilson, Tykoski, and Brock were in charge, in that pecking order.  If you click on the "more money" link you see Heather sends a letter to Vanderwall and MEDC and twice uses the word "precarious" to describe our budgetary situation.  Does that mean that we couldn't temporarily cover a $1 million payment from our rainy day fund?  That's precarious.  And who gave Heather the authority to humiliate the city calling it a precarious situation twice?  I hate to say Thanks for revealing this, X, I'd rather skate on fake ice.