First Attack: Criminalizing Public Participation at Ludington City Hall

Twelve years ago, on February 28, 2011 the City passed the Workplace Safety Policy (WSP) by a voice vote on a simple motion at the city council meeting held that night.  There had been no previous mention of the WSP at any meeting, no meaningful discussion according to the minutes.  City Manager John Shay invoked a mysterious part of it the next day on the citizen that had created this website in 2009 to point out graft and corruption in Ludington's government (That citizen?  Yours very truly, XLFD). 

Shay had Sergeant Schultz from the LPD serve a letter of trespass on XLFD (aka Tom Rotta) that prevented XLFD from stepping foot in Ludington City Hall or the adjoining LPD station.  Ironically, these were the two places where XLFD often went to inspect public records as allowed by the FOIA.  The trespass letter would also make it impossible for XLFD to attend all city public meetings (a violation of the Open Meetings Act) and to vote in elections (in violation of multiple state and federal election laws), as city hall was his polling place.  The only reason given for issuing this letter was a statement by Shay made to the newspaper days later that a person at city hall felt threatened by XLFD's presence.  That person turned out to be Heather Venzke (Tykoski) who apparently thought her job was threatened by disclosing her unethical behaviors through showing public records here.

This corrupt exercise lasted for 14 months, only being retracted about a half year after XLFD filed a federal lawsuit against Shay and the City of Ludington and settlement was imminent.  The lawsuit claimed, and it was fairly undisputed, that XLFD's First, Fourth, and Fourteenth Amendment rights had been violated by city officials, along with the OMA, FOIA, and election law violations. 

Later this month, the City of Ludington will celebrate 150 years of incorporation and it is unlikely that there has been a more explicit show of how corrupt and anti-citizen our city hall can be than what happened a dozen years ago.  Sadly, later this month, on Monday, March 13th, they will try to outdo that earlier effort and consider a new policy to criminalize people with misdemeanors who choose to go to meetings and go off topic or applaud.  Not a joke, not an early April Fool's prank.

Oh, if this were just an exaggeration of a new policy set to be considered before the public has a chance to offer their thoughts on it at a public meeting.  But it's in the council agenda packet (not yet publicly available for some reason) on p. 21 and 22.  A resolution "Establishing a rules of conduct for public comment"-- proofreader please-- lists reasons why rules are needed at this point. 

And no, none of those reasons is that XLFD called out Mayor Mark Barnett at the last meeting when Barnett erroneously tried to establish that existing rules make it imperative that one's full address is required before speaking your comment.  It's not in the rules, and it's not been practiced before, ten years of city recordings has me say:  "Tom Rotta, Dowland (or Pine) Street" once or twice a meeting.  Let's analyze this resolution in three parts:  

The first 'whereas' is promising, an admission that meetings are an important forum for the citizens to express themselves to their elected representatives.  The second 'whereas' is frightening, suggesting that reasonable rules are needed to reduce risks of a variety of protected speech that may be subjectively deemed irrelevant, disproportionate, uncivil, ineffective, or inefficient.  The law and precedent is rather explicit, the mayor or council has little or no ability to regulate the content or delivery of a public comment as indicated without violating the OMA and violating a citizen's civil rights. 

The third 'whereas' is misstated, the laws provided indicate the city council can create "reasonable rules and regulations in order to minimize the possibility of disrupting" their meetings.   With few exceptions, the city council does not have the power to control the content of a person's public comment, nor can they regulate delivery and other characteristics of that speech unless such content and behavior tends to be truly disruptive to the meeting.

The rest of this preamble simply state that it is prudent, advisable, and beneficial to the council to create rules like what follows, but perhaps it's a better indication that for the last 150 years the council's meetings have ran smoothly without having such rules until a citizen balks at having to state his house number and is harassed and called out of order by a novice mayor making his own rules.  Now comes the actual rules and regulations:

The first two rules are unwritten rules already in practice for the most part; sometimes council members will currently engage with members of the public or city officials in the cheap seats and it may be practical to seek permission from the chair first.  The option for the council to extend comment periods may be problematic when one considers that they may have to justify why they gave that wealthy developer who was praising the city extra time, while they denied extra time to the citizen activist telling them what's the latest things the city is doing wrong.

The third rule suffers similarly by its arbitrary limitation on comments if there is a hot issue in front of the council.  Recall back when the marijuana dispensary issue was in front of the council last fall, and public comment lasted a couple of hours.  Had the council reduced the time to comment to one minute, not only would each citizen have wasted more than ten percent of their time saying their name and full address (in the next set of rules) to drop little more than a sound bite, those speaking of other issues (like I did) would have their speech curtailed by being lumped in with those talking of the issue of the day. 

The saving grace of this rule is that the mayor cannot unilaterally invoke this rule, it has to be by a vote of the council, and everyone attending should take a good look at who all voted to take away 2/3 of the voice of the people.   This rule also amends the current administrative code in regards to conducting meeting as do the next two rules.  


Rules 4 and 5 are small tweaks of existing practices, the first says you must give your full residential address before you speak, but the clerk is only to enter your street name in the minutes.  So why exactly are you giving out your house number to expressly reduce the risk of disrupting these meetings?  Anyone?  Anyone?

The first part of rule 5 just restates part of the OMA, but the last part requires the mayor to make a judicial decision as to whether a comment from the public is defamatory or slanderous.  Recall this is the same person, Mark Barnett, who as police chief noted that your humble reporter was "someone who is hiding under the bleachers lobbing rocks on the parade".  He would repeat that I would cast rocks after my inquiries about a poorly accounted Shop with a Cop program and add:

"Every good deed that {XLFD] can find should be punished and ground into the dirt and colored with every sort of innuendo and, and every crappy comment that he can make, so that, so that he is advanced, or his thought processes advanced, and other people can just cower, and it just frustrates me."

I consider that defamatory and slanderous, as it is untrue and meant to show me, a private individual, in a very bad light.  At the end of both speeches, he was roundly applauded by other city officials.  John Shay boldly slandered me twice after I won two lawsuits against him and/or the city, looking for a win in the court of public opinion.  It was all good in their eyes, but in my dozen years of getting up in front of a hostile group of city officials, none has offered any specific instance of a time when I slandered them, or any other citizen doing the same.  But even this would be mostly a non-issue until one considers the last two rules regarding the crime of disorderly conduct and how it applies to council meetings.

The first, B1, grants the mayor the ability to call to order any person who engages in any conduct that could be considered disruptive to the meeting, including applauding and not being 'on-topic', whatever that means when referring to public comment.  This could easily be abused, since many times public comments have nothing to do with the business taken up at the meetings, so what's stopping the mayor from calling to order a person legitimately criticizing a policy or official and claiming it's disruptive to the meeting?

That point becomes more poignant when you consider rule B2 which criminalizes such disruptive behavior and allows not only for the removal of a person from a meeting for 'disruptive applause' or not holding to what's on the agenda in their comments.  If you are removed, you are automatically declared ('shall be') guilty of the misdemeanor of MCL 750.170 and the similar city code section.

So, if Mayor Barnett finds you subjectively guilty of going beyond the range of city business in your comments or if he thinks your criticism of an official's action is a personal attack, or if he thinks you clapped for too long or at the 'wrong' time, or if you figuratively lob rocks from under the bleachers, you can be removed from a city council meeting and charged with a misdemeanor. 

The City of Ludington must be really proud that after 150 years they hope to be able to potentially criminalize all citizens for going to their city council meetings and exercising their Constitutional rights.   But should we expect anything less from a city council that would so recently banish a citizen from city hall due to their reluctance to be transparent?

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How to distinguish "Street address" from "house number?" As I read rule 4, it sounds like one can give just the street and not the house number.

For the rest ... depressing, oppressing, and disgusting to think of Barnett acting like a bully, but X, hanging there and show him what a real Christian is--don't return his evil. He is oblivious to real law.

Rule 4 references both "street address" and "street name" so one expects they do not mean the same thing.  The latter is self-explanatory, the name of street, while the former is normally defined as including the house number and apartment designation, if applicable.  

When the origins of the Workplace Safety Policy finally came out, it was found that Chief Barnett had a major part in crafting it, and then-City Attorney Richard Wilson approved its basic content.  I have learned from City Manager Foster that the above resolution was done primarily by Ross Hammersley, but Barnett's fingerprints are all over this silliness.  Hammersley, even if rushed, would not put out junk like this unless he was given instructions of what he must include by the obvious source.

I agree, Rule 4 is poorly written with unclear definitions. If the clerk records only the "street" why must one give the "house number" ? I think all the Council members and mayor and clerk should have to publicly give their addresses every time they speak also.

It doesn't matter what changes they make, these people will always be against the citizens. If it had not been for X, Ludington would be another Detroit as far as corruption is concerned. From the WSP to this unconstitutional law they are considering. Like the movie Cop Land, until the old guard retires or leaves, or the voters wise up, poor Ludington will never heal. 

Good news tonight, the resolution's consideration was moved up in the agenda after public comment, as I expected they would do.  I thus prepared a comment that presumed this would happen but adapted it so that I could adjust it accordingly if they hadn't.  

Whether the comment I made or an email I sent to the councilors daring them to pass it were effective or not, the council decided unanimously to reject the resolution with an amazing meeting of the minds between myself and the two Johns on the council. 

I clapped, and unless they give you wide internet privileges at the local jail that allows me to post on the Ludington Torch, I'm still a free man not residing in a place with a stainless-steel toilet in the living room.

That is good news! X, will you reveal the email?

Are you daring me to?  

On a different note, I saw XOCS downtown earlier today.  Anybody know who I'm talking about?

1. Not a dare as much as a journalistic play.

2. I hear there is a little more shakeup in Ottawa County. Must be the shakeup sent Shay up this way?  Did you have a cordial conversation?  I hope he's not looking for a job up here

As FS, I also am guessing it's Shay.

You guys are too smart, yes, therrrrrrrrre's Johnny, X- Ottawa County Supervisor at a window seat spending some of his hard-earned severance pay at city hall's favorite eating and drinking establishment, Jamesport Brewing Company.  I was walking back from Wesco with some sodas encumbering both arms when we noticed each other, so I just gave him a nod, he gave a look of recognition, an ambiguous smirk/smile and a polite wave.  

This being the Ides of March, Mitch Foster better watch his back and lock his doors; Shay might be desperate enough to get his job back now that his partner-in-past-crime is the mayor.

It's nice that you and John Shay had at least what sounds like a cordial nod and wave even though you were encumbered with hands full. I hope what comes some day is an acknowledgement by John Shay of his illegal persecution of you with the Workplace Safety Act (and so many other times in public meetings and how he persecuted you) and how that was handled to keep you out of city hall and stop your desire to run for office. Some times we have to just forgive such evil people and evil acts (for our own peace) until God shows them their sins.

Eat and drink up John Shay and then I hope you get on your knees and understand your wrong doings, especially in in your role as a PUBLIC SERVANT oppressing citizens.

The council will once again consider a resolution to adopt rules for public comment at Monday's meeting (see agenda packet first pages), it's not a lot different from the first attempt. and still falls short in many ways.  It's currently scheduled to go up for vote before public comment, but after the invocation, so they can get God's public comment and hear a prayer for moderation and humility before they discuss this rule that would criminalize clapping and failure to say your street number.  

Will they ever learn?


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