Incompatible Public Offices for the New Mayor?

[XLFD]

"When our public officials willfully break the written law right in front of our face, after being told they are doing so, that is perhaps corruption at its worst."  - XLFD, 1-13-2014

At the January 13, 2014 Ludington City Council meeting, I was interrupted about midway into making my point about the new mayor, Ryan Cox, having incompatible offices when I was told my five minutes were up, and I was not allowed to proceed with the proof.  I had used the majority of my time in telling them how the various appointments went against the very city charter they are supposed to live by, naming the various charter and city code provisions that were being scheduled to be violated wantonly, and were then violated wantonly by unanimous votes with no discussion. 

 

Thus begins the era of Mayor Ryan Cox:  stopping a citizen cold at five minutes into his speech, as the mayor has the power to do, while this citizen is telling him how his current employment is unlawful. 

 

Here is the general idea about incompatible offices and our new mayor, more elaborated than I would have been able to go into at the meeting, complete with links and legal reasoning.   When I get upset over my City's corruption, I turn into the Credible Hulk (I was wearing my green fleece MSU pullover), at least according to one of my fans:

 

 

 

THESIS:  Mayor Ryan Cox should not serve as a LPD reserve officer while he serves as mayor.

1)  State law defines Incompatible offices thusly (MCL 15.181):

 

2)  Then makes a quick statement about the legality of holding incompatible offices (MCL 15.182):

3)  Section 3, as mentioned, offers a few exceptions primarily for small-town firefighters and economic development public corporations, but none for being a member of the police forces, reserve or not.   Another section of public officer law dealing with standards of conduct of public officers (MCL 15.342(6) Standards) also addresses incompatible

 

4)  The Ludington Police Department organizational chart looks like this diagram (courtesy of the city website), you will note the police reserves are subordinate to the chief and captain of the LPD.  Actually, if LPD reserves are like most reserve forces, the individual reserve officer is subordinate to any regular service LPD police officer  (2013 LPD Organization).

5)  Sec. 30-26 COL Code defines the functions of LPD (with Officer Cox), including their subordination to duties imposed onto them by the city council (as well as enforcing the ordinances of the city-- a task the Mayor did not do on the night of the meeting).  Yet the City Council, by charter, has no power over the mayor, and the mayor "shall have an equal voice with all other members of the Council". 

 

6)  The rules of the police continue, saying it shall be the duty of Officer Cox to comply with rules and orders of his superior officers, and establish a chain of command, where Officer Cox as a reserve is at the bottom (Sec. 30-27 LC Code):

 

7)  As for the mayor, he is declared the city's chief executive officer, he shall be recognized as the head of the city government, and by the governor for purposes of military law.  This places him as the superior to the LPD's police chief and every other city officer (Sec 3.2 LC Charter):

 

8)  This even includes the appointed public servants who actually supervise the operations of the city and make the legal decisions of the city:  "The Mayor shall appoint a City Manager and a City Attorney, with the approval of the majority of the Council elect"    Sec 3.5 Mayor appts CM

9)  If there is still any question that Reserve LPD Officer Cox is not subordinate to Mayor Cox, that Mayor Cox is not Officer Cox's superior, and that breaches of duty would likely ensue, here is a brochure the Michigan Municipal League puts out on reserve police (MML on Police Reserves.pdf), and a telling paragraph about mayors of Fourth class cities (like Ludington is due to its population): 

 

Therefore, Mayor Cox is not only higher up on the chain of command, he can directly supervise Reserve Officer Cox.  Who's to say he cannot assign himself to the 'specific task' of being his own full time bodyguard, because there is some intimidating and threatening citizen coming to the podium every meeting?  Nobody can, because he's his own boss-- and his own employee. 

[XLFD]

 There is almost always possible to get two legal interpretations out of any statute, that's why laws have definitions to minimize such chance for error.  However, if you check the links, section 1 defines both public officer and public employee, of which mayor and police reserve officer fall under respectively.  It makes no consideration whether the employee or officer is paid or not (although the reservists do get clothing allowances, health service, and training from the City).

Section 2, in toto on the thread head says:  "Except as provided in section 3, a public officer or public employee shall not hold 2 or more incompatible offices at the same time."  And let's not call Public Act 566 of 1978 "doctrine"; this is statutory law, a doctrine is a codification of beliefs that either can be followed or not, as per the Monroe Doctrine, etc. 

The weakness of the law is that a private cause of action cannot be initiated to remedy the situation.  You have to entice the local prosecutor into enforcing it, and I don't see Paul Spaniola doing that any time soon. 

[XLFD]

And again, I respect your tenacity in trying and find holes in arguments, by arguing for the 'other side'.  I could just say we call our local boys in blue "officers", does that not signify that they indeed hold an "office" to be declared an "officer"? 

But that will not be a precise argument as there are exceptions to such grammatical arguments.  Perhaps this excerpt from the Fourth Class City act will help further explain why a police officer is a public office holder.  Remember, Ludington is a fourth class city.  I think you will find it further explains that Ryan Cox is currently violative of the Incompatible Offices Act, as he is responsible for disciplining/rewarding himself MCL 92.6:

[XLFD]

Chapter 7, section 3 (MCL 87.3) of the FCCA that the above references is new to me, and if I knew about it sooner, maybe I wouldn't have dismissed running for mayor.  It allows that the mayor "shall at all times have authority to examine and inspect the books, records and papers of any agent, employee or officer of the corporation..." 

As well as "suspend any officer appointed by him at any time for neglect of duty, misconduct or other sufficient cause".  City Manager Shay and his law buddies from Manistee would be on their way out now. 

[Willy]

As far as I can tell there exist a conflict of interest when the Mayors boss can be suspended or fired by the Mayor. If the Mayor continues to work for the police chief he will be setting up situation that could lead to another court battle. A court battle between the City and the City wouldn't that be an odd situation. Great job of explaining this scenario.

[XLFD]

EyE,

I will be doing a FOIA to find out some of that extra information about the LRPU, because that information is not readily available. 

A non-binding opinion from a potentially biased individual using the laws of Tennessee and other factors not at play here does lay some groundwork for the defense that the two positions are not incompatible, but I still think that the appearance of impropriety and conflict of interest will be a lot less likely to come into play if the Mayor goes on hiatus from his reserve role. 

The chain of command seems more direct in this case through Michigan and City law, and while I do not think the prosecutor will even touch this, I think it would be a good idea, for the city's liability and risk management purposes, for the Mayor voluntarily withdrawing from his reserve role.  In a lot of the events that the reserves would come into play, the mayor has usually taken a visible position anyway in the past. 

[Wonder Woman]

XLFD, do you have a list of the committee appointments made during Monday's meeting?  The newspaper just said that numerous people were appointed.  I'd be interested in knowing who was appointed to which committees.  Thanks.

[XLFD]

Yes, and by the way, Happy Birthday.

I will put this out later today as part of a thread dealing with what happened at last night's meeting.  I just got access to the video.