Ludington's Leaders Swear to Keep Breaking the Law

[XLFD]

At the April 27, 2015 City Council meeting, I stood before the city council and took them to task for the "oath of office issue" I had brought up at the prior meeting, and from time to time over the years since 2011.  I did this for the first half of my statement, before taking them to task for the unethical and unlawful dealings the city had with Councilor Nick Tykoski's business, which the city has also remained mostly mute about.  My comment started 2:15 into the video: 

"At the last meeting, I made statements regarding the city manager's need to take an oath of office and file a statement to that effect with the city.  Last week, I was told in writing via the FOIA Coordinator that the City Manager of Ludington is not required to sign an oath of office. 

This statement is in error.  Section 4.11 of the city code "Every officer, elected or appointed, before entering upon the duties of the office, shall be given the oath of office prescribed for public officers by Article XI, Section 1 of the Constitution of the State of Michigan and shall file the oath with the Clerk... In case of failure to comply with provisions of this section within fifteen (15) days from the date the officer is notified in writing of the election or appointment, such officer shall be deemed to have declined the office, and such office shall thereupon become vacant."

The city code contains numerous references to the city manager being an appointed official; regardless, state law mandates all officials and employees of local governments in this state take and file an oath of office.  John Shay's unwillingness to take and submit an oath has necessarily vacated the office of city manager.  The council's unwillingness to actively get the LPD to enforce this law they passed long ago, is a dereliction of their duty, and I as a citizen, am appalled that we are paying over $130,000 in wages and benefits each year to an office that has been vacated since 2003 by the willful negligence of city hall."

Over an hour and a half later, the city attorney addressed the issue, offering what may sound like logically reasoned arguments against my points if your way of thinking wishes to support your public officials, but were almost totally devoid of facts, law, or precedent.  I offer this transcript of his presentation, with some clippings from the Ludington City Charter and my own commentary in large red letters.  

LCC april 27 from Mason County District Library on Vimeo

City Attorney Richard M. Wilson (1:49:40 in):  "Mr. Mayor I would just like to comment on the ongoing oath of office issue, that raises its head from time to time, and most recently for the last couple of city council meetings.

The city manager of the City of Ludington is, as you know, a contracted employee of the city

CITY MANAGER AS EMPLOYEE NEEDS AN OATH

EVERY CITY EMPLOYEE IS 'CONTRACTED'

BUT THEY ARE NOT INDEPENDENT CONTRACTORS

and by charter, his contract is limited to a period of one year and also under the terms of the charter, he can be removed at any time at the discretion of the city council.

CITY MANAGER IS AN APPOINTED OFFICER

"THE OFFICE OF THE CITY MANAGER"

In the eyes of the law, that generally does not raise that office to the level of a public office that requires either a bond or an oath. 

NO LEGAL CITATION BACKS THIS CLAIM

And as evidence of that fact, Mr. Shay has been repeatedly accused of refusing to take the oath or his unwillingness to take the oath. 

REPEATED ACCUSATIONS ARE NOT EVIDENCE

NOR DO THEY SUPPORT THIS NON-FACT

The fact is, John Shay has not taken the oath, but it's not on the basis of any unwillingness, or inability, or refusal to do so. 

THEN TAKE THE DAMN OATH ALREADY

In point of fact, the last city manager to be given the oath of office in the city of Ludington, was a fellow named James Cartier, who took the oath as city manager on November 20, 1953.  I was six months old on November 20, 1953 and all of the city managers for the last sixty years, none of them have been given the oath, and none of them have been requested to give an oath. 

CITY LAW REQUESTS OFFICERS TO GIVE AN OATH

TRADITION LOSES TO THE RULE OF LAW

Given that history, I think it's irrefutable that the city council for the last sixty years, has construed not only its own ordinances, but since 1992, the city charter, as not requiring the city manager to give an oath, because the city manager, as I have said, is simply an at-will, contracted employee of the city.

NO LEGAL CITATION BACKS THESE CLAIMS

LAWS THAT EXISTS COUNTER THESE ASSERTIONS

And so despite the fact that the charter may refer to him as an official, he is simply a public official of an employment type and not somebody like a DDA member for example, that you would appoint to a three or four year term or a Zoning Board of Appeals member, who has a term of office.  The city manager has a one year contract, he doesn't have a term of office.

THAT'S NOT WHAT MY CITY'S LAW SAYS:

THAT RED CUP'S CONTENTS MUST BE STRONG

And so, in those circumstances, an oath and a bond is typically not required. 

THOSE CIRCUMSTANCES ARE FALSE

So (to council) unless you decide you want to change your mind and change the history of the last sixty years, you can require John to take an oath, if that's what you want to do. 

THIS MIRRORS AN 1850 PRO-SLAVERY ARGUMENT

But it is not true to say that John Shay has refused or is unwilling to take the oath.

IT IS TRUE UNTIL HE ACTUALLY DOES IT

It's simply the fact for the last sixty years that the city has not required its city managers to take an oath of office, and John is no different than any other city manager that you had for the last sixty years. 

THE CITY CHARTER HAS ALWAYS REQUIRED IT

So I hope that, at least in the minds of the city council clarifies why it is that the city manager does not take an oath of office, he doesn't file bond... he serves at your pleasure...

WITHOUT PROOF, LAW OR PRECEDENTS CITED

and if John Shay does not do what you want him to do or does something in a way that you don't like, you can remove him at any time.  Umm, any questions?

YES, WHAT RECOURSE DO THE PEOPLE HAVE?

YES, IS HE AN OFFICER, EMPLOYEE, OR BOTH?

EITHER/OR HE NEEDS AN OATH OF OFFICE

Councilor Kay Holman:  I would just like to say this seems to me that it's much ado about nothing, and it's time to be done with it. 

A VACANCY IN THE CITY'S MAIN OFFICE IS BIG

Councilor Leslie Johnson:  Thank you for clarifying that again.

...BY GOING TOTALLY OUTSIDE THE LAW

City Attorney Wilson:  I would like to mention the fact that the research on this was done by City Clerk Deb Luskin, and I thank her for her assistance in that.  Looking through all the old duty books to come up with some of that information. 

THE CITY HAS NO NEED TO RETAIN THESE RECORDS AFTER THE OFFICIAL'S TERMS

It has been sixty years... sixty two years since any city manager has taken an oath, and I think that says volumes of how the city council views the position of city manager.  (Holman:  I agree) 

THAT'S WHY ITS PLAIN-STATED IN THE CHARTER

They view it as such a public office that if it were requiring an oath or bond that you should have said so (laughter).  But you haven't so... (two female councilors thank him). 

THE CHARTER SAYS SO,

THE STATE CONSTITUTION SAYS SO,

OTHER STATE LAWS SAY SO.

A REPUBLIC IS RULED BY LAW, NOT PEOPLE.

[Willy]

How incredibly frustrating. This is the exact scenario I addressed in a previous post in which an attorney or other official misreads or misinterprets law, codes, ordinances, ect. and continues to improperly enforce those statutes for years. This particular issue has been going on for 62 years because those in charge have been to eager to agree with past practice which makes them inept,  lazy and irresponsible when it comes to fulfilling their duties. As usual, Wilson cited no ordinances that would back up his "legal" opinion. Not only has he done a disservice to the taxpayers who line his pocket with tax dollars but he is helping to continue this charade.

Wilson's only argument against the oath is that Shay is a "contract" official who is not elected or appointed to a limited "term" in office.  Contrary to what Wilson states, Shay is appointed to a limited term. 1 year. Any official who is limited to a fixed time when put into office  has a "term of office". For Wilson to sight illegal activity that has continued for 62 years as an excuse to continue that practice is nothing short of malpractice. Also as I stated before, according to the ordinances, Wilson is also required to voice an oath and sign the same.

[AQUAMAN]

Very well said Willy, dittos to all. I just wonder too now, isn't CA Wilson required to take an oath of office too, and if so, has he? Or is he also dodging the law on this? Malpractice you say? Yes, Wilson obviously specializes in malpractice and malfeasance in any and every way possible to achieve the desired agenda results. When any person has done something illegal for a long period of time, and gets away with it, it doesn't wash or make it now legal since it's not been noticed nor caught beforehand. The same should and legally applies to any corporation, and/or city, county, or state. Especially it's corporate officers and employees, as specifically noted in the city charter just for that very purpose. So again, it's a moot issue for the COL, casually and conveniently sweeping their charter laws under the rug, in favor of more lies and deceit. And so, what does the LDN have to offer? Another coverup as usual I would suppose, and more reinforcement of what has become a dictatorship and mockery of law, justice, and legalities. Big thanks to X for continuing to follow-up on this issue, and pursue it to it's logical and legal conclusion, which I expect will be forthcoming in a court of law again. And I think since Ms. Sniegowski is a former city employee, she must disqualify herself as the judge. Shyster Shay III, why don't you just take that oath for God's sake? I guess you're agenda is fixed also, and keeps this front and center of the public and council, just to show your small man attitude is petty, and your ego is abundant and over the top.

[Willy]

Your right Aquaman, why doesn't Shay just take the oath, even if he really thinks he doesn't have to. It certainly wouldn't be a waste of time and he could reaffirm his commitment and loyalty to the people of Ludington and the Constitution. Just a small effort on his part is all it would take.

[XLFD]

According to the charter and the state's Home Rule City's Act, an occupant of the office of city attorney of Ludington needs to swear or affirm an oath of office, so in any quo warranto action I would put forth, I would try to make the case that Ludington's office of city attorney has also been vacated by the refusal of any of our Heinz 57 'city' attorneys to step up and take the duties of that office.

In the attorney's case, they have not a lot of duties that actually cannot be performed by contracted attorneys on retainer, but there are some duties that have been assigned to the city attorney office by the city council.  Most recent was the duty as a judicial officer in any invocations of a letter of trespass in the Workplace Safety Policy.  Any ethical attorney would tell you this is not something a 'independent contractor' can do for the city, but a power of the office of Ludington City Attorney.  Attorney Wilson wants to be both recognized as the city's official City Attorney and yet claim he's an independent contractor. 

The latter claim has some merit via reality, but then he cannot be an officer of Ludington, the hirer of this independent contractor.  If he is a Ludington official, and yet works for Ludington as an independent contractor, there is an obvious conflict of interest.  This explains why his firm made $25,000 plus from defending the City from a FOIA lawsuit where he and John Shay knew the city was withholding records unlawfully. 

Yet, Wilson would later swear that any civil lawsuit made against the city would automatically go to the city's liability insurer first, in explaining why the city council never approved of choosing whether to defend and who to use in initially defending civil claims of Malone, McAdam, and Burns against LPD officers.  Legal precedent seems to say the council has a degree of discretion in deciding how to approach lawsuits against the public body, but it never uses that discretion.  They don't like having the public figure out how bad the police handled a situation until after they already settled.

[stump]

Why won;t Shay take the oath? Because it will be another win for XLFD

[AQUAMAN]

Probably exactly on cue there again stump. His ego and lust for vengeful acts is what is standing in the way, esp. on any and all FOIA issues. Petty and small man in charge of too much, and pushing his overpaid, and over- benefited welterweight around for show. This isn't leadership quality people we need around Ludington, it's boyish narcissism. And I must say, the same characteristics are plainly visible on Wilson and Cox too. A matched set of three stooges.

[XLFD]

There is a lot of truth in stump's assertion, but there is more to it, since he went eight years without ever taking an oath, during a time when we had a city attorney who sworn an oath himself just prior to Shay's hiring.

There is definitely a character flaw involved on Shay's behalf, be it pride, egotism, powerlust, greed, or any of the multitudes of deadly and not-so-deadly sins. 

As noted at the last meeting, the forty words needed to be uttered are:  "I do solemnly swear (or affirm) that I will support the Constitution of the United States and the constitution of this state, and that I will faithfully discharge the duties of the office of city manager according to the best of my ability."

The oath only holds for him to support the Michigan and Federal Constitution, and to faithfully do his best to discharge the duties of his office.  Why would he be reluctant to do so, and why would his fellow officers be willing to allow him a pass when they are on the hook for that themselves, having been duly sworn, quite often in a public manner?  Is this not condoning lawless behavior beyond not swearing the oath?

Could it be that the city council want someone in the city manager who does not have to be limited by the oath of office-- which means they want someone who doesn't necessarily follows the law (which has been repeatedly shown over the years), or does his duty much less than  the best of his ability (which has also been the case). 

John Shays lack of and refusal to take he oath chronicled over the last four years is not only a major failing on his part, but the council's and other city haller's apathy to have him do so is a telling feature on their own collective character.  Council Winky stated that Shay keeps the councilors in line and with the program a couple of meetings ago, this meeting showed they can listen to a hollow argument by Attorney Wilson and not deal with the real issues involved but instead thank him for clarifying things-- when all he did was try to erase the established laws.

After Alvarado's and Wilson's attorney ramblings-without-legal-basis, I have only grown convinced that there is a strong basis to get Shay out of office via quo warranto proceedings.  I have submitted such to the Attorney General's Office this week, and if they fail to act upon it, and Shay continues to go about without an oath, I will initiate the action myself, with leave of the court.

[AQUAMAN]

Sadly, court appearances and warrants seem to be the only thing these arrogant and incompetent people awake to. And then, not too shaken, just claiming it's a technicality and moving on to have the insurance people pay the obvious damages. Meanwhile the LDN will claim some civilian is only out to get money. It will be the same scenario as in the past, more deceit, more shifty legal maneuvers, more perjury, and then, finally, settlement. As to whether Shyster Shay III will ever swear that oath, heck, I don't think he will anyhow, unless some court order demands it. And why should he now anyhow, he's been hired by Henderson to be unethical and shifty on legalities from the start. This is exactly the kind of individual they did NOT have in former CM Miller. They want a YES MAN at the helm, at the ready to do whatever it takes, legal or not, to WIN on their fixed agendas.

[stump]

Aquaman, I think you got it mixed up on the yes man. Shay is the leader of the council ,not the council leading the CM Shay. They are his yes men/women. What ever dumb shit idea he comes up with the council just follows along whether it's a good idea, mostly not, or even if it's legal .

[AQUAMAN]

Yes, when it comes to projects, decisions on committees, changing codes and ordinances, bid-letting contracts, etc.. I was specifically referring to the other duties of being a shyster on FOIA's, covering the COL on any investigations of impropriety, lies to the public on any issues of secrecy and lawsuits, never refusing to get down in the mud and sling it out, make citizens feel shameful for asking questions they want hushed, stuff like that. Good points though.

[XLFD]

And don't forget, stump, they not only have Shay, they have the incredibly shady city attorney to assure everyone that they're covered no matter what they do to get more money or power for themselves or the city corporate.  Despite all the evidence to the contrary, they remain loyal to their fellow officials, not the people they supposedly serve.  This runs contrary to the public's benefit, as we see with the lame charter proposals and the changes to the junk, tall grass, sidewalk, etc. ordinances recently introduced. 

[Willy]

I agree that Shay is in charge. Just consider the workplace safety ordinance that was enacted for Mr. Rotta. I doubt any Council person came up with that idea. Shay and the fear for my safety chick, came up with that idea to keep Mr. Rotta from digging into what appeared to be shady dealings by those 2 outsiders. The FOIA bs was, obviously, Shay's idea. Who was the biggest benefactor of that change in legislation. Mr. Shay of course. Every negative anti citizen legislation that was passed or proposed came on Shay's watch. And don't forget the fiasco to make Henderson king of Ludington.