Ludington's Leaders Swear to Keep Breaking the Law

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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.

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Whereas, I can only speculate on who's actually doing the moving and shaking behind the scenes, I think it is uncontestable that John Shay currently has little resistance from the council, mayor, or attorneys, on anything that comes out of his office, a lot less resistance than when he started.  Everyone at the City Hall seems to be whipped into a unified front to gain more money and power regardless of ethics, laws, and benefits to the community.

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Initial counter-research indicates that since the time of James Cartiers swearing in as city manager in 1952, only four city managers have acted for Ludington since.  Cartier served over twenty years until 1974, when George Von Drak took over in October.  If the city clerk's research is to be trusted, this is when the absence of city manager's oaths actually begins, which means that Attorney Wilson's sixty year claim should have been forty years in order to be honest-- but let's not forget he overcharged us, with Shay's help, when he submitted his billing records for three years.

George Von Drak served for nearly eight years, replaced by Gerald Richards in early 1982.  Richards served six years until 1988 when he was replaced by Jim Miller, who served until he was replaced by John Shay. 

Miller, Richards and Von Drak seem to have all left under suspicious circumstances, nothing I could find indicated they left on their own terms, which may be related to the fact that they would not swear an oath of fealty to the constitutions, unlike City Manager Cartier.  But, I'm continuing to burrow...

[AQUAMAN]

I've already given evidence and statements as to why Jim Miller left last. So, does anyone know why Gerald Richards left, not for what, but why? He supposedly left for another CM job in Ill. if I remember right. Now why? Anyone?