Openly Disobeying the Open Meetings Act, pt. 2: FOIA for a Closed Meeting

[XLFD]

Instead of explaining the problem in depth, I went to tonight's City Council meeting seeking the minutes from the closed meeting the City held on August 27, which I requested with a FOIA on the 31st after noting the motion to go into closed session was insufficient.

John,

Before you claim that the minutes of a closed meeting are exempt, Mayor Henderson noted for the record that the closed session was to discuss the pending McAdams' lawsuit with their lawyer, Allan Vander Laan. The Open Meetings Act (OMA), declares a closed meeting is permissible by 8e: "To consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body."

The City of Ludington Daily News further reported that this lawsuit referred to a Taser lawsuit initiated by Joseph McAdams. At the top of page 3 of this document, https://api.ning.com/files/UCKTJ99b1DdJCv17-SE1Y1UOsKPSK*RWbXDIuPb4fMf8wod2S50YZ0KBtkLlhVC2*ed8FGvRFjUyz7oxKYkwhQcwyPw4mbbc/1251.pdf

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it says that "The City of Ludington was voluntarily dismissed (from the lawsuit) by the plaintiff (Joseph McAdam)".

Unless there is a fully separate lawsuit, this lawsuit is not pending against the City of Ludington, and if this is the lawsuit regarding Joseph McAdam being referenced, the City is violating the OMA, by going into closed session without valid reason to.

For future reference, the City should also clarify in words why such a session would have had a detrimental effect on the litigation or settlement position. Here are some points for you and your attorney stable to consider further if you should decide to withhold the minutes of this meeting:

Detroit News v Detroit, 185 Mich App 296 (1990), Burden of establishing that a meeting of a public body is exempt from the Open Meetings Act is on the public body

Wexford County Prosecuting Attorney v Pranger, 83 Mich App 197 (1978) Closed session exceptions of the Open Meetings Act are to be construed strictly to limit the situations that are not open to the public.

Under provisions of the Michigan Freedom of Information Act (MCLA 15.231 et seq; MSA 4.1801 (1) et seq) I am requesting to receive copied electronic files to this E-mail address or failing that, to personally inspect the following public records :

The minutes of the meeting that the City Council declared was a "closed meeting" under false pretenses, that took place at the end of the 8-27-2012 Ludington City Council meeting.

If you need any clarifications of this request, please reply expediently to this E-mail address.

If requested record(s) do not exist, please enumerate which ones do not, as per the Act.

If you determine that some of the requested information is exempt from disclosure, please detail what is being withheld and cite the exemption under FOIA.

If fees to comply with this request exceed $20, please contact me at this E-Mail address with those fees enumerated.

As provided under FOIA, I would anticipate my request being filled within five working days of receipt of this letter.

Of course, John gave me the expected reply of the records being exempt, because it is exempt by statute (i.e. the Open Meetings Act).  I immediately repled:

John,

The Burden of establishing that a meeting of a public body is exempt from the Open Meetings Act is on the public body.  Burden me with why the meeting was exempt from the open meetings act, and hence the meeting notes are exempt from my inspection.  You failed to include this with your reply.

If the City cannot fully explain why this meetin was held to exempt it from the OMA, consider this a warning that the act of omission in clarifying that could set the City of Ludington up for further liability for violating the OMA.  Thanks for your prompt response.

It was then that the Lord of Ludington Law (from Manistee), City Attorney Richard Wilson, made an appearance, all this before noon:

Mr. Rotta,

Please review the Open Meetings Act again. Section 8(e) of the OMA does not require that the City be a party to the “specific pending litigation” which forms the basis for going into closed session. Because the City’s insurance policy and the City’s retained liability,( i.e., the deductible) under that policy are providing the defense to the former City police officer involved in the McAdams case, consulting with trial counsel in an open meeting would have a detrimental financial effect on the trial and/or settlement position of the City. Accordingly, the decision to deny you a copy of the minutes of the closed session where trial and settlement positions were discussed with counsel is entirely proper for both of the reasons stated in the FOIA Coordinator’s response, and trial counsel and I so advised the City.

Richard

This guy is an attorney, he has a viewpoint that is very friendly to City Officials, but as regards the people-friendly FOIA and OMA, he falls short to the point of getting the idea of these laws.

Richard,

That's what the City of Ludington needed to say three Mondays ago, and put it in the minutes as per the OMA. The minutes for the open part of that meeting (which were approved last night in your presence) states: "Moved... to go into closed session to discuss with Allan Vander Laan, the City's liability insurance attorney , the McAdams lawsuit against the City at 7:10 PM" Unanimous vote, followed by a second motion to allow various figures into closed session.

By your admission and the facts that are in the public record, the statement "lawsuit against the City" is in error, and should have been clarified to what you have just said. You went into a closed session under false pretenses; "specific pending litigation" was not McAdam vs the City, but for McAdam vs Warmuskerken, et. al. The session was not closed because the 'specified' litigation was grossly in error. I insist on the minutes being released to the public, as they should, particularly since there was no action/vote subsequently when the meeting went back into open session which may indicate some illegal decision was made in the closed session.

Thank you, and of course, if you can't clarify this point further, and tell me why the City erred, this FOIA request is under appeal, and a complaint will be sent to your friend the prosecutor for further action on the fraudulently held closed meeting.

And eventually Mr. Shay let me know it would be addressed at the next meeting.  John Shay opening the discussion with the defense already illustrated.  I brought up a new wrinkle in my reasoning of why the Open Meetings Act was violated, and it has to do with the exact wording that was said to the people, not the City Council who knew ahead of time why the closed session was to be held.  Here's the basic Open meetings Act.

"This is labeled as a FOIA Appeal in your agenda, but even though that explains the gist of the argument, the real argument here is not about the FOIA, but about the Open Meetings Act.  For my main contention is that on August 27, 2012 the Ludington City Council fraudulently went into a closed session.  If a public body holds a closed session in violation of the Open Meetings Act, the minutes taken during that illegal closed session are declared to be public records and available under the FOIA.  So I need only prove the closed session was not legitimate.

Violations of the OMA are treated a bit more serious than violations of the FOIA, possibly resulting in misdemeanor charges against members of the public body knowingly violating that act, and is a significant breach of the Codes of Professional Conduct for any attorneys involved which would include City Attorney Wilson and Guest Attorney Vander Laan.  As such, it should be treated seriously by the public at large and the public body, for it can also result in a large settlement against the City like what happened with former Ludington Building Inspector Jack Byers who left town with $250,000 following an Open Meetings Act violation by the same 'leadership' we have now.  Doing the same unlawful thing over and over again and thinking it becomes legal at some point, is the very definition of Ludington City Hall insanity.

But I digress.  Before the City went into closed session the mayor said at the 24 minute mark of the video:  (quote) The council will need to consider going into closed session to discuss a pending lawsuit of the McAdams lawsuit.  Is there a motion to go into closed session (end quote).  A motion to do so was made, seconded and unanimously voted on.  A second motion was made to include others in the closed session.

The original and second motion never mentioned that the City of Ludington is involved in the lawsuit, because it isn't.  It once was, but now only a former employee is involved with it.  And yet, the City Attorney says the next day-- what should have by law been said in the mayor's motion-- that they used section 8e of the OMA  to go into closed session; and yet never was any attorney consultation stated in either motion, just that the council would discuss the McAdam lawsuit.  Section 8e says:  A closed session can be held to consult with the City of Ludington's attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the City of Ludington.  The City of Ludington had no pending litigation with the McAdam party and thus has no position at the settlement or litigation table; Barrister Vander Laan should be consulting only with the former employee at this point, as the City should not be footing the legal costs of the former employee's bad decisions that night that were made by him as an individual, not as any quality representative of law enforcement acting under color of law.

But let us not forget, this public body, the Ludington City Council, voting on a motion incautiously made by Mayor Henderson, violated the law by going into closed session by not mentioning any lawful reason recognized by the Open Meetings Act for doing so. 

As such, I am positively disgusted that the taxpayers money is not only being used to justify the apparent assault that this officer made on an innocent Ludington citizen's body and rights, but to keep such knowledge secret from the rest of the public.  Disgusted enough to further act upon this clear violation of the Open Meetings Act through litigation if you deny the facts and the laws."

The motion to block these records, and ignore the Open Meetings Act was unanimously decided by the Ludington City Council.  No big surprise.

[Willy]

8e: "To consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body."

I don't know X but I think the City attorney is correct. This part of the law does not state that litigation must be against  the City or that the City is required to be one of the litigants. The City was in fact meeting to discuss "pending litigation" about what the financial effect was going to be on the City regarding that litigation. A former employee will be costing the City a few dollars so discussions  with their attorney falls under the OMA. Since the City is paying for the employee I'm sure they did not want to reveal what amount they would be willing to settle on until negotiations were complete. I could be wrong but that's how I read it.

[XLFD]

This was my weaker point, but it still holds merit.  This Michigan lawyer site states as relates to 8e: 

"In other words, a lawsuit must actually be filed and still pending (i.e., not settled or litigated to final judgment) in order for the exception to be utilized. Moreover, the closed session must be conducted in the presence of an attorney with whom the public body has an attorney-client relationship."  The City of Ludington does not have an attorney-client relationship with Attorney Vander Laan in the McAdam's lawsuit.

 

Other attorneys mention this recent litigation:  "a court can find a municipality to have violated the Open Meetings Act if its open session minutes are too skimpy. The Northville Charter Twp Court ruled the township violated the Open Meetings Act because its minutes of the open session that followed the closed session were too skimpy and did not reflect the actual "decision." On July 24th, the township held a closed session to consider settlement of pending litigation. The agenda item merely said "REIS litigation." The minutes of the July 24th meeting state that the purpose of the closed session was to "discuss with the township attorneys the litigation and settlement issues…" Minutes of the open session that followed the closed session then say this about the "decision" made: "Township Board authorizes the Township Supervisor and Clerk to execute any appropriate documents, if presented as outlined, and recommended by the Township attorney." In reality, the Township Board’s decision was to sign a consent judgment to settle the REIS litigation. The Court held that the minutes do not adequately reflect the actual decision made, and therefore do not meet the Open Meetings Act’s requirements. The Court suggested that the proper way would be to (1) state the actual decision to settle the case; (2) state the documents the attorney presented during the closed session; or (3) state if the documents presented were full, final, or draft settlement proposals."

 

We have very skimpy and at times inaccurate open meeting minutes in this case.  First, the motion stated by Mayor Henderson was incomplete in that he never stated that the Council would discuss pending issues with attorneys (in fact, attorneys weren't included in the first motion, then no additional reason was given in the second motion).  Second, Yet the meeting minutes says they entered into closed session to discuss pending litigation and settlement strategy of the City of Ludington, who as an entity is not a litigant, nor was that part of the motion.  Third, after the closed session there was no decision made in the open session.  They could have stated simply that the council has decided to take Mr. Vander Laan's advice for a settlement strategy. 

But even this would be a bit off, since Vander Laan is now representing Ofc. Warmuskerken, not the City. 

[Willy]

I guess I'm confused here. Is Allan Vander Laan representing the City or is he McAdam's attorney? If he is McAdam's attorney then you may be correct regarding the City being in violation of the OMA but only if the City attorney was not present. However if Allan Vander Laan is representing the City then I would assume that the City has a client / attorney relationship with Allan Vander Laan because It seems to me that any attorney who is being retained by the City to represent them qualifies as a client / attorney relationship.

[XLFD]

Vander Laan is now representing former LPD officer Warmuskerken currently, and was originally retained by the City for their defense before the City of Ludington was dropped as a defendant.  That's the link that confuses the issue, but at this point, the City and the Attorney do not have the A-C relationship in that pending McAdam case.  Last night, the City attorney spent a few minutes trying to say that everybody on the panel knew what was going to be happening in the closed session, so that's why the Mayor's motion was the way it was. 

But his myopia once again overlooks that the OMA is not made for keeping the public body knowledgable about itself, but for the people to know what goes on.  I attended that meeting, and I had no idea what they discussed, I read the paper the next day, still nothing.  I filed a FOIA request, when I noticed the motion was insufficient and/or fraudulent, because I still have no idea why Warmuskerken's lawyer would be needing action by the City Council.  Curiosity moves my desire to see these records.

A side issue is why is Vander Laan still representing Warmuskerken and getting paid by the Ludington taxpayers?  Warmuskerken is now a member of the Mason County Sheriff's Office which is also a party of this suit, and the wide range of attorneys they are paying for keeping their butt out of the fire, and two of their deputies.  Why can't they share lawyers-- it would be more efficient all around? 

Ironically, almost all that money Sheriff Fiers saved the county coffers, is going into legal costs to defend the actions of his misbehaving officers on a shocking midsummer night. 

[Willy]

Thanks for the explanation. It makes more sense now. I wonder why the City was dropped from the lawsuit.

[AQUAMAN]

Good question Willy, I've wondered about that too since the news finally appeared on this some three plus years afterwards too. You'd think that every once in a while the COL would try to appear open and transparent, just for the sake of being more public minded and considerate of the public's interest and knowledge of it's leaders and how they conduct our business. But NO, Mr. Shay and Henderson must continue in this cloak and dagger tradition of secrecy, and they wonder why some are asking for FOIA's more times than not.....sad.....and more stupidity showing all the time. Guess that can't be fixed, or at least not until election time, and even then, makes a person wonder how they got this far.

[XLFD]

One needs only look at today's recap of the meeting last night in the City of Ludington Daily News (COLDNews) and then take a look at the actual video of what actually took place at that meeting to understand why the citizens of Ludington remain in the dark about the McAdam Massacre and the current assault on the truth by our local newspaper. 

Or do the same thing for any City Council meeting I have attended this summer.  The COLDNews is determined to keep anything regarding the truths behind what happened with McAdams, Tykoski's unethical business transactions, and anything I put forth, whether they believe it or not. 

But you'll always find out what former COLDNews employee and Fire Chief Jerry Funk thinks about the appropriateness of my choice of shirt.