Signgate: The Cover up

[XLFD]

Unlawful and Hidden Signs

 

What does City Councilor Nick Tykoski and I have in common?  We have (or had, in my case) both served as firefighters on the Ludington Fire Department for several years and we both ran for City office last year.  But the thing we also have in common is unlawfully erected and hidden signs. 

I burst on the scene as a whistleblower back in 2008 when I had the audacity to ride my bicycle safely across an intersection without fully stopping.  When stopped I politely let the officer know my feelings on yielding at stop signs on my bicycle, and that the sign in question was unsafely placed well beyond the crosswalk.  Later on it was found to be illegally placed there, and had no traffic control order, which is mandatory for the City's signs to have.  The next year, with some help from the MI DOT about a dozen signs in Ludington were moved to their legal spot.  Also that summer, I pointed out for the first of three years, the large number (40) of stop and yield signs that were mostly hidden from view in the verdant intersections of the City of Ludington.

During the time I was pointing out these unlawful and hidden stop signs, another form of hidden signs were being created by City Councilor to-be Nick Tykoski, also in an unlawful manner, such as doing $15,000 of signwork without a competitively bid contract with the City, as already reported here.  The hidden aspects of these signs have become more clearer through the latest bombshell to come from our FOIA appeal in Circuit Court.  This has been going on since September, so you may want to use this link to establish or refresh yourself on the hiding behind signs background.

 

A Moot Point, or a Low Point in Ethics

 

It started with a simple 9-7-2011 request to FOIA Coordinator John Shay that asked for "All bids, contracts, agreements, receipts, and invoices since January 1, 2008- September 6, 2011 between the City of Ludington (including all public bodies within that entity, such as the DLB, the MMB, et.al.) and either Tye's Signs, Tye's Inc., or Nick Tykoski (the individual)."

The City responded throughout our efforts to get these records in a way that violated the FOIA, and never allowed us a way to get these records, as explained in the Hiding behind Signs series, until just a week ago on Valentine's Day.  The City's 132 pages comprised mainly of a 'brief' (an oxymoron if there ever was one), contained what they called "Exhibit M".  Here is what they said about this Exhibit, highlighted about mid-page:

Let's compare what we asked for with what we got.  We asked exclusively for documents involved in business dealings between the City and Nick Tykoski, et. al.  The 2nd, 3rd, and 4th one page documents satisfy that request, the others do not.  The others satisfy Ms. Swiger's 1-24-2011 request, but not this one.  But getting extra superfluous documents is not necessarily a bad thing, is it?  No, but it might help your specious legal argument that this was a repetive request. 

 

But what if there was the existence of documents that should exist, but were not included in this FOIA response?  Let's presume there existed invoices or contracts between the City and Nick Tykoski, et. al. that existed, or had other documents pointing to their existence, and they were not included, even though John Shay would have direct knowledge of their existence with his attendance to numerous meetings where such documents should have been reviewed, and the oversight is part of his duties.  Yet the City's elite legal team concludes the point is moot, resolved:

 

Invoices With No Voices

 

But is it really?  Or is it as false a response as I am a false lawyer.  Well, let's check out some previous records I have gotten from the FOIA Coordinator of Ludington, John Shay.  In the Development of Authority: Friday Night Lie, pt. 4 thread, I had nine links to the DDA's financial records at the end of the header, the last of which had various references to downtown signs. 

The records I have been given do not include several of the invoices that the Downtown Development Authority says exists by these records, and some others in my possession.  But the records of the 5-10-2010 DDA meeting shows that Tye's Inc. (City Councilor Nick Tykoski's business), infer that he was given the $150,000 sign contract envisioned in the 2008 TIF Plan.  I use the word "infer" because the secretary of the DDA, City Councilor Les Johnson, never recorded the vote on the motion that was seconded by himself in the minutes.  A simple oversight, maybe, but a clear violation of the Open Meetings Act.

 

And don't forget that the four other companies were given 3 business days to get a complex, involved estimate back to the City, whereas City Councilor Nick Tykoski had his bid in a full week before the other bids were sent out, and had done $15,000 worth of signwork without any competitive bids the year before, thereby having already the templates and materials for the solid gold signs at hand.  That's explained in the last paragraphs of this thread head.

 

But this is old corruption, the supposition here was that there is a brand new batch of problems for the City, by the City's brief to the 51st Circuit Court.  They have certified that Exhibit M is the full response, but the records they have passed on to me say otherwise.  Are they therefore withholding and/or suppressing the records legitimately requested or have they went and destroyed the records, in an attempt to cover something up?  They have been fighting this tooth-and-nail for 5 months.  Maybe they're doing both; either way, the underlying crime in doing so is a lot more serious than my original FOIA appeal.

 

Damned if they Produce, Damned if they Don't

 

I had to find out what was up, so I sent the following 'body' of a FOIA request to the City FOIAC John Shay asking for these specific documents from the DDA:

1) Invoice for $250 for "Lettered Signs for Farmer's Market" dated 6-8-2009 and given ref. #: 7145
2) Invoice for $350 for "Lettered Signs for FNL Sponsors" dated 8-24-2009 and given ref. #: 7291
3) Invoice for $9552.76 for "Downtown Signs" dated 6-14-2010 and given ref. #: 8009
4) Invoice for $9552.76 for "Downtown Signs" dated 6-16-2010 and given ref. # 8009
5) Invoice for $9552.76 for "Downtown Kiosk Signs" dated 8-09-2010 and given ref. #: 74
6) Invoice for $600.00 for "Vinyl Lettering- NYE Glasses" dated 12-20-2010 and given ref. #: 50864
7) Invoice for $6600.26 for "Aluminum Signs (4) 1/2 down" dated 4-11-2011 and given ref. #: 14
8) Invoice for $1000.00 for "3-D Renderings- 125 S James" dated 4-11-2011 and given ref. # 11-007
9) Invoice for $230.00 for "Lettered Banner" dated 8-22-2011 and given ref. #: 51118

 

All of which were sadly lacking from the response to our 9-7-2011 request for invoices between City Councilor Nick Tykoski and the City which defendant (the City of Ludington) claims is fulfilled and a moot point.  FOIA Coordinator John Shay was present at those meetings where sign contracts, banners, etc. were voted on for City Councilor Nick Tykoski.  I would have liked to see City Manager Shay's face after he opened that E-mail and realized what new trouble his prior denial of these records has made for him. 

A day after this was sent (2-21-12), I was at court for another appointment with the County where I am a plaintiff, and City Attorney George Saylor and John Shay just so happen to run into me at the courthouse.  They wanted to negotiate some sort of settlement for our FOIA case, that sounded fairly favorable to our side.  We (Toni and I) talked with them for over a half an hour, but they were more interested in further limiting the FOIA and citizen's rights to public records than seriously discussing the illegal FOIA habits of theirs. 

 

Hey There Saylor! 

 

But George did say they were in the process of finding those invoices, and were sorry for the oversight, and he did send some the next day with this note: 

 

As Mr. Shay and I committed to at our meeting yesterday, the city researched further the questions you posed about additional invoices that were not included with the Exhibit M that was attached to our Brief. It was, in fact, discovered, as you had suggested, that there were additional Invoices that were not included in the documents attached to our Brief in Support of Motion for Summary Disposition as Exhibit M. I have attached those additional documents to this email. You'll recall that an invoice dated 4/20/2010 had been attached to our Brief and was previously provided with the January 24, 2011 response to one of your FOIA requests and available in response to your October 18, 2010 and November 15, 2010 responses, which were unpaid. There were two subsequent invoices that related to the same work described in teh 4/20/2010 Invoice (5/27/2010 and 6/21/2010) and even though relating to the same project and duplicative to the 4/20/2010 Invoice, it is my belief that the documents should have been provided. There are also Invoices from 5/15/2009, 7/29/2009, 12/6/2010, 3/21/2011 and 8/12/2011, which also should have been provided. There were two checks (one which was voided) that may not have been something required to be provided in response to your 9/7/2011 FOIA request, but we are providing them anyway. Clearly these are not matters which were hidden and the failure to include the documents with my attachment to the Brief, was an unintentional oversight. I'll prepare an Amendment to my Motion/Brief to address this discovery.

Hopefully, you'll agree now that this renders moot the issues raised in your complaint. It's unfortunate that you do not want to discuss the matter over the phone as I think it would be helpful to discuss the case in real time without having to email back and forth. I remain open to an in person meeting or any method that would open a dialogue to either settling the dispute or at least narrowing the issues.

 

Sorry, George, phones don't leave a record of the goofy propositions the City made to me on Tuesday. He did send me a good amount of the invoices I requested.   2012 Saylor's Add-on.pdf but not all of the invoices the financial records point to.  I pointed that out later that day in an E-mail:

 

I noticed some more oversights as per the 5th, 7th, and 8th invoices to the February 19th FOIA request. Please have Mr. John Shay continue to compile this FOIA request. Please have him send
5) Invoice for $9552.76 for "Downtown Kiosk Signs" dated 8-09-2010 and given ref. #: 74
7) Invoice for $6600.26 for "Aluminum Signs (4) 1/2 down" dated 4-11-2011 and given ref. #: 14 (not the Estimate)
8) Invoice for $1000.00 for "3-D Renderings- 125 S James" dated 4-11-2011 and given ref. # 11-007

And if he cannot find these documents, please have him identify which ones he says do not exist, then have him certify that fact by 15.235(4)(b): "A certificate that the public record does not exist under the name given by the requester or by another name reasonably known to the public body, if that is the reason for denying the request or a portion of the request." That he hasn't ever done that in the past, is a matter of public record!

George, I'm also surprised by your lack of decorum here. Not only have you responded to a FOIA request without proper designation conveyed to me from Ludington's FOIA Coordinator, and not certified that the public records you failed to include do not exist, but you also failed to give me the statutory rights I have under MCL 15.235(sections 4&7).

Before I will accept the point that the 9-7-2011 FOIA request is fulfilled, I need to have John Shay certify that there is no further records that apply to it.

You know it sure looks awfully suspicious when you guys have had a half of a year to get this info, yet try to say this satisfies the 9-7-2011 request by any means, and that John Shay regularly attends the Downtown Ludington Board and should be well aware of these purchases corresponding to the invoices, not to mention CDD Venzke should be well aware of what her fiance (or is it husband now?) has done for the DLB and compiled them just like that.

I guess I'm just a natural skeptic. It is highly doubtful I can negotiate with people that continue to say the request is completed and moot, when it is far from so, and use the deposition as a torture device and a soundbite-gathering method rather than for legitimate purposes. I don't know how Hon. Judge Cooper is going to rule, but I hope you someday will realize the inherent injustice that you are helping to perpetuate here, and hope that one of these days you will actually work for the citizens that pay your salary, and not exclusively for the public officials whose dealings are highly suspect, unethical, and/or unlawful. Here in Ludington and elsewhere your firm serves.

 

Dodging the last paragraph, George gave me a bump just this morning. 

 

You made a few comments regarding the September 7, 2011 FOIA request and the additional records supplied. You asked that your rights to challenge the response be enumerated, however I don't see that as being required in this circumstance since we are currently involved in litigation over the response. Your request for certification that you now have been supplied all of the records in response to the September 7, 2011 request is not unreasonable and the Affidavit that will be attached to our Supplemental Brief will cover that very issue. When you receive the Supplemental Brief and Affidavit please let me know if you would like to discuss the case further.

 

Supplemental brief notwithstanding, I once again had to explain the law to the lawyer as regards the FOIA:

 

I don't make the rules, George, I just try to follow them. The FOIA request for the 9 invoices was a separate request from our litigation, it was not discovery, it was distinctly marked a FOIA request, and should have been handled as a distinct FOIA request irrespective of its usefulness in the current litigation to explaining my point that the City has arbitrarily and capriciously handled the process and the access to records throughout our several years of correspondences, and may be guilty of more serious matters, that would have to be handled separately from this FOIA appeal. Please have the City handle it as such.
One other question I hope you can supply me, while we're talking: You cite Detroit Free Press, Inc. v. Department of Attorney General as a sole precedent to the City's "fact" that a person cannot appeal the imposition of disputable fees. In that case, the dispute of fees imposed by the public body was under proper review, but the plaintiff won that aspect of the dispute (negating the fee for labor imposed) and prevailed in part under section 4 (fees) which was upheld, but did not prevail under section 10 according to the appeals court, for in order to receive attorney fees and costs they had to prove that such an appeal was necessary for production of the documents. In our case, the City of Ludington has not only not offered us any manner to get these records by not giving us any definite fee, but also have produced a false set of records in their brief and claim the request has been fulfilled. Nor have we ever been given a fee constructed under the fee schedule provided in either state or local policy to dispute. Your precedent effectively proves the point that fees can be disputed, if such fees are contrary to the Act, and corrected by the court. Doesn't it?

Be that as it may, I believe we should be having a FOIA appeal being heard at the next City Council meeting; the notice has been sent out to the City Councilors, and they do have an obligation to review it, despite any claim by your law firm and the City Manager. Thank you. 

 

I have no idea why they are holding these records back from public viewing, I just know they are, and they're doing it illegally.  It looks like they might have also destroyed or hid some records.  But is that surprising at this point from this cast of characters.  The house of cards known as Ludington City Hall is looking a bit shaky nowadays, and the City Hallers, along with their Manistee mouthpieces are looking even more shady.

[AQUAMAN]

Willy, I love the play you orchestrated, and we could all wish for something in that text to come about, and soon. This would be the best of best scenarios, where everyone wins, and fesses up to not being perfect. But I fear my friend, that this can and will not ever happen. All you have to do is look back at the Byer case as a prime example of what vanity and greed in City Hall has done to those perverted minds. Being able to admit we, anyone, when they are wrong, is just a growth process towards becoming a better person. In the City's eyes, admitting any wrong, even when it's plain and clear that they are, is totally unthinkable, and unimaginable, and never to be admitted. "When mistakes are made and recognized, they are still fixable, and do not become permanent errors." To ignore your mistakes, when they are clearly fixable, is a sign of a person/entity that has deluded it's sanity, and ability to progress and prosper into the future.