Scottville Leaders Dig a Deeper Hole to Hide Improprieties

[XLFD]

On January 23, Former Scottville Commissioner Rob Alway and Former Mayor Marcy Spencer, sitting with three of the other properly elected or appointed members of the Scottville Commission, were served with a summons and complaint for a civil action that challenged them to show that they had the lawful authority to hold their seat.  The complaint and the evidence seem to show that they have no entitlement to their respectable positions, irrespective of my natural bias as this author filed the lawsuit, and they have yet to present any kind of legal defense to the court.  

The nature of the complaint, what is called a quo warranto action, suggests that the normal means of defense public officials normally rely on may not be applicable.  Traditionally, when a city official or employee received civil process against them in matters related to their official capacity, the city council would decide whether to provide them with defensive legal help.  In the risk management era, this sometimes-uncomfortable decision usually is not made as the risk management agency employed by the city provides legal representation.  In this case, however, with the status of the two being called into question, and the initial appearance seeming to indicate that the two defendants are not city officials, RM may not be activated, depending on the terms of the contract the City of Scottville has with them.

                 Scottville City Manager Jimmy Newkirk and recently hired City Attorney Mark Nettleton from Mika Myers

City Manager Newkirk back in December said they had an opinion by City Attorney Nettleton indicating that they believed the two usurpers were lawfully entitled to have their seats.  When pressed to show this opinion through a FOIA request, the City claimed it was exempt from FOIA by attorney-client privilege.  What this means is that Newkirk (and perhaps others who would benefit) had their $325/hr. attorney work a few hours in an attempt to justify a legal argument, then hide that opinion completely from the public using a privilege that almost assuredly does not apply in this case. 

More than anything, this inspired me to go forth with this case as I saw their protection of this opinion as being done so as not to show how weak it must be, and how unabashedly Newkirk (and perhaps others) would waste the taxpayer's money to get an opinion, then waste more to keep it secret from the public.  Unquestionably, Newkirk (and perhaps others) would waste more of the City's money in protecting the careers of two former corrupted politicians.  The day after serving them the quo warranto suit, I made out a FOIA request to Newkirk that was conditional; rather than explain it further here's what it looked like, as you can see I even carbon-copied it to the city attorney:

 

This is effectively a conditional FOIA request, asking for records if a condition is not met (i.e. an assurance that the City will not expend resources to defend Alway and Spencer) and a subscription to those records as they are received or made (as allowable under MCL 15.233(1)).  I waited patiently for a response; at the end of six business days without receiving a response at all, I sent an appeal to the remaining legitimate members of the commission for an administrative appeal:

The FOIA statutes are clear that a response is required within 5 business days after a FOIA request is made, even if the response is just to say that there is no responsive records available.  Over nine business days after service, and seven days after the request was made, they even had all day Friday to make amends.  Nothing has been forthcoming, so what does it all mean?

If the City was not planning to foot the bill with taxpayer's money for the usurper's legal defense, one would expect Newkirk to immediately reply and not make himself further obligated to the duties of fulfilling this proper FOIA request.  But if this was the case, one would think that Newkirk or others would have already contacted MMRMA (risk management) to secure an attorney to provide an answer to the complaint, which both Alway and Spencer are required to do within 21 days of being served, and that such contacts would have been provided with the FOIA response required by law.  

Whichever turns out to be the case, City Manager Newkirk (and the city attorney) appears to be taking an unethical course by taking a side in the political infighting that has occurred among the city commission and seems to be violating the IMCA's code of ethics adopted by the Michigan Municipal Executives, especially tenets 3 and 7.  The lack of a FOIA response only highlights those problems further.

[XLFD]

Update, I received a letter in my mailbox from City Attorney Nettleton yesterday postmarked the day after my second email appealing the FOIA request for lack of response.  I received one item, a 'rejection letter' from the City's risk management authority (MMRMA) telling the COS that since my claims are non-monetary in nature, they can afford no coverage of Alway and Spencer, adding that their actions/inactions makes their status as an 'employee' or 'member' questionable also.  The letter does show that the city manager sent the summons and complaint immediately to MMRMA looking for coverage of the two former officials.

What wasn't supplied in the FOIA response, which is often as important as what's actually supplied was no attempt at assurance that the City of Scottville (COS) would not devote their resources to the defense of the two usurpers.  There was a denial of my subscription to future records showing invoices, contracts and correspondence the COS receives or creates for defending these two on the questionable legal basis that these records would not be 'regularly' created or disseminated in the future, rather than they would not be created or disseminated in the future.

When an attorney (especially one from Mika Myers) uses weasel words to imply that the COS will not be paying Alway's and Spencer's legal bills, rather than just simply say "The COS will not be paying in any way for the defense of Alway or Spencer in this case", you can be assured that the COS through its taxpayers will be footing the bill for their defense.  Of course, through the wording of the request, their provision to me of the MMRMA letter indicates that the COS is intent on paying to protect these former officials from their breaking of the law.

This is wrong.

[Willy]

What a tangled web this has become. I'm wondering that if the money is allocated to defend Alway and any other person being named in the lawsuit, are they required to not be involved with any decision the City would make about this?  Are they required to recuse themselves from any participation regarding this situation even if the City thinks that they are holding offices in accordance with the law?  Should  all of those individuals involved who you are being mentioned in the lawsuit even be allowed to hold these offices until this is settled? Or does everything remain as it is until the Court has decided? If Scottville decides to continue on this path and fight this in court it's going to cost the taxpayers plenty of money which I'm sure the lawyer's will be smiling about it all the way to the bank.

You have certainly raised an excellent legal dilemma. I'm no attorney but it sure seems that this could be a very important legal decision and could set a precedent for how other municipalities need to behave.