The Fourth Ward Enigma

[XLFD]

Before the regularly scheduled meeting of the Ludington City Council at 6:30 PM on June 15, 2018, there was a hastily assembled meeting at 4 PM that afternoon for the expressed purpose of interviewing candidates for filling the impending 4th Ward vacancy.  Councilor Mike Krauch announced his resignation in a May 21 letter saying his resignation would be official on June 15.  

Advancing a few hours into the future at the regular meeting the council added officially recognizing and accepting Krauch's resignation at the meeting to the agenda right before their appointment of the new Fourth Ward Councilor, which was an old Fourth Ward Councilor Carol Pomorski.  To make that decision, they effectively chose a person who had no chance to win the next two regular elections being held this year for the Fourth Ward seat, and had few answers to the questions asked during an interview where she showed she has not been paying attention lately.

That interview session at 4 PM began with a dispensation of regular business and an invitation for the public to comment.  I took the dare, as did Fourth Warder Dianne Seelhoff, who spoke highly of the first candidate on the hot seat, Kandi Fugere.  

XLFD:  "I have several legal issues that need to be addressed regarding this meeting. Fourth Ward Councilor Krauch has stated that his resignation is effective on June 15, which means that the vacancy has not yet happened. Yet, at this meeting interviews for that spot are scheduled, and the regular meeting is scheduled to have the council appointing a Fourth Ward Councilor. As no vacancy has occurred yet, filling it before it happens is absurd on its face and is not a power granted to this council by the charter.
Such an absurdity actually allows the officer who will be vacating the seat to cast a vote, interview, and otherwise help choose his successor, a concept generally repugnant in a democracy. If we read the city charter, it states that "No vacancy need be filled if it occurs within sixty (60) days preceding a City election." The vacancy occurs on June 15, less than 60 days before the city's primary election on August 7th, which was already being held for the Fourth Ward due to three candidates getting signatures.
Instead of doing this exercise, the council should be setting the dates of a special primary for the Fourth Ward on August 7th, and a special election in November. It is effectively mandated to do this by law as section 5.2 also says of elective offices: "Multiple vacancies shall be filled by a special election". The vacancy of city treasurer and Fourth Ward Councilor at the same time forces by law that this council needs to set up a special election for that office as well. Follow the city charter, not those who would corrupt it's words and intent."

The city attorney (who wasn't present at the early meeting) and other officials never countered the claims so clearly written in the rules that govern their behavior on that day or since.  I think part of the reason is because they either intentionally or purposefully pervert the definition of what a 'vacancy' is.  Vacancy is one of those terms you usually don't see defined in legal texts simply because most think it's meaning is understood, and the city charter is one of those texts.  

Black's Law Dictionary says 'vacancy' is an interruption in the incumbency of an office.  A state publication dealing with vacancies states a position is considered “vacated” when a resignation becomes official.  When the concept of vacancy is considered in the legal sense, the Fourth Ward Councilor position is vacant today, June 15, Krauch's official resignation date, which he re-stamped officially that evening.  The council then made what they thought was a legal appointment to an office before it was vacated, but it was invalidated immediately by the fact Krauch was still there casting votes in his position even after Pomorski's appointment, and attending the fire station groundbreaking yesterday.  

As an aside, this groundbreaking involved at least four councilors (a quorum, red circles left to right, Councilors B. Henderson, L. Johnson, M. Krauch and W. Cain), and I overheard several officials on Monday night referencing some get-together later that week, when none was publicly noticed.  Such a gathering of a quorum of the city council was not by chance, it was organized, and could easily be determined to be violative of the Open Meetings Act since matters of public policy are likely to have been discussed between the city council and other city officials and employees without allowing the public the option to attend by noticing the event (see AGO 6074).  

Back to vacancies, the appointment of Pomorski, as noted, was not legal.  But defining vacancy correctly is even more far reaching.  The approved 5-21-2018 minutes simplifies the city attorney position that the vote to appoint Tom Ezdebski as one that filled a vacancy, a vacancy which still hasn't officially occurred, as Treasurer Linda Rogers retirement is effective in July.  Perhaps, Wilson reconsidered that position before the June 11 meetings, as Ezdebski was instead appointed to be a deputy treasurer-- technically a demotion from his earlier appointment to an elective position in May that isn't open until July 15.

One might even say that as Rogers made her intentions clear that she would be using her accumulated vacation time starting June 14 and not performing official duties after that time, and claim that the office of Ludington Treasurer became vacant at the end of June 13 because of that declaration.  As of midnight tonight, two vacancies of Ludington elective offices will occur, and special elections are now called for without stipulation by the city charter.  

The Interviews

If you have been at any of these appointment interviews in the past, you heard the same questions, with few exceptions, posed to each of the candidates.  Both Kandi Fugere (KF)and Cheri Stibitz Rozell (CSR) answered a dozen questions, CSR had one more, ten were the same questions made generally.  The last candidate, Carol Pomorski (CP) had only six questions other than an opportunity to introduce herself.  CP offered herself to allow the council to be fair with the other candidates, who were both registered to run for the office from earlier this year.  

I got the distinct impression that CP may have been encouraged to run by city operatives, CP indicated others encouraged her to run for 'fairness' but nobody's identity was mentioned.  She admitted she has not been paying close attention to what's going on and does not have information on most issues.  She did indicate that she thinks the fishing dock should be replaced in Copeyon, and offered some reluctance for putting the splash pad there due to the geese and E. Coli issues.  

When she was asked by Mayor Holman about what 3 challenges the city faced, she only mentioned one:  "Getting through a meeting without Rotta."  The only question after that was asking about her availability.  Her one answer to the three challenges question, she offered no other challenges apparently impressed 2/3 of the councilors present to vote for her later. 

If anybody can explain what her answer meant, I'm willing to listen, but the way she said it and the amused way it was taken by the councilors did not make me (or the two other citizens I sat by) take it as a compliment.  

I would divulge Fugere's and Rozelle's answers to the questions, but I think since the third Fourth Ward candidate, Jeff Caspersen, who joined the Ludington Pitchfork, our Facebook contact, the next day and explained his reason for missing the occasion:  

"I am grateful for Carol stepping up for the next six months to serve public office again. Setting aside the debate of whether an interim councilor was necessary, I think they made the right call in selecting a non-candidate. Giving any particular candidate the interim position thus also an incumbent advantage going into the election would have been poor decision making in my opinion. I intentionally did not submit myself for the interim position specifically to avoid any sort of accusations of machinations or favoritism should the council have selected me. If I was to be fortunate enough to serve the ward as Councilor, I wish only to do it if chosen through the democratic process."

I have to admit that both of the other two candidates gave admirable interviews, but Caspersen's answer seems to have been the best by far of why this exercise was a farce and a waste of everybody's resources.  All it signals is that by the end of the day, we will have two elective vacancies and mandated to call special elections in November 2018 for both.

[Freedom Seeker]

Since many decisions of late by the city council seem to be outside charter parameters (I.e., making their own rules), I'm at least happy with these made-up rules of alternative of Pomorski being selected as "interim" fourth ward councilor (a charter option that doesn't exist). I too think it will give a fair chance to the three official candidates.

It does seem that by Carol's answers, she was coached by someone on the council or in city office and asked to step into this made-up interim councilor position.

As far as "making it through a meeting without Rotta" -- watch out for the underground Ludington mafia. No, seriously, Rotta, you are going to have to turn on your charm and maybe bring your intellectual analysis level down a bit. Speak to the level of your audience. Use your wit and intelligence and humor to make it clear. I think your raining on every parade is not appreciated for its financial prudence and honest integrity. Most of these current city officials trying to keep up with the Mercedes mentality can't understand the inner hometown integrity and see the beauty of the flowers after the rain.

[jfc123]

Seems to me that this is a great way to reach out to larger media sources that have balls and will report the truth! To make it through a "meeting w/o rotta" imo is a threat! Beware walking through town, someone may jump from behind a bush (quote by krauch). Its the people you reach that may hurt me! I sure hope she is brought up on attempted charges cuz it is a threat! Bottom line...BULLSHIT POLITICS!!!!

[XLFD]

How could I be consistent in claiming this is a threat when I have defended two of my members in front of Chief Barnett and the other invertebrate media for making similarly ambiguous comments?  If she says the three challenges facing the City is getting through a meeting without Rotta, then is she not perhaps complimenting me for being the wise counsel and nagging conscience of city politics, that helps the council decide issues?  She may truly believe that the councilors need my presence at these meetings in order to make a decision based on all the facts (at least all the facts I can translate to them in three minutes).  

[Freedom Seeker]

I considered that XLFD ... That the easiest way to "make it through a meeting without Rotta" would be to comply with laws--city charter and ethics and to be financially responsible.  Probably not going to happen, so I guess former mayor Carol will have to learn to appreciate your discernment, logic, common sense and analytical skills.  Good luck with that for the next few months.  I still say try the charm and hope that maybe council will learn that under the excrement is at least a pony.  With Shay gone maybe they will begin to look at things differently.

[XLFD]

Freedom Seeker, whatever comment I give the council, they seem only to see a pile of excrement or a big wooden horse with the potential of a lot of Greek warriors pouring out of it. 

Take this last meeting.  I started off with complimenting the transparency of their new policy and Councilor Winczewski's idea of broadening the public comment period.  I then politely and without patronization remind them of what the charter says, and how what they are being directed to do by the city manager and attorney does not follow that.  In doing this I defend the charter, the rule of law, and democracy-- this is what they should be doing in their words and actions.  

My last two minutes once again sets the record straight (at least as much as two minutes allow) about a legal decision the city manager mangled.  I offer anybody interested in the truth to view the transcript and see that the two plaintiffs were arguing that the City was about to construct a splash pad without any sort of consideration of the ADA and other rules which require minimum standards for such projects that weren't in the plans set forth from the committee they seem to have made their decisions at.  The City argued standing and ripeness issues, not the compelling issues of constructing a splash pad that is in violation of several laws if built as planned.  

They may desire to run over this bouquet of roses with their flashy Mercedes, but they're just a touch worried that the thorns might give them some flat tires in the process.

[Freedom Seeker]

With every rose garden there has to be a little rain and some thorns.  I hope city council can learn to appreciate your heirloom brand.