Was Ludington's City Attorney Properly Appointed?

[XLFD]

Over the last eleven years of supplying material for the Ludington Torch, I have to admit that there are a lot of accidental and incidental ideas for articles arising while doing research for seemingly unrelated material.  This is one of those.  

While looking up a recent FOIA case adjudicated in the Michigan Supreme Court, I found that they ruled that many records kept by city attorneys were clarified as 'public records' and not routinely sheltered from disclosure using attorney-client privilege.  A determining factor involved how a city's charter treats the 'city attorney' position.  In that research, I happened to notice Section 3.5 of the charter which says:  

"The Mayor shall appoint a City Manager and a City Attorney, with the approval of the majority of the Council elect."

Both positions have been appointed in the last two years, the first when Mayor Steve Miller properly appointed Mitch Foster as city manager and the council approved him on Feb. 11, 2019.  However, I recalled there being an issue with his pick for city attorney on Jan. 27, 2020.  

                                 Acting 'City Attorney' Ross Hammersley of law firm Olson, Bzdok, and Howard

Mayor Miller chose to reappoint the Mika Meyers law firm, but the council rejected that 'recommendation', voting 4-3 against it.  They then immediately proceeded to vote to accept the other law firm that supplied another bid, without an appointment or even a recommendation of that firm by Mayor Miller: 

The appointment process described in the city charter required Mayor Miller to appoint a city attorney, he never did.  Councilor Brandy Miller moved to appoint Olson, Bzdoc, and Howard (OBH), it was seconded, and approved.  The city charter is clear:  A majority of the city council has no authority or power to make an appointment of city attorney, they can only approve an appointment made by the mayor.

Three attorneys well versed in municipal law were present at the meeting, Richard Wilson of Mika Meyers, Ross Hammersley of OBH, and Scottville City Attorney Carlos Alvarado of his own local firm, and failed to notice this oversight in procedure.  Had Mayor Miller originally made an appropriate appointment rather than a 'recommendation', maybe he would have understood that he could have remedied the situation by making a second appointment before the council voted to make their own appointment, in violation of city law.  

If you're not clear on the problem created, please accept the following examples starting with a typical flowchart of how mayoral appointments work:

Note that a rejected appointment makes the process go back to the mayor finding a proper candidate and making a new appointment.  Here are some other examples across the country of city councils and commissions rejecting mayoral appointments which illustrate why a council cannot reject a mayor's choice and then appoint their own:

An Abingdon IL council denied a mayoral appointee, and had to choose another one:

Stegall declined and reminded the council he has the right to name replacements and as mayor he selects the composition of the committees.

“You do make the appointment,” [Alderman] Johnson said. “But those appointments have to have the approval of the council.”

In Westlake the mayoral appointee was rejected, the council preferred one who already served, but was not given the power to appoint them:

A majority of City Council members have rejected Mayor Dennis Clough's nominee for the planning commission, saying they prefer a man whose term expired but wanted to continue serving... Clough said real estate agent Bob Zarek had also applied for the commission seat.

In a New Richmond MN meeting a mayoral appointee was nixed with the mayor required to present a new choice in the future:

"[Alderman] Kittel’s motion was defeated on a 4-2 vote with only Kittel and Zajkowski voting in favor. [Mayor] Horne said he had no other individuals to appoint at the time and tabled the Park Board appointment for a future meeting."

At a Framingham MA council meeting the mayor tried to push the same three appointees the council rejected 9-1 in the prior month and got a repeat of denial:  

City Council Chair George P. King jr. said while the Mayor as the executive of the City has every right to not to appoint people, the appointment process is supposed to be collaborative process, and it has not been.  King said by Mayor Spicer resubmitting the exact same names after the first vote, she was “stomping her foot or playing politics to change the vote.”

The ramifications of this mistake?  The City of Ludington officially has no city attorney; anything the OBH law firm has done in that capacity over this last year can be called into question and has a degree of liability, as the office of city attorney has not been filled in accordance with the laws of this state and city.  Mayor Miller has neglected his duties of appointing a city attorney for nearly a year.  The city council overstepped their authority by appointing and approving an administrative officer.  

[Freedom Seeker]

Good catch, X!  Maybe Hammersley could advise the mayor to appoint him at the next meeting  and the council can vote!

[XLFD]

It will come up at the next meeting, even if it's not on the agenda; I guarantee that.

This is more than a technical issue, it's one of those separation of powers issues that need to be fixed.  Consider an analogous situation on the national level:  filling a seat on the supreme court (a mega-attorney).  The President has a Constitutional duty to appoint a justice, the Senate has a similar duty to go through the confirmation of the appointment.  If the Senate rejects the justice, they then don't have the power to choose their own candidate, the President finds a new appointee.

[stump]

  X , your last post pretty much clarified the situation . Now , is the Mayor satisfied with the present law firm or will he come up another recommendation ?  Was the present law firm a yearly contract?

[XLFD]

On reviewing the video of that meeting, the mayor and other officials present treated it more as a choice between two law firms.  When the mayor's recommendation failed, he took a path like they've seen many other times when choosing to appoint a councilor (a duty of the city council) and the first candidate nominated fails to get a majority-- the council moved to vote for the other candidate.  The mayor had no issue with the other firm and they haven't made any major mistakes (like Wilson did in 2019 and was caught multiple times by yours truly), so I see the mayor correcting the mistake and also appointing OBH once again for 2021.  The city attorney contract continues to be renewed annually, it will probably happen at this next meeting.