Ludington City Council October 9, 2017: A splash of Vitriol

[XLFD]

The agenda was sparse on content, but the Ludington City Council meeting of October 9th was anything other than sparse in content by the time it adjourned nearly an hour later.  The only things on the menu for this night was to approve placing LACA signs in street right-of-ways (a surprisingly contentious issue on some nights, not this one), Mayor Holman issuing a proclamation for fire safety week (which she didn't), and the city manager giving a public statement on the September 26th listening session (which he sidestepped).  

The first public comment commenced with me giving a clinic on the Michigan Open Meetings Act (OMA) after a brief apology and reason for missing the listening session.

October 9th, 2017 Ludington City Council meeting from Mason County District Library on Vimeo.

"Besides Councilor Krauch, was there any other councilors who weren't able to attend the session?  [nobody raised their hands].  If six out of seven councilors were present at the session then there was a quorum of councilors at this session there for the purpose of deliberating toward or rendering a decision on a public policy.

As such, the listening session was a meeting of the Ludington City Council by the definitions found within the Open Meetings Act.  Because of that designation, I have noticed that the City has not been diligent in following the rules that come into play. 

One could say the city council was in substantial compliance of the Act in publicly noticing the meeting in various venues, however, on the agenda and according to my sources at the meeting there was no opportunity allowed for the public to individually address the council using the normal rules of 3 minutes before and 2 minutes after the agenda items.  

It's tellingly ironic that in a structured listening session called to order by this council to listen to what the public thinks that you do not take the time to listen to what the public thinks, in direct violation of the Open Meetings Act, section 3, subsection 5.

Had you listened to what the public thinks at the last meeting, two Fourth Ward citizens had several observations about the splash pad that were ignored when the city talked about it later.  Liability and legal issues about the city's use of golf carts on the breakwall were ignored.  At the end of the meeting, four spoke up about other topics important to them that were similarly ignored by councilors at the end of the meeting and since.   Should we really believe this council wants to listen to what the public really thinks or just go about doing unpopular, inefficient, or nonsensical things and letting the public pay the bill ?

Beyond that, the special meeting also seems to lack any official meeting minutes, which should have been publicly available this last Friday (section 9, subsection 3 of the OMA), and should have been included in your councilor packets which was sent out that afternoon.  Why are they not available in your packets, and why isn't the approval of these minutes on your agenda at this meeting as required by section 9 subsection 1 of the OMA?

Thanks for listening."

Two others also spoke.  Terri Horacek brought up two points, the first regarding why Sargent Sands trucks were always singled out when transportation issues is being talked of, she then listed over a dozen other companies who used big trucks in the area.  Her second point was questioning why the city wasn't shutting down the breakwall during high wind events in the fall.  

Dianne Seelhoff praised the city for its listening session and the competence of the MML facilitator, with hopes that the city would continue such listening practices in the future.  She alerted the council that they should expect scrutiny and accept such scrutiny from the public.  

Shortly after getting into the meeting, Mayor Kaye Holman, who appeared to have some problems talking, excused herself shortly after 10:30 into the meeting, and had Mayor Pro Tem Les Johnson take over the meeting.  She would not come back; LPD Chief Mark Barnett left with her, and left the meeting twice more before it ended. 

For those concerned about her health, I did unexpectedly see Mayor Holman at the local credit union on Thursday afternoon, looking chipper.  MPT Johnson carried on her duties admirably, and it was he who delivered the fire safety proclamation.  

Open or Shut Case?

As they began to discuss the listening session, the OMA question was the first thing addressed by City Attorney Richard Wilson at about 22:15 into the meeting, where he proposed that if the notes for that meeting accurately reflected what happened at the meeting, then to be safe, it would be proper to approve those as the minutes of that session/meeting.  MPT Johnson opined that he didn't think it was a 'meeting'  but Councilor Rathsack moved to accept the list and approve it as a meeting and Councilor Bourgette seconded.

Councilor Winczewski was offended that this meeting would be considered anything more than what it was, a listening session, and that the public was heard.  "I didn't think it was that kind of a meeting."  Councilor Krauch apologized for missing it, but believed it was proper to approve them as such.   Wilson urged that exercising an abundance of caution was the best practice in defending his position.  When the vote came Winczewski and Johnson voted against it, Johnson not sure whether he should retract it since he was acting as mayor.  If the mayor pro tem had read the charter, he would have known he had that ability.  

Thus, the rough notes of the meeting (seen here) magically became the minutes.  It should be noted in the OMA, MCL 15.269 says:  "Each public body shall keep minutes of each meeting showing the date, time, place, members present, members absent, any decisions made at a meeting open to the public...".  You will notice there is not a mention of any of those required fields in the notes. 

I thought of rising for a point of order to address those failings, but I was still reeling from the last time I did during the Mayor Cox regime and was rebuffed without a chance to say my piece.  The Ludington City Council approved very incomplete minutes (that looked like very rough notes), which is sad because City Clerk Deb Luskin who was at the listening session and writes commendable minutes could have easily drew some up to be safe.

A local judge may rule differently, but given the factual background of this session, and from the summaries I have heard from four attendees, this was an open meeting.  We could look at several Attorney General Opinions that have concluded sessions like these were 'meetings' (such as AGO 6636), but if you are more compelled with higher court cases you need go little further than NICHOLAS v. MERIDIAN CHARTER TOWNSHIP BOARD: 

"Meetings with a quorum present held to deliberate a public question must be held at a public meeting.   Thus, if members of a public body gather, a quorum being present, for the purpose of deliberating, the meeting is subject to the provisions of the OMA even if there is no intention that the deliberations will lead to the rendering of a decision on that occasion."

John Shay himself said in a memo leading up to the event:  “The city council desires to increase community engagement through respectful and engaging dialogue with the citizens in an effort to proactively identify and address important issues."  The 'session's agenda' also indicated all present, including councilors, would be talking about the city's master plan and included ten bullet-pointed topic areas.

Sounds like they would be in deliberation over 'Important' public policies to me.  And while the members of the various groups likely got to talk over issues that meant something to them, they were not given the opportunity to individually speak as MCL 15.362(4) allows.  When you think that all the city leaders had to do was have somebody take minutes and give the attendees an opportunity to speak to comply with the OMA, even if they weren't sure this was a 'meeting'-- it would have Wilson's 'abundance of caution' if it was ever called into question.

Now it just makes them look foolish, with Councilor Winczewski and Johnson leading the parade with their denial of the session being a meeting.  The rest of their discussion about the September 26th meeting, dealt with how they would deal with the raw data in the notes, whether it should go to council or a subcommittee.  They decided on a work session of the full council at a future meeting, with Rathsack voting against.

Back in the Lead

Second public comment was led by Chuck Sobanski whose main point was suggesting the splash pad be put at Stearns Park.  C. Dale Bannon followed with an enigmatic reference to the avenue restriping.  Terri Horacek continued with a hope that the listening session would be listened to, and that the US 10 hazards would be listened to (Wallace Cain made light of that earlier). 

The purposes of minutes are letting those people who couldn't attend to know who was there and what was discussed at the meeting and I didn't see that among your notes. 

But beyond that, I would like to update the councilors on the lead in our drinking water issue.  Our county has had the first or second highest rate in the number of young children with elevated blood lead levels in the last four years of record (2012-2015).  The Ludington zip code has always had higher rates than the county.  Our city manager and utility maintenance supervisor have both confirmed that there are many lead goosenecks, symptomatic of 80 plus year old municipal water systems, around town in the city's pipes daily supplying our families with the lead-contaminated water within them.  Our council up to this point, is in denial of that fact, as expressed by Councilor Winczewski.

I have monitored the water system work in the Fourth Ward, in particular the pipes they have taken up and replaced, and have seen and photographically documented many lead goosenecks like the partial one I brought in the day Mayor Holman drank my yellow water.  During this time, I put that same lead pipe in Ludington tap water for six hours and sent the water off to Grand Rapids to be tested for lead content.  The results were off their charts, they phoned me shortly afterwards to warn me not to drink the water from the source I got the water from.  Many Ludington citizens with young kids cannot help but do so.

Mind you that this tested water was more diluted with lead than what sits in the goosenecks outside many resident's homes overnight, ready to be poured into a formula bottle or a Kool-aid pitcher after one or more uses of the bathroom gets the worst contaminated water to your tap.  [Two minutes came faster because I lead off with a quick defense of my OMA assertion, I would have finished]  Lead levels off the charts due to the goosenecks and their reaction with the chlorine used in our water.  It's sad that the only reason we are replacing some of these pipes is due to the need to provide greater quantities of water to the cogeneration plant, and not for the public's safety. 

Please adopt a policy to identify where our problem pipes are, and cost-effective ways to begin replacing all of the city's lead pipes.  Allow citizens the right to opt out of the forced city water supply monopoly if they suspect or know that the city's supply line to their residence has lead goosenecks thereon.  Thanks for listening."

Diane Seelhoff expressed her fears of having a lead gooseneck (she probably has one, I have noted others along the 100 block of Second Street, the end of Washington Avenue, and 100 block of Sixth Street, while her section was not replaced).  She offered a balancing act of praise and dismay at the COLDnews, praise for the editor who ran her complete comments, dismay that her comments were poorly summed up by their on-scene reporter.  She warned of challenges ahead and the need for unity.  

At 46:50, Councilor Winczewski made her case to be the leader of fools by commenting on the lead issue with some poorly researched pronouncements.  

Wink:  "I also got a lead gooseneck from Fourth Ward, and I cut it in half.  Mr. Rotta, the lead goosenecks at this point in time, 80 years, have a coating of lead oxide on the inside of it.  Now, I'll bring my lead gooseneck next week and I'll share that with anyone who wants to take a look at it. 

That lead coating, that lead oxide, does not allow free lead ions to get into your water.  So unless you have a corrosive going through your water system, which we don't have corrosive going through our water system, you won't have lead coming into your drinking water unless there's a reason that coating is gone. 

They also, Home Depot offers free water testing kits.  I was just out there, and you can pick one up free and send that in and it will be tested to let you know if you have a problem or not, so if someone thinks they have a lead gooseneck they can also do that home testing.  Also the health department will test your water if you have any concerns about that too. 

So as far as we know right now, the lead goosenecks are not a problem.  If you feel it is, let your water run for two minutes and it will go through.  But I will bring that lead pipe next week so you can actually see what the coating looks like.  It's coated so it's protected." 

Not to be outdone, City manager Shay said his usual piece about the ineffective DEQ method of lead testing:  

Shay:  "We have to test our water under DEQ regulations right now for lead and copper every three years, we just completed the latest round of testing and our water plant said its come back with non-detect for lead.  It's about 20-22 homes the DEQ has to approve on a list of properties for testing, because they are wanting to see properties that are likely to have potential lead goosenecks. 

They don't allow you to test twenty homes that were all built six months ago, you know they wouldn't have lead in there.  We are complying with those regulations and any water project, just keep in mind that the city ordinance, the city water line from the house to the street is the homeowner's responsibility. 

Having said that, when we do a road project when we are replacing utilities like we've been doing in the Fourth Ward and up by the high school, we will replace not only the water main but the water service line from the main up to the property line to make sure we have new utilities underneath the road.  And our standards now is that when we replace it, we replace it with a 1 inch copper water service line up to that point.

Wink:  "And I did call the health department months ago when we were having lots of questions about the lead with children, and I said where is this lead coming from, because it doesn't look like it's coming from the water.  And he said there is two areas in Mason County where that lead is coming from. 

Number one is there is still a lot of lead paint, a lot of the homes still have lead paint in them, especially he said, window sills.  A lot of that, another thing he said is that people don't realize we used to use lots of lead in our gasoline and a lot of factories around here still, they used to, put out a lot of lead.  There's a lot of lead in our soil.  So as our kids are playing, especially by streets and stuff, he feels that those are the two areas where the kids are getting lead exposure."

Chronologically, here's where they are mis-lead-ing you:

Lead oxide scale inside of lead goosenecks can still allow free ions of lead to leach out, it's just at a smaller scale (inadvertent pun).  Reviewing my own lead pipes, most have dark scale inside them, some are flaky.  It must be noted that mostly insoluble lead oxide is also poisonous, and likely resulted as an interaction between the chlorine in the water and the pipes, along with some lead chloride being produced, which is also poisonous. 

Likewise, researchers looking at Flint and Washington DC found that in systems that have switched from chlorine to a less oxidizing agent like chloramine, that protective coating begins to dissolve and the drinker not only has more free lead ions leaching out, but particulate lead oxide too.  Yet chlorine is the disinfectant that the City of Ludington uses in their water, and anybody that knows chemistry knows chlorine is quite corrosive to most metals and skin, contrary to the councilor's claim.

The 'free lead test kit' at Home Depot is another myth, check for yourself at the local outlet.  It may cost under ten dollars at the Depot, but you still will have to pay a $40 lab feeto get the results.  Very different from free.  Likewise if you go to Health Department #10, like I did to get their last lead test kit, they will give it to you, but you still have a $20 lab fee to the Grand Rapids lab I sent mine to.  They won't come out and test your water on your whim at no cost to you.

Running your water for two minutes is not a solution either, in fact it's more likely to get you poisoned.  Here are experiment results from a house which had a lead service line in its basement, where they first took an immediate sample from the tap, then let it run so as to get a sample where the lead pipe's water would be, and then ran it longer to get back to the water main.  You can see a big difference.  Two minutes of running your water from the tap may get you that lead service line water.  

The Flint researchers suggest running it longer, depending on where you believe the problem piping is at and the flow rate of your tap.  The lead oxide scale surely didn't protect that house or the ones in Flint-- it surely won't protect you here.

Shay reiterated his line about the DEQ testing, it should be noted that several DEQ members have been charged by the attorney general for their negligence in Flint's water crisis, while others close by have ignored the 2012 major raw sewage spill in the PM Lake where Shay ordered bypass pumping into those recreational waters. 

The 'first draw' method will never show a significant result unless there is a lead pipe or some other lead connection near the tap.  He is correct that due to a stealthy 2011 ordinance our then-new attorneys from Manistee wrote, the owner has a financial responsibility in repairing it, i.e. "When the service line develops a leak between the curb stop valve and the city main, the city shall have the right to repair or replace such line and bill the property owner for the work on a time and material basis."  Their 100 year old obsolete lead and galvanized pipes break you get charged.

Winczewski's last attempt was to divert the problem away from the city's lead pipes by claiming some unknown guy from the health department-- the janitor maybe-- claimed the lead may come from lead paint and leaded gas from long ago and in our factories.  There's no denying that these could be factors anywhere, but they belabor the questions:

1) Why do we have over ten times the instances of elevated blood lead levels (EBL) in our kids than counties which have older houses and higher incidences of leaded gas being used recklessly in their past?  Consider both Presque Isle and Ontonagon Counties, with higher percentages of older houses, had zero out of nearly a thousand kids test with EBL while Mason County had 11% of their young kids test high in 2013?

2) If the councilor had salvaged one of the many lead goosenecks from the contractors pile of 2017 road work refuse in the Fourth Ward, why is she still in denial that there's lead pipes between the city's water plant and the mouths of your kids? 

When Councilor Winczewski brings her half-pipe next meeting, I suggest we cap off one side, fill the rest with city water at the beginning of the meeting and have her drink from the pipe afterwards, to show us how safe it is.  Maybe she'll politely excuse herself like the mayor did at this meeting.

The Vitriolic Finale

Capping the night of the weird official behavior came Councilor Krauch who delivered a soliloquy just after Councilor Moonbeam's last lead myth.

Krauch (15:35):  "If I can make one comment, there was some public comment regarding the splash pad at Copeyon Park.  I think it's important to reiterate the committee worked with the splash pad committee over a number of months and a number of different proposals different sites were proposed, looked at and reviewed and it really did come down to Copeyon Park in being the most appropriate location for that and reflective of the need to have development investment in that part of town something that our local folks who live and work and play here year round can enjoy easily.
There are a lot of opinions about the splash pad, both positive and negative about it being in Copeyon Park, and when you come forward in public comment and you are free to say whatever is on your mind in the second public comment period, whatevers on your mind in relation to agenda items in the first public comment period, but you know when you come forward with false facts, when you come forward with vitriol, when you come forward in attack mode... quite frankly, I'm going to discount it.  I don't care.  I'm not going to respond to attack, I'm not going to respond to falsehoods, I'm not going to respond to nonsense. 
And we had false facts put out months ago, exorbitant costs for water to run the splash pad which were absolutely wrong, which created all kinds of negative.  We had false facts, false allegations about why diseased trees were cut down, and the allegation that those diseased trees were cut down because we wanted to put a splash pad there.  No, the diseased trees were cut down because the diseased trees needed to be cut down.
So when you come forward in public comment, I encourage you to, I appreciate it, I want to hear from folks, but please understand that we're not always going to agree, we're not always going to respond when what is put forth is flat out false, or vitriolic, we're just not.  [pregnant pause, glare] Thank you."

Krauch's comments seemed to be directed at a self-corrected figure of water usage made by Dianne Seelhoff, who wasn't exactly privileged like the councilor to chat over the splash pad for months before commenting on it.  It also seemed directed at a claim I have made over the cutting down of trees in Copeyon, trees that would have been directly in the way of this larger model of the splash pad they envision, with only a small portion of those trees diseased, an even smaller portion needed to be took down.  

City officials can say all they want that these trees were not cut down in preparation for the splash pad, it doesn't alter the fact that the splash pad committee had a spot picked out that would've required removal of the trees, and removal of even more so that the kids wouldn't get cold by playing in the shade.  The premise is strengthened greatly when you see that they planted replacement trees in Copeyon, but planted them so as to block the view of the electrical substation, not anywhere near the area they took the trees from.  

This is one of the few times I can remember since 2006 that the City of Ludington has taken the less shady stance, and actually let more sunshine in.

[John Doe Jr]

Making shit up as they go along' You see the Chief has no problem with that.

[shinblind]

Shay is full of it.

If you compare data on the percentage of houses built before 1950 in Manistee, Mason and Oceana Counties, they show that Manistee has 27.0%, Mason 27.4% and Oceana 23.9%

Does Shay honestly believe that 4 tenths of a percent difference is responsible for twice the lead levels???

In the percent of houses pre-1978, Manistee 63.9%, Mason 64.6% and Oceana 57.8%.

Again does Shay believe 7 tenths of a percent is responsible???

I chose to compare these 3 counties because of their geographic location and their similar agriculture practices. Their industrial usage is mixed.

This blows up Shay's argument that lead paint has anything to do with the elevated levels of lead in our local children.

His argument that somehow Mason County was using leaded gasoline while the surrounding Counties somehow found a source of unleaded gasoline is also unbelievable. Does John Shay also believe in Loch Ness Monster and the Dog Man?

The only thing you can depend on with Shay...Shay is full of shit.

Again as I often said,  Piss on you John Shay.

[XLFD]

Over the last ten years, the area has consistently led in Lead (see John Shay's Ten Year Legacy of Lead), the last four recorded years, we've been at the top (see this link for 2013-2015 rates).  There should be some caveats issued before we jump to conclusions from what the data shows.

First, this isn't a problem caused by John Shay, the lead goosenecks were in place 60 years and more before he got here, his problem is that he has denied there exists a problem to tackle, made the council adopt his do-nothing stance, and he has avoided noting and fixing it over the 15 years he has been here, even after the LASD superintendent uncovers lead issues at her schools.  

Second, the testing is done according to zip code and county, not by local jurisdictions inside the counties.  So whereas zip codes 49431 and 49425 (for Ludington and Scottville areas respectively), enclose both cities, it also includes areas that do not receive Ludington WTP water.  I think it would be even more illuminating if we compared the 49431 area outside the city infrastructure, with that within the city limits, which is populated with older leaden pipes.

[Willy]

Why in the World hasn't Ludington's leaders hired experts to come in and locate the source of contamination if the State statistics are correct regarding lead levels in children? That would be my first course of action. Again, somethings going on here because to normal people, this lack of concern by Ludington's officials, makes no sense.

[AQUAMAN]

And also, who decided that CC Krauch, a failed attorney from Illinois, now gets to decide who is acting vitriol and who is not? Did he get appointed as God? Since he has no native upbringing here, and doesn't know his facts of history here, now he gets to decide whom is lying by his own authority? And he can't even pronounce Copeyan Park correctly, but says it's Cop-eyan Park? Sir, do your job, and quit pretending you are God, because you come very short of anything even close to it!!!!!!!!! You make me and many other 4th Warders sick to our stomachs in disgust at your representation on the council, also unopposed at election, which is even more sickening. Your $30K house in the 4th Ward doesn't make you a top citizen either, just another BUM imho!

[AQUAMAN]

Dianne, the written agreement for the Municipal Marina not to slip any charter boats is part of the original State of Michigan DNR rules and Charter with the city of Lud.. It also pertains to any commercial type vessels as of 1980. So, when the city takes up to 12 charterboats in, and Harbor View also takes in another 8 charterboats, they both have violated their DNR terms not to do so, under strict rule and law. Yet, they proceed anyhow, and ignore their charter requirements. This is illegal, and the DNR Chief also agreed with us off record on that subject matter in the last year or so, and was going to oust them, until it came up in a committee vote last year. As for Moonbeam Kathy, she just can't give up on the dirty lead water from the city, and defends them to the hilt, although, she has no documentation to prove her inaccurate statements. Also, as for Krauch again, I didn't see him identify exactly whom is making false statements, and doesn't document his own attacks on citizens with any proofs himself, so who's being vitriol? And Dianne, your statements about City Clerk Luskin are worthy of praise, as she does her public duty very courteously and with honor with the public, and I just wish all the others down at city hall would follow her actions in their duties also. Same can be said for City Treasurer Rodgers and many others working in the day to day operations.

[jfc123]

Aquaman, thank you for these comments. All of us that started the fishing industry around the PM Bayou and west past yours built those city marinas, only to be crushed by not being able to compete with a corrupt government. Silly me I though Rick Snyder would make things better. Your words are the same I could write except we are unable to have many boats due to again, corrupt government that dumped on us and wont clean up since it may hurt their bottom line! The money from fema for dredging has still not been accounted for. Sickening! Not one freaking governing person will stick up for us and fight for what is right?

[AQUAMAN]

We are now talking about serious Politics Dianne. That's why Shyster Shay wanted it within his power to not elect City Treasurer and Clerk anymore in a recent election. He wanted to "appoint" his anointed officials for the good of us Lud. taxpayers. I thought that wrong then, and now. See our Torch archives on this too, thanks, Aqua.

[AQUAMAN]

And btw, the Lud. CC cannot vote over the DNR on any funds coming our way, but they can "strongly influence" the DNR with already tainted history, and their lack of obeying rules for many years now, which now seems to give them an "out, so to speak". Public can't even use restrooms without a secret code. What say ye now jfc?

[shinblind]

Sounds like Nappy got a little yappy.

Might I suggest a bark collar for councilman Krauch before the next meeting.

[XLFD]

With Kaye's ascension to mayor and Gary's lateral move to county commissioner, the council needed someone to step up and take their place in badgering the citizens at the end of the meeting.  If Chief Barnett does it all of the time, it kind of neutralizes the sanctimonious invocation he gave at the beginning.  Councilor Winczewski just doesn't have that menacing demeanor you want.  Three of the others are in their first year, and haven't channeled enough venom into their fangs yet, the two others (Rathsack and Johnson) have too much of the kindly grandfather countenance and manner to make it work effectively.  Shay and Wilson need to save their energy for coining false narratives on facts and laws.

That leaves Krauch to become the tiger and the hidden dragon they need in order to attack and/or diminish the common people that come to the meeting with questions and points that the council otherwise ignores or has no answers to.

[AQUAMAN]

Well said Dianne, I'd also be interested in you posting any picture you took via scanning them first if they aren't on your picture page yet too. If you also look at committee appointments and the members, you will see they are totally made up of city council/mgr. cronies that tow the line in their favor all the time, not regular everyday citizens that may disagree with their fixed agendas.