Ludington City Council Meeting, March 11, 2019, pt. 2: Sunshine, Sunset

[XLFD]

Sunshine Week of 2019, the annual nationwide celebration of access to public information and what it means for you and your community, ended yesterday, March 16. In Ludington, the city council met on March 11 and promptly eclipsed any hope for sunshine showing through by the way it dealt with the issues coming before it, and has kept them secret since. Most apparent, was theSplash Pad hearing discussed in pt. 1 where the official charged with writing the recreational passport grant application just wasn't responsible enough to get it done in the month's time the public was told it would be available for review before the hearing. 

That official gave no reason for why she wasn't able to do so, but had the time to produce multiple videos during work time marketing the downtown, even a 30 minute one this Friday, and she still hasn't completed the application she made promises about at this meeting, and wouldn't keep.  The city council, without they or you seeing the application, passed it anyway, even though they could have waited.  It wouldn't be the only time this night the council would be kept in the dark because of the secretiveness of other officials.

An Appeal Granted After Darkening E-mails Were in Error

It may seem their very first act would be one of transparency, as the Acting City Manager Jackie Steckel announced that a FOIA appeal had been taken off the night's agenda due to the City providing the records requested.  However, the original exemptions claimed by the City had been falsely made (as seen here) and when challenged, they decided it best to reveal them rather than lose in court when the redacted information proved to be harmless and outside the privilege used.

Sidewalk Competitive Bidding Process Found to be Cracked and Uneven

Perhaps the second most interesting event of the night featured the city council violating the competitive bidding process, and awarding the contract to another despite being supplied with no evidence that the low-bidder had any problem.  Shocking?  Here was my first comment about 3 minutes into the meeting:

March 11th, 2019 Ludington City Council meeting from Mason County District Library on Vimeo.

XLFD:  Tonight you will choose a sidewalk contractor for 2019. A competitive bidding process was conducted where four contractors bid and the low bidder was the City's usual contractor, Spuller Concrete. It was noted at a recent public safety committee meeting that the City has had some performance issues regarding Spuller over the last couple of years, nothing specific enough to be quantified, qualified, or shared with the public, yet issues. Spuller's price to install a sidewalk appears to be 16% less than the nearest competitor, their price is 18% less than Ruggles to remove sidewalks. They were the low-bidder in almost every aspect.

Section 2-4 of the city code reads: "Competitive bids for all purchases and public improvements shall be obtained where practicable and contracts awarded to the lowest responsible bidders." Dictionaries tell us: "Competitive bidding aims at obtaining services at the lowest prices by stimulating competition, and by preventing favoritism." It also prevents 'unfavoritism'.

Don't call this a competitive bid process and don't claim that Ludington is fairly bidding out this contract when the low bidder, by far, is overlooked simply because of anecdotal evidence of poor performance that is not shared with the full council and the community. If I was a councilor and seen that a company could provide nearly 20% more sidewalks for each sidewalk dollar than another, I would be duty bound by my fiscal conscience and the city charter to accept that bid, regardless of what I thought of the company's owner.

And whereas I don't think very much of the company's owner, his habits, his personal history, I think that any recent performance issue may be due to the fact that his younger brother died at the beginning of last summer. Now here he is, offering his services on the cheap, a business within Mason County with a fairly good track record, being denied in favor of a higher bidder outside the county, and once again seeming to show us that this city council doesn't seem to know what competitive bidding entails, nor have any inclination to follow the city charter. Thank you." [END]

And if you glanced at that committee meeting where three councilors attended, you will see several specific compliments regarding Spuller's work, but only hear general complaints offered, not even backed by anecdotes.  Nevertheless, there was nothing other than an ACM recommendation to violate the competitive bidding process on p.36 of the council packet.  

Despite my tutorial on bidding, despite the savings and despite the positives mentioned in committee, the city council voted unanimously to choose the second lowest bidder later on in the meeting, after the committee chairman offered no specific justification of why Spuller needed to be overlooked other than 'performance issues' regarding timeliness and quality. 

Think about that:  even if the committee containing three councilors actually saw legitimate complaints about Spuller's work in their research (which the notes don't indicate), the four who weren't on the committee decided-- without any type of justification-- to make the taxpayers pay out nearly 20% more for each sidewalk.  Quality of work issues are easily documented by photos, but none has been offered anywhere; timeliness issues can also be easily shown through written records.

Such negligence by the council can cost a whole lot more.  Currently, a local landscaping company is in a lawsuit with the Ludington Area School District (LASD) because the school board failed to follow the competitive bidding process and accept their low bid, picking another because of a variety of factors that should have never came into play.   I have seen the records involved in that process, and I can only say that if a neglectful school district could waste your money in such folly, why would you trust them to spend $100 million on their expansion with due care and thrift?  Watch them spend a lot of 'education' money defending their totally wrong action in court.

If the city council decides not to reconsider this vote, I hope to arrange a meeting between Kevin Spuller and the attorney bringing the case against the LASD, so that the city council can better learn to abide by the rules in the future, or show the public they just don't care how they waste public money.

Following my initial comment, Lyla McClellan and Dianne Seelhoff briefly thanked Mayor Miller for his part in creating the Recreational Marijuana Ad Hoc Committee and have it following the Open Meetings Act (OMA).  Sadly, the City's standing committees, including the one that recommended the rest of the council violate competitive bidding, do not follow the OMA, and should by their construction.  They may be forced into doing just that before the Mayor gets around to it.

Annual Reports:  Cartier Park, Recreation, Senior Center

Notable reports:  Russell Soper reported Cartier Park's revenues increased by $16K and solid reservations already in for the next two years.  D'Ann Rohrer reported increased use of social media and face-time between her and the various coaches.  Vickie Collins reported 100-160 visitors per day to the senior center and an increasing outreach of programs.  

As a way to enhance and open up these committee reports even more to the public, what would be wrong with changing protocol so that not only could city officials ask questions of these department heads, but also the public in attendance, if they want.  There has been times when I have had a question or two during or after these presentations, and could not answer them, or hope to have an official ask them.  It could potentially open up the proverbial can of worms, but it would make the audience more able to appreciate and interact with these folks.

Contract Amendments Illustrating How It Should be Done

The council conducted two different actions to amend contracts.  The first was a change order that had the fire department acquire a few more items with the leftover of the contingency funds paired with construction of the new fire station.  About $34K was used up leaving about $50K in the fund, with about $12K already earmarked for certain future purchases.

The second was a change in a clause of the agreement dealing with car ferry dock replacement, where the council gave the ACM and city clerk the authority to sign.  This was a far cry from the unlawful Notice of Force Majeure the grant writer and city attorney made earlier without any knowledge or approval of the council.  

A Reenactment with Bad Actors

The silliest moment of the night had to be the 'reenactment' of two decisions regarding the splash pad (location and size, respectively) made at city council meetings on August 22, 2016 and September 25, 2017.  The rationale behind it is skewed, but the city's civil attorney, in trying to defend the City's repetitive violations of the OMA in standing committee meetings, has decided that reenacting two council meetings that aren't in dispute will do so.  

Councilor Kathy Winczewski, bless her soul, gave a long history of the splash pad (at 1:43:30 in) and how it went through two committees, where decisions were made over a whole lot of stuff regarding the splash pad before it came to the city council.  It was comical looking at the city attorney sweat during her presentation, thinking perhaps of a way to get her to stop talking.  Her nearly seven minute monologue will likely be played in court on April 15, helping win the case for the people of Ludington and possibly paving the way towards either abolishing these unlawful committee meetings or making them conform to the OMA in the future.

Standing committees regularly using governmental or proprietary authority, replete with ordained powers and the ability to deny actions going before the full council, shall be shown for what they are:  places for the City to secretly deliberate and decide on issues they should be deciding at an open meeting of the full council. 

Sadly, the council never 'reenacted' the votes anyway, rather they simply made a motion to re-enact them, and eventually passed that motion.  Had they reenacted the votes, each of those two decisions would have been brought once more in front of the council for their own separate vote.  Should they take the time to actually re-enact them at the next meeting?  Not if they listened and understood the beginning of my second comment:  

XLFD:  (1:57:30 in) "It seems rather silly that the city council would tonight reenact two city council decisions made at two meetings in 2016 and 2017, when there is no dispute as to whether the council was abiding by the open meetings act at those two meetings. The real issue which the city's civil attorney continually runs away from, is why were standing committees exercising the powers of the full council for many years and in many ways, and depriving the public, and their own peers, the right and power to be present and involved with the making of public policy outside of an open meeting?"

I would continue by asking them formally about the force majeure issue and how they were once again deprived of their proper authority:  "In a related issue of abatement of city council authority, I have learned through the FOIA that when Manitowoc Mayor Justin Nickels issued a press release on January 17 that the City of Ludington had declared a force majeure for their intercity contract, that he was in error. City Attorney Wilson unilaterally declared that force majeure for the contract with zero input from our elected city council, the actual party to that contract and the only one who could claim it. That contract just happens to be in the council packet, look at clause 3.07, that claim is the city council's, not a contracted attorney without council permission. Why are contractors making such important decisions for the City of Ludington fully outside the council's and mayor's purview? Thank you."

Testing Results Availability

Jefferson Henry had a good night of asking unanswered questions after arriving late and thinking the grant hearing was open comment period, he would later ask CDD Heather Tykoski about why wasn't the grant application available in any part yet, when the mayor added a supplemental hearing.  No answer was received.  During the second public comment he wanted the city and or DEQ in cooperation with the city to allow the public to see the data behind the test wells near Strait's, the WWTP, and the old landfill at Conrad Road.  

In true City form, they ignored the question/suggestion.  Jason Miney would also ask a question about the West End Project and at best received an incomplete answer from Heather which cut back even more of the plans in favor of putting wood chips on the beach, rather than conduits put in the original application, which has changed so much over time.  

Conclusion

As the city council adjourned shortly thereafter, they showed that they would start sunshine week by:  

-Not allowing any review of the passport grant application, even when public input after review is required by the DNR.  

-Effectively admitting their exemptions made on a FOIA response were done in violation of the law

-Choosing to forgo competitive bidding strictly on what amounted to unexplained and unqualified 'performance issues' over several years of a company that had only received praise last year

-Re-enacting without re-enacting two meetings that were compliant with OMA, while effectively explaining how two of their standing committees made the deliberations and decisions on a wide array of issues involving the splash pad.  

-Not responding to a question about making well-testing results publicly available.

The sun sets on the city and its secrets, as none of these issues are further corrected or addressed over the week.

[Freedom Seeker]

Thanks for the recap, X.  So much stuff in this meeting, I don't know where to start.  I like the sunset picture, more than the SS children.  That could be why one commenter said you were trashing the kids.  But when one understands that government shouldn't act like a dictator, and that the splashpad committee and all other meetings should have been open to the public, one would understand that a picture speaks a thousand words, and that probably stung those who were part of the secret group.  As a citizen cut out of those discussions, I found your political cartoon a just jab.

I thank Jefferson Henry for his concern and presentation for openness for results of water testing.  Kind of scary that Councilor Wincewski gives hexavalent chromium a nickname like she's all too familiar with it.  I hope Jefferson can return and explain the possible concern to all of us in the greater watershed area.

[XLFD]

I have chatted privately with the commenter who says I was trashing the kids, the father of the girl that cried, and have come to the conclusion that he feels nothing was wrong other than our perceptions that his daughter was being exploited.  I don't have enough data on what led to the decision for her to go in front of the council to claim any sort of 'child abuse' has occurred as some have averred, but he never answered the two times I asked why sending a young child up at a public meeting to champion her parents' political goals is not a textbook example of child exploitation. 

I don't come to that conclusion without some understanding, since I have taken my daughter to several meetings over the years beginning when she was nine, and she has never spoken.  Usually she would agree whole-heartedly with what I was saying, but I have let her know that if she does speak there are consequences:  

1) If she backs up what I say, I will be perceived as shamelessly exploiting her

2) If she talks of something I don't talk about, I will be perceived as exploiting her to make an extra point

3) If she argues against what I say or otherwise supports the city's erroneous position, she will have to suffer the consequences of that foolishness at home

Either way ends badly for the both of us.  She's sixteen now, so if she backs me up at a future meeting, I might gain some extra credibility because it's so rare for teens and parents to agree on political things.

I thank Jefferson as well for his plea at the end and for his asking Heather, effectively, "Why isn't the grant application available for review before this meeting?"

Speaking of which, the City finally released the grant application today, giving us 13 days to review it before it's submitted.  It's still incomplete.  

[Freedom Seeker]

Thanks X for trying to enlighten the father of the crying girl, and I only hope he will learn.  The problem is that children are not "legal" to give political opinions until they are 18 years old.  Used to be 21 but was changed during Vietnam draft era, for those young people who don't remember the protests.  If our young men were old enough to die at 18, they should be old enough to vote.

I also hope the father of the exuberant bicycle rider will teach her safety, and maybe learn himself that it is important to include all citizens in decisions.  Many people will see more sides to an issue and maybe some will say that Copeyon Park is not the best location for a splash pad.  Children have to learn that they don't always get what they want and maybe later realize why it wasn't good for them.  And parents who force a frightened child to speak before a Scarry group of adults for political gain is using the child for a purpose that the child's mind is not developed for at that age.  

[Du Wright]

I don't see any requirement on this application that says we MUST have a splashpad to get a grant to put in a boat dock.  Is that in another part of the instructions?  The whole idea that Heather and Brandy say we need one to leverage the other seems twisted.  Leverage is not a nice word in my mind.  We are too leveraged already.  Look what happened to the car ferry dock grant when the government temporarily shut down.  Leverage.  

I see a lot of incomplete or unknowns on the grant application, that maybe are really known, but if we don't let them know, then maybe we can get our money.

[Freedom Seeker]

About the docks repair contract -- the complexity of the City covering for the grant if there is a force majeure isnt completely disclosed but it simply seems it is a contract which by Charter our elected official should be involved with. If this is allowed to be signed by the ACM and clerk, couldn't they still bypass the council in decision making? Slightly better than the community development director and the attorney deciding, but not in the hands of the council. A little like Carol Foot deciding our short-term rental policy for us.

[Willy]

And I thought Shay's departure would have a positive affect on how City business is conducted. Maybe the City should have the drinking fountains and sink taps at City Hall checked for mind altering chemicals since what has been a mind numbing performance by City Hall and the Council over the past years continues to this day even after many sunshine celebrations. Does any Councilor see what is going on? They all can't be this slow on the uptake especially if any of them has any integrity left. Something just isn't right with local Government. For this type of action to continue There must be a presence of wilful disregard for the public. I have appreciated X's overseeing of the political scene and thank him immensely for what he has done for the people but after all of his time and his effort, only one question comes to mind. For God's sake what the Hell is going on with these people.

[Freedom Seeker]

Total eclipse of the Sunshine!  Brilliant photo, Willy!  Couldn't have been said better, unfortunately.