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Welcome to The Asylum. Just as before, Josh is always right.

Wednesday, July 1, 2015

The Time For Privatization Has Come

Every time I've said this in the past six weeks, something new has come up, so let's see what happens this time:

Never let it be said that nothing ever happens in this town.

...any new scandals break in the few seconds since I typed that?

Seriously, if the Good Ol' Boys had set a goal to keep me on my toes this week, they're succeeding.  Not that they're pushing me to my limit -- far from it -- but there's so much to cover in this space right now that you'd think we're approaching critical mass of corruption and incompetence in local government.

Well, you know, now that I think about it...

  • BPU Director Rick Rose was "suspended" just days before his unrenewed contract expired... because he threatened to get a gun and kill the four council members who voted against renewing his contract.  In front of a BPU employee meeting.  With plenty of witnesses.  And this is the guy who, in that very unrenewed contract, was given a glowing review in which he was praised for his "character" and how "professional" he supposedly is.  Given that the language was written by Interim City Manager Doug Terry and City Attorney Lew Loren with input from the BPU Board, it is absolutely infuriating to look back at that assessment in contrast to what has come out in the time since.  This is the professional character that Terry, Loren and the BPU Board members admire so much?  What does that say about their character and professionalism?
     
  • That "suspension" was originally an outright termination for cause.  Sources tell me that Terry changed his tune after he had informed the City Council of the termination, and that preferential treatment of Rose is very much thought to be the reason for it.  Yes, Rickie J. Rose threatened to murder City Council members, and he was merely "suspended" after it was announced that he had been fired.  Can you think of any other motivations for that change?  Because I certainly can't.
     
  • Hillsdale Community Health Center was named in -- and almost immediately settled out of -- a federal antitrust lawsuit brought by the Justice Department and State Attorney General Bill Schuette.  Community Health Center of Branch County, Allegiance Health up in Jackson and ProMedica Health System in Toledo, Adrian and Tecumseh were also named in the suit, but according to the Hillsdale Daily News, the suit "lays much of the blame on HCHC administrator Duke Anderson as the one who 'orchestrated agreements to limit marketing of competing healthcare services,' which is an anti-trust unreasonable restraint of trade."
     
  • Anderson, as a member of the Board of Public Utilities, has also been behind the push to keep Rose on as director and seemed to play the lead role in the Board hiring an independent attorney -- which the City Council abruptly shut down, as the BPU Board does not have that authority.  This and Anderson's involvement on other local governing boards has all raised many questions about conflicts of interest that go well beyond simple "gentlemen's agreements."
     
  • Oh, and by the way; that lawyer the BPU hired to find a loophole in the Council's authority over them?  That's going to hurt the Board more than help them.  You watch.  They're not going to like what's coming.

That all of this ties together through Duke Anderson -- though, let's not kid ourselves, he's far from being the only guilty party -- shows just how much power one corrupt person can accumulate in this community when we aren't paying attention.  Trust me, it is no coincidence that these events have only occurred since you and I turned our attention to local affairs again.  The Good Ol' Boys were betting on us not looking in their direction, and they've lost that bet.

And then we have the failure of The Great Litchfield Municipal Power Experiment.

The Michigan South Central Power Agency has, essentially, collapsed in on itself, forcing them to shut down the 55 megawatt coal-fired Endicott Generating Station in Litchfield, their largest production plant, next year.

Sure, you might blame the once-impending EPA regulations that the Supreme Court just overturned and are no longer a factor (and let me be the first to double-sarcastically say "thanks, Obama!").  But truth is, this is a municipal power consortium operating a small plant that just isn't worth the hassle anymore, and municipal power isn't viable to begin with.  Word has it that the books are a disaster.  That it's lasted this long -- since 1982 -- is only a result of stubborn refusal to admit failure.

So I take it back.  We're not approaching critical mass.  We're there.

Last night, a special meeting was held at the BPU between Hillsdale Mayor Scott Sessions, Councilperson Adam Stockford, Doug Terry and MSCPA General Manager Glen White.  I'll have further details on that in a later piece, but the basics should be pretty obvious.  We're all fairly familiar with the power generation technology out there and the scale to be considered.  We don't want to do anything off-the-wall crazy and, say, build solar roadways across the county -- though I do admit, that would be pretty awesome.  Expensive, as-yet unproven, and entirely impractical on a local meteorological basis... but awesome.

No, in the grand scheme of things, we've got three options available to us.

Option A -- and this was discussed at the meeting -- we can go back to local power generation... which is just as unviable as the MSCPA was.  That was why the consortium was formed in the first place and why it failed: government owned-and-operated utilities do not generate enough revenue to work.  They simply don't.  That has been proven repeatedly.

Option B -- also discussed at the meeting -- we shift sources around.  Not all of our power is coming from Endicott.  According to Stockford, the Litchfield plant currently accounts for 41% of the city's electrical generation.  The remaining 59% comes from several sources: 29% from American Municipal Power (AMP) at their Fremont Energy Center (AFEC) in Fremont, Ohio; 22% from various hydroelectric plants mostly co-owned with AMP; and 8% from other sources in the market.  The plan Stockford says is most likely to be considered is to increase the amount from AFEC to 35%, 26% from hydroelectric plants, and the remaining 39% from the market and/or some other source or sources yet to be named.

Option C -- and this is what we need to be considering -- we simply privatize.  Sell off the equipment and contract with a private company.  I'm sure Consumers Energy would be glad to step in.

Option C would also give us the opportunity to do the same with the waterworks side of the BPU which, in all honesty, is a complete disaster.  It's not just the ancient and inadequate pipes that we have to replace every time we repair a road or one of them breaks -- with no money to do so.  It's that the utility is so environmentally unsound right now that the regulators have just about had it with us.  Which, again, we can thank Rick Rose's mismanagement for.  Why should we spend piles of money that we don't have to make the necessary repairs when we can take the short-term financial hit and benefit from contracting with someone who is capable of stepping in and doing the job?  The prudent choice is pretty clear.

We always complain about the streets in this city.  Think of the money privatization would free up to do something about them.  Indianapolis did it.  And while we're not quite on the same scale as Indiana's largest city, if there's a chance that we here in Hillsdale can free up some capital by selling off our municipal utilities, we need to seriously look into it, especially if that money can be applied to the one recurring complaint that everyone in this city can agree on.

Don't get me wrong: I'm under no illusions that everyone would just jump on board with the idea.  Of course, the Good Ol' Boys hate it.  Kevin Shirk -- who, keep in mind, was Lew Loren's partner -- was asked by the City Council to research the idea, and he came back with the answer that it was "unrealistic."  I wouldn't expect any different from their side.

On top of that, we're talking about local jobs that local people fill.  Those are hard to come by these days, and suggesting anything that might eliminate some of them isn't exactly going to be the popular thing to do.  But I'm willing to live with being unpopular.  I've been through that phase before.  It was called junior high school.

And I'm not the only one.  There are others out there floating the idea.  When the jobs come at the ever-increasing expense of the taxpayer and they're not making economic sense in the long run, something has to give.  We can't just keep throwing money at the problem because... well, we don't have any money.  It would take a three-fifths majority in a ballot referendum, but it's doable.

Besides, this whole municipal utility business has been one of the biggest (and growing) sources of corruption and controversy in the past six months.  If we sell it and contract with a private company instead, we're not only saving money in the long term, we're eliminating one of the institutions that the Good Ol' Boys rely on to force their will on the public.  Take away their opportunities and you take away their power.

Pun very much intended.

Tuesday, June 30, 2015

UPDATE: ROSE THREATENED TO MURDER COUNCIL MEMBERS

New details have emerged in what is now the suspension of Board of Public Utilities Director Rick Rose.

On Thursday, June 25th, sources confirmed that Rose had been terminated for cause.  The termination was made known to members of the City Council that day by Interim City Manager Doug Terry, who under the city charter has the sole authority to terminate the Director of the Board of Public Utilities.

However, in a reversal of course the next day, Terry informed council members that after he had discussed the situation with City Attorney Lew Loren, he decided not to terminate Rose, but to instead suspend him.  Terry also informed the Hillsdale Daily News of Rose's suspension, but with no mention of prior intent to terminate him.  Terry declined to offer the cause of Rose's suspension pending investigation.

We now know that cause.  Sources have confirmed that Rick Rose had called an employee meeting at the Board of Public Utilities and verbally threatened to use a gun to murder Hillsdale City Councilpersons Patrick Flannery, Bruce Sharp, Emily Stack-Davis and Adam Stockford, all of whom cast the dissenting votes that resulted in Rose's contract not being renewed.

The Michigan State Police, as of this writing, are still investigating.

We'll bring you more as the story continues to unfold.

Thursday, June 25, 2015

BREAKING: BPU'S ROSE FIRED

Hillsdale Board of Public Utilities Director Rickie J. Rose has been terminated for cause.

According to sources knowledgeable about the situation, Interim City Manager Doug Terry took the action Thursday afternoon.  The cause for termination is not yet known.

The turn of events comes just days prior to the scheduled ending of Rose's contract with the City of Hillsdale.  At May 18th's regular meeting, the City Council rejected a proposed new contract for Rose on a split vote of 4-4.  That vote ensured the ending of his employment at the termination of his current contract, which the city administration says is June 30th.

Rose's employment has recently been a point of contention both amongst the city's citizens and within City Hall.  After he was arrested and charged under Michigan's "super drunk" law earlier this year -- his third arrest and second charge for operating while intoxicated -- many questioned his suitability as the leader of a city department and utility company.  Additional concerns about his leadership on various issues internal to the Board of Public Utilities were amplified in the wake.

On June 8th, the Board of Public Utilities held a special meeting at which they hired their own independent lawyer to determine where authority over the utility company fell to the Board itself as opposed to the City Council.  Several councilpersons, at the Council's following regular meeting on the 16th, raised concerns that the BPU directors had overstepped their bounds.  Questions about the Board's motivations, particularly questioning their relation to Rose's employment, were also raised by members of the Facebook group Hillsdale's Hot Debates.

A special meeting between the Hillsdale City Council and the Directors of the Board of Public Utilities to discuss these issues has been called for, but not yet scheduled, and determinations made by the independent counsel have been placed on hold indefinitely.

We'll keep you up to date as more details become available.

Wednesday, June 24, 2015

That Flag, As Explained By A Yankee From The South

Author's Note: I'm writing this for my Northern friends, but those of you south of the Mason-Dixon would do well to read this, too.

If you've never heard me say it before, I'm a born and raised Miamian.  Yes, Miamian.  As in Miami, Dade County, Florida.  305.  The Magic City.  The Capital of Latin America.  The real largest city in Florida (suck it, Jacksonville; you'd be no bigger than Tampa if you hadn't incorporated all of Duval County).

Now, as you might imagine, Miami is about the furthest thing there is from being a Southern town.  There's a reason I like to call it "New York South:" it basically is.  We're both massive metropolitan areas.  We're both cultural melting pots.  We're both very cosmopolitan.  And we both despise Boston with a passion... though, let's be fair, Yankees fans: we Dolphans have far more to complain about, being that you only have to put up with the Red Sox while we have to put up with the Cheatriots.

However!

All that being said, Miami is not representative of the rest of Florida.  Calls for the region to secede and create its own state have been popular practically since Tuttle, Brickell and Flagler all signed on the dotted line.  South Florida is its own little habitat separate from the rest of the state.  We've never really gotten along with those crackers, and we never will.  And before you get offended at my use of the word cracker, let me remind you that, being a native Floridian, I am allowed to use it.

Florida for the most part -- save for a few havens of sanity in the other major metros -- is still very much a Southern state.  It was, after all, the third state to secede from the Union (and the third to be readmitted).  Touristas are mostly spared from it, but if you travel to the rural areas, it's painfully obvious.  And I don't mean "painful" as in "wow, this is an embarassingly stereotypical Southern design aesthetic," I mean "painful" as in, "oh, wow, there are still Tennessee Army battle flags and overt racism flying proudly here."

There was even a Stainless Banner hanging over the west entrance to the state capital from 1978 until 2001.  It was part of a display alongside the French, Spanish and British flags as a commemoration of previous governments that had ruled the state, but the Confederate flag, in particular, was always controversial.  It was Jeb Bush who, as governor, ordered it and the others removed with the intent of placing them in a museum instead.

Given this disparity between my hometown and my home state, it's entirely accurate to say that I am from The South, but I'm in no way a Southerner.  In fact, it wasn't until I moved to North Carolina and lived there for three years that I really had my first intimate experiences with Southern culture.  And even then, it was a somewhat watered-down version that isn't truly representative of what one would call the Deep South.

That move, however, did give me the incentive and opportunity to study the history of the Confederacy from people who had grown up immersed in a modern culture that both embraced and rejected it.

It was the first time I had ever learned that what people today call "the Confederate flag" is not, in fact, The Confederate Flag, but rather the aforementioned Battle Flag of the Army of Tennessee.  The real Confederate flag was originally the Stars and Bars (yep, you've learned that one wrong, too), then the Stainless Banner, then the Blood-Stained Banner.  At no point was the Tennessee Army battle flag ever an official flag of the Confederate States of America.

It was also the first I had learned of the true economic disaster that the South had become.  Not as a result of the Civil War, but as a result of the fact that the Confederates were just plain terrible at running an economy, much less a country.

It was also the first I had heard the argument that the Confederacy was about states' rights rather than slavery.  Which, I have to admit, is a compelling argument.  And, to a certain extent, it's true.

Now don't jump out of your seat and scream at me.  Sit down.  Cool your jets.  You didn't really think I was going to leave it at that, did you?  Because, if so, you really need to get to know me better.

Fact is, slavery was the issue.  That was always the case.  That's undeniable.  Every historical record from both sides plainly and clearly explains that the cause for the states' rights argument was slavery.

The framing of the argument over slavery is where the states' rights argument comes into play.  It is true that the Southern states saw growing abolitionism amidst increasing federal control over the states as a threat to the very core of their economy -- which, of course, it was -- and they took the stand that the states should make the determination for themselves on a state-by-state basis about the rights of their own people.

Gee, doesn't that sound familiar?

So when you hear someone say that the Civil War was actually about states' rights... they're telling you half of the truth.  It's an attempt to influence you toward the belief that Washington has grown out of control and reached that point long ago.  Which isn't in and of itself entirely wrong; Washington is out of control, and that growth in power has been happening essentially since the Constitution was ratified.

Which brings us to the root of that argument: federalism.  You have to remember that we as a nation existed for several years as a confederation before we became the federation that we are today, and that the Constitutional Convention only came to the three-fifths compromise because the South refused to participate if the North insisted on counting slaves as people.  They were opposed to federalism from the very beginning because they knew that abolition was going to happen eventually, and that would have been the first step.

Hell, why do you think the phrase "life, liberty and the pursuit of happiness" was used in the Declaration of Independence rather than the original "life, liberty and property" wording?  Abolition was in the plans all along, and the South wouldn't have even participated in the Revolution if slavery were to be abolished right out of the gate.

This proves definitively that the states' rights argument between North and South was always about slavery.  Don't let anybody tell you otherwise.

But the argument against federalism simply does not stand up to scrutiny anyway.  We transitioned to a federal form of government because the confederation was collapsing due to its inability to get anything done... history from which Montgomery and Richmond obviously did not learn jack squat.  The Confederate States of America collapsed for, essentially, the exact same reasons; that collapse was merely exacerbated by the fact that they were fighting a war for their very legitimacy as a government at the time.

So using the Confederacy as an argument against federal control today doesn't make any sense at all.

Neither does using "the Confederate flag" (which it isn't) as a "symbol of Southern heritage."  Since that heritage is entirely centered on slavery, one cannot make the argument that it has nothing to do with race without inherently contradicting themselves.  And yes, there are more than plenty of people -- some of whom I know personally -- who still make that argument.  I have no problem telling them that they're wrong.

I'll do the same to anyone I see displaying the Tennessee Army battle flag here in Hillsdale County, as well.  And yes, I've seen it flying in areas of this county.  As I'm fond of telling friends who've never been here, there are parts of Michigan where you could take a wrong turn and think you somehow wound up in Alabama.

Fact is, that flag is toxic.  I don't care how you think of it, I don't care what sort of modern-day twisting of intent with which you attempt to excuse yourself, I don't care what ignorance of history you might claim.  If you display that flag, you are not only declaring your allegiance to a racist country (the entire purpose of flying a flag to begin with), you are displaying the wartime flag of a military unit that killed people to uphold that racism.  It is the identifying symbol of deadly force used to enslave black people.  That is its entire purpose.  It exists for no other reason.

I can say that authoritatively, not because I'm a Yankee from the South, but because the Confederates, exactly like the terrorist who recently killed nine black people in a South Carolina church, made their racist motivations clear by -- of all things -- literally opening their mouths and saying so.

Yes, the flag in front of the capital building in Columbia does have everything to do with the murder in Charleston.  They both are rooted in racism.  Period.  End of discussion.

Wednesday, June 17, 2015

Episode 414: "Security Door"

The unamusing recent actions of the Directors of the Board of Public Utilities remind me of a scene from my all-time favorite sitcom, the oft-overlooked late 90's gem NewsRadio.  In this particular episode, station manager Dave has had a glass security door installed between the elevator and the bullpen, citing a rash of petty theft in the office -- which the staff contends is actually just Dave's tendency to misplace things.

Throughout the first half of the episode, Dave finds various employees attempting to defeat the door's purpose.  Drive-time anchor Bill tries to tape the locking mechanism open so that he won't get locked out when he uses the bathroom.  Station engineer Joe steals Dave's wallet in an effort to prove that the door won't stop anyone from doing so.  And staff reporter Matthew attempts to convince Dave that a bird flew into the door and died, which Dave investigates only to find that Matthew had simply placed a Cornish game hen at the window ("and you didn't even bother to defrost it!").

The scene relevant to our fine city's political situation today comes when Dave walks out into the bullpen and sees the security door propped open by someone's desk chair.  As he removes it and closes the door, he reminds the staff that the door is to be kept closed at all times, and that he doesn't want people circumventing the security system.

"Dave, we're not 'circumventing' it," secretary Beth corrects him; "We're just trying to get around it."

Such is the position of the BPU.

As reported by the Hillsdale Daily News, the utility's board of directors -- a board appointed by the mayor and approved by the city council to run a department of the city, mind you -- up and decided to hire their own attorney... ostensibly to "know the rules of the game" as board member Duke Anderson put it.  They sent this nameless, faceless, but oddly pronoun-specified Grand Rapids municipal affairs lawyer a copy of the city charter and directed him to interpret the section about public utilities.

And therein lies the problem.  The city administration's position, as reiterated numerous times by both Interim City Manager Doug Terry and City Attorney Lew Loren at Monday night's regular city council meeting, is that the BPU is a semi-autonomous entity.  They have their own budget, they have their own board, and while they answer to the city council on major affairs, they are allowed leeway to make their own decisions in matters of operating the public utility company.

Which is mostly true.  Buuuuuuuuuuut...

The city council contends -- and they're correct -- that said leeway does not include the right to hire independent counsel of their own volition.  That action requires approval from the city council, because as a department of the City of Hillsdale, the BPU's legal counsel is, by default, the city attorney.  Outside counsel has been brought in by the city in the past to resolve matters that the city attorney does not have the expertise to make a conclusion about, but that's done at the council's discretion, not that of any one department.

As the Daily News reported about the June 8th BPU personnel committee meeting, "The question asked [of the outside attorney] was who had control and final authority as well as the responsibilities and processes between the council and utility board."

That information is very clearly laid out in both the city charter and the code of ordinances.  There is little to no ambiguity about it.

That says to me -- and anyone with half of a functional brain who is willing to use it -- that the BPU board hired their own lawyer just to get the interpretations they want so as to "get around" recent directives from the city council, namely those regarding the termination of soon-to-be-former director Rick Rose.  They want him to stay, and they're willing to play dirty to make it happen.

To make matters worse, the city attorney who is, as detailed in Section 4.15 subsection (e) of the city charter, supposed to be making these determinations for the city -- because, you know, he's the freakin' City Attorney -- once again abdicated his duties and refused to research any of this.  The lame excuse he gave the council for that insubordination at Monday night's meeting was, and I quote, "I don't like spending the city's money without you guys telling me you'd like me to do that."

Keep in mind, that's what he gets paid to do anyway.  Reading the city charter would not have cost the city a damn thing other than his regular pay.  He literally sat there Monday night and told the council to their faces that he'll happily take taxpayer money to do absolutely nothing.

Forgive my language used in justified outrage, but I'm pretty sure at this point that if you look up "cocky bastard" in the dictionary, Lew Loren's picture is the only definition.

Oh, and what ever came of that outside attorney's reading of the city charter's section about public utilities?  He said it was too complicated, and that he'd get back to us by the end of the month.  Which is how we know that this is nothing more than a ploy by the BPU board to circumvent the law.  If I can look this stuff up online in twenty minutes and come to an easy conclusion about where the lines fall, a lawyer should have no problem doing the job even more quickly.

You know, the job we're paying LewLo not to do.

The city council, absent Councilpersons Brian Watkins and Sally Kinney, were not happy about any of this.  In fact, it was Councilperson Emily Stack-Davis who brought it up, because Terry said nothing of it in his report to the council.  He wasn't even going to mention it.

I mean, why should he?  It's not like it's explicitly in his job description "To see that all department heads of the several City Departments completely and faithfully perform their respective duties" or "to keep the Council fully advised at all times as to the financial condition and needs of the City."

Besides, he took his report session as an opportunity to thank everyone for his time as interim city manager, because he's out of here.  "This is my last city council meeting," he said.  David Mackie takes over from here.

Don't take that the wrong way: it's not that Terry doesn't give a damn.  He does.  He sides with the BPU board on this issue.  That's obvious by his actions alone, no matter how much he swears up and down to the council that there's no malicious intent.  He'll simply assist the board in widening the rift before he goes because he arrogantly believes there won't be any repercussions for him to face.

The sad fact is that if no one on the council bothers to step up and dig deeper into all of this, he very well might be right about that.  Despite their recent show of backbone, if decisive action isn't taken very soon, the council may have their power usurped after all.  Wrongfully, yes, and if this has to go to higher levels of government to resolve, it will be resolved in the council's favor, but they might lose this battle, which will be costly to the taxpayers even if they ultimately win the war.

Later in that same NewsRadio episode, Beth and Matthew find Dave sitting in a chair by the security door, staring at it.  When asked what he's doing, he replies that he's watching to make sure the door closes.

"Dave, it's closing." Beth exasperatedly insists.

"It's not closed until I hear it... click."

Matthew looks back at the door behind him and shakes his head.  "Didn't click."

"Maybe it did," Dave claims as he gets up to close it.  "Maybe we just couldn't hear it over all the chatter."

The station manager pushes the door just a bit until it audibly locks into place and says definitively, "There.  Now it's closed."

At which point the door abruptly shatters into millions of glass shards behind him.

My suggestion to the Hillsdale City Council: fire Lew Loren, dissolve the BPU board, and appoint qualified electors of the City of Hillsdale in their places.

And buy a shatter-proof security door.

Addendum: The city council voted 4-2 to direct new City Manager David Mackie to schedule another joint meeting with the Board of Directors where the two bodies will discuss this matter.  The date for that meeting has yet to be determined.

Wednesday, June 10, 2015

Talking To Me 101: Lesson #2

I'm going to take this week off, A: because I'm somewhat drained after last week, and B: because the one thing I do want to write about this week doesn't really require my input at the moment, which would just consist of me echoing things that have already been said by other people anyway, so unless and until I hear something that needs saying and isn't being sayed (yes, that was intentional), I'll hold off.

So, until next week, I will leave you with another in a series of lessons about how to talk to me.  Have a good weekend!

Wednesday, June 3, 2015

Council Asserted Their Authority, And It Was Glorious

I'm speechless.

Okay, yeah, you and I both know that's a lie.

But I am left sitting here trying to rack my brain for anything left to say that wasn't said by the Hillsdale City Council at Monday night's meeting.  Several of the council members -- particularly Adam Stockford, Patrick Flannery, Emily Stack-Davis and Bruce Sharp -- not only stood up for what was right, they put the city administration back in their places for the first time in... well, probably as long as any of us can remember.

See, here's the thing: Hillsdale's city government is a council-manager setup with a weak mayor.  That's not an insult to Scott Sessions, that's the actual terminology.  It means that the mayor -- while being the president of the council and an elected, at-large voting member of the council -- is not the chief executive officer of the city.  That duty falls to the city manager, an appointed position, hired by the council to perform his job at their direction.

Such council authority is also in place over the city attorney and, aside from the fact that they're elected positions (for now), the city clerk and treasurer, as well.

Collectively, these offices are referred to as "the city administration."  They are responsible for the day-to-day operation of the city's government, but they do so under the directives and oversight of the City Council... at least within the scope of their office as according to the city charter, city code and state law.  If the scope of the office and the law -- or additionally, as in this case, advice from the state -- contradicts what the council wants them to do, it is their responsibility to clearly explain the situation to the city council.

That has not been happening.  Certainly not recently, and perhaps for quite a long time that we're only marginally aware of.

Let's start with the issue of soon-to-be-former (and I'm relieved that we can now officially say that) BPU Director Rick Rose and the rush to resubmit an adjusted version of his proposed contract renewal.

We knew it was coming.  Interim City Manager Doug Terry had at the very least implied his intent just seconds after the first vote shot the original version down, and he later made it explicitly clear that he wanted a new version that might sway the "no"-voting councilpersons.  This was not exactly a surprise.

However, it hadn't been on the agenda for Monday night's meeting, and consequently, not even Rose himself, by Terry's own admission, had been informed that it had even been written.  Terry wrote the new language to alter the contract just that day, as he told the council, and that being the case, only City Attorney Lew Loren and unnamed employees at the BPU were aware of its existence.

This did not please City Council.

Since none of them had any time to actually review it -- and it certainly wasn't presented to the public for review -- even those who were in favor of continuing Rose's employment found reasons to object.  Councilperson Brian Watkins and Mayor Sessions both weren't happy about the fact that it still, essentially, amounted to a three-year contract, which was the stated reason for the alteration.

Terry clarified that, yes, it was still three years, but it could be terminated at any time; an explanation which seemed to satisfy Sessions and Watkins.

Flannery, however, was on the freakin' ball.  He brought everything with him: the city charter, the council rules, and the calm but stern attitude necessary to enforce them both.  When he told Terry that this matter could not be moved to a vote unless the motion was made by a proponent of the prevailing side, Terry took every approach he could think of to weasel his will through anyway, but Flannery metaphorically slapped him across the face like a parent would an insolent child.

When the councilperson said he wished we'd had a school teacher there to explain the meanings of words, Terry's face was just about three shades lighter than "tomato," and on a personal note, I probably looked like I was having a seizure right there in the gallery, because I was trying that hard to hold in an outburst of uproarious laughter!

Stockford's stand on the August election issue was just as impressive.  He had the same necessary stern and authoritative attitude in the face of LewLo's protestations.  There was no excuse for him not to have brought any of this to the council's attention.  None at all.  And Stockford made that absolutely clear.  The only thing that wasn't said but was blatantly obvious was that, once again, this was not an accidental omission on Loren's part, it was obviously intentional.

Loren, for his part, didn't appear to be as shaken about it as Terry was about the contract vote, but he should have been.  He snuck one past council this time.  In the future... well, let's just say, there'd better not be such a future occurrence.

Tying this back in to Thursday night's illegal special meeting: Doug Terry wants to talk about the spirit of the law?  Let's talk about our current city clerk and city attorney's relationship and Section 5.13 of the Hillsdale City Charter.

Because, again, you cannot ignore the fact that Michelle Loren is Lew Loren's daughter.  I've said it before and I'll say it again: he was the city attorney first, therefore she never should have gotten that appointment when Robilyn Swisher resigned.  That never should have happened.

And yet, here's the situation as it stands:

  1. We just had a special meeting between the BPU and the City Council on Thursday night that was made illegal and invalid under the Open Meetings Act because Michelle Loren (I allege) willfully and maliciously refrained from posting the proper public notice on the city web site by the required deadline, then fraudulently backdated it when she did post it well after the deadline had passed.
  2. Lew Loren was conveniently on vacation Thursday, so not only was he not present for the meeting, he failed to inform anyone of the violation and crime that his daughter (again, allegedly) committed.
  3. Lew Loren, claiming the advice of an assistant attorney general as his basis, unilaterally changed the date of ballot language that would change the city clerk (and treasurer) from being an elected office to an appointed position, and did so without informing the city council ahead of their vote that the date had been changed when the specific directive given to him by the council was that this language was to go on the November ballot.
  4. The August election date is set aside as a primary under a combination of language from both the city charter, city code, and state election law.  That being the case, as Stockford pointed out Monday night, according to city charter Section 3.12:

"If, upon the expiration of the time for filing nomination petitions for any elective City office, valid petitions have been filed for no more than twice the number of candidates for the respective offices to be elected at the following regular City elections, then no primary shall be held with respect to such offices."

We have only one candidate on the ballot for the seven seats needing to be filled. That is not enough to trigger a primary, which means that there SHOULD NOT be an August election at all.

  1. Lew Loren, despite having this fact pointed out to him by Adam Stockford at Monday night's meeting, actually took the Hillary Clinton route and, quite literally, said "What difference does it make?"
  2. Conventional wisdom says that August is typically a very low-turnout election, especially in an off-year like this, so it can only be assumed that the proponents of these ballot proposals are counting on that low turnout for success.
  3. It stands to reason that if the office becomes appointed, the most logical choice of person to occupy it would be the person who does so now.

Given all of this information combined, the idea that there is a conspiracy here between father and daughter to perpetuate at least Michelle's power is becoming harder and harder to deny.  In fact, the case to be made is really rather damning.

But the good news is that they know we're on to them.  There are quite a few people involved here who have been watching both this blog and the conversation at Hillsdale's Hot Debates.

Emily Stack-Davis, in discussing this situation Monday night, made a point to her fellow councilpersons that seemed the opposite of the conventional wisdom I mentioned above, but really, it wasn't.  What she was trying to tell the proponents (and yes, I know the definition of the word) of these ballot initiatives is that yes, the citizens ARE paying attention, and this is going to fail if you keep it in the low-turnout August election, because they will come out just to tell you "no" for the second time.

The way I see it, there were two reasons why the council didn't take any further action on it that night.

One, they realized that they were partially responsible on the grounds that all of them failed to read through the entire language and, thus, voted to approve a date that they had never intended to approve.  They know they screwed up, and they're taking their lumps.  I don't particularly like that mentality or the fact that they've adopted it, but that's what I believe is happening right now.

Two, they realize that Stack-Davis was right: we are going to show up in August, and we are going to roundly reject this bunkum.  Or at least that's what I'm hoping for.  You need to help make that hope a reality.

That said, the fact that Stockford and Flannery stood firm and boldly against a city administration that's been used to getting its way says to me that the City Council isn't going to be so lax in the future, and the administration is going to have to shape up, as well, because they will be held accountable.

This is what happens when you get involved.  You and I, we set this ball in motion by paying attention, informing the public and getting people motivated to act.  I believe that the council has taken our discussions here and on Hot Debates as a sign that they have the public support necessary to take the control of the situation that they never should have given up in the first place.

And that means we're not done yet.  The race has just begun.  We're not here to harp on a couple of city employees.  We're here to set the course straight.  We're here to ensure that the law is obeyed, and that those who circumvent or outright disobey it -- especially those who do so intentionally -- will face the consequences.  There is no other way to keep this city's government or any government honest and properly functional.

Like I've said before, I don't want to be the leader of this army.  I'm more of a trumpeter at the front line.  But sometimes the trumpeter plays back to the troops to boost morale, and this is one of those times.  What happened Monday night was amazing.  It is absolutely something to take pride in, because YOU helped make it happen.  So let's rally ourselves, refresh our spirits in the knowledge that we are making the difference we sought out to make, and let's march on.

When all is said and done, the world must know that we here in Hillsdale take our city motto very seriously.

Tuesday, June 2, 2015

Council to Administration: You Work For Us

It was, throughout, a contentious dialog at the Hillsdale City Council's regular meeting Monday night, and it resulted in several pointed ultimatums from the governing body to the executive employees who work for it.

At the opening of the meeting, Mayor Scott Sessions noted that City Clerk Michelle Loren would be late to the meeting due to a function at her daughter's school.  Another employee took the position at the meeting in her absence.  All councilpersons were present, along with Interim City Manager Doug Terry and City Attorney Lew Loren.

Before approval of the agenda, Mayor Sessions asked City Manager Terry if there were any changes, and as anticipated, there were.  Terry requested that a new item be added: a new contract proposal for Rick Rose.  Sessions entered the new item under the Unfinished Business heading, as it was a continuing matter from the previous, joint special meeting on May 28th, which was itself a result of the previous contract proposal failing by a split vote at the May 18th regular meeting.

The only person to approach the podium during the initial public comment session was Pamela Osmun, one of three write-in candidates for the City Clerk race in the November election.

"I'm kind of disappointed and, quite frankly, confused," Osmun said, "that there would be a special election being held to vote on whether the citizens of Hillsdale want to elect or appoint the city clerk and treasurer's office."

"Ma'am," Mayor Sessions interrupted, "this is not on the agenda, so this is just on agenda items only."

"Hold on," Councilperson Adam Stockford interrupted in turn.  "According to the agenda, the clerk and the treasurer are on the agenda, and as such--"

"Okay," Sessions acknowledged Stockford, then turned the floor back over to Osmun.

"Thank you," Osmun continued.  "At this point, there are people actually running for this position; the citizens should be able to vote for the best person for those positions, according to the charter.  I'm confused as to why we need a special election when it should have been either on the May ballot or even put on the November ballot.  I don't see why we should be spending funds for a special election in the middle when it could have been put on either ballot, and I would like to ask: how is this not a change to the charter?  And when was it decided to have this special election approved?  I've been to several of the meetings, and I have never heard about it on the agenda at all."

When the time came for council discussion on that topic a few minutes later, it was Councilperson Stockford who took the lead.

"I'd like to talk about what the woman who took the podium earlier was speaking about.  I had no idea we were holding this election in August, and I do fault myself for that.  But I looked back at our language, because first of all, I found out about it because I saw it in the newspaper, and I said, 'that's not right.'  I remember us speaking about this being on the November ballot.  So I went back in our minutes, and I saw that at our March 2nd meeting, we all voted.  Of course, it passed five to three; three of us voted no.  But the majority of council voted to allow the city administration to develop language for the November ballot, spelled out in those specific words."

"Now, when the language was brought back to us," Stockford continued, "the date had been changed to August.  Like I said, I know it's my own fault that I didn't see that, but why would I be looking for that when our directive specifically stated 'November election?'"

"I surfed through the Secretery of State web page and our own city charter," he went on, "and found that this election is considered an off-year city primary, so I started looking through our charter for any words on a primary, and our charter states that if more than twice the number of candidates for any office are running for any particular position, then we hold a city primary.  If that doesn't exist, then our charter says we have to cancel the city primary."

"So what I want to know, Stockford asked, "is why are we holding this election in August when we don't have to do it?  Why are we spending money to do this?  And this is a very serious issue; this is talking about changing our charter.  I do appreciate that it's going to the voters, and I opposed that, but I accept the fact that it's going to be going to the voters.  But why wouldn't we do it at the November election?  Why would we spend the money to hold an extra election?  If this is a special election, why didn't we discuss in a the least bit holding a special election for this?  And why was our directive to the city administration disobeyed?"

"I've got a number of questions," he closed, "and I do want some straight answers to them.  So whoever I can get those from, it'll be well appreciated."

Councilperson Emily Stack-Davis mentioned her recollection that discussions of the ballot issues involved confusion at the ballot box over having to both determine if the positions should be elected or appointed and electing people to those positions.  Stockford agreed, and added that he understood concerns about the confusion that would ensue if someone wins their respective election, yet those positions become appointed by virtue of the ballot issues.

After a brief period of silence, Stockford asked for input from the council, but received none.  After another silent moment, he then asked the city attorney and city manager for their input.

City Attorney Loren replied first, explaining that the process for language approval is a back-and-forth conversation with the Attorney General's office, and that the official assisting him in that process was concerned about the date of the elections in question.

"[He] pointed out the fact that if you hold the election in November and the ballot proposals pass," Loren explained, "and you have people elected to the office, there's going to be a conflict between the two that could only be resolved by some sort of court proceedings.  He said that he was unaware of any case law that spoke to that issue, and there certainly is no statutory law that speaks to that issue.  The charter itself does not speak to that issue.  So the suggestion was that it would make a lot more sense to have that done in August.  That's when the August date first appeared."

"The language that was finally developed and informally reviewed by the Attorney General's office was then submitted to council for your review," he clarified.

"Now if somebody didn't like it," he added, "or if council as a whole, before the vote, didn't like it, that would have been the time to speak to that."

"I understand that," Stockford replied sternly.

"Okay, well, okay, but that's the history of it," Loren continued.  "And council then voted to put each of those ballot proposals on the ballot.  So that's where we stand today."

"Is this a special election?" Stockford pressed further.

"I don't know if it's-- I guess it's--" Loren stumbled.  "It's arguable, because there are four regular election dates."

There was an uncomfortable pause as Loren searched for words.

"And I don't know that it really makes a whole lot of difference.  You have to understand that this language, aside from the fact that it was adopted by this council, was submitted initially to the Attorney General's office, and the attorney general approved that language as being legal and consistent with law.  It was then sent to the governor of the state.  It was reviewed again for that kind of consistency, and approved.  So I don't see that there's any kind of a conflict between the language and any charter issue."

Stockford wasn't having that.

"Our charter speaks specifically to special elections, so if this was to be considered a special election, then our charter does address that."

"Well, what difference--?" Loren again stuttered, "I guess-- I don't even-- you could call it a regular election, a special election, or any other kind of election.  Council did pass resolutions that set the August date as the date for the election.  It was in the resolutions that you passed."

"Well, I mean, I voted against it," Stockford replied, "but you're right, I missed the August date."

The councilperson then turned his attention to his colleagues.

"You guys are all alright with holding extra elections; spending money on an election that we didn't have to hold?"

"I voted against it," commented Councilperson Bruce Sharp.

Councilperson Emily Stack-Davis then asked the ultimate question at hand:

"Did you feel that the August elections were highlighted, that anything would have changed at the meeting?"

"I honestly don't remember seeing that, so I can't honestly say," Sharp replied.

He added that he understood the language to have referred to November, but that he understood and accepted Loren's explanation.

"It does make sense," he concluded.

Mayor Sessions then presented his point of view.

"I did read the ballot language the first time, and at that time, there was not any date on the ballot language.  And then there were some changes that were made to it that were notated to us, and the second time it was sent to me, I did not read thoroughly, completely through it, because I just went over the actual changes.  So I did not notice the date, because the first time, there wasn't a date.  I did not read as thoroughly through it, which I should have."

Councilperson Brian Watkins was next, and he explained that he understands the objection and the outcome.

"I don't really think any of us caught the August change, which doesn't speak well of ourselves at that point.  But I would have supported that for the specific reason that it was changed was that it makes to have that decision made before you get to the ballot box, as that language specifically spells out when that charter amendment takes affect as prior to the election."

"I can see, too," Sessions added, "what would be different between a special election and a lawsuit.  You're gonna have to pay out money on both of those."

The conversation then came back to Stockford.

"I'm not the city attorney, but I can't see where we would get in trouble or open ourself up to a lawsuit, because it seems to me that the city charter is the final word on our elected offices.  As I pointed out in an e-mail earlier, if somebody owes money and taxes, and they're elected by the people, the charter says their election is invalid.  So if our charter says that it's an appointed position, then the election of anybody is invalid.  The charter trumps.  It's our governing document."

"And that's my other concern," he continued, "is that we're talking about holding an election in an infamously... low-turnout... off-year August primary; which I still contend that it is a primary.  It should have been canceled per our charter, because we don't have anywhere to look; Michigan law is silent on it.  We're talking about whether it passes or fails; it does so with the vote of about four or five percent of the population.  Super-low turnout.  And changing our charter is a serious affair."

"I don't feel like any of my questions were really answered," Stockford lamented.  "Who changed the date to August?"

"I did," Loren admitted.

"You changed the date to August?" Stockford confirmed.

"I did," Loren reiterated.  "I put August in there, and then I submitted it to you for approval."

"I think we need to start talking about red-line changes," Stack-Davis interjected.  "The council packet for today is 150 pages, and none of the 'highlighted changes' are highlighted."

"Also," she continued, "some of your responsibility -- while the final decision rests with this council, but also -- as the experienced executive advisors, too, highlighting those changes and having this discussion while we're voting on it is pretty important."

"The other thing I'll say as a council member," she added, "is that August is prime vacation time; people go out of the city, and even though I disagreed with it when we voted on this, we as a council decided that we were moving forward with this decision.  So to support that, you're going to have a better turnout in November, and more likely to succeed in seeing what the voters want."

She went on to explain that the clerk position had been an appointed one in the past, but a similar low-turnout off-year election was used to pass a ballot initiative changing the position to elected as it is now.

"I'm concerned that this will go one way or the other in the very highest way if it's in August versus November, when it's in front of more people, and they're expecting to go to the polls anyhow," she concluded.

"If there's a conflict, which one are you going to choose?" Loren prompted.  "And how are you going to support it?  That's the reason that the Attorney General suggested August."

Loren went on to say that he and the Attorney General talked about charter provisions in particular, and the it was pointed out to him that the only resolution for such a conflict would be some sort of declaratory action in court.

Stack-Davis asked if it would be possible for the three write-in candidates for city clerk to simply be informed that their potential election hinges on the ballot issue vote.  Loren replied that he was not certain, but that he would ask the Attorney General and report back to council with the answer.

Stockford was given the floor once again.

"I'd like everyone to remember that the last time that there was an election for city clerk and there was also an election for the charter amendment, the last council was comfortable with putting them on the same ballot.  They were both on the November ballot.  I know for a fact because I ran that year for clerk as a write-in candidate.  And there was also a charter amendment on the ballot to make the clerk an appointed position."

"No," Loren quickly jumped in, "that was to make it an appointed position in case of a vacancy mid-term.  It didn't have anything to do with the election to the office."

Sessions then recognized Interim City Manager Terry, who gave some background on the history of the ballot proposals as an argument that the motivation behind the date change was not deception, but an ability to keep the position occupied more permanently.  He also reiterated Loren's concerns about a conflict between the ballot questions and any election that might take place at the same time.

"There was no attempt to hide it or not red-line it or anything like that.  It was simply... we were controlled by the events and the review of Lansing.  And that's as clear as I can possibly be."

Councilperson Sharp reminded Terry of the $18,000 pay raise that the Officers' Compensation Committee gave to the city clerk position, which may have resulted in the increase in candidates.

"No pay raise for the city treasurer," he stated, "just had one."

Terry, taking that as potential ammunition against current City Clerk Michelle Loren, emphatically stated that she is not receiving any more money than she had been when serving only as deputy clerk.

"All we did was, she makes the same, and we just balanced it out," Terry said.  "We're not going to mislead the public that she received this tremendous pay raise.  Her salary is the same."

Sharp clarified, "I'm just stating the fact that that $18,000 pay raise all of a sudden made the job a little more interesting, and that's where we may have picked up some extra people."

"Unfortunately," Terry responded, "these fine people who are willing to serve our community weren't applicants when we vigorously had advertised that.  I wish they would have been, because a lot of this would not even be discussed--"

"I commend them for doing what they're doing now." Sharp quickly interrupted.

"So do I," Terry corrected, "however, we've already faced a commitment on the part of the council to take this to the electorate and have this decided, and I believe that is, at this point, the opinion we have to respect and observe."

Councilperson Stockford was again recognized.  "Just to close out, I accept all of your answers.  I guess I don't want to question your guys' motivation; I don't know what lies in your heart.  But I would appreciate it that, when this council makes a specific... directive... that it's followed.  And that if changes are made to our specific directive, that it's highlighted, so that when we sit up where, we know that what we told you guys to go do, you didn't change a little bit, you didn't tweak it a little bit, bring it back to us... in a bastardized state."

"I guess I'm willing to leave it at that," he said.  "I'm willing to leave it up to the people.  I think they'll show up in August, too.  But at the end of the day, I would appreciate that when we make recommendations or when we give the city administration directives, that they're followed to a T.  And if you guys decide to go down a different route, that we are made well aware that you did so."

At that point, Interim City Manager Terry apologized for the confusion.

"There was no ill intent, and we will try to do a better job of highlighting those decisions and those dates."

Mayor Sessions then recognized Councilperson Stack-Davis.

"I'm just curious how well this is going to succeed when you now have three candidates running for clerk, going door-to-door, getting their friends to come out and vote.  Now their friends are going to come out and vote in August, and for you all on council who might be in support of this, this is not a good sign."

She further described that moving the ballot issues to August will now result in people who only want the position to be elected to come out and vote, which clearly is not the will of the council in wanting to make the position appointed.

"I'm concerned about that.  If no one else is, I'll rest my case and we'll move on."

"Of course I'd be concerned about that," Stockford added with a smile.

The conversation about that topic settled, the next item on the agenda was the newly-added discussion about the revamped proposed contract for Rick Rose.

Mayor Sessions gave Interim Manager Terry the floor, at which point he laid out the situation's history.  He stated his case that this reworked contract was not being proposed out of defiance, but rather a belief that the initially-proposed three-year contract "was not palatable to City Council" due to the time period proposed and the lack of a succession plan.

This new three-year contract proposal, which Terry explained that he had just written today, would not only provide a plan of succession, but would attempt to find a replacement for Rose within 18 month, at which point Rose would take on the role of training his successor for the following 18 months or less.  He cited major BPU projects currently taking place or that are in the pipeline as making such a succession and training plan a necessity.

Councilperson Watkins led off discussion, saying that he supported the original contract, and he would support this one as well if not for the fact that it remains a three-year contract.  He stated his belief that this would be interpreted negatively by the public as the administration simply re-submitting the same contract.

Mayor Sessions echoed Watkins' sentiments, and added the suggestion that the 18 month terms in the new contract language be reduced to 12 months.

Terry then made it known that the contract could be terminated at any time.  He also stated that Rose was not aware of the new proposal and had not seen it.  In creating the document, Terry said he attempted to stay in line with the Board of Public Utilities' assessment of Rose's talents.  He also reiterated that the major projects and power purchase agreements required Rose's expertise, and that he felt three years will be faster than anyone thinks.

"I had City Attorney, Mr. Loren, late this afternoon review it," Terry said.  "He corrected some grammatical errors, but other than that, the substance of this is my... doing, so... please... come after me."

Councilperson Stockford asked about the termination clause.

"You said it can be terminated at any time, but that's terminated by the Board of Public Utilities or the city manager."

"That's correct, and that is how it stands now," Terry answered.

"I'm aware, thank you." Stockford replied.

After a long awkward pause, Mayor Sessions asked if there was any further council discussion, and seeing that there was none, he asked if there was a motion to approve the new contract.  Councilperson Watkins made the motion, and Councilperson Sally Kinney supported.  Sessions then asked if there was any more council discussion.

And that was when the bottom dropped out.

"Mr. Mayor?"

"Councilperson Flannery."

"Point of order.  According to our adopted council procedures, Section 10.5, 'a motion to reconsider can only be made by someone who's on the prevailing side of the matter.'  Mr. Watkins was not on the prevailing side."

"Okay.  Alright, thank you," Sessions muttered.

"There was no motion made," Flannery emphasized.

"Alright," Sessions replied a little more clearly.  "Thank you for bringing that to our attention."

After about five seconds of silence, Terry spoke up.

"I'd ask clarification for 'prevailing side.'  If it's a 4-4 tie, is there a prevailing side?"

"Well, if we want to get technical about it," Flannery explained, "we want to read it verbatim.  'A motion to reconsider may only be made by a proponent of the decision or action for which reconsideration is sought.'  So 'proponent;' what's 'proponent?'  A proponent is someone who argues for something; who makes a point for something... for the decision.  The people who voted 'no' on this, the people who voted 'yes,' were proponents on two different sides.  I was a proponent on the side that was 'no.'  The contract did not pass because it was a tie; which, according to statute, in order for something to pass, it has to be a majority vote.  A tie is not considered a majority.  So it failed.  So those who voted 'no' are on the prevailing side."

Terry, seemingly still confused on the matter, asked for clarification.  "Proponent or o-pponent?"

"Pro-ponent," was the simple reply from Flannery.

Terry attempted to further argue the point.

"The city administration brought before this council at this particular council meeting the hope that this contract would be by, and of course, motion made, and second by proponents willing to adopt the contract as presented to this council.  Those voting 'no,' would that not be considered 'opponents' to that action?"

"It's a proponent of the side that won," Flannery unwaveringly stated.

"'Proponent' depends on which side you're on.  But what you're proposing right now is Section 10.5.  It's something that was put into our procedures to protect decisions that were made.  Because what could happen is, here... let's say Mr. Stockford wasn't here one day on a 4-4 tie.  All of a sudden, people realize, 'hey!  Mr. Stockford is not here.'  It would allow council to bring up motions again in the future, to have a vote on something that didn't pass."

What this does is," he continued, "it protects the side that won.  That if, for some reason, people are absent from a meeting they're eyeing to attend, those who were on the failing side can't take advantage of that absence to bring something and put it back onto the agenda on short notice.  As this was today, as... I received no notification we were going to do this until I got to my meeting and had this in front of me.  That's what this is protection against; Section 10.5."

Flannery added, "If you want to sit here and argue what 'proponent' is, that's fine.  But what I'm telling you is what's in our Section 10.5; what 'proponent' is.  I'm no expert on grammar.  If I would've, I would've probably asked one of our instructors at our local school to come in to explain to us what 'proponent' means.  But, from my humble education that I have, I can tell you right now -- and also, from my experience in Robert Rules -- it's the proponents who were on the winners, and the fact that this was a tie means that the people who voted 'no' in this case were the ones who won.  So therefore, a motion can only be made by those who voted 'no.'"

"And if you want to go back and forth, we can on this.  But I would suggest we move on."

Terry, whose body language suggested much displeasure with being dressed down, replied somewhat tersely at first, but measured his words as he continued.

"I work for you, council.  I'm not here to debate with you, I... am bringing something forward, and felt that this was a... subject that was of great importance, and... again, this was no attempt to hijack or to mislead council.  I felt very strongly that it was an attempt to try to give... consistency and longevity to the BPU under a controlled course.  By way of direction, if that's how council feels, then again, I work for you, and I follow your direction."

A deafening silence fell upon the room as the members of the city's government appeared at a loss as to what to do next.  Finally, Mayor Sessions pulled it together.

"Okay.  What does council... want to do... at this point... in time... toward... that motion?  Does the council have... any discussion that they want to... go forward?  Because... we're looking at a time when... we won't have a director... so..."

Flannery was recognized.

"Assuming that the new city manager's contract passes this evening, I would suggest that we ask our interim city manager and the new city manager to work together to begin a search for a new BPU director per the decision of council."

"Is that a motion?" Sessions asked.

"No, that is not a motion," Flannery replied.  "I think our vote was the decision and a direction to staff."

Seeing no further council discussion, Sessions moved on, and the matter was closed.

As such, Rick Rose is no longer the Director of the Hillsdale Board of Public Utilities, and a search for a new director will begin as soon as possible.

Notably, when Sessions asked Terry if there were any additions to the city budget and taxes, Terry's "not at this time, Mayor," was loud enough to fill the room well above the amplifying power of the installed sound system.

Those resolutions passed unanimously, as did the OPRA application for Creative Constructs, Inc.'s overhaul of the former Alsons building at 42 Union Street earlier in the evening.

Also passed unanimously was the designation of a new Neighborhood Enterprise Zone for residential development, now known as NEZ #2.  It consists of the city blocks between Fayette Street on the south and and College Street on the north, and between Park and West Streets, West and Manning Streets, and the properties lining the east side of Manning Street.  This zone will provide tax exemptions for further development and renovation of housing in that neighborhood.

The next item on the agenda was the hiring of new City Manager David Mackie, who was present at the meeting.  Councilperson Sharp was the first to comment.

"I'm not thrilled about the starting wages, but that's been discussed in the past before.  But other than that, we need to have a full-time, truly dedicated to the city -- only the City of Hillsdale -- city manager.  So I'm in support of this contract.  And, um, heh!" he chuckled, directing his words to Mackie, "Welcome to the City of Hillsdale."

Mayor Sessions brought attention to an issue he had with some language in the contract.

"I have a problem with Section 7, 'Benefits upon Termination without Regard to Cause.'  In it, it says 'but Hillsdale elects not to extend or renew' the contract.  The severance will be paid whether the contract is renewed or not, or extended.  I have a problem with the contract in that regard."

 With that out of the way, the motion was made for approval of the contract by Councilperson Watkins and supported by Councilperson Kinney.

Mayor Sessions then took the opportunity for final council comment on the matter to express the full breadth of his concerns.

"There's nothing personal about this, it's just business," he began.  "I do not support this contract for several reasons.  As I have stated before, I do not agree with the salary; the $95,000 a year.  I think the salary should be a progressive salary from year to year.  I also think there should be incentives, and in the contract, there are enough-- er, not.  And then I also found this about the 'Hillsdale elects not to renew or extend the contract, but will pay the settlements.  So with that said, if this contract is approved, I will honor the decision the council makes.  I will be looking forward to working with Mr. Mackie as a city manager.  I will do everything in my power and my ability to work with Mr. Mackie, improving and moving the City of Hillsdale forward in the best and most positive way."

That led directly into the roll-call vote, and Mackie's contract passed 7-1 with Sessions being the lone "no" vote.

David Mackie is now our new City Manager, and as stated at previous meetings, he will begin working with Interim City Manager Terry for a period of roughly two weeks to allow for a smooth transition.

Next, updated Freedom of Information Act rules were made necessary by state legislative action, and they passed unanimously, as did the permit for Night Magic Displays to put on the city's fireworks show on the night of July 3rd.

And lastly, the Hillsdale County Intermediate School District Special Education Parent Advisory Committee presented Dial-A-Ride with their 2014-2015 Excellence in Special Education Award in the Business Domain.  Interim City Manager Terry took a moment to thank Judy Buzo and the Dial-A-Ride staff for all that they do for the community.

Public comments in the final session included more thanks for Dial-A-Ride, announcements about upcoming events at the airport and in downtown, and additional concerns about the firing of Rick Rose and his drunk driving arrest.

In final council comment, Councilperson Watkins suggested that the Public Services Committee meet and establish the search process for the new BPU director.  He went on to make a motion to that end, but there was some confusion as to whether or not that was allowed during council comment.  When asked, City Attorney Loren said, "I don't see why not; it's still a part of the council meeting."  Thus, Councilperson Stack-Davis seconded the motion.

However, Councilperson Flannery clarified that, as expressly stated in the city charter, the city manager has sole appointment power to the position of BPU director.

Councilperson Stockford agreed, and added that there should be a Public Services Committee meeting soon, anyway, in order to coordinate with the city manager on the search.

Both Interim City Manager Terry and City Attorney Loren suggested that now-Manager Mackie join the committee in order to be involved in the process early on.  As he approached the podium to address the issue, Councilperson Stack-Davis broke the monotony by humorously asking, "Would you like to join our committee?"

"Sure!" Mackie began good-naturedly.

"Basically, over the next month, I'll be finishing my duties with Taylor.  I'm training my replacement and/or using my vacation time I have accumulated, so I will have time available to come out to any other meetings if necessary in advance of July 6th."

"I definitely think, as council," Councilperson Sharp added, "we need to sit down with you and go over things, discuss what we see down the road, what our plans are for you, and help you that way.  We definitely do have to sit down with you, though, and have a meeting.  Public meeting, so the public knows; none of these OMG vio-- er, excuse me, Open Meetings Act violations."

"You bet," Mackie answered.  "Based on the contract language, that is required, so that's definitely something I would be willing to do, to have clear direction from the council and mayor."

Councilperson Stack-Davis asked if, in regard to the BPU director search, if it would helpful to have the BPU board, the Public Services Committee, Doug Terry and David Mackie all meet to coordinate.  Mackie agreed, and as such, the motion made by Councilperson Watkins was restated with Stack-Davis as second.  Flannery remained in his position and objected to the motion.  Upon roll-call vote, the motion passed 6-2 with the dissenting votes coming from Flannery and Stockford.

In further council comments, Councilperson Stack-Davis requested that the clerk's office add page numbers to the agenda packets.

"I know that we switched over from Granicus to Livestream; it's a different setup.  But if you put in page numbers so we can follow along, and also for the general public, too.  I can imagine approaching a stack of 150 pages or more is a little overwhelming."

She also requested a standing calendar of elections, upcoming events and deadlines, constantly updated and placed in the agenda packets.

"It'll be good for us to be aware of things that are upcoming, and good for us to plan back from deadlines.  If that's okay with everyone else."

That was the end of the meeting, and before adjourning, Mayor Sessions congratulated City Manager Mackie and thanked Interim City Manager Terry and the council, committees and staff.  Councilperson Kinney moved to adjourn, Stack-Davis supported, and the voice vote was unanimous.

The next regular meeting of the Hillsdale City Council is Monday, June 15th at 7:00 PM in the council chambers at Hillsdale City Hall.

Monday, June 1, 2015

Illegal Special Edition: Special Meeting Was Illegal

AUTHOR'S NOTE: This post is going to be a long one, so I hope you've got your popcorn handy.

AUTHOR'S NOTE 2: I'm going to use the word "alleged" and its various forms a few times.  It will be in italics.  Keep in mind that I'm the one making the allegations, and that the only reason I'm using the word is to protect myself.  It may come across as sarcastic at times, but that's no crime in and of itself.

AUTHOR'S NOTE 3: I came to the realization well after I had posted this that David Mackie comes to us from Taylor, not Farmington as I has erroneously written at first. Farmington was the other municipality considering him for employment. The mistake has been corrected.

In order to understand what occurred at Thursday night's special joint meeting of the Hillsdale City Council and the Board of Public Utilities, we have to go back to the beginning.

In the beginning, God created the heavens and the Earth.  On the third day after the crucifixion of His human incarnation some 1,980 years ago, He rose again.  And, roughly 61 years ago, He created a person named Rickie J. Rose.

On January 4th, 2015, BPU director Rose drank two Long Island iced teas, drove off of the road into a tree, and blew a .23 into the breathalyzer.  This, of course, resulted in his arrest for DWI -- his third, though the first never resulted in a conviction due to first-time leniency.  He was charged and sentenced under Michigan's "super drunk" law, and he subsequently spent 24 days in the Hillsdale County Jail.  He is now on parole for the period of a year.

On May 14th, the City of Hillsdale posted the packet for the following Monday night's city council meeting, one day later than normally scheduled.  Interim City Manager Doug Terry stated at that meeting that the reason for the delay was an unrelated paperwork issue.

However, the delay raised both suspicion and many additional questions, because within that packet was a new proposed contract for Rose.  Due to his recent issues with the law, Terry, the BPU Board of Directors and City Attorney Lew Loren worked together to write a new three-year contract that included specific language preventing Rose from drinking within a ten-hour period prior to performing his job duties, as well as preventing him from drinking on the job.

As I noted here at the time, the fact that this language is in Rose's contract and no one else's opens the city up to an employment discrimination lawsuit, as the Americans with Disabilities Act defines alcoholism as a disability, and if such employment requirements are unequally applied to a person with a disability while they are not applied to everyone else, that's an almost guaranteed legal and monetary loss for the city.

Now, I have since been told that those requirements are applied to everyone at the BPU on an ad hoc basis, meaning that they're generally known and applied rules despite the fact that they're not actually defined in anyone else's contract.  However, as I pointed out in the above-mentioned piece, the EEOC states on their web site:

[...]because ad hoc rules are just that, ad hoc, an employer may have more difficulty demonstrating that they are job-related and consistent with business necessity.

So the fact that these rules are applied to everyone but not codified in each contract doesn't particularly help the city's case.  In fact, I'd say that it makes it even more difficult to prove that they're in the clear.

Additionally, as I pointed out in that same piece, this new contract would appear to replace the existing five-year contract extension (and salary cap) that was put into place in 2013.  According to the Hillsdale Daily News,

In 2010 the board negotiated a thre- year [sic] contract with Rose which automatically extends by a year annually. Because the contract remains in place it will not have to go back before the Hillsdale City Council.
 
Rose is an "at-will" employee who can be fired at any time or he can quit at any time.

I'm still investigating that aspect of this story, because the city contends that the 2013 extension was only a proposal by the BPU board, and that all matters of contract must go through the council.  But that doesn't explain how Rose still has his job today, two years later.  If his contract was on a year-by-year basis in 2010 ending in 2013, then that would have to mean that the City Council approved another contract or extension in 2013 in order to retain him.

I can find no evidence of that action as reported in the local media, and the council minutes on the city's web site only date back to October of 2014, so it's going to take a request for those minutes to find out exactly what happened.  When I'm able to piece the facts together, I will report them to you here.

The city also claims that Rose is not an at-will employee, despite the fact that the quote above clearly states not only that he is an at-will employee, but that his at-will status dates back to the 2010 contract, which was presumably passed by the City Council.  But again, there are no media archives of any of this besides the story from which I pulled that quote, so that question remains unanswered, as well.

However, none of those concerns were cited among the reasons given for the votes on the "no" side of the 4-4 split that voted down Rose's proposed new contract at the May 18th regular meeting.  The general concern was, of course, Rose's public behavior, but no one on the council seems willing to make that the reason for their position, despite the fact that Terry told the Hillsdale Collegian back in February that "'We will review acts of past and present,'" and that "the final deter­mi­nation of [Rose's] employment rests heavily on 'decisions Rose makes.'"

Instead, Emily Stack-Davis was the lone "no"-voting councilperson to give any explanation of her reasoning that night.  She mentioned Rose's belligerence before the council in the past, lack of communication between the BPU and the council, concerns with environmental quality, and other operational concerns that diminished her confidence in Rose.

So, in hindsight, I suppose that Terry was sort of hedging his language with the Collegian in order to back up whatever the council ended up doing.  Of course, that didn't stop him from suggesting Rose's continued employment in order to break the stunned silence following the vote.

"Mr. Mayor and members of council," Terry said that night, "in light of the recent vote, what I would strongly recommend is a joint meeting held between your honorable body and the Board of Public Utilities as to map out the future for their leadership.  I think that this contract expires on June 30th, and perhaps by that time there will be more engaging discussion as to retaining him or what the city wants; however you want to proceed.  That would be my recommendation, and that should be done posthaste."

No, it wasn't overt, but the order of his wording makes it fairly obvious where his opinion lies, and he later and has since made it clear that he would like a new contract to be drawn up for Rose that the council can agree upon.

So, immediately following the vote and Interim City Manager Terry's suggestion, a joint special meeting between the Hillsdale City Council and the Board of Public Utilities was scheduled for Thursday, May 28th at 7:00 PM in the Council Chambers, the purpose of which was to discuss how to move forward.

It is necessary at this point in the story to note that City Attorney Loren was not present at the meeting on the 18th.  Not much attention was given to that fact at the time, but it certainly was an abdication of responsibility, and not only because his job is to advise the council as they go.  He was intimately involved in crafting the new contract, he could have answered any questions raised about the legalities of it, he could have explained the language he used in further detail, and he just generally could have defended himself against people such as myself who call his integrity into question.

I doubt that any of his answers would have changed the outcome that night, but he would have at least received credit for trying.  As it stands, he doesn't even get that much.

Now here's where things take a turn for the blatantly illegal.

There's a law here in the State of Michigan called the Open Meetings Act, abbreviated as "OMA."  It spans the Michigan Compiled Laws (abbreviated as "MCL") from 15.261 through 15.275.  As per the legislation's own preamble, it is:

AN ACT to require certain meetings of certain public bodies to be open to the public; to require notice and the keeping of minutes of meetings; to provide for enforcement; to provide for invalidation of governmental decisions under certain circumstances; to provide penalties; and to repeal certain acts and parts of acts.

Which "certain public bodies" does this law apply to?  I'm glad you asked.  According to MCL 15.262 subsection (a):

“Public body” means any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, that is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function; a lessee of such a body performing an essential public purpose and function pursuant to the lease agreement; or the board of a nonprofit corporation formed by a city under section 4o of the home rule city act, 1909 PA 279, MCL 117.4o.

Using the language above, our fine Hillsdale City Council is classified as a local legislative or governing body, specifically a city council, that is empowered by charter to exercise and perform governmental or proprietary authority and function.  It is therefore bound by this law.

But if you want the short answer, all village, city, township, county and state government bodies in the State of Michigan are bound by this law except where explicitly stated otherwise in the law itself.

And which "certain meetings" does this law apply to?  Again, I'm glad you asked.  According to MCL 15.263 subsection (1):

All meetings of a public body shall be open to the public and shall be held in a place available to the general public. All persons shall be permitted to attend any meeting except as otherwise provided in this act.

Also relevant in that same section are subsections (2) and (3), which state:

(2) All decisions of a public body shall be made at a meeting open to the public.
(3) All deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public except as provided in this section and sections 7 and 8.

Applied to the situation at hand, this means that, if a majority of members are present, the council can't even get together to talk things over about making a decision in the future unless the meeting is open.  That fact will come up later in this story.

Before you ask, yes, subsection (3) above says that there are exceptions in sections 7 and 8 (MCL 15.267 and 15.268, respectively), but they do not apply in this case.  Additionally, MCL 15.263 subsections (9) through (11) give exceptions as well, but those only apply to the public bodies that are specifically mentioned within them, none of which include a city council.  I won't go into detail on any of those because they're simply not relevant, but if you want to see for yourself, just open the link I gave to the law and read through them.  Again, those exceptions are MCL 15.263 subsections (9) through (11) and both MCL 15.267 and 15.268.  Double-check me if you think I'm wrong.

Now look back at the preamble and you'll see that the second stated purpose is "to require notice."  For the relevant text on that point, we first go to MCL 15.264, subsections (a) and (b):

(a) A public notice shall always contain the name of the public body to which the notice applies, its telephone number if one exists, and its address.
(b) A public notice for a public body shall always be posted at its principal office and any other locations considered appropriate by the public body. Cable television may also be utilized for purposes of posting public notice.

And MCL 15.265 subsection (1) says this:

A meeting of a public body shall not be held unless public notice is given as provided in this section by a person designated by the public body.

You might be thinking at this point, "well, okay, I'm sure they posted that information at City Hall, so they're good, right?"

Nope.

Since the meeting on the 28th was not a regularly scheduled meeting of the Hillsdale City Council -- which meets regularly on the first and third Monday night of every month at 7:00 in the Council Chambers -- nor was it a regularly scheduled meeting of the Board of Public Utilities -- which meets regularly on the second Tuesday night of every month at 7:00 at the BPU building -- it was classified as a "special meeting."

And wouldn't you know it, the OMA has specific instructions for public notice of special meetings!

According to MCL 15.265 subsection (4), emphasis mine:

Except as provided in this subsection or in subsection (6), for a rescheduled regular or a special meeting of a public body, a public notice stating the date, time, and place of the meeting shall be posted at least 18 hours before the meeting in a prominent and conspicuous place at both the public body's principal office and, if the public body directly or indirectly maintains an official internet presence that includes monthly or more frequent updates of public meeting agendas or minutes, on a portion of the website that is fully accessible to the public. The public notice on the website shall be included on either the homepage or on a separate webpage dedicated to public notices for nonregularly scheduled public meetings and accessible via a prominent and conspicuous link on the website's homepage that clearly describes its purpose for public notification of those nonregularly scheduled public meetings.

I'll give you three guesses as to which part of that subsection was not fulfilled.

If you guessed the part about the city web site, give yourself a pat on the back.

Indeed, I have irrefutable evidence, which you can see in the images I've included at the end of this article, that the May 28th special meeting was NOT posted on the city's web site or the BPU's web site by the 1:00 AM deadline that morning.  In fact, the screenshots that I have of both sites were taken within the hours of 3:00 and 4:00 AM on the morning of the 28th.  The notice was nowhere to be found on the page required by law or any other pages on the city's web site where one might logically expect it to be found.  Neither was it anywhere to be found on the front page or the news page of the BPU's web site, the only two pages on that site where one might logically expect it to be found.

Public notice of the May 28th special meeting was not posted on the Internet to the satisfaction of the law.  That being the case, the holding of the meeting as scheduled that night was illegal.  Those facts are beyond question.

Also beyond question is the fact that the public notice was posted to the city's public meeting notices page at some point between 7:30 AM and 1:20 PM on the 28th, and that said posting was backdated to May 27th.

That's outright fraud, and you can see the evidence of it in the included images below, as well.

So who is responsible for this alleged crime? That would be City Clerk Michelle Loren, within whose job description under Section 4.11, paragraph (b) of the city charter is that she shall, quote, "be custodian of all papers, documents and records pertaining to the City, the custody of which is not otherwise provided for," end quote. At no point elsewhere in the city charter or the city code is there a provision for posting public notice of meetings, so that duty falls solely to her.

She had nine days between the time this meeting was scheduled and the legal cutoff time, and she did not post notice of it within that time frame.  When she did post it, she allegedly did so with the incorrect date to intentionally make it appear as though it had been posted within that time frame.  That makes her alleged intent obvious: allegedly, she willfully and maliciously withheld that information from the public until such a time that she allegedly was satisfied the public would not be adequately informed.

Now here's another guess for you to take a shot at: which city employee was absent from the May 28th special meeting?

If you guessed City Attorney Lew Loren, give yourself a pat on the back.

His absence this time plays directly into the OMA violation.  Within his job description under Section 4.15, paragraph (e) of the city charter is that, quote, "He shall be charged with the responsibility of calling to the attention of the Council all matters of law and changes or developments therein affecting the City," end quote.

That the meeting began without Lew's notice of the fact that it would be an OMA violation, regardless of whether or not he was there to do so in person, is solely his responsibility.  He once again abdicated his duty and, in that abdication, put the City Council and relevant employees in significant legal trouble.  He might not be directly held liable for the fraud that took place, but he is most certainly to blame for failing to alert the necessary city officials to the situation.

I know what you're thinking, and yes, I've thought it, too.  It cannot possibly help either of their cases that she's his daughter.  The city does have anti-nepotism regulations that I believe should have prevented her appointment as city clerk when Robilyn Swisher resigned (for the second time) in June of last year, but those were apparently somehow worked around to allow for Michelle's appointment to an elected position despite Lew already being the hired city attorney at the time.

But even further than the (blatantly and painfully obvious) conflict of interest due to their immediate familial connection, both of these city employees have held their positions, or positions in their respective offices, long enough to know better.  Both of them have been present in situations where potential OMA violations were thwarted only by someone other than themselves, the city manager, or a councilperson.  It has repeatedly taken an external voice to guide this city's government to proper compliance with the Open Meetings Act.

The fact that these two still do not ensure adherence to it, as it is clearly their responsibility to do, is not an accident.

Neither was this incident on Thursday night.

This alleged crime was allegedly unmistakably intentional.

The consequences for their alleged crime are clearly spelled out by the Open Meetings Act itself (remember the preamble?).  According to MCL 15.270 subsection (2):

A decision made by a public body may be invalidated if the public body has not complied with the requirements of section 3(1), (2), and (3) in making the decision or if failure to give notice in accordance with section 5 has interfered with substantial compliance with section 3(1), (2), and (3) and the court finds that the noncompliance or failure has impaired the rights of the public under this act.

Additionally, according to MCL 15.271 subsection (1):

If a public body is not complying with this act, the attorney general, prosecuting attorney of the county in which the public body serves, or a person may commence a civil action to compel compliance or to enjoin further noncompliance with this act.

And in the same section, subsection (4):

If a public body is not complying with this act, and a person commences a civil action against the public body for injunctive relief to compel compliance or to enjoin further noncompliance with the act and succeeds in obtaining relief in the action, the person shall recover court costs and actual attorney fees for the action.

Pretty cut-and-dried, is it not?  Any decisions made at the meeting are invalid.  The county prosecutor, the state attorney general, or any individual can sue the city for the violation.  Any individual that does sue will recover all court costs and attorney fees if they win the suit.

Considering the nitpicking over tiny amounts of money that the City Council engages in at any given meeting, it's rather ridiculous to open themselves up to that kind of civil action.

We're not done yet, though. 

I'll flip the order of these OMA sections around for dramatic effect, because I do love a good drama.  In MCL 15.273 subsection (1):

A public official who intentionally violates this act shall be personally liable in a civil action for actual and exemplary damages of not more than $500.00 total, plus court costs and actual attorney fees to a person or group of persons bringing the action.

Okay, so that's a nice little slap on the wrist.  Just a somewhat impactful reminder to obey the law.

But that's not all!

In MCL 15.272 subsection (1):

A public official who intentionally violates this act is guilty of a misdemeanor punishable by a fine of not more than $1,000.00.

Ouch!  Okay, well, that's a bit more substantial, and on top of the $500 civil suit maximum, plus court costs and attorney fees, you can see how the law is adding up to make the point even more impactfully.

But wait!  There's more!  In subsection (2):

A public official who is convicted of intentionally violating a provision of this act for a second time within the same term shall be guilty of a misdemeanor and shall be fined not more than $2,000.00, or imprisoned for not more than 1 year, or both.

Damn!  All that for going ahead with a meeting that the public wasn't properly notified of!  That's one serious piece of legislation!

Now, to make my position clear, I'm most concerned here with the actions of Mayor Scott Sessions and city employees Michelle Loren, Lew Loren and, to a certain extent, Doug Terry.

I'll tell you in a few moments why Terry gets a caveat, but first, let me explain to you how this all played out.

At the meeting Thursday, I was the first person to approach the podium during the first public comment session, and in the five minutes allotted, I laid out most of what I've written for you here.  I concluded by stating that, given all of this information, the meeting should immediately be dismissed before the OMA violation continues any further.

The only information about why the meeting was an OMA violation that I did not include in the first public comment was the second sentence from MCL 15.265 subsection (4), addressing where on the city web site the public notice must be located.  Given the evidence that I had brought with me to the meeting -- which I offered to anyone who asked for it (none did) -- and being that the second sentence does nothing to invalidate anything that the first had already stated, I didn't find it necessary.

I did include it in my second public comment at the end of the night, but that was simply to address the points raised after the first.

After the initial public comment session was closed, the meeting then moved into the lone agenda item: discussing how to move forward now that the council has voted down Rose's new contract.

Except that's not exactly what happened at first.  As per procedure, Terry was given the floor to start things off.

"Mr. Mayor, members of council, BPU members, and citizens of Hillsdale," he began, "thank you for attending tonight's meeting.  In addressing Mr. Colletta's concerns about posting, the meeting was posted in a conspicuous place in our lower lobby in the glass case.  As far as it not being on the web site, I'm not aware of that, and as such, it's still unclear whether or not this board or the BPU jointly will make any decisions tonight."

You might not quite catch it, because he didn't explicitly state it, but let me clarify his point for you: he believed that an OMA violation would only take place if any actual votes or decisions were made.  More on that later.

Terry then went on to detail the purpose of the meeting, explaining that it was to have "meaningful discussion" between the BPU board and the council.  He reiterated that all contractual issues involving the BPU must come before the council, and that it was not necessary or even recommended that a decision be made that night.

Mayor Scott Sessions then acknowledged Councilperson Adam Stockford.

"I just have a quick question," he prefaced.  "Where's our legal representation?  Do we have any here tonight?"

Terry simply responded, "No."

"So are you stating publicly that there's no validity to what Mr. Colletta said?" Stockford asked.

"No, I'm not denying the validity," Terry replied.  "I'm suggesting--"

"I just don't want this council to get in any trouble," Stockford interrupted.

There was a brief pause as a truck loudly braked outside and seemingly drew out Terry's search for words.

"At the last... regular city council meeting," the interim city manager continued, "it was well announced that a public meeting of both boards were going to take place.  That was televised, it was advertised, and posted in the lower lobby.  I think the spirit of the Open Meetings Act allowed for this type of meeting that was well-recognized and advertised in advance in the media as well.   As such, I would believe that we have met the spirit of the Open Meetings Act.  We are subject to stand corrected.  However, there have been no motions to make decisions at this public meeting, and as such, I do believe that it is well within council's ability to have meaningful exchange with another public body to discuss this."

I can only assume that by "televised," he meant the video stream online, because as far as I'm aware, there is no longer coverage of city council meetings on Comcast's public access channel in the City of Hillsdale.

As far as being advertised in the media, I would suppose he meant news items in the Hillsdale Daily News and on WCSR, because I can't say I've ever read paid advertising of city council meetings in the newspaper, nor heard any on the radio (though that does give me the notion to write and produce a parody ad).

Regardless, neither of those things count as fulfilling the public notice requirement.

But more importantly, you'll notice that these comments came after I had pointed out that the web site posting was a part of that requirement.  My exact words in the first comment session, referring to the 18-hour cutoff pertaining to the Internet in MCL 15.265 subsection (4), were, "notice the use of the word and in that sentence.  That means that notice must be posted on the city's web site with no exceptions."

I clarified later that the spirit of the law, in this case, is made clear by the letter of the law: post the notice on the city web site by the 18-hour mark or the meeting is in violation.

In all honesty, there was no way to misinterpret that from what I had made clear earlier.  Terry and Sessions were informed of the violation and went ahead anyway.

Stockford replied to Terry's reasoning, "That's acceptable to me; I just wanted to make sure, and I really wish that we would've had some sort of legal representation here tonight.  We didn't have it at the last meeting, either, and it's very concerning, because we can get in hot water, and we're supposed to be a representation of the populace; representatives of the people.  We're not supposed to be legal experts; we're not supposed to know all these ins and outs, and I just don't want to see us get in hot water over something silly and unintentional, so if you guys are all okay, then I'm alright, too."

Councilperson Brian Watkins, while I don't question his motivations, sided with Terry on the mistaken notion that an OMA violation required decisions to take place, and disagreed that City Clerk Loren's actions were intentional.

Councilperson Bruce Sharp spoke next, and he put the exclamation point on that portion of the discussion:

"Well, once again, we're at a meeting with no legal counsel," he began.  "This is getting to be repetitive and very concerning.  It's something we will have to address later.  But I don't like doing this this way, because the gentleman--" (that would be me) "--did state the facts, and it does concern me a little bit."

After seeing that there was no more council discussion, Mayor Sessions then turned the floor over to the BPU board members.

Evidently thrown for a loop by this turn of events, BPU board president John Waldvogel asked, "With respect to the issue at hand, or with respect to the purpose of our meeting this evening?"

"For the purpose of our meeting tonight," Sessions replied.

If it hadn't already come at any earlier point in the evening, that was the moment at which the Open Meetings Act violation was cemented.  The rules were presented, the violation was called to attention and discussed, and the meeting continued anyway.

Now, before we go any further, I'd like to point out why I don't fault Councilperson Stockford for going along with it.  When I later asked him on his Facebook page for his perspective on the situation, he laid it out in no uncertain terms.

"First of all," he said, "with the issues with OMA we have had in the past, we should all know it up and down, and like you stated at the meeting, it isn't hard to find and it isn't a long and complicated law. I have it saved on my tablet."

Addressing the fraudulent posting on the city web site, Stockford says that even if it wasn't intentional, it was still wrong.

"I was about 5 minutes late because I had my youngest boy's kindergarten graduation, which all of council was aware of, so I guess I missed your part about the backdating.  Had I heard that part, I would have absolutely called to adjourn. We all make mistakes now and then, but people are forgiving, and trying to cover our tracks is unacceptable. We just need to admit we made a mistake and move on, not dig a deeper hole by illegally trying to cover up our mistakes, especially if they were honest ones."

He also shed some light on Loren's absence.

"The problem with laws, especially vaguely written ones, is sometimes they are difficult to translate, so it is imperative that we have legal counsel present at these meetings.  As I understand it, Lew was on a vacation that he had already scheduled, however, maybe we should look into Skyping legal counsel in when the city attorney isn't there, because violations of the law are serious no matter what the context or intention."

While Stockford and I may disagree on the intent of the alleged crime, I believe he has the right approach to it.  He has been one of the more prominent voices against the mismanagement in this city's government, and I don't question his dedication to keeping things clean.  In fact, that was the very next thing he brought up:

"I have been talking a lot lately about this city doing things to try and gain back the trust of the public, and I am afraid what happened at Thursday's meeting isn't going to go very far in accomplishing that."

He may likely be right about that.  However, I would like to hope that this incident has given his fellow council members reason to buckle down, dig into the details and hold both themselves and their employees accountable.

Which leads me to my next point: why do I say that Terry's involvement in the OMA violation comes with a caveat?  It's certainly not because of his ignorance of the Open Meetings Act, because everyone at the front of the room should have that law in front of them at these meetings.  As Stockford mentioned, I (rather emphatically) made that point in my second public comment.  And Terry has been intimately involved in potential OMA violations in the past, as I'll explain in a moment, so for him to have strongly objected to any indication that this meeting might have been in violation is very troubling.

That being said, Terry was apologetic about his misunderstanding of the law when we talked after the meeting, and he even went so far as to accept ultimate responsibility for not holding city employees to the standard of work necessary for the job.  That latter part of it I get the feeling was his way of trying to direct my outrage away from Michelle, and that's not going to happen.  But I do appreciate the sentiment, and I do accept his admission of guilt -- not out of any ill feelings toward him, but because admitting his guilt was the right thing for him to do.  He didn't have to do it, but he did it anyway, and I respect that.

Besides, the guy's got, what, all of a week left until our new city manager arrives from Taylor?  Even if I did harbor ill intent, he's on the way out the door anyway.  If the situation in this city weren't so dire, I would just shrug it off.

However, accountability is exactly what this city's government has been lacking.  That's why our situation is dire, and I feel it is necessary to hold those responsible accountable for their roles in this situation; be they intentional or unintentional, active or passive.  We will never make any progress in cleaning up City Hall if we tread lightly.  While we don't want to be overzealous to the point of attacking public officials for the wrong reasons, we also cannot afford to let public officials off the hook simply because they're apologetic or because they may soon be leaving office.

Because this is far from the first time these people have run into OMA issues, and I can name at least five incidents just within the last thirteen months or so.

Let's start with a couple of committee meetings in April of 2014 to discuss a contract proposal for then-City Manager Linda Brown.  I don't have a lot of details on these, but the Hillsdale Daily News noted in a May 14th article (about the next item on our list) that the committee corrected those violations two weeks after they were committed.

Then we have what the good folks over at Hillsdale's Hot Debates dubbed "Flannergate."  On May 12th, 2014, during a City Council budget work session, Dr. Gary Wolfram, the president of the Hillsdale Policy Group and William E. Simon Professor in Economics and Public Policy at Hillsdale College (in other words, someone who knew better), handed a note to Councilperson Patrick Flannery -- after the public comment sessions, which is out of order in and of itself.  The note gave some suggestions about cuts to make.

Flannery read some of the suggestions, but not all of them.  He did not mention that he was reading them from a note, he presented them as his own thoughts.  He then passed the note to other members of the council, and at that point, those unread suggestions became "deliberations."  Those "deliberations" not read by Flannery were not public or put on the record, which is an OMA violation.  It wasn't until the second public comment session that night, when the late Aimee England -- a resident in the gallery -- pointed these facts out, that Mayor Sessions read the note aloud, thus making it publicly known, putting it on the record, and correcting the OMA violation.

Let's jump ahead about a year to the May 2nd, 2015 interviews of both David Mackie and William Cooper for the City Manager's office.  As that was an open meeting, public comment was required, but it was not included on the agenda for that day.  Jeff King, who was present at the meeting, brought the problem to Interim City Manager Terry's attention, and Terry refused to correct the issue.  King then brought it to Mayor Sessions' attention, and the mayor then held a vote -- over Terry's strong objections -- which passed unanimously and added public comment to the agenda, thus correcting the OMA violation.

Just two days later, at the regular City Council meeting on May 4th, city resident Ted Jansen approached the podium during the closing public comment session and began stating his concerns about the City Clerk and City Treasurer ballot issues, as he had done in the first public comment session earlier.  Councilperson Flannery attempted to stop him, claiming that those issues had been addressed in the meeting.  A number of people in the gallery pointed out to Flannery that it didn't matter, that the councilperson was out of order, and that Jansen or anyone else could step up to the podium during public comment and talk about anything that they wanted to talk about.  The council double-checked with City Attorney Loren, who confirmed that, yes, under the OMA, Jansen did in fact have the right to say what he wanted to say.

So given those (at least) four violations, two of them recent, adding the May 28th special meeting to the list makes at least five Open Meetings Act violations within the last thirteen months  Four have been corrected.  And those are just the ones we're aware of.

It's a pattern, and there is no excuse anymore.

This is the line in the sand.  This is the point at which we will tell all parties involved that we're not tolerating this any longer.  If you break the law, you will face the consequences for it.  It may not seem like the nice thing to do, but it's the right thing to do.

As such, I am providing all of the evidence, including audio of the meeting and my own personal account, to Hillsdale County Prosecuting Attorney Neal Brady.  His job will be to investigate further, determine exactly what took place, and decide what criminal charges to file against whom.  I won't presume to tell him how to do his job, but I'm absolutely confident that everything I have said is true, and even if he doesn't come to entirely the same conclusions as I have, I believe that at least something will come of this.

I will also be pursuing civil action against the city to invalidate the special meeting and require a new one with adequate public notice.  I will also be suing Michelle Loren, Scott Sessions and Doug Terry for their roles in the violation.

If I had my way, Lew Loren would be included in that list, but given that his role in this incident is indirect and passive in nature (he didn't play a part in making it happen, he simply didn't stop it), I do not believe a civil suit against him would be successful.  However, I do expect the City Council to hold him responsible for his absences (not only on the 28th) and take steps to ensure that this does not happen again.

Any monetary award won from those lawsuits I will turn over to Jay Easterday to help fund his defense or offset any losses he might incur in the improper and dishonest lawsuit that Lew Loren has filed in the city's name against Easterday for cutting down a public nuisance tree in the right of way in front of his own home.  I'm doing this because I'd like to see Easterday come out the victor in that case, and frankly, the karmic implications of LewLo's own money being used against him make me giddy as a schoolgirl.

Yes, I can be vindictive, too.  But the difference is that Lew is doing it to make an example out of someone who doesn't deserve it.  I'm doing it to set right what he made wrong on two occasions.  Win or lose, I will be happy to know that my motivations were the right ones.  Lew Loren will not have the pleasure of knowing that joy.

To wrap all of this up, the next city council meeting is tonight, June 1st, at 7:00 PM in the council chambers at Hillsdale City Hall.  This is one you absolutely do not want to miss.  I hope to see you there.

Gallery: Illegal Special Meeting: The Evidence