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.
"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.