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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?"


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

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