See You In Court, Clarkston

I have two pending Freedom of Information Act (FOIA) requests that the City of the Village of Clarkston has decided it’s either not going to answer at all, or perhaps might answer someday, but only if city officers and employees manage to get around to finding time in their very busy schedules to answer. Apparently, I’m supposed to guess which of those possibilities apply. (Makes you wonder what other laws Clarkston government is ignoring because they’re ostensibly “too busy”? Taxpayers, we should keep an eye on that.)

Having spent years working for the government, I can confirm that government offices truly are busy places, there will always be something that requires attention, and there will always be more things to do than hours in the day. But I also know from that lengthy experience that most of that “too-busy-ness” happens when government strays from its basic core purpose and into the pet projects of its officials. Clarkston is clearly no different. The inability of our local government to adequately and directly provide even the most basic city services to Clarkston taxpayers is a frequent reason people give when the topic of whether or not Clarkston should have become a city arises. And when your local government flatly refuses to perform a mandated function, it’s time to ask some serious questions about the city’s continuing viability.

Time is a limited resource. All of us, including our local city government, are presented with a choice regarding how we divide our time between “need to do” things and “nice to do” things. There is no question that responding to FOIA requests is one of those governmental need to do things. It’s a state law, and as Clarkston knows from experience, there can be significant penalties for ignoring the FOIA’s requirements. It’s simply not optional – even though Clarkston government is acting as though it is.

I glanced through published city records with an eye toward finding some of the non-essential things that have been keeping the city manager and his staff so busy over the last year or so. I came up with the following, non-exhaustive list:

• • Lots of nice to do things for Depot Park, such as an ice-skating rink, Concerts in the Park, obtaining benches and tables (and pouring concrete slabs for them), Little Libraries, and a rain garden footbridge
  • Updating the city’s website
  • Attending multi-day Michigan Municipal League conferences
  • Speaking engagements at a Michigan Municipal League conference, a rotary meeting, and participating in a 2^nd grade program for Clarkston Schools
  • Attending a grant-writing class
  • Working on obtaining grants for local road improvement, dam risk reduction, and a riverwalk in Depot Park
  • Working on a recreation plan update
  • Creating a social district
  • Researching and developing an employee retirement savings plan with a taxpayer-funded match
  • Discussing limiting trash haulers to one vendor
  • Getting a concrete slab poured behind city hall
  • Working on the 4^th of July Parade
  • Securing conference tables for city hall
  • Researching and securing electric vehicle charging stations, requiring multiple contracts
  • Working on paid parking in the Depot Road parking lot
  • Creating and serving on a committee to discuss paid parking in the Depot Road parking lot
  • Making the downtown trash receptacles look pretty
  • Setting up a “no haz” program for residents
  • Obtaining kits and communicating about Radon Action month
  • Obtaining “certified local government” status

I agree that all these things are “nice to do,” and I also know that many of them have consumed a lot of time resources. But none of them are an essential government function, and, unlike responding to FOIA requests, none of them are required by law. When you don’t have enough time to meet your legal obligations, the correct response is to do less of the things that aren’t legally required rather than shirking your mandatory obligations because you’re “too busy” doing all the things you aren’t required to do. This is especially true for Clarkston, given that our salaried employees enjoy a four-day work week along with an extraordinary number of paid annual holidays (fourteen), six sick days, and a generous vacation plan (currently fifteen days for the city manager, giving him thirty-five paid days off per year or almost nine work weeks in total).

There are FOIA requesters who will sue immediately over an improper FOIA response. These requesters demand punctilious compliance with all deadlines and every other statutory requirement. They will file a lawsuit if the public body is even one day late in responding or if the FOIA response is defective in any way. I’ve experienced that myself. One requester sued a former employer over a response that I’d personally handled – even though I responded on time, provided all records, took no exemptions, didn’t charge any fees, and the response itself complied with requirements of the FOIA statute. (He lost, but we still had to go through the time and expense of a lawsuit and pay an outside attorney to handle it.) You know, if Clarkston government would prefer, I can suggest that this particular plaintiff direct his attention toward our little corner of the world. If nothing else, dealing with a hyper-litigious plaintiff who specializes in FOIA (and open meetings act) lawsuits would quickly teach the city some hard lessons about timely and properly complying with the requirements of state transparency statutes.

Obviously, I’m not one of those plaintiffs. I’ve only filed one lawsuit in my entire life, and that was against the City of the Village of Clarkston. And even then, I tolerated months’-long delays and didn’t file a lawsuit until the period to do that had almost expired. Five years later, after a lot of wasted resources and a ton of negative press, the city lost its moronic argument that the city attorney should be allowed to hide records concerning Clarkston business in his private, offsite files; city taxpayers were financially penalized as a result of city officials’ conduct; the city attorney had to involve his personal legal malpractice carrier during settlement discussions; and Clarkston is forever – and very publicly – associated with its support of government secrecy in a published court case (and in the results of any three-second Google search).

After my lawsuit concluded, the city wrote a statement that it included in the April 26, 2021, city council packet. The city used carefully chosen words to try to cast its egregious conduct in the best light possible. As part of this statement, the city claimed:

• • The City always has and always will fully support the Freedom of Information Act.
    

• • The City of the Village of Clarkston understands and fully respects the importance of the Freedom of Information Act.
    

• • The lawsuit has been a significant focus for the City for the last five years and we are anxious to return our focus to the operations and protection of our beautiful and historic Village, especially in these difficult times. Of equal importance will be our mission to ensure government transparency. Residents or members of the public that have questions about City operations are strongly encouraged to visit or contact the City office, where the staff will openly share all available information on any topic.

These were empty words. Then and now, Clarkston government has repeatedly demonstrated that it could not care less about government transparency and has little interest in “openly shar[ing] all available information on any topic.”

Even this purported new commitment to transparency died quickly on the vine. Shortly after publishing this statement, the city attempted to hide the identity of the source of a $10,000 payment by arranging to funnel that payment directly from the payor to its outside attorney’s office. This was deliberately done to avoid a paperwork trail that would be discoverable through the FOIA. (The $35,000 the city had already paid went toward payment for my legal fees, not the city’s.) The city knew who the “donor” was; the subterfuge was only necessary to hide the identity of the source of funds from the public. This led to valid speculation about whether this was an inappropriate contribution made in exchange for past or future favorable consideration from Clarkston government. Public pushback eventually forced the city to admit that the payment was from the city’s insurer, the Michigan Municipal League Liability and Property Pool (MMLLPP), an innocuous fact that didn’t need to be hidden. (I’m guessing that the MMLLPP wanted to hide from its other insureds what was likely a discretionary payment. Since the city is always predisposed to hide things from the public, city officials undoubtedly went along with the scheme without question.) And, despite the city’s two-year-old promise that it would “ensure government transparency,” the city certainly does not consider transparency to be part of – or even of equal dignity with – the city’s operations. The city expressly said as much in its last response to me on February 17^th, discussed in more detail below.

Both of my current FOIA requests concern the Millpond Inn Bed & Breakfast. The city apparently has a strong desire to hide information regarding this issue from the public. I suspect it might have something to do with the fact that, according to the city attorney, the city is engaging in some sort of active pursuit and investigation of the Millpond Inn, and the city’s end goal is apparently to drive this charming little business out of existence. Based on the incomplete records I have been provided, I believe the city’s stated legal reasons for this pursuit and investigation are flimsy. (I discussed why I believe that here).

You’ll note from reading the referenced blog post that, based on its own actions, the city is responsible for converting its taxpayer-funded pursuit and investigation of the Millpond Inn into a matter of significant public interest. For a long time now, the city council entertained rumors and inuendo at various city council meetings from anyone who wanted to speak publicly (and critically) about the Millpond Inn. Some of these comments even came from Clarkton officials. Yet when the Millpond Inn’s managing partner and its innkeeper took the time to attend a city council meeting in early January, the city attorney said they should be refused any public opportunity to interact with council members. The city attorney suggested that the matter be taken off the council agenda entirely, relegating the Millpond Inn’s representatives to speak only during public comments (that are usually limited to three minutes and require no response from the council). Pursuant to the city attorney’s request, the city council unanimously voted to shut down any exchange with the Millpond Inn officials. To add insult to injury, the city attorney and councilmember Forte couldn’t be bothered to listen to any information the Millpond Inn’s managing partner was trying to convey to them during his public comments, preferring to engage in a rude, whispered sidebar discussion instead.

At that January meeting, the city attorney suggested that city officials could meet with Millpond Inn representatives “privately,” which is another way of saying they should gather outside the public’s view in meetings that would not be recorded or memorialized in any way. (I guess this isn’t surprising advice from an attorney who believed he should be able to hide public records concerning Clarkston city business in his off-site office.) The incomplete information that has been produced in response to my FOIA requests so far reveals some rather outrageous conduct, such as the former Clarkston clerk pumping a Millpond Inn client for information about the Inn when that person called city hall simply to get contact information for a city employee to thank him. That same former clerk also interrogated the Millpond Inn’s innkeeper about his residency status when he was trying to exercise his basic right to vote in an election, even though his license listed the Millpond Inn as his residence. Given all that, I guess it’s not surprising that the city doesn’t want to have a public exchange with Millpond Inn officials (or to provide additional records on this subject unless a judge orders it to do so).

I know that (at least) the city manager reads my blog posts, so perhaps he and other city officials believed that I wouldn’t publicly share my thoughts on the Millpond Inn while they were withholding some of the records that I’d requested. Or perhaps they didn’t want to explicitly affirm that they don’t actually have the mysterious “agreement” that they’ve claimed the Millpond Inn is required to abide by. I wrote about the Millpond Inn anyway, noting which records the city refused to provide to date. I also wouldn’t be surprised if the city is withholding additional records it finds embarrassing or unhelpful to its pursuit and investigation of the Millpond Inn that weren’t referenced in any of the documents they did deign to release, making me unaware of them. After all, once you’ve crossed the Rubicon by fighting for five years to be able to use your attorney’s office as a warehouse to hide public records, and you accept a $10,000 payment in a way that is expressly designed to keep the identity of the source outside the reach of FOIA, how much harder would it be to justify hiding other things from the public?

I do not intend to dump on our clerk, who also happens to be the FOIA coordinator and responsible for answering FOIA requests. She’s new, and she only knows what she’s been told with regard to which records are available and where they might be found. However, I do fault the city manager and the city attorney (who are administrative officers appointed under the Clarkston charter, both serving at the pleasure of city council). It’s obvious from the partial records I have been provided that these two officials have copies of some of the public records that are being withheld from me in their email boxes. Since these two were copied on most of the correspondence between the clerk and me, withholding the requested records is a deliberate act and not an accidental oversight.

As part of its incomplete response to my first request, the city sent me a 1995 court of appeals opinion in response to my request for the “court-ordered special variance” that the Millpond Inn is supposedly operating under. This 1995 opinion, as well as a 1997 opinion (also involving the Millpond Inn), didn’t order a variance at all. Both opinions ordered the Clarkston Zoning Board of Appeals (ZBA) to objectively review the Millpond Inn property owner’s request for a change in a nonconforming use (a use of the property that was established before the current zoning ordinance zoned the property as residential). The owners wanted to change the former funeral home into a bed and breakfast. The court of appeals opinions required the city to properly consider that request under the zoning ordinance, something that the ZBA and city had thus far refused to do (even after losing the 1995 case). Giving me one of the court of appeals opinions and suggesting that it constituted some sort of court-ordered agreement prompted me to make a follow up FOIA request for city records created after the 1997 opinion was issued.

The city has neither acknowledged nor responded in any way to that second request. It’s certainly reasonable to conclude that the city’s silence is evidence that such a supposed agreement about the use of the Millpond Inn property never actually existed. It’s equally reasonable to conclude that even if this agreement did exist at one time, neither the city officials and employees working at (or through) the city hall – nor the city attorney, who represented the city in both cases and should be able to retrieve this document from his office files – bothered to keep a copy, something that is incredibly irresponsible if true. Yet the lack of the purported agreement apparently hasn’t stopped the city’s relentless pursuit of the Millpond Inn for claimed violations of the city’s ordinances.

The last communication I received from Clarkston pertained only to the first request. I received this email from the city clerk on February 17^th, six weeks ago:

Hi Susan,

Please know that I am working on answering your questions below, but I will require more time to do so. I cannot comply with the request for records within the 5 business day time limit without unduly burdening or interfering with the City of the Village of Clarkston’s operations. Jonathan Smith, City Manager is currently out of office which leaves me as the sole full-time employee. 

Remember that quote from the city’s April 26, 2021, statement at the conclusion of my five-year lawsuit? The city said “[t]he lawsuit has been a significant focus for the City for the last five years and we are anxious to return our focus to the operations and protection of our beautiful and historic Village, especially in these difficult times. Of equal importance will be our mission to ensure government transparency.” (The bolding and underscore are mine.) Less than two years later, the city has stated – in writing – that it believes that responding to FOIA requests is a burden that it can’t be bothered with, unrelated to city operations, and clearly of lesser importance than any of the non-essential projects the city is working on.

I should note that the April 26, 2021, statement from the city is consistent with city and other requirements. The clerk’s job description, presented to council by the city manager in connection with the city’s recent efforts to hire a new clerk, requires that the clerk “[c]oordinate responses to all Freedom of Information Act (FOIA) requests submitted to the City in the allowed time period.” (Underlining mine.) She “coordinates” – a job that is made extremely difficult if administrative officers, such as the city manager and city attorney, refuse to cooperate.

Section 5.3(a) of the Clarkston Charter states that it is the duty of the city manager to “[s]ee that all laws and ordinances are enforced.” The charter is not a suggestion; it is the supreme law of the city, expressly approved by Clarkston voters, and the only allowable roadmap for city operations. Apparently, the city manager doesn’t consider the FOIA to be one of those state laws that he’s obligated by city law to enforce, despite the voter-approved charter’s express language demanding that he enforce all laws.

Rule 1.16(a) of the Michigan Rules of Professional Conduct (MRPC, the ethical rules that govern the conduct of lawyers) forbids a lawyer from representing a client, and requires that the lawyer withdraw from representation that has already begun, “if: (1) the representation will result in violation of the Rules of Professional Conduct or other law . . .” (My underlining.) The FOIA is the law – is the city attorney either ignoring the law or assisting the city in ignoring the law? I’d like to hear an explanation.

And, once again, the city attorney’s actions have placed him in the middle of a lawsuit. He’s deliberately withholding public records, subject to being called as a witness, has a vested interest in keeping records hidden so the details of the Millpond Inn investigation can be kept secret from the public, and undoubtedly would like to “win” a case against the Millpond Inn since he lost the first two cases against them in the past. (As noted above, the city attorney is so desperately interested in secrecy that he was opposed to allowing the Millpond Inn’s managing partner to have a two-way interaction with the city council during a public meeting, even though he never objected when the Millpond Inn’s reputation was sullied during other city council meetings.)

As in the first FOIA case, the MRPC’s general conflict of interest rule bars the city attorney’s participation because he’s obviously not disinterested in the outcome: “A lawyer shall not represent a client if the representation of that client may be materially limited by . . . the lawyer’s own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. . . .” MRPC 1.7(b). The comments to the rule clarify the client consent issue: “[W]hen a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent.”

As an initial matter, lawyers are supposed to examine their conscience and make these ethical determinations on their own. Making the wrong choice can lead to discipline or disbarment, as well as malpractice claims. You’ll recall that the city attorney’s malpractice insurer paid part of my legal fees in the first FOIA case. Though I can think of a number of reasons why a malpractice insurer might have gotten involved in that settlement payment (since I’m familiar with the city attorney’s actions during my lawsuit), the exact details of that specific claim are between the city attorney and his insurer so it would be improper to speculate. However, I do have a copy of an email string that included the outside lawyer the city hired to represent it in settlement discussions that discussed making a malpractice claim against the city attorney. In that email, the outside attorney directed the city manager to send the city attorney an email to “let him know that the Village is making a claim against him” relating to my lawsuit and advising that the city expected the malpractice insurer to participate in facilitation (which was the informal process to which we’d agreed to settle the attorney fee issue in my case). Given the similarities in the facts between the first FOIA lawsuit and the present one, I think the city attorney may want to stay far away and allow a disinterested attorney to represent the city’s interests this time.

Getting back to the February 17^th email, whoever thought that claiming the city was simply too busy to respond to a FOIA request was an acceptable thing to do didn’t actually read the FOIA statute. If they had, they would know that this excuse isn’t a legal option for the city. Why not? I suspect the answer is because the Michigan Legislature anticipated that public bodies would take advantage of any language like that and rewrite the explicit statutory time requirements in an effort to keep public records from being promptly provided to the public, which is precisely what Clarkston is doing now. You’ll note that the February 17^th response from the clerk didn’t bother to reference my second FOIA request or let me know when the city might get around to doing its job by providing a complete response to both requests. A city government conducting itself in a sincere and honest manner, as opposed to flipping the figurative middle finger to a FOIA requester, would have voluntarily provided a date certain when all the requested records would be provided.

Whenever a governmental body finds itself needing more time to respond to a FOIA request, the FOIA statute allows a public body to simply ask the requester for more time. The requester doesn’t have to agree, but involving the requester in the decision is the only option allowed under the FOIA statute to extend the explicit time requirements. Yet the city didn’t ask me for more time. This was rather odd, considering that rather than running to court right away, as I was entitled to do, I took a great deal of time to explain what was missing from the response, something that should have been immediately obvious to anyone looking at the responses that were sent to me (including the city manager and city attorney who were copied on most of the email exchanges). While I could have said “no” to an extension, I wouldn’t have done so and there was nothing in my exchanges with the city to make city officials believe otherwise. Even though I wasn’t asked, I voluntarily extended the time to respond following the clerk’s February 17^th email. If that was an insufficient amount of time, the city could have asked for more. Instead, I received no further response from the clerk.

Once you see all the back-and-forth effort involved in responding to my first request, which should have been a relatively easy request to fulfill if it had been properly forwarded to all persons who might have responsive records, it immediately becomes obvious that city employees and officials have wasted more time by not giving me what I asked for than they would have if they had simply produced the records. They stand to waste even more time (and taxpayer dollars) whenever a lawsuit is filed. But as I know from personal experience, the city would rather hide things than produce them – despite its ostensible commitment to transparency and without regard to the cost to the taxpayers.

I also received no response after I emailed every member of city council advising them that I planned to file a lawsuit if the city continued to refuse to respond to my FOIA requests. I provided each of them with copies of all the communications between the clerk and me. Their deafening silence makes each of them complicit in the current FOIA violation and signifies tacit agreement with the conduct of their city employees and officials.

During my last FOIA lawsuit, councilmember Wylie often courageously stood as a clear voice of transparency in the sea of Clarkston government opacity. Her public comments about the city’s win in the court of appeals in my case were quoted with approval in the then-Chief Justice of the Michigan Supreme Court’s concurring opinion:

What did we win? We get to keep some emails secret that apparently no one in the city is aware of the contents. We get to keep information away from the residents and taxpayers of the city, who pay for the city to function․ We can hide things with our attorney? We will forever be known as the city who fought FOIA and won. Not a good reputation.

That was then, this is now. Sadly, it appears that there are no “good guys” within the ranks of Clarkston government who support transparency this time, despite the policy statement contained within the FOIA statute itself expressly stating that participation in the democratic process entitles all of us to “full and complete information regarding the affairs of government and the official acts of those who represent [us] as public officials and public employees . . .” The National Archives of the United States succinctly boils this down to the following statement: “In a democracy, records belong to the people . . . ”

All city officials apparently believe that I will accept that they might respond to my requests months from now when they get around to it, or perhaps not even at all. Honestly, that’s an unacceptable bridge too far and no less acceptable than the city’s attempts to use the city attorney’s off-site office as a clearing house to avoid its obligation to provide public records to the public.

Based on some of the emails I’ve seen; the way the city attacked me on the basis of my gender and marital status, made demeaning references to me in court filings, and otherwise tried to destroy me during my first FOIA lawsuit (along with my husband, who was my attorney), rather than straightforwardly addressing the legal issues in the case; the city’s securing the equivalent of a gag order during my husband’s open meetings act case to prevent him from talking about the city’s egregious conduct; the city’s attempt to damage my husband’s ability to practice law; the city manager’s attempt to encourage someone to file a tort lawsuit against me; the mayor’s inquiry to the taxpayer-paid city attorney wondering when my “activity” becomes a “legal issue” (where the “activity” in question was posting a public record); and the information communicated during settlement discussions in my first lawsuit, it’s clear that city officials bear a lot of animosity toward me (and my husband). And in case you think it’s just us, think again. City employees and officials have also attacked other taxpayers who’ve managed to annoy them, and adding insult to injury, they’ve used city email to do it. I get it – government officials don’t like being publicly held to account for their actions. While they may be very nice people on an individual basis, you and I are paying them to do a job. They need to do that job, and they need to answer to the public when they don’t. If they prefer to do neither of those things, they are free to resign.

As they did more than five years ago, Clarkston government officials are essentially daring me to file a lawsuit through their conduct, a lawsuit that they likely believe will be fully funded by their insurer. FYI, the city’s insurer gets its money from all its city, township, village, and county insurance pool members. Where do those members get the money that they pay for insurance premiums? From their respective local taxpayers. At least Clarkston government is consistent. Not only does it not care about wasting its own residents’ taxpayer dollars, but it also has no qualms about wasting the dollars of thousands and thousands of other taxpayers across the state.

Challenge accepted. I would have preferred not to file this lawsuit. And honestly, I would have been more than content to end my days having never filed that first lawsuit. But, once again, the city has left no reasonable choice. Michigan’s transparency laws are not optional, and citizens aren’t required to accept what is clearly unacceptable conduct from our governments and our government employees, officials, officers, and agents, all of whom are funded through our exorbitant taxes. Apparently, the Clarkston clerk, city attorney, city manager, mayor, every member of city council, and the rest of Clarkston government would rather try to satisfactorily explain to an Oakland County Circuit Court judge why they haven’t provided all the records the city clearly possesses or why, in response to my second request, they failed to respond at all.

I’ve attached the complaint that we filed and served on the city here. As before, and always, we are available should the city wish to talk about producing the records and paying the attorneys’ fees and disbursements accrued to date.

Otherwise, Clarkston, we will see you in court.