Let’s Clear the Air Regarding Who is Responsible for the Latest Clarkston FOIA Lawsuit (Hint: It Wasn’t Me)

I remember working with a real estate lawyer who compared her job of bringing people together for real estate deals as similar to joining people in marriage. Everyone is full of goodwill and hope for the future, and the champagne corks pop after the deal is signed. But if things fall apart and everyone starts to hate each other, the litigators come, and they are there to sort of act like divorce attorneys.

I agree. I was a litigator for a number of years, and I eventually came to view almost all lawsuits as rooted in the parties’ failure to try to work things out. That’s why I never wanted to be a plaintiff. I still don’t. It’s only happened twice in my life, and both times involved Clarkston and the Freedom of Information Act (FOIA).

And that’s why, on both occasions, I gave the city the chance to do the right thing. To follow the law. To be on the side of good government. To be transparent. I gave Clarkston government far too much time to comply. When it became clear that city officials had drawn a line in the sand, flipped me the bird, and made the decision to hide public records, I filed a lawsuit.

As it turns out, both lawsuits had their genesis in the city council’s reliance on the city attorney’s advice.  The first lawsuit took five years, a trip to the Michigan Supreme Court, cost the city thousands of dollars, very publicly associated Clarkston with secret government, and resulted in a malpractice claim against the city attorney (and his malpractice carrier paid an amount equal to the city when the lawsuit settled). The second lawsuit was resolved in a couple of months, and the city really hasn’t wanted to discuss it. Let’s talk about why that might be the case.

My second FOIA lawsuit settlement was on the city council’s agenda on Monday, June 26^th. At that meeting, the city manager took great umbrage to resident Chet Pardee’s suggestion that the city could have avoided the lawsuit entirely. (Mr. Pardee must have read all the emails I sent to the city before suing that I posted here.) The city manager rudely claimed that Mr. Pardee’s comment made no sense at all. The city didn’t choose to enter into a lawsuit! The city was sued, the city responded, and they’ve been responding ever since. Yeah, OK. I guess that’s one way to view it. The city is the hapless victim. 😂

Contrary to the city manager’s June 26^th claim that my second FOIA lawsuit was about his many unauthorized Depot Park fee waivers, the lawsuit actually concerned the Millpond Inn Bed & Breakfast. For quite a while, people, including some city council members, were allowed to make any claim they wanted against the Millpond Inn during public meetings. When the managing partner came to the January 9, 2023, city council meeting to clear the air and answer questions, the city attorney told the city council they should not engage in any public exchanges with him because the city was pursuing some sort of investigation the public wasn’t entitled to know about. The city attorney suggested any conversations with Millpond Inn representatives should take place outside the view of the public, and the city council voted to go along with that advice. Since my husband and I have both been subjected to a secret city attack campaign, that piqued my interest.

Pro tip – if city officials want to get my attention, there are a number of ways to do it:

• Lie to the public.
• Use the machinery of government to hurt someone (with double the attention if they try to do it in secret).
• Hide information from the public.
• Use tax dollars or resources to benefit a private interest.
• Favoritism.
• Violate Michigan or federal law, particularly FOIA or the Open Meetings Act (OMA).
• Violate local laws (especially the Clarkston Charter).

I reserve the right to add to the list, but I think you get the picture. If Clarkston officials want to avoid my attention, maybe they could work on not doing these things. Most competent governments manage to avoid everything on my list, so it shouldn’t be hard if they put forth a modicum of effort.

Now for the proof about who was responsible for the latest FOIA lawsuit.

The lawsuit involved two FOIA requests. I sent the first on January 19^th (response due on January 27^th) and the second (which was a follow up to the first request) on February 4^th (response due on February 13^th). The city partially responded to the first request and ignored the second entirely. The last communication I received from the clerk was on Friday, February 17^th. She told me they were short-staffed in the office because the city manager was out (apparently using some of his 35 days of annual paid time off), but she didn’t offer an alternative date when the city would respond. I voluntarily extended the city’s time to respond to the requests until February 24^th and would have given the city more time if it had asked – but it didn’t ask. In fact, that February 17^th email was the last time the city communicated with me about these FOIA requests.

I got tired of waiting, because I knew the city manager had returned to the office at that point (he attended the February 27, 2023, city council meeting). On March 9, 2023, I sent a very long email to all city council members, the clerk, the city attorney, and the city manager and included all correspondence that I referred to earlier. In that email, I said:

I extended the city’s time to respond to my requests only until 2/24/2023. Since that date has now passed, I am entitled to file a FOIA lawsuit whenever I choose within the 180-day statutory limitations period. Should the city “beat me to the courthouse” and provide me with all the requested records in response to my two outstanding FOIA requests, then it won’t have to pay my attorneys’ fees and legal costs – in addition to providing the records that it should have already provided.

Translation – I’m finished warning you, I’m going to sue you if you don’t respond, you have a small window to comply with FOIA before I file the lawsuit, and I’m not going to tell you when to expect the process server because I want to light a fire under your butt so that you will expeditiously do what you already should have done.

What happened after that?

Nothing.

The city completely ignored its last clear chance to prevent litigation. That was what Mr. Pardee was referring to when he said the city could have avoided the lawsuit entirely. On March 30^th, my lawsuit officially began when my complaint was served on the city, three weeks after my last email (and more than a month and a half after the response to the second FOIA was due). The city clearly had ample time to either provide the records or reach out and get an agreed-upon extension of time.

Clarkston government has done some dumb things, but playing courthouse chicken with someone who wasn’t afraid to pursue them for five years all the way to the Michigan Supreme Court over a FOIA request is pretty stupid even by Clarkston standards. But I found out why it happened when the city answered my complaint and I’ll share that with you. I’ve touched on this before, but in light of the recent lawsuit settlement and the city manager’s suggestion that the city was some sort of a victim in all of this, I think it’s important to provide the facts.

Here is a copy of our complaint. It was filed on March 22^nd, but it wasn’t hand-delivered to the city (“served”) until March 30^th. Service starts the lawsuit. The rules automatically dismiss a complaint after 91 days if it isn’t served. If you read through the complaint, you’ll see that it tracks the email exchanges between the city and me. The complaint is my side of the story.

The city’s side of the story is found in the city’s answer to the complaint that you can read here. You have to read the complaint and the answer together, because the city’s paragraph 1 answers my complaint paragraph 1 and so on. You’ll notice that most of the city’s answers “admit” what we stated in the complaint. To “admit” something is the city’s way of saying there’s no need to fight about this fact further because the city agrees what we said is true. The city spent an awful lot of time explaining that the city attorney changed his email address and email the clerk sent (and the address I also used in response to her) went to his old address. (One wonders why the city attorney didn’t inform the clerk of his new address or, at the least, occasionally monitor the old address for emails that someone might have sent there.) I think this was the city attorney’s way of trying to suggest he had no idea what was going on most of the time. (Notably absent is any claim the city manager didn’t get all the emails he was copied on or that he wasn’t aware of everything that was going on in real time. 😉)

From paragraph 38 of my complaint:

38. In a final attempt to obtain the requested records, on March 9, 2023, plaintiff sent an email to the members of the City’s city council (with copies to the city manager and city attorney) setting out the history of plaintiff’s attempts to obtain the requested records.

(This email is linked toward the bottom of this post.)

From paragraph 38 of the city’s answer:

38. Answering paragraph thirty-eight, Defendant City admits the allegations contained therein. In further response, the Plaintiff utilized the City Attorney’s old email address (svlvanlaw@aol.com), which was not received by the City Attorney from Plaintiff; however the City Manager forwarded Plaintiff’s email to the City Attorney utilizing the correct email address for the City Attorney.

Huh. So, the city admits that the city attorney also knew everything he needed to know in time to avoid the lawsuit. Of course, he did. The city attorney’s March 2023 bill has a March 10, 2023, entry for reviewing the email I sent the day before, and he noted the packet of emails “was copied to old AOL email address” in that billing entry.

From paragraph 39 of my complaint:

39. The city council did not acknowledge or respond to plaintiff’s March 9, 2023, communication.

Now that it’s clear the city council, city manager, city attorney, and clerk were all aware the city was staring another lawsuit in the face, what did they do? We all know they didn’t respond, but why did they act so stupidly?

(Cue suspenseful music.)

The city tells us here:

39. Answering paragraph thirty-nine, Defendant City admits the allegations contained therein because the City Attorney, when reviewing all the correspondence and the threatened litigation advised it would be best not to respond.

Put another way, the city attorney admitted he was aware his client was violating FOIA and advised it not to respond – when responding meant complying with the law. Did it go something like this? “Hey, client, I’m fully aware that this person who has sued you before over FOIA has told you that she will file another FOIA lawsuit if you don’t respond, so my advice is – ignore her and don’t respond.” I cannot impress upon you how much stupid is contained in this advice.

It’s the city attorney’s flipping job to help the city comply with the law. The Michigan Rules of Professional Conduct (MRPC) governing lawyer conduct explain this. MRPC 1.2(c) probits a lawyer from “counsel[ing] a client to engage, or assist a client, in conduct that the lawyer knows is illegal . . . ” The Cambridge Dictionary defines “illegal” as “not allowed by law” (website last visited 7/3/23). FOIA is a state law that requires the city to take certain actions after receiving a FOIA request. Ignoring FOIA requests is not allowed by state law and illegal by definition.

Oh, it gets worse. As we have often heard, ignorance of the law is no excuse. Lawyers have a higher obligation to understand the law and provide advice. This is as it should be. Clients pay lawyers to help them follow the law. MRPC 1.1(a) prohibits a lawyer from handling matters he knows he isn’t competent to handle unless he associates a competent lawyer to work with him. MRPC 1.1(b) prohibits a lawyer from handling matters without adequate preparation in the circumstances. If you read the correspondence I sent to the city – which the city attorney admits he received from the city manager – you’ll see I even provided some citations to FOIA, something that would have made the city attorney’s job easier, allowing him to become competent with FOIA and enabling him to give good advice to the city. He could even have read the rest of the statute while he was looking up the sections I cited. It’s not that long, and he should already have been familiar with it from the first lawsuit (and from being a “municipal lawyer” for many years).

Knowing all that, go back and read the city’s answer to paragraph 39 again. The city attorney answered the complaint and signed it. In light of a threatened lawsuit for violating FOIA, something the city admitted in its answer to the complaint that it had actually done – the city attorney “advised it would be best not to respond.” Those are his words. That was his advice. And the city council and city manager followed along and have responsibility too.

I was a litigator for a number of years, and I’ve received correspondence similar in tone to the March 9^th email I sent to the city. They are always written in prickly language, but their underlying message is always the same – “if you don’t do something, I will sue you.” I’ve always considered these communications to be a good thing, because it meant that I could help my client avoid a lawsuit by doing something – you know, the kind of thing they were paying me for. Usually, it meant picking up the phone and calling whoever sent the letter, getting more details, and finding out if there was a compromise. Here, the city knew my lawyer was involved – because he was copied on many of the emails – so the city attorney could have picked up the phone and called him. Yet, the city attorney’s advice to the city was to do nothing – and he also did nothing, too. I’m speechless.

You should know that the city council and city manager are not off the hook here either. The city attorney doesn’t run the city, they do. The city council can reject the city attorney’s suggestion about any course of action. It could have said, “you know, we are ultimately responsible for responding to FOIA requests, we don’t want to violate FOIA again, and it sure sounds like that’s what you’re asking us to do. She’s told us that she’s getting ready to sue us, so thanks, but no thanks, we’re not interested in letting you walk us into a third lawsuit. Sorry, hard pass on stupid advice this time. We’re going to ask the clerk to reach out and negotiate an extension of time or maybe you can call her lawyer and do that for us.”

But they didn’t do that.

What I think happened, but will never know, is the city attorney suggested at some point that even if I did file a lawsuit, the city’s insurer would take care of everything, just as it did last time. And what a ride that was! The insurer’s attorney – and the city attorney who remained involved contrary to the conflict rules in the MRPC – did everything possible to drive up fees and costs, to the tune of somewhere around $700,000 when the expenses from both sides were added together. I’ll bet everyone in the city counted on that happening – and they would teach me a lesson not to file suits against them this time, darn it – but they didn’t anticipate that we would draft a complaint that took the lawsuit outside of the city’s insurance policy by simply not asking for the fines and damages FOIA allowed me to request. Oops! If that’s what happened, it was more bad advice.

There were more interesting things in the city’s answer besides offering excuses that provide the city with no cover under FOIA. In addition to whining about the city attorney’s email address, the city threw the clerk under the bus – she was new, she didn’t know how to write an extension letter (because the city manager didn’t train her?), the city staff is small and part-time, and the city manager and city attorney were on vacation for part of February. Yawn. They could have just asked for more time to respond, and I would have given it to them. I like the clerk, knew that she was new, understand that people go on vacation, and I know they work 32 hours a week. But if I hadn’t sued the city, I would still be waiting for an answer today, since the city attorney told the city not to respond further – which is a violation of FOIA.

At the end of every answer to a complaint I have ever seen, the defendant (here the city) lists what are known as “affirmative defenses.” Essentially, these are legal excuses for the defendant to do (or not do) the things I claimed they did wrong. The city included six affirmative defenses in its answer to the complaint in my first FOIA lawsuit. Yet there were no affirmative defenses at the end of the city’s answer in this case. In other words, the city admitted it violated FOIA and it had no legal excuse for its conduct. The city also said it would provide a supplemental response (an admission that the only way the city would have answered my FOIA requests is with a lawsuit to force them to do so, but yet our city manager tells us the city didn’t “choose” a lawsuit). Finally, the city threw itself on the court’s mercy when it came time to paying my attorney for having to file the lawsuit. Judge, please, if we can’t agree, please don’t make us pay more than “equity and fairness” requires. Given the city’s admission that it had no excuse whatsoever for its conduct, wouldn’t it have been easier to just answer the effing FOIA requests?

In both FOIA lawsuits, the city council followed the city attorney’s advice. His wonderful advice also caused an OMA violation, which led to an additional lawsuit that the city settled by paying partial attorney fees, a criminal complaint, and a bonus letter from the Oakland County Prosecutor to the city about the city’s OMA violation with an admonishment not to do it again.

As I said, the city attorney’s malpractice carrier had to pay part of my legal fees ($35,000) in my first lawsuit. I have an email from the lawyer the city hired to handle the aftermath of the first FOIA lawsuit telling the city manager to advise the city attorney that the city was filing a malpractice claim to force the malpractice carrier to show up at facilitation (an informal process that we agreed to so we could settle the lawsuit without further court fights).

If you take a look at the legal services bills the city attorney has been submitting to the city since my second lawsuit was filed, you’ll notice he hasn’t billed the city for any time he’s spent on my second lawsuit. The entries end with reviewing the complaint and contacting the city’s insurer presumably to see if the insurer would defend the lawsuit. I think that’s an additional admission that the city attorney knows he’s responsible. Frankly, I can’t think of any reason why the city didn’t make a second claim with the city attorney’s malpractice carrier for the $8,974 in attorneys’ fees and costs it agreed to pay to resolve this second FOIA lawsuit. The malpractice insurer could always decline to pay the claim, but I think the city has a fiduciary obligation to the taxpayers at least to ask for reimbursement whenever it can. Are city officials protecting the city attorney? If so, why? Taxpayers shouldn’t be on the hook for any of this.

At budget time, the city manager explained – but only after questioning – that the city increased its legal services budget because the city manager wants to hire a “FOIA consultant,” someone who “specializes in FOIA law.” It’s no wonder the city might finally want to remove the city attorney from involvement in FOIA matters, but why stop there? How many lawsuits must the city attorney cause before the city finds a municipal attorney who can provide them with good advice on all municipal matters? Inquiring minds would like to know. 🤔