I’ve stated that once the lawsuit is over, I will have a lot more to say. Unlike the city’s attorneys, I haven’t said very much – though I have responded to some of the city attorneys’ more outrageous claims – claims that were sexist, misogynistic, and/or flatly untrue. But, since the Michigan Supreme Court has agreed to hear the case, I thought that this would be a good time to remind my fellow taxpayers who have been following my lawsuit of the things that have been said publicly.
Though my FOIA case has been discussed at many city council meetings, the city’s attorneys primarily spoke at three meetings in 2017 and 2018. For those of you who don’t know, Tom Ryan is the Clarkston city attorney AND an administrative officer whose position is created by the Clarkston charter (at the same level as the city manager), and he’s paid directly with Clarkston taxpayer dollars. James Tamm is the attorney hired through the Michigan Municipal League Liability and Property Pool (MMLLPP) who is defending Clarkston in my FOIA case, and he’s paid indirectly with taxpayer dollars that come from all of the people who live and work in those 400 public bodies and entities who are part of the MMLLPP insurance pool.
I’ve summarized or paraphrased some of the things that the lawyers (and others) have said in case you don’t have time to watch the video. I’ve included the time marker in the recording where I’ve taken the comments from so you can see the context for yourself, or you can watch the entire exchange if you prefer by clicking the link at the end of each section. If I’ve made specific comments of my own, I’ve enclosed them in brackets [like this].
As you read through or listen to the comments from Mr. Ryan and Mr. Tamm in this and the next two posts, pay close attention to the fact that they constantly speak of Mr. Ryan in a way that suggests that he has an existence separate and apart from “the city,” as though he is some sort of free agent, despite the fact that he is an administrative officer appointed under the Clarkston charter and that office clearly IS a part of the city.
Both lawyers have emphatically stated that the decision not to produce the 18 records was Mr. Ryan’s alone – and no one else within city government had a say.
In addition to what the lawyers said during these meetings, you should also pay attention to what the individual current and former council members said – specifically, Mr. Marsh, Mr. Haven, Mr. Kniesc, Mr. Luginski, and Mrs. Catallo. They appear to have no clue what the lawsuit is about, no recollection of specifically approving the defense of the case, and they apparently don’t understand the nature of the documents. Some of them believe that the 18 documents were Mr. Ryan’s personal, private correspondence. Others didn’t seem to care what was in the documents, even though they authorized payment – with our tax dollars – for the documents to be created or reviewed.
On April 27, 2015, Mr. Ryan expressly told us that “the public doesn’t have to know every little hiccup in life that happens” and that the “information comin’ out of city hall is gonna have to be adjusted.” He’s certainly acted consistently with those statements. Yet, the only distinction between Mr. Ryan and our city manager – both of whom are officers appointed under the charter, reporting directly to the city council, and serving at its pleasure – is that our city manager physically does his work at city hall and Mr. Ryan does not. That should not be the deciding factor in whether we are provided with public records, and hopefully, the Michigan Supreme Court will see this issue as clearly as I do.
Tom Ryan, 9-11-17 Clarkston City Council meeting:
Mr. Ryan was asked to speak about two pending lawsuits at this meeting, one of them mine, and to respond to a list of questions that council member Susan Wylie had prepared.
Mr. Ryan’s comments:
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- We are being represented by Mr. Tamm’s office through our insurance policy, one of the two pools in the State of Michigan with the Michigan Municipal League (1:27:19).
- James Tamm and his partner Julie O’Connor have been assigned to represent the city (1:27:38).
- Mr. Ryan isn’t directly involved and isn’t the attorney of record in the cases; he just monitors and gets copies of the paperwork (1:27:46).
- The city hasn’t paid any money in connection with the lawsuits because the city has a zero deductible under the insurance policy (1:28:00).
- Mrs. Bisio filed a FOIA request on Clarkston asking for a number of documents (1:28:22).
- The city has withheld 18 documents [as you’ll see in later comments, Mr. Ryan admits that he decided on his own to withhold 18 documents – no one else at the city had anything to do with this decision] (1:28:42).
- Mr. Ryan was the gatekeeper; he received my FOIA request from the city clerk, he went through the information, and there were 18 communications from him or from a lawyer on the other side (1:28:51).
- The records never got to the city, and no one in the city ever got a copy of the correspondence, so Mr. Ryan deemed them not public records; he’s not a public body, he’s the one that has the documents, and he’s just a little old lawyer (1:29:08).
- Mr. Ryan deemed these documents not to be public records because for something to be a public record it would have to come to the city; if it comes to the city, it’s clearly a public record; these 18 documents did not come to the city (1:29:36).
- Mr. Ryan didn’t understand why the city would want to release the documents, but if the city council wants to discontinue defending the lawsuit, that’s their right (1:29:51).
- Like it or not, we are at the “tip of the spear”; 80% of the municipal lawyers in Michigan are like Mr. Ryan; they have their own law office; they are not in-house lawyers (1:30:55).
- This is a critical issue for the whole legal community because it’s very much in the mind of a lot of municipal lawyers and officials; we are carrying the flag for this issue; we’ll find out what the court of appeals says if we continue the case – which he would recommend we do (1:31:31).
- We have a lot of people involved in this lawsuit because it’s an important legal issue as to whether these are public records; it’s really bigger than us, and a lot of people are interested in it (1:33:09).
- The upside to the city is that we are trying to preserve an important legal right for the city relative to consultant documents – it could be planner documents, city engineer documents, someone other than a lawyer – documents that never get to the city and whether or not that is public information (1:33:30).
- There are no damages or money; it’s just a case about legal principles (1:34:03).
- Mr. Ryan continues to bill the city because he was a big part of the case; he made the initial determination that the records weren’t public records, and he believes that he’s right (1:34:36).
- Mr. Ryan couldn’t make this report to the council if he wasn’t informed, he’s copied on the information that comes to him, and he’s going to read it (1:35:08).
- Our insurance company is assuming the city’s defense, and they will pay any attorney’s fees (1:37:07).
- Mr. Ryan was acting as the city attorney and representative in connection with the 18 records, and he was paid for the time involved (1:38:11).
- The city doesn’t know what the documents are because Mr. Ryan didn’t share them with the city – even though he was paid for them (1:39:33).
- There are various reasons why the records didn’t come to the city, some of which involved a request from another attorney (1:40:07).
- The city didn’t get the documents because it never got to the point where something came to the city; these were discussions that never came to fruition (1:40:48).
- No one in the city knows what’s in the documents, and no one on the previous city council knows what’s in the documents; “the city” made the decision not to turn the documents over and was sued [Mr. Ryan failed to mention the follow up letter that I asked Richard to send as my attorney. Mr. Ryan decided to treat that letter as a FOIA appeal. Even though the FOIA statute requires that all appeals be forwarded to the “head of the public body” – something that he is not – Mr. Ryan decided to review his own decision. This defeats the whole purpose of an appeal, which is for someone else to review the original decision and determine whether or not it was proper. Not surprisingly, Mr. Ryan decided that his original decision was correct, and he sent me a letter denying the appeal. In addition to Mr. Ryan’s letter, the Clerk also sent me some missing pages that had been inadvertently omitted from her original response to me.] (1:41:04).
- Mr. Ryan is charging the city for his monitoring costs; otherwise, these would be city documents and we wouldn’t be fighting about it (1:41:55).
- Mr. Ryan is the guy who said that they aren’t public records and so far, his decision has been upheld, but no one at the city has seen the records (1:42:36).
- Mr. Ryan gave the 18 documents to the insurance company’s attorney [James Tamm] who knows what the documents are (1:43:08).
- There’s no nefarious scheme here; these were just discussions between Mr. Ryan and other people acting on behalf of their client, and him acting on behalf of his client, and it never got to the point where it got to the city (1:43:20).
- The issues were all issues in town that were going on (1:44:16).
- Most things come to fruition, come to city council, and it’s a public record then; these 18 pieces did not, because they never got here (1:44:50).
- Mr. Ryan admitted that we did pay him for this work and that we paid him without knowing what we were paying for “because it didn’t come to fruition” (1:45:14).
- Mr. Ryan wasn’t out there “Lone Rangering” it (1:45:40).
- Mr. Ryan said he is not a public official; he’s the attorney for the city; he’s not a public body like the city council; and, these are not public records [even though Mr. Ryan repeatedly tried to distance himself from the facts, he most definitely IS an officer appointed under Section 5.1(a) of the Clarkston charter, which section specifically establishes six Clarkston administrative officers – city manager, clerk, treasurer, attorney, assessor, and financial officer] (1:46:23).
- This is an important legal argument; we are all for transparency; it has to be a public body and a public record, but what Mr. Ryan and others hold in their files that never come to the city doesn’t necessarily mean that they are public records (1:50:12).
- Mr. Ryan billed time to the city for discussions and correspondence, but he never sent anything to the city because it never came to fruition, and that’s why it’s not a public record (1:50:52).
- Mr. Ryan said that it is not the content of the documents that’s important (1:53:47).
- 80% of the municipal lawyers in the state are not in-house; they are contract consultants like he is to the city [while it’s a fact that Mr. Ryan doesn’t work for us on a full-time basis and bills us by the hour, he is definitely an administrative officer under Section 5.1(a) of the Clarkston charter, not a “contract consultant.”] (1:55:10).
Some other interesting comments:
Council member Sue Wylie had a hard time understanding why work that the city paid Mr. Ryan for can’t be made public (1:47:38). She was very surprised that no one in the city knows what the documents are (1:48:23). The council has a public duty to question things (1:54:47).
Council member Catallo thought that the case was important because the city wants to have the ability to have papers delivered to the attorney but not the city so that they won’t be public records (1:48:32).
Council member Kniesc said the whole point of the case is that we don’t know what is in the documents. How does it benefit the city to know what’s in the documents? (1:52:21).
Council member Marsh said that none of the council members are attorneys. Judges are a lot smarter than they are, and pretty soon three judges will say if this is right or wrong, so why is the council questioning what we don’t understand? (1:54:11).
Council member Haven appeared pleased that Clarkston might be involved in creating a new privilege to keep public records away from the public as a result of my case (1:54:57); (1:55:26).
City manager Smith noted that while Mr. Ryan said that only 4% of the cases go on to the Michigan Supreme Court, this seems like perfect supreme court material [he was obviously right about that!]. He wanted to know whether there was a way for Clarkston to get out of the case if it were to go on . . . because the case is really not about the City of Clarkston (1:56:43).
Mr. Ryan’s comments begin around time marker 01:25:43 at the following link:
To be continued . . .