The “Charming” Group has extensively used a July letter from George Elworth in its campaign material against the Historic District Commission (HDC) charter proposal. Elworth is one of the 250 or so staff attorneys working in the Michigan Attorney General’s Office. The Elworth letter was public but not broadly distributed when the city received it in July, and the city attorney didn’t think it was important enough to discuss at a public meeting. Less than two weeks before the November 5 election, a city official or employee forwarded the Elworth letter to the “Charming” group to use in its opposition campaign. It’s not surprising that a city official or employee would do this since they’ve made it clear most are opposed to the charter proposal, and we’ve asked the Secretary of State to review whether other actions by the city and/or city officials violated the campaign finance act.
Do I hope the city gets fined up to $20,000 or that any individual is personally fined and/or found guilty of a misdemeanor and imprisoned for up to 93 days for the things they’ve done? It’s really tempting to think that because I believe they violated the law and have trashed a charter proposal that is simply intended to help all city residents, but honestly, I don’t really wish that. My tax dollars would go to pay any fine against the city and the complaints won’t be decided until long after November 5. Nor do I think anyone will actually be punished for what they’ve done. Instead, the campaign finance act complaints will likely be handled just like the Oakland County Prosecutor handled the city’s 2015 open meetings act violations – advising them they’ve violated the law (if the Secretary of State agrees with us) and sending a warning letter.
Using the Elworth letter, the “Charming” group has claimed there will “undoubtedly be expensive legal fees” if the proposal passes, the historic district is under threat, the charter proposal is misleading and in conflict with state law, and the charter amendment doesn’t “pass legal muster.” We explained why those things are untrue in this post, but let me summarize things that most people don’t realize about actual Attorney General Opinions:
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- They are published under the signature of the attorney general (currently Dana Nessel), not a staff attorney
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- They provide a detailed analysis of the facts and the law, not blanket legal claims with zero explanation
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- They undergo a months’-long, multi-step vetting process before they are made public under Attorney General Dana Nessel’s name
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- They are issued pursuant to Nessel’s established policy (and opining about the HDC charter amendment isn’t something that qualifies for an opinion under the policy)
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- They are binding only on state agencies (Clarkston is not a state agency)
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- Most importantly, courts and anyone who is not a state agency can freely ignore any attorney general opinion
Not only is the Elworth letter not an official Attorney General Opinion, it also does not support the “Charming” group claims that there will be expensive legal fees for the city if the charter proposal passes (though there undoubtedly will be expensive legal fees if the charter proposal does not pass); provide any support for the claim the historic district is under threat; state the charter proposal is misleading; or actually mean the charter proposal fails to “pass legal muster.”
So, what’s the point of the Elworth letter? On the surface, it was issued in connection with what is supposed to be an extremely limited review of the 100-word ballot language, something that was part of his job. But I think Elworth deliberately went beyond what he was supposed to do and wrote a letter that could be used to interfere in our local election (because it was copied to the city attorney and city clerk) and was written in a slippery, bare-bones way to thwart any substantive rebuttal. I believe the Elworth letter potentially violates the campaign finance act and I’ve asked the Michigan Secretary of State to review what happened. A copy of my complaint is attached here.
Elworth has been a public employee for a long time. He knows his official role was limited under state law to counting the words that will appear on the official ballot and deciding whether those words were neutral. He understands that even formal Attorney General Opinions aren’t important to anyone outside of state government agencies but also undoubtedly knows the general public is mostly unaware of this. He knows he can’t stop a citizen-initiated ballot proposal from being voted on and that citizen-initiated proposals are often opposed by city officials (because if they agreed with the substance, they would have already done something about it). Interestingly, our city attorney has a billing entry showing he immediately called the Attorney General’s office after reading the charter proposal almost a month before Elworth issued his letter. Don’t you wonder who he knew to call? I certainly do.
Clarkston isn’t the only city recipient of an Elworth letter opining on a local citizen-initiated ballot proposal. Elworth also claimed a different local citizen-initiated ballot proposal about tax increment financing (TIF) in Traverse City violates state law. The Elworth Traverse City letter was written weeks before the Clarkston letter, and this how that letter was used:
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- The local media wrote an article about the ballot proposal using a headline claiming the proposal “violates law” in both its content and its length (referring to the 100-word ballot language)
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- The Traverse City attorney claimed, “the state’s chief lawyer had looked at” the ballot proposal, even though she obviously knows Nessel is the “state’s chief lawyer” and she has not looked at the issue
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- One of the residents submitting the petition to put the proposal on the ballot is an attorney, and he criticized the Elworth letter for providing woefully inadequate analysis and reasoning for his claims
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- The opponents of the proposal established their own cutesy website called “Traverse Together” that claimed the TIF proposal and one other ballot proposal “risk[s] limiting Traverse City’s ability to protect, maintain, and improve the places we love” and claimed the Elworth letter supported their opposition in the article
I believe Elworth knew exactly what he was doing when he issued a public letter that made unsupported legal claims about the HDC charter proposal after what happened in Traverse City weeks earlier. Every government attorney I know closely follows the media concerning issues they’re working on, and they are especially interested in what is said when their names are part of the story. Even if Elworth doesn’t have a news database search to automatically send him articles mentioning his name, Nessel’s press secretary or some other person in his office undoubtedly forwarded a link to the July 10 Traverse City news article to him so he would be aware of it. And a couple of weeks later on July 30, after proverbially poisoning the well in Traverse City, Elworth issued his Clarkston letter which, no surprise, had the same result:
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- The Oakland Press wrote an article quoting Elworth’s unsupported letter claiming the proposal violates state law
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- City attorney Thomas Ryan said the governor and attorney general believe the proposal is unlawful (even though Elworth is not the attorney general, and the letter was not an official Nessel opinion about the charter proposal)
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- My husband and I submitted the charter proposal, and we have criticized the Elworth letter for providing zero analysis or legal reasoning for the claims it made
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- The “Charming” group used the Elworth letter as ammunition against the charter proposal, including a copy of the letter in flyers they put in doors across the city and in an expensive full-page ad in the Clarkston News
State law favors putting citizen-initiated proposals in front of the voters, and government officials aren’t allowed to put their collective thumbs on the scale to prevent that from happening. Yet the Elworth letter tries to do indirectly what he wasn’t allowed to do directly.
That’s why I filed a campaign finance complaint against Elworth. I believe what he did is no different than what our local officials have done – unfairly using their government positions and resources to negatively affect a citizen-initiated ballot proposal. Do I expect the Secretary of State to punish Elworth? No. I think the best I can hope for is that he is admonished not to do this in the future.
But even if that’s the only result, it would mean there will be one less loose cannon in the Attorney General’s office trying to interfere with local elections, and that’s not nothing.
We love questions! Unlike our opponents, we’ll give you honest answers with lots of evidence to back up what we say. Feel free to send questions to: ClarkstonCharterProposal@gmail.com.
(And if you’re tired of HDC abuse and favoritism, then please consider voting yes on the proposed HDC charter amendment on November 5! And because I’ve just said that and even though I haven’t spent any money, I’m going to add the following text though I’m not sure I have to:
Paid for by Susan Bisio, P.O. Box 1303, Clarkston, MI 48347 with regulated funds.)