The idiocy that is our city government never ceases to amaze me. They’d rather spend taxpayer dollars on an attorney to tell them what the charter says or what the Freedom of Information Act (“FOIA”) statute says rather than reading the text for themselves. (Reading is fundamental, but not in Clarkston government.) Perhaps the salary raises the city manager keeps asking for every year would be best directed to the legal services budget if lawyers are required to read and interpret things that are written in plain English.
On Monday, the city manager and city clerk have asked the city council to consider a resolution to hire a “Special Counsel for Freedom of Information Act Requests.” The resolution is five paragraphs long and in the city council packet posted online. Notably absent is any legal services agreement or engagement letter from the named attorney. Apparently, that will require a FOIA request if we want to see it.
Let’s look at the resolution, paragraph by paragraph, with the resolution text in italics and commentary following:
WHEREAS, the United States Freedom of Information Act (FOIA) requires the full or partial disclosure of previously unreleased or uncirculated information and documents controlled by the U.S. government, state, or other public authority upon request, and;
In Michigan, political subdivisions, including cities, are created by the Michigan legislature and subject to Michigan law. The only FOIA statute that applies to Clarkston is the Michigan FOIA. The only records the city needs to be concerned with are those that are prepared, owned, used, possessed, or retained by Clarkston government in the performance of an official city function. I’ve sent a copy of the FOIA statute to Clarkston officials multiple times, tried to get them to follow it by telling them which sections to look at, and both my FOIA lawsuits were clearly and obviously brought under the Michigan statute.
In presenting this resolution, our city manager and city clerk have publicly stated they don’t understand basic civics – that the federal and state governments are separate, and Clarkston is part of Michigan government, not the United States government. It would be exceedingly embarrassing if our city council members didn’t know the difference either, but since the agenda has been posted for a couple of days without any changes, I have my doubts. Maybe they should ask any elementary school child about how government works.
I can understand why the city manager might think the FOIA primarily concerns “previously unreleased or uncirculated information and documents,” given the city’s desire to hide everything and the inappropriate things he and other current and former officials have written in city email that were not protected from release under the FOIA. No doubt the city manager is thinking about the email he sent to the city’s outside attorney handling my first FOIA lawsuit to which he attached a copy of one of my blog posts criticizing the city and that attorney; the city manager not-so-subtly suggested the attorney might want to sue me over those criticisms. Even though the email made the city manager look like an idiot, it was responsive to my FOIA request and not protected by attorney/client privilege (or any other FOIA exemption). I suspect part of the reason the city manager wants to hire a “FOIA specialist” at taxpayer expense is because he would prefer this type of material never see the light of day and thinks this will give him cover.
Whether or not a document has been released or circulated is not the test for whether it must be provided in response to a FOIA request. For example, I could make a request for a city council packet, even though it’s published on the city’s website. In response, the city clerk could direct me to the city’s website for the information, but if I didn’t feel like looking it up and downloading it for myself, the city would have to provide that city council packet to me in response to a FOIA request (though they could charge me for doing it). On the other hand, should our public employees and officials use city email to denigrate a Clarkston resident who comes to the office asking to see public documents or make fun of a resident’s age – things that actually happened – those emails need to be produced provided they are responsive to a FOIA request.
There is no FOIA exemption that protects the unprofessional conduct of employees and officials. When public bodies try to hide this type of information and claim it’s somehow exempt under the FOIA, it’s a hundred times more embarrassing when the public body is later forced to release the information it tried to hide and also has to pay the requester’s legal fees and costs when a lawsuit happens. Maybe the solution is to spend work time doing work things and not trashing Clarkston residents or doing other inappropriate things via email or text. Just a thought. 🤔
WHEREAS, because FOIA requests must be replied to within 5 business days and because FOIA requests not properly or completely fulfilled can result in lawsuits against the City, the City Manager and City Clerk have requested a specialized FOIA Attorney be made available for consultation and other assistance, and;
Sort of true. FOIA requests do need to be replied to within five business days, but the reply can be a simple extension of time telling the requester the city will be taking an additional ten business days to respond and why that’s necessary. The city can also ask requesters for more time beyond that. (The requester doesn’t have to agree to anything beyond the initial ten business days, but the city can always ask.) It’s not clear what the “and other assistance” means, though that would be spelled out in a contract or engagement letter.
The city does need to be able to consult with a competent attorney from time to time, and not just on FOIA matters. The current charter-appointed, taxpayer-funded city attorney single-handedly caused two FOIA lawsuits, one of which resulted in a malpractice claim against him and another of which resulted in the city taxpayers paying costs and fees for intentionally violating the statute at the city attorney’s behest. He also caused an Open Meetings Act lawsuit, which the city settled by admitting a violation and paying costs and fees, and I believe he’s given questionable legal advice in other areas of municipal law that fortunately haven’t (yet) resulted in lawsuits.
What does the city manager have in mind with regard to “consultation and other assistance”? He told us at the May 22, 2023, city council meeting (full informal transcript linked here):
[Bruce] Fuller [former city councilmember] said he did think of a question on the employee salary page, not to employee salaries. But is there any thought towards hiring any additional staff? Such as someone to handle FOIA requests and so forth, which he believes are a big burden for our clerk. [Jonathan] Smith [city manager] said that was a very good point. He’s glad Fuller brought that up. So, he didn’t touch base on it, but we are bumping our legal salaries. Fuller said he could see that. Smith said it’s not because he wants to hire another attorney. It’s because that’s where he thinks a FOIA consultant would fall. That’s his goal is to obtain a FOIA consultant, not an employee that he would have to pay, you know, other costs to and wait. They’re just sitting there while we’re waiting for the next FOIA to come in.
[Sue] Wylie [current city councilmember] said that was a good question. Smith’s thought is a consultant that would be like essentially on a retainer that when he needs them, he can bring them in. He thinks that’s the most efficient way to operate. There might be days or weeks where he has no need for them. And then there’s other days where he needs them here eight hours a day. Fuller said well, it might ultimately save money. Smith said might ultimately save money, absolutely. You’ve got to think along these terms that we’re getting FOIA requests with complicated and extenuating circumstances that we as a staff, a small staff, can’t accommodate.
(I added the bolding and the text between brackets.)
If former councilmember Bruce Fuller hadn’t asked the question, the city manager would have just slipped this budget item through without discussion. I doubt he was “glad” Fuller brought it up.
I’ve spent thousands of hours in my previous employment doing what this “special counsel” will be doing. If the city manager and city clerk believe it’s appropriate for taxpayers to pay an outside attorney to personally search for records electronically or in physical file drawers for eight hours a day whenever needed, they have another think coming. Notwithstanding the fact that an attorney would charge travel time to and from the city’s offices at his/her hourly rate just to have an in-person discussion, search and retrieval are the city clerk’s job as the FOIA Coordinator for Clarkston. She has access to all the city’s records, though individual officials, employees, elected officials, contractors, and appointees also have record keeping obligations and are required to turn over their records to the clerk on request. An attorney can tell the city manager and city clerk what the statute says, since they are either too lazy to read it or not smart enough to understand it. (And no, that’s not a harsh thing to say given the circumstances.)
Since the city manager and city clerk have hidden the engagement letter/legal services contract from the public and perhaps also the city council by not including it in the packet, I guess everyone will have to wait for the city to answer a FOIA request to learn exactly what the arrangements are. But let’s be clear on the “why” of this affiliation. The city attorney is apparently not competent to handle FOIA matters, and he has no desire to become competent. Here is how the city manager explained it on May 22, 2023:
Smith said he doesn’t see that going to Tom [Ryan, city attorney]. He sees that going to maybe Ryan, if that’s a function that he’s going to do, but this consultant, Smith doesn’t know that Ryan has the time to necessarily be that fire drill kind of on-the-spot Johnny. Fuller said it would be nice to have someone who’s designated for that specific purpose. Wylie said a FOIA expert might be more cost effective, and you guys probably get emails on companies and groups that do that. Smith said not too much, but they do have some leads on people. They’re working with the county, the Michigan Municipal League. Smith was given the name of an attorney that does specialize in FOIA law. So, there are things that we need to do as a city just to become more efficient. He thinks it would be more efficient in the long run. Wylie said right. Good idea.
WHEREAS, City Attorney Tom Ryan has identified a FOIA Attorney that the City could utilize on an as-needed basis: Mr. Carlita H. Young of the Rosati, Schultz, Joppich and Amtsbuechler Law Firm of Farmington Hills, Ml, and;
So, the city manager did his usual lazy thing and took the city attorney’s advice on who to affiliate with as a “FOIA specialist.” I question how much time he actually spent talking to the Michigan Municipal League (that could have offered FOIA training) or to Oakland County.
I’m impressed the city will be working with a shareholder (similar in stature to a named partner) in a recognized firm who has experience not only with the FOIA but also general municipal, employment and labor, constitutional and civil rights, and insurance defense law. Most importantly for these purposes, he conducts FOIA seminars. Though the city manager and city clerk could have found a class to take on their own (rather than simply whine they don’t understand the law, give half-baked FOIA responses, ignore requests, and wait for lawsuits), perhaps this will force them to receive training. You can read Mr. Young’s firm bio here.
The sly part of this arrangement is clear to any attorney. By accepting the current city attorney’s referral, the “special counsel” will not, as a matter of professional courtesy, try to horn in on the city attorney’s charter appointment and solicit more of the city’s business, even though this new attorney might be able to provide consistently better legal advice to the city on other matters. It’s something that’s just not done when there’s a referral, and our city attorney knows it. If this attorney tried to get the city’s business, word would quickly pass through the legal community, and no other attorney would ever refer business to him in the future out of a fear that he will “steal” their clients away. This would be something that’s important to the city attorney because he was also once Clarkston’s “special counsel” and managed to take over Clarkston’s old general counsel’s legal business many years ago.
However, there’s nothing to stop the city from trying this attorney on for size and eventually hiring him as the city’s primary attorney. Under these referral circumstances, the request has to come from the city itself because the special attorney will never make the suggestion on his own.
WHEREAS, Mr. Young’s hourly billing fee will be $190.00, paid from the City’s Legal Fees budget, which was increased 25% in the 23/24FY budget proposal specifically for this purpose, and;
At the May 22, 2023, city council meeting, Smith said he:
[N]eeds a consultant that can come in and help them prioritize exactly what needs to be done and when. And yes, the FOIA laws are pretty basic when you think about them. But there are nuances to the laws that if you miss something, you miss a step, you can get in deep water real quick. So, that’s where a consultant, and he put that, what did we put in there, $7,500. [Greg] Coté [city treasurer] said yes, he brought up the screen for Smith. Smith said yes, there it is. Fuller said OK. Coté said we bumped that 25%. We went from $30,000 to $37,500 in anticipation for any external cost. Wylie said OK.
Do the city manager, city clerk, and city council really believe the special council is going to “come in” to city hall and personally search city’s files for responsive records as Smith seemed to suggest at the May 22, 2023, city council meeting? If they do, they’re fools. The clerk is going to have to spend the same amount of time she’s spending now on those activities.
The reason it’s important to see the legal services contract and/or the engagement letter – and there is no doubt an experienced shareholder attorney like this one would insist on providing one – is to find out who will actually be doing the work. The $7,500 budget limit, billed at $190/hour, amounts to just about 39.5 hours. Is it a blended rate, charged no matter who performs the work (even if it’s not the special counsel personally)?
Speaking from experience, I can tell you that a named partner will often accept a reduced rate to introduce him/herself to a new client, and $190 is undoubtedly a significantly reduced rate for a shareholder in a firm of this size. New clients may think they’re getting the services of the named partner at a bargain basement rate, but it’s usually an associate attorney or paralegal actually doing the work because their rates are always lower than a named partner’s rates. One of the law firms I worked for had a client who insisted on getting one of our locally famous attorneys to agree to a rate that was less than half his usual charge, but I did most of the work. The agreed-upon rate was even less than the firm charged for my services, but the firm took the loss to establish the relationship with an eye toward getting future business at a higher rate. The named partner was the face of the representation, showing up in court and for depositions, but I did all the underlying work for him. That’s how things work. Named partners give face time and generate business, while associates and paralegals do the heavy lifting.
In addition to the hourly rate, some firms charge separately for copying and electronic research fees. Others bake those costs into the hourly rate. If these administrative expenses are billed separately, that $7,500 is going to be used up quickly. This is yet another reason to see a copy of the legal services contract and/or the engagement letter.
The last paragraph states:
NOW, THEREFORE, BE IT RESOLVED that the City of the Village of Clarkston hereby authorizes the City Manager to consult with Mr. Young on an as-needed basis, the expense for which will be paid from the City’s Legal Fees budget (101-266-803.000).
Did you notice what’s missing? The $7,500 limitation – or any other limitation – on the total amount of annual expenses. The resolution also limits contact with the special counsel to the city manager. Why? He doesn’t do any FOIA work; that’s the clerk’s job (though the city manager whines about FOIA more than the clerk does).
As the city already knows, FOIA requesters don’t have to accept the city’s response to a FOIA request, even if it’s based on an attorney’s advice. Clarkston was able to convince the lawyers at the Michigan Municipal League and the Michigan Townships Association to stand behind it with amicus briefs in my first FOIA lawsuit, and that didn’t stop me at all.
Speaking of lawsuits, what happens if there’s a FOIA lawsuit in the future? Does this new attorney assume the city’s insurer will pay for FOIA litigation expenses and assign an attorney to the city at no additional charge? That’s not a safe assumption. It’s very easy to plead around the city’s insurance policy to avoid an insurer-paid attorney that’s “free” to the city. 😉 Would this “special council” attorney handle any lawsuit? Would he charge more for litigation than for FOIA consultations? And even if he is willing to handle litigation arising out of his own advice, would he have a conflict that disqualifies both him and his firm if a lawsuit arose based on that legal advice, forcing the city to hire a third attorney?
I have a feeling the city manager and city clerk believe if they spend taxpayer money to get more (or different) legal advice that they will be excused from dealing with FOIA issues, but that is not the case. What I hope will happen is they will hear the same things I have been telling them about how to extend time, count time, conduct a complete search, prepare a FOIA response, etc. Conducting a complete search is common sense because the clerk simply needs to search for records that she has access to and forward the request to people who have records that she doesn’t have access to. The rest of it is in the statute. But if the city manager and city clerk refuse to read a statute that is important to their jobs and demand taxpayers pay someone else to do that, then I think they should forego future wage increases in an equivalent amount.
On the whole, however, I think this is a good move for the city. This is not to excuse laziness on the part of our city employees, but because it’s important to have an attorney who provides sound advice and to help keep the city out of lawsuits, and not just FOIA lawsuits. This might be the first step to make that happen.