In a recent post, titled “Clarkston Taxpayers, I Think You’re About to Be Screwed – by the City Council,” I told you that I believe that Mayor Haven and his friends on city council plan to surprise you with a big bump to your property tax bill. This will be your prorated share of my costs and attorneys’ fees once the case is over and after they have done everything they can to make the fees as high as possible with endless court filings. Let me suggest that there are others who perhaps should be looked to for payment of those fees before you, should it come to that.
Before I begin, I want to emphasize that the city council is not blameless in all this. They permitted an underling – the charter-appointed city attorney (that I’ll just call the “city attorney”) – to refuse to release Clarkston’s public records not just to me, but also to them. Based on the material I’m going to share with you, it’s pretty clear that the city attorney and the attorney assigned to handle my case by the Michigan Municipal Liability and Property Pool (MMLLPP) (that I’ll call the “insurance attorney”) were allowed to run the case unfettered by city council involvement, despite the fact that the client is Clarkston and only the city council has the authority to make many of these decisions about city lawsuits.
At various points in time, the city council has wondered aloud how the city had gotten to this point. I can tell you that during my husband’s Open Meetings Act (OMA) case, my husband asked one of the insurance attorney’s associates if he could meet with someone from the city and the insurance attorney to talk frankly about resolving the case – without the presence of the city attorney since he was also responsible for causing that lawsuit and had a personal interest in how it turned out. The answer was that it was not possible to meet without the city attorney, because he was “the boss” and running the OMA case. Do you think things were any different in my FOIA case?
I’m going to explain why I believe that the city attorney and the insurance attorney both share responsibility for the huge amount of fees and costs in my lawsuit. I also think that the MMLLPP is partly to blame, because I believe the MMLLPP was overly (and improperly) enmeshed in the lawsuit. I doubt that it is a coincidence that the Michigan Municipal League (MML) subsequently became involved in the case as an amicus. The MMLLPP is a service provided by the MML, and the MML (along with the Michigan Townships Association), have now filed three amicus briefs in support of Clarkston in both the Michigan Court of Appeals and Michigan Supreme Court (briefs that were unwittingly funded indirectly by just about every taxpayer in Michigan). In Part I, I’ll focus on the city attorney. In Part II, I’ll focus on the insurance attorney, the MMLLPP, and the MML.
I’m going to provide you with the information that led me to draw my conclusions. After reviewing everything, you may decide differently. And, perhaps those involved can provide additional information that would lead to a different conclusion. That’s always a possibility. When I reference a city council meeting in the discussion below, I’ll provide you with the date and time marker, which will allow you to click on the corresponding city council meeting links at the end of this post and listen for yourself.
OK, let’s begin.
The city attorney made quite a few admissions at the September 11, 2017 city council meeting. He clearly telegraphed that he was less concerned with Clarkston’s interests than he was with how the decision in my case might affect himself and people outside of Clarkston. He told the city council that my case involved a critical issue for the whole legal community; the issue in my case was very much in the minds of a lot of municipal lawyers and officials; Clarkston is carrying the flag for this issue; the issue is bigger than Clarkston; a lot of people are interested in the case; Clarkston was at “the tip of the spear”; and, he expressed a personal interest in the outcome as it relates to lawyers practicing out of their own law offices – as he does (9/11/17 meeting at time mark 1:30:55).
I suspect that the city attorney was telling the truth about all of the outside interest and influence when he spoke to the council in September 2017, and I think that’s the reason why the case expanded well beyond resolving a simple legal question that arose within the small city of Clarkston. It’s also why it’s not surprising to me that the city attorney encouraged the city council to continue the fight to hide the 18 records that he didn’t want them (or me) to see (9/11/17 meeting at time mark 1:32:02). That’s why I think it’s patently unfair to pass the cost for what turned into a huge legal battle that was mostly of interest to other municipal attorneys across the state onto the backs of individual Clarkston taxpayers – as I believe the Mayor and his friends on council intend to do.
Before filing the lawsuit, we asked the city to reconsider the decision to withhold these 18 records. The city attorney snatched the letter from the FOIA Coordinator, answered it himself, and denied my request again – without consulting with his boss, the city council. All 18 documents pertained to city business (and more particularly, to the Catallo children); he was paid with our tax dollars to create or review them; he is on the same level organizationally as the city manager; and he reports to the city council and serves at its pleasure. In September 2017, the city attorney confessed that he’d made the decision to withhold the 18 records entirely on his own (9/11/17 meeting at time markers 1:28:51, 1:34:36, 1:39:33, and 1:42:36, for example).
Adding insult to injury, the city attorney continued to bill Clarkston for thousands of dollars as the lawsuit progressed due to his purported need to “monitor” the case – despite the fact that the insurance attorneys were handling the case at no additional charge to Clarkston (9/11/17 meeting at time marks 1:27:46, 1:34:36). Following city council’s objection to the city attorney’s ongoing involvement due to what they perceived as his conflict of interest, the city attorney finally agreed to stop charging Clarkston for his “work” in my case on 9/21/17 and waived his fees going backward to 9/1/17. (City manager’s report to the city council, page 21, at this web address: http://villageofclarkston.org/AgendaCenter/ViewFile/Agenda/_10092017-705.)
This wasn’t much of a financial sacrifice for the city attorney. At the time he agreed to stop charging fees, everything had been briefed and filed in the court of appeals. We were waiting for a hearing date and a three-judge panel to be assigned, and no one anticipated that the case would eventually be accepted by the Michigan Supreme Court for review – so there wasn’t much more the city attorney likely thought he would be able to bill for in the future. The more significant issue is the city attorney’s continued involvement and influence in a case that was so closely related to his personal interests, whether he charged for his time or not.
Let’s talk about something that happened after the city attorney stopped charging fees (yet continued to be involved in the lawsuit). The city attorney’s wife practices law using a rather uncommon maiden name. One of the judges in the first three-judge panel randomly selected to hear my case uses that same name as her middle name. Given the city attorney’s extensive communications with the insurance attorney, as well as their social friendship outside of the case, there was plenty of opportunity discuss the judge’s relationship to the city attorney. So what did they do about it? Nothing. They remained quiet, leaving it to my attorney to ask the court’s clerk whether the judge had a conflict that would prevent her from remaining on the hearing panel once she was made aware of the city attorney’s involvement in the case. Following our inquiry, the judge immediately recused herself and my hearing date was cancelled, resulting in additional delay. I suspect the city attorney and the insurance attorney planned to wait until the judge learned about the conflict on her own, which would have meant a recusal closer to the hearing date – or worse, after the hearing – causing the maximum possible delay in the court of appeals. This conduct is consistent with the delaying tactics these attorneys have used throughout the lawsuit.
The city attorney admitted that the MMLLPP told him in 2016 that they objected to paying my attorneys’ fees, almost five years ago and at a time when there weren’t very many fees and costs at all because my lawsuit had just been filed. (2/24/20 meeting at time mark 00:23:20). Almost two years later, the city attorney told Councilmember Sue Wylie the opposite – that the MMLLPP would pay my fees (9/11/17 meeting at time mark 1:37:07). I’m not aware that he ever corrected that statement, and Councilmember Wylie appeared surprised that there was even a question that the MMLLPP would not pay my fees and costs (2/24/20 meeting at time mark 00:22:22). In connection with that discussion, the city attorney also had the chutzpah to imply that the city council’s decision to hold open meetings to discuss the case with the insurance attorney a couple of years ago had some relationship to the fact that they were unaware of the MMLLPP’s position on paying attorneys’ fees. (2/24/20 meeting at time mark 00:22:59).
There were two open meetings with the insurance attorney, and both took place after the city attorney received the 2016 MMLLPP letter and after he told Councilmember Wylie that the MMLLPP would pay for my attorneys’ fees and costs. The first open meeting occurred while we were waiting for the three-judge panel to be assigned in the court of appeals, and the second open meeting took place after the court of appeals decided the case but before I filed my application for leave to appeal in the Michigan Supreme Court. The insurance attorney had absolutely no problem engaging in an extensive discussion about the city’s insurance coverage during the July 23, 2018 open meeting (7/23/18 meeting at time markers 00:42:32, 00:48:09).
One might reasonably ask whether the city attorney’s personal interest in my lawsuit made him decide not to tell the city council about the contents of the MMLLPP letter in 2016 and also to tell Councilmember Wylie that the MMLLPP said just the opposite in 2017. Only he can answer that question, and it is a question that wouldn’t need to be asked if the city attorney had properly stayed out of the lawsuit that he instigated.
Councilmember Al Avery recently suggested that there is still a possibility that the MMLLPP will pay my fees and costs. (7/27/20 meeting at time mark 00:23:49). If that’s not the case, then I have a suggestion. Rather than shifting the burden directly to the taxpayers, perhaps the city council should ask the city attorney to check his own professional liability coverage – and not just because the city council relied on the city attorney’s untrue statement about the MMLLPP’s willingness to pay my fees and costs to their detriment. The city attorney is responsible for causing the lawsuit because he withheld the 18 records. He encouraged the lawsuit to continue with the intention of benefiting the “legal community” within which he included himself – even when the city council wanted to review and produce the records. At the city attorney’s deposition, he admitted that he promised to keep at least one of the 18 documents a secret – apparently even from his own client, the city – even though it was received from another attorney and there was no legally protected veil of confidentiality attached to it. (I discussed this supersecret document in the post titled “‘Private’ Government [And the New American Way]” under Question 2.) Keeping this secret is yet another reason why the city attorney’s interests were inconsistent with Clarkston’s interests. Taken together, it’s clear that the city attorney was incapable of providing objective and detached advice to the city council on this matter. Despite that, he participated extensively in the lawsuit, far more than I think that anyone realizes.
I have had the opportunity to review some of the insurance attorney’s bills. They were attached to the city council’s motion asking the court to force me to reimburse the insurance carrier for the fees that the insurance attorney’s firm generated for themselves after I lost in the circuit court. You’ll note that these monthly invoices don’t have the billing recipient’s address on the first page in the upper left corner as is customary for most bills. I believe that the insurance attorney removed the MMLLPP’s mailing address before submitting the bills to the circuit court in a deceptive attempt to make it appear that these bills were being paid directly by Clarkston rather than the MMLLPP, perhaps because he thought the judge would be more sympathetic to Clarkston than the MMLLPP.
I’ve highlighted forty-seven contacts between the insurance attorneys and the city attorney between 1/5/16 and 10/27/16 in pink. As I’ve noted on the bills, it’s quite interesting that the city attorney and the insurance attorney discussed the possibility of settlement shortly after the lawsuit came in (on 1/28/16 and 2/1/16). There is no record that either of them talked to the actual client about this – which would be the city council. Since the city attorney wanted to keep the records secret, he certainly wasn’t interested in settling anything. Perhaps the two attorneys thought it was better to keep these discussions between them and not risk having the city council order the city attorney to produce the records and end the lawsuit. Ah, but there’s a slight problem with that course of conduct. In Michigan, it’s crystal clear that the client decides settlement matters, and the city attorney is not the client. This wasn’t the only time that the city council was cut out of a settlement discussion.
The city attorney told the city council that he was just monitoring the case, receiving copies of paperwork, and he needed to read everything. Take a look at the pink highlights in the insurance attorney’s firm’s billing entries and decide for yourself if that’s all he did, especially the 5/4/16 entry that included a discussion of a “plan of action.” Both attorneys were billing for all for these exchanges (cha-ching!). While limited city attorney involvement would be perfectly OK for providing background facts and putting the insurance attorney in touch with the right people at the city to answer questions, it was not OK to do anything further. This is because no objective attorney considering this matter would conclude that the city attorney was capable of separating his own interests from Clarkston’s interests.
Communications with the city attorney
I’ll be discussing the insurance attorney, the MMLLPP, and the Michigan Municipal League in Part 2.
September 11, 2017 City Council meeting:
July 23, 2018 City Council meeting:
February 24, 2020 City Council meeting:
http://216.11.46.126/Cablecast/Public/Show.aspx?ChannelID=2&ShowID=3059
July 27, 2020 City Council meeting:
http://216.11.46.126/Cablecast/Public/Show.aspx?ChannelID=2&ShowID=3216