Introduction:
I wrote the post below after reviewing former clerk Catherine Ashley’s resignation letter and attached exhibit which, to put it mildly, clearly expressed her unhappiness with me. I believe a written response is necessary given that the resignation letter and exhibits have been incorporated into the city’s agenda system and publicly disseminated on at least one Facebook page with 12.8 thousand members. I obviously have no objection to anyone disseminating public information, and a resignation letter is public information. I just thought I needed to provide a fair response (and still do).
At the suggestion of city council member Peg Roth, I had the opportunity to meet with Catherine over coffee yesterday evening to talk about what had happened during the last few weeks and to honestly explore her concerns and mine. It was a very productive and pleasant meeting, and I’m grateful both to Peg for graciously opening up her home and to Catherine for accepting Peg’s invitation to talk.
My impression of Catherine is that she’s a delightful and bright person who would do an awesome job for the city. I simply think we got off on the wrong foot. I understand there may be an opportunity for Catherine to potentially continue her employment with the city in the near future, and I hope that can be arranged.
As for Peg Roth, this particular bible verse comes to mind: “Blessed are the peacemakers, for they will be called children of God.” Matthew 5:9, NIV. I definitely think we need more peacemakers in the city and I’m very happy that Peg is running for reelection to the city council this November. I hope she stays with us for a long time too.
Original post:
Our former clerk prepared an extensive resignation letter that seems to be mostly directed at me and to a lesser extent my husband. The letter publicly attacked us based on partial information, no knowledge of our history with the city, and quite honestly, without knowing anything about us beyond what she may have heard from the city manager and city attorney (who are not our biggest fans). The city published the letter as part of the agenda for the special city council meeting this evening to replace the former clerk, who left on July 31. No one asked us for a response.
For the record, I most certainly do not loathe the community. However, I do take issue with the city attorney, who continued to be improperly involved in my five-year FOIA lawsuit, going far beyond the simple legal issue and improperly consulting with the insurer-funded attorney to try to damage my husband’s ability to practice law, to secure a gag order to keep him from making public comments, and to personally bankrupt me – all over a simple FOIA request. The city attorney’s conduct in that lawsuit resulted in his malpractice carrier being forced to contribute $35,000 toward the settlement, matching the city’s contribution, both of which were in addition to the insurer’s contribution.
I also take issue with the city manager who used the city’s email system to suggest to that same insurer-funded attorney that he should file a tort claim against me shortly after the lawsuit was settled. The city manager’s son-in-law and some of his external colleagues were also involved in the now-defunct “Clarkston Matters” political committee (and website by the same name). Clarkston Matters was established over a year after the city manager was hired and its first website post consisted of a personal attack on me for having the chutzpah to file that five-year FOIA lawsuit against the city. That website post was quickly taken down and converted into a letter that was apparently sent to everyone in the city (except me) and signed by a former city official. I was not the only person the Clarkston Matters group personally attacked.
Our former clerk is certainly entitled to her opinion, even though she is probably unaware of our history with the city government and certain officials. It’s unfortunate that she decided to resign, and I genuinely hope she reconsiders.
I have empathy for our former clerk to the extent that she was asked to come in and take responsibility for an election with zero experience and to perform all the regular city clerk duties. Even with help from the previous clerk with the current election, stepping into this job in the middle of an election would be overwhelming for anyone and the fear of making a mistake would be great. Without intending to cast aspersions, I wish the city council would seriously consider contracting with Oakland County, Independence Township, or another municipality to handle our elections. These other municipalities are conducting their own elections anyway and have sufficient full-time staff to keep up with all the requirements and changes in the law – and there are many. I know that first-hand; once upon a time, I attended election training in Lansing with many local clerks and the lawyers who were supposed to advise them (I was in the latter group). After a full day, I left with a thick “how to” book filled with notes and a mind filled with a lot of confusion. It’s not fair to expect a 32-hour a week part-time employee to handle elections and every other task, especially with the new early voting requirements.
But since the former clerk published her letter attacking me, and the city publicly disseminated the letter, I think it’s appropriate (and certainly fair) to share the other side of the story.
First, I don’t apologize for sending FOIA requests, and no one ever needs to justify why s/he sends a request. The best way for the city to avoid FOIA requests from me is to stop wasting taxpayer dollars, stop hiding things, and stop being untruthful. I’m not aware the former clerk did any of these things during her short tenure. I’ve been quite clear that most of my issues in this regard rest with the city manager and city attorney.
Second, I’ve never had a problem paying for FOIA responses. The city is entitled to charge for employee time preparing responses, and provided they’ve followed the statute, I’ve immediately sent a check when asked. The former clerk’s suggestion seems to be that charging for FOIA responses will affect the number of FOIA requests I might choose to send. It won’t, though I might exercise my option to review records in the city’s offices if the requested fees are significant.
Third, the way the data is displayed in the former clerk’s FOIA chart suggests the city received 36 individual FOIA requests, and 22 of those are attributed to me. I’m going to focus my discussion on the 22, because I have no information on the remaining 14 requests from other people.
The clerk’s chart does not make it clear that several of my requests were multipart requests, most of which were follow-ups in lieu of a lawsuit because of the city’s insufficient initial response (despite receiving legal advice from the city attorney for every response). Contrary to what the clerk might believe after seventeen days of employment, I’m not interested in recreational lawsuits. I’ve only filed two personal lawsuits in my life. These were the two FOIA lawsuits involving the city, both were successful, and both were directly attributable to the city attorney’s bad FOIA advice to the city. (The lawsuit regarding the HDC petition was brought by the ballot proposal committee established as required by state election law.)
Fourth, most of the FOIAs (original and follow-up) listed on the former clerk’s chart were handled by the city manager and city attorney, not the former city clerk. The follow-ups were appropriate because the city manager’s initial responses were inadequate, despite the city attorney billing the snot out of the city to review the city manager’s responses before he sent them to me.
There are three choices to make after receiving an inadequate response: 1. Accept the inadequate response and forego receiving the information that prompted the request in the first place; 2. Immediately file a lawsuit and force the city to pay legal fees and lawsuit costs because the city clearly didn’t follow the law when making the response despite all the ostensible “help” from the city attorney; or 3. Send a follow-up request. I chose #3.
The former clerk suggests she was unfairly accused of wrongdoing; her work was impeded; frivolous lawsuits (plural) were filed; she suffered from an inhospitable workplace; she was emotionally harassed; FOIA requests were weaponized, a lingering burden, deliberately timed to wreak havoc, intended to bully, intimidate, and impede “legitimate” work; and cost the taxpayers money. (Hopefully, I captured all the adjectives.)
I’m not clear how I am in any way responsible for an inhospitable workplace or emotional harassment. If those comments were directed at me, it is simply hyperbole. Expecting someone to simply do her job in no way qualifies as workplace or emotional harassment.
I send FOIA requests to get more information in response to something the city has done and haven’t ever “timed” a request with the intention to wreak havoc, bully, or intimidate. Requests are directed to the clerk because the city has formally designated the clerk as the “FOIA Coordinator” who is supposed to receive them. Since I have no idea what the clerk is doing on any given day, I’m not sure how it would be possible to time a FOIA request to intimidate, bully, or wreak havoc. If the clerk is too busy to respond to a FOIA request, she can automatically take a ten-business-day extension (which allows for a total of fifteen business days, or three weeks, to respond). And, if fifteen business days isn’t enough time for some reason, the FOIA statute allows the city to ask me for even more time to respond. Had anyone from the city asked for more time, I would have no doubt acquiesced. No one asked.
The former clerk’s letter suggests that answering FOIA requests interferes with “legitimate” work. Since the city is required to respond to FOIA requests under state law, then by definition, that is legitimate work.
As for costing the taxpayers money, I would note if it weren’t for my husband’s and my efforts, the city wouldn’t shortly be receiving $96,220 from Independence Township as partial reimbursement for the almost $200,000 our city employees overpaid for police and fire services during the last fourteen years. That problem was discovered through FOIA requests. Though we have yet to receive a thank you from the city for our efforts, I suspect it will be a long time before the city provides me with the equivalent of $96,220 in no-charge FOIA responses. Using that metric, our efforts have been a significant net positive to the city.
I am unaware if the city is in receipt of multiple lawsuits. The ballot question committee filed one, but only after no one responded to repeated requests for a status of the clerk’s signature review for the HDC charter amendment petition. The city attorney, city manager, and city clerk were all aware that counsel for the committee simply wanted to know when the signature review was completed and whether there were enough signatures for the petition to survive and ultimately make it to the November ballot. When mayor Sue Wylie asked the city manager why the city hadn’t provided a simple status to us, he said the city had up to 45 days to complete the signature review – which was a true yet evasive and non-responsive answer to her specific question. In short, he didn’t answer because he didn’t feel like it.
The ballot committee has done nothing further with its lawsuit except to keep it active as a placeholder. After filing it, the city attorney advised the petition signatures had been reviewed and there were enough valid signatures to move forward. The only remaining thing for the city clerk to do is to “certify” the ballot language to the Oakland County clerk. Reviewing the petition signatures and certifying the ballot language are mandatory clerk functions. And just as Dorothy could have clicked her ruby slippers at any time to go home to Kansas, the city attorney could have signed a stipulation at any time agreeing the city would perform its two mandatory petition-related functions by August 13th. Had he done so, the lawsuit would have immediately been dismissed. For reasons that are known only to himself, the city attorney refused to agree to a stipulated order and continues to refuse to agree to one. That’s why the lawsuit has not yet been dismissed.
I realize it’s unnerving to see your name in a caption block on legal papers filed in court (it happened to me when I was in the private sector before I became a lawyer, so I understand), but the law requires that the clerk be named in her official capacity in an election lawsuit. That means it’s not a personal lawsuit, and if the lawsuit continues if the clerk is replaced, the new clerk will be automatically substituted as the defendant. If the city attorney hadn’t tried two years ago to keep a charter amendment petition off the ballot through deliberate delay (as recognized by the circuit court and court of appeals) and the city had not concealed the status of the clerk’s review of the petition signatures, the ballot committee wouldn’t have needed to file a lawsuit that would allow it to get a prompt hearing in case the city attorney decided to adopt the same delaying tactics with the HDC charter proposal petition. If the ballot committee had taken no action and let the clock run out, a judge would rightly accuse it of not seeking the court’s assistance in a timely way and dismiss the claims for inexcusable delay. In short, the city gave every indication that it was going to do everything possible to avoid putting the proposal on the November ballot and it reasonably appeared that a lawsuit was the only way to ensure the city (and the former clerk) would timely do what the election law requires.
A good attorney would have explained to the former clerk the difference between a personal lawsuit and a lawsuit in an official capacity, provided some much-needed comfort to the former clerk by telling her that she had zero personal risk, and would have also provided insight into why the lawsuit was filed in the first place. The former clerk attached my post discussing why the lawsuit was filed as an exhibit to her letter; what is apparently missing was any counseling and comfort from the city attorney to put her mind at ease. If, as the former clerk suggests, the lawsuit is legally frivolous, the city attorney can bring that to the court’s attention and seek some kind of relief from the court. But he won’t do that. He knows it’s not frivolous, he knows why it was filed, and he also knows he could have made the lawsuit go away at any point but has chosen not to do so for personal reasons that are unclear to us.
The former clerk claimed there were multiple lawsuits filed against her. If there are other lawsuits, they haven’t been discussed publicly and we don’t have anything to do with them.
The former clerk also referenced communications between my husband and herself regarding what is apparently a requirement that the Oakland County Elections Division made up for a petition title that contains less than 100 characters. We’ve confirmed that nothing in Michigan election law (or any Michigan law) requires 100-character titles and that many ballot question titles are much longer. In any event, it appears my husband and the former clerk worked this out based on the to and from messages the former clerk included in her exhibit to her resignation letter.
It’s not clear why the former clerk’s FOIA chart distinguishes between requests sent after hours or during work hours because that has nothing to do with how time is counted under the FOIA statute. The time to respond to requests that are sent electronically (for example, by email) is counted beginning with the next regular business day. For example, an emailed request sent at 10:00 a.m. Monday morning and an emailed request sent at 10:00 p.m. Monday evening are both considered “received” on Tuesday (unless Tuesday is a holiday in which case the requests would be deemed “received” on the first non-holiday business day). The yellow highlighting on the former clerk’s table of FOIA requests is a distinction without a difference.
Let’s look at the former clerk’s FOIA chart in more detail, and I’ll use her numbers for ease of reference. I’ll note who responded to the requests, and as you’ll see below, the former clerk wasn’t involved in responding to most of the requests. (I have no idea who responded to FOIA requests from other requesters and can’t comment on that.)
Item #7 – request for bonding information. Once we understood Independence Township refused to reimburse Clarkston taxpayer overpayments for police and fire services older than six years, I asked for a copy of the city’s insurance bond to see if the city might be entitled to make an insurance claim for the overpayments. Unfortunately, the bond policy doesn’t cover ordinary negligence, so the taxpayers will never recover more than the $96,220 Independence Township is willing to pay. The city manager responded to this request, not the former clerk, and it took him two tries to provide the actual policy information. I could have filed a lawsuit after his first response, which did not provide the actual policy, but instead followed up with an email request for a proper, complete response.
Items #8-#20 – these items were contained in one follow-up FOIA request. My original request asked for a copy of the clerk’s resume and any policy that allowed the city manager to circumvent the six-month probationary period established by the city council. This is the second time the city manager treated a newly hired clerk this way, and it’s apparently an artifice to avoid immediately giving the newly hired clerks their full council-approved salary rates on their hire date. After extensive consultation with the city attorney, the city manager sent me two mostly blank resume pages and claimed all the missing information was exempt because providing the full resume would supposedly endanger the new clerk’s life – using a mis-cited exemption that doesn’t apply to Clarkston – and he provided nothing that authorized him to deviate from the city’s probationary period policy. I sent a follow-up request (and included the entire city council on the email) in an effort to try and determine why the city manager was being so evasive about providing a resume (again following up rather than simply filing a lawsuit to challenge the improper exemption claim). The city manager responded to both the original and follow-up requests, not the former clerk.
Items #21-#22 – This was one request and concerned the city’s negligent overpayment of almost $200,000 taxpayer dollars to Independence Township for police and fire services and the extreme and inexplicable secrecy the city engaged in to resolve the matter. Item #21 was prompted by the city attorney’s last-minute request for a secret closed session to discuss this overpayment of taxpayer dollars. Handling the request for a closed session as a last-minute request meant it wasn’t part of the published agenda and the public had no advanced knowledge of it. When the council returned to open session, the public was deliberately kept in the dark regarding the settlement details. I asked for communications between the city attorney and anyone from Independence Township (including the Township attorney) because the city council referred to accepting some undisclosed offer from the Township attorney (that only they were privy to) when they returned to open session. Item #22, part of that same request, asked the city to update its previous response for any additional records created after June 19th that didn’t involve the city attorney. Rather than provide just the new information created after June 19th, I received a lot of duplicate documents regarding communications within the city but nothing related to the city attorney’s communications with the Township because the city manager improperly claimed that everything else was purportedly subject to attorney/client privilege. The city manager responded to this request, not the former clerk.
Items #28-#30 was one follow-up request to Item #21 (a follow-up rather than just filing a lawsuit), intended to be answered by the city attorney, and concerned information the city was withholding based on a claim of attorney/client privilege. The city attorney responded to this request, not the former clerk.
Item #33 asked for a copy of a resolution that expressly authorized the city attorney to settle the almost-$200,000 overpayment claim against Independence Township for $96,220. If a resolution existed, it would have been dated sometime in July 2024 and required little or no record search. The former city clerk responded to the request and said there was no such resolution. (Incredibly, I only learned how much money Clarkston taxpayers were forced to accept for fourteen years of police and fire overpayments by going to the Independence Township website, watching its Board of Trustees meeting, and looking at their resolution.)
Item #35 asked for copies of nominating petitions and affidavits of identity for all city council and mayoral candidates for the upcoming election. (I send the same request every election.) The former city clerk responded to the request with the records she’d recently received for these openings.
Item #36 asked for copies of the post-canvass HDC petitions the former clerk had recently reviewed so I could see if any names had been removed or signatures rejected. The former clerk responded to this request with a copy of the petition pages.
To summarize:
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- There were 5 (not 22) new requests: for bond information, city attorney communications (re: police and fire overpayments), a July resolution that was not available online (re: police and fire overpayments), copies of nominating petitions and affidavits, and copies of the post-canvass results of the petition for the HDC charter amendment. Within these 5 requests, there was an additional request for an update limited to only new internal communications regarding the police and fire overpayments that came into existence between June 19th and July 16th (the date of the request).
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- Rather than suing the city, I sent two follow-up requests because the city’s first response was woefully inadequate to these two requests: the failure to provide a copy of the clerk’s resume and the failure to provide communications between the city attorney and Independence Township that were clearly not subject to the attorney/client privilege. If the city had properly responded the first time, these two follow-up requests would have been unnecessary.
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- Using the former clerk’s 22 chart entries as a reference, the city manager responded to 16 items, the city attorney responded to 3 items, and the former clerk responded to 3 items. The 3 items the former clerk responded to required very little retrieval and copying. If the resolution existed, it would have been dated in July. The nominating petitions and HDC charter petitions were submitted to the former clerk in July.
It’s hard to imagine that responding to 3 requests actually caused the former clerk’s work to be impeded; created an inhospitable workplace, caused emotional harassment; weaponized the FOIA; were deliberately timed to wreak havoc; were intended to bully and intimidate her; or to impede her legitimate work (especially since responding to FOIA requests is her legitimate work because her employer has designated the clerk as the FOIA Coordinator). As for costing the taxpayers money, I would again point to the $96,220 the city will shortly be receiving into its general fund that began with one of my FOIA requests.
Whoever fills this role in the future should make it a practice to reach out to a FOIA requester to ask for additional time to respond beyond the statutory maximum if there are time constraint difficulties. This is far more positive than ruminating about the reasons behind a FOIA request (or the FOIA requesters themselves), particularly since the law doesn’t require a requester to provide the reason for the request or the use to which the records will be put. And it is a far more productive approach than unfortunately leaving a new job shortly after it began.
As I said in the beginning, I have empathy for the former clerk because the timing of her hire placed her right in the middle of an election with no previous experience. And, while I’m sure it felt cathartic at the time she put together her intemperate eighteen-page resignation package, I think her comments were both inappropriate and, as I’ve explained, unfounded.