“Private” Government (And the New American Way)

“Trust us.”

That’s what Mayor Haven essentially told Michael Fetzer in an email that he provided to the Clarkston News and contained in the August 12, 2020 article titled “Residents Questioning City Government.”

Mr. Fetzer asked some very thoughtful and intelligent questions and didn’t deserve these flippant non-responses from Mayor Haven (as taken from the article posted on the Clarkston News website):

• • “We must, therefore, be careful what we say publicly, but rest assured the Clarkston City Council is doing all possible, with expert counsel, to protect the city.”
  • “Clarkston has won in two lower courts,” Haven said. “The Michigan Municipal League Liability and Property Pool, our insurer, has covered all the costs so far, and will continue to cover the costs for the next steps.”
  • “In Monday night’s special city council meeting (Aug. 3), we did two things publicly – authorized our attorney to object to the plaintiff’s bill of costs and authorized our attorney to seek a rehearing of the Michigan Supreme Court decision. The Michigan Supreme Court is in recess until likely October.”
  • “I will say this. Good outcomes require the process to continue, unhindered and unabated with the privacy to allow it to happen decently and in order, for all parties. That is the legal, American way. I ask for everyone to be patient as we work through this delicate process.”

In other words, there is no choice but to trust Mayor Haven and the rest of the city council to have everyone’s best interests at heart, because they think what they’re doing is “private” and no one else’s business. Contrary to Mayor Haven’s assertion, it is ANTI-American to suggest that citizens aren’t entitled to know what’s going on within their own government, particularly where tax dollars are involved. (Tea party, anyone?) Obviously, Mayor Haven could have responded to at least some of Mr. Fetzer’s questions without jeopardizing any of his secrets – he refused, apparently because it wouldn’t be decent and orderly to do so. (Seriously?)

Since Mayor Haven won’t respond, I’ll try to answer Mr. Fetzer’s nine questions with the information that I have. I’m going to refer to our city attorney, an officer appointed under the Clarkston Charter, as the “city attorney,” and the attorney appointed by the Michigan Municipal League Liability and Property Pool (MMLLPP) as the “insurance attorney.”

Question #1:  Will you please arrange to inform the community about the status  [of my lawsuit]?

The current status of the lawsuit is that the Michigan Supreme Court ruled in my favor on July 24, 2020, reversing the decision of the court of appeals. While we argued that NO public official or employee should be able to hide public records in off-site files, the Michigan Supreme Court ruled in a more limited way through the use of statutory construction principles. (This is not unusual – the Court will often choose a narrow result over a more sweeping one where possible.) In essence, the Court held that when an office is created by the charter – here, the office of the Clarkston city attorney – that office is a public body, and the records created in furtherance of an official function of the office are public records. Five of the Justices signed on to the majority opinion; the Chief Justice agreed that the court should rule in my favor but would have preferred a more sweeping decision using the arguments that we made; and, the dissenting Justice would have upheld the court of appeals decision. I’ve attached the decision so you can read it for yourself.

20200724 – MSC decision, Bisio v Clarkston – 158240

After the decision in my favor, my attorney reached out to the insurance attorney to try to amicably resolve the lawsuit and end the fighting. This contact was disclosed when the city manager posted a confidential memo from the insurance attorney during the July 27th city council meeting. Usually, when someone loses in the Supreme Court, they acknowledge defeat, move on, and try to minimize the consequences of the loss. Not in the City of the Village of Clarkston.

Following the closed session on August 4th, we learned – along with everyone else – that the city council has no interest in turning the records over or settling the lawsuit. Instead, they have decided that they are going to fight and oppose everything, legal costs (and taxpayers) be damned. Ms. Wylie was the only “no” vote for this bizarre course of action.

As I explained in the post titled “More Secrets,” we asked the Court to assess what are known as “taxable costs” against Clarkston – which amounted to per page fees and filing costs. (Please note that taxable costs are different than the fees and costs that are awarded to prevailing parties in lawsuits brought under the FOIA statute – those are still at issue.) The city council authorized the insurance attorney to fight that request. The present status is that the city council’s objection to my request for taxable costs was overruled by the Court Clerk, and the city council has now asked all seven Supreme Court Justices to get involved in deciding whether I should receive $1,146 in taxable costs. The city council also plans to file a motion in the Michigan Supreme Court to ask for another hearing on the decision that they just issued on July 24th. (August 4, 2020 special city council meeting, at time marker 00:13:48, linked at the bottom of this page.)

I plan to post everything here, so feel free to check back if you want to know what the city council is doing – since they obviously aren’t going to tell you about their “private” matters.

Question #2:  What specific records have been sought by Ms. Bisio?

The lawsuit involves 18 pieces of correspondence, described on the city attorney’s bills, bills that were posted on the city’s website. The correspondence was sent or received by the city attorney in the performance of his official duties under the Clarkston Charter.

I’m attaching the city attorney’s invoices that reference the 18 records involved in the lawsuit, which I’ve highlighted in yellow. The requested records pertain to two subjects that were of great public interest at the time I made the request: 1. Curt Catallo’s property at 148 N. Main while he contemplated building a coffee shop amid citizen concerns about potential groundwater contamination at that site, and 2. The property at Waldon and Main when Cara Catallo, while serving as the Historic District Commission Chair, tried to forcibly stop the property owners from clearing trees from their own property – property that happens to be in close proximity to the two restaurants her brother Curt owned at the time.

Please note that the city attorney denied my request for these 18 records by asserting that he was not a public body and therefore, the 18 records were not “public” records. That’s it. The city attorney did not claim that the 18 documents were subject to the attorney/client privilege or any exemptions under the FOIA. He simply believed that as long as he didn’t copy his Clarkston client, then no one from Clarkston government (or any taxpayer) was entitled to see these 18 records (or any other records he chose to keep hidden in his office).

The city attorney’s position was expressly rejected by the Michigan Supreme Court.

Ryan billings, combined

There are some additional interesting facts that you should know about these 18 documents. At the September 11, 2017 city council meeting, the city attorney repeatedly admitted that no one from the city has ever seen these documents – including his client, the City of the Village of Clarkston. The city attorney also admitted that he alone made the decision to hide these specific records, without any approval from the city council to whom he reports. (The video of this meeting is linked at the bottom of this post, with the entire discussion beginning at time marker 01:25:43. I’ve also annotated City Attorney Tom Ryan’s comments in the post titled “Bisio v Clarkston, Part 2,” which you can find under the November 2019 archives at the bottom of the sidebar on the right side of this page.)

The city attorney urged the city council that they should fight to preserve what he characterized as an important legal right for the city relative to consultant documents, including planner documents, city engineer documents, or documents held by someone other than a lawyer. (September 11, 2017 city council meeting, at time marker 1:33:30, linked at the bottom of this page.)

Because the Michigan Supreme Court issued a narrow decision, it has no impact on the “consultants” that the city attorney claimed to be concerned about because they don’t hold offices as defined by the Clarkston Charter. Whether they are smart enough to realize it or not, the city council is continuing a fight that will allow the city attorney to be accountable to them ONLY to the extent that he decides to copy them on correspondence that he’s exchanging with others during the course of conducting city business.

There are additional curious facts to consider. The city attorney admitted at his deposition that he’d promised to keep one document that I’d requested (a proposal from another lawyer) confidential. There was no legal or ethical basis for this confidentiality promise because this document was sent to the city attorney from an attorney representing the property owner at Waldon and Main. The city attorney confirmed his deposition testimony when he told the council that there were various reasons why the 18 records didn’t “come to the city,” some of which involved a request from another attorney. (September 11, 2017 city council meeting, at time marker 1:40:07, linked at the bottom of this page.)

The insurance attorney made a similar reference, saying that there are things that are provided to lawyers on condition that they not be disclosed until they reach a final agreement. (October 23, 2017 city council meeting, at time marker 2:55:17, linked at the bottom of this page.)

Is it possible that all of this litigation occurred because the city attorney is trying to hide a specific discussion from his own client? Does it also have something to do with the fact that all 18 records relate to the city attorney’s actions in matters involving the Catallo children? Only the attorneys know. As I said, it’s curious.

Question #3:  Are all the records preserved, and who holds them?

Fair question, since both attorneys have been rather cagey when asked. The city attorney said that he turned the records over to the insurance attorney, but he didn’t say whether or not he’d kept a copy. (September 11, 2017 city council meeting, at time marker 1:43:08, linked at the bottom of this page.) I have a recollection that the city attorney later admitted that he kept a copy of the records, but I wouldn’t be able to find the citation to the meeting without doing a lot of digging.

At a separate city council meeting, the insurance attorney admitted that the city attorney had sent the records to him and he said that he believed he still had them.  (July 23, 2018 city council meeting, at time marker 00:44:57, linked at the bottom of this page.)

Honestly, for a number of reasons, I believe that both attorneys have copies of the 18 records and that they would turn them over me and to the city council – if the city council ever asked them to (which they have steadfastly avoided doing to keep the lawsuit going).

The Michigan Supreme Court has declared that records maintained by the city attorney are public records. Even if they weren’t the subject of litigation, the fact that they have been declared to be public records means that misdemeanor penalties attach to any destruction that is not authorized by a records retention schedule that has been approved by the State of Michigan. If there is no record retention schedule that authorizes destruction, then the records can’t be destroyed.

Since litigation is involved, if the city attorney and insurance attorney tried to claim that these 18 records have somehow disappeared or have been destroyed, they (and the city) would be exposed to court sanctions and the attorneys would be subject to discipline by the State Bar of Michigan. Disciplinary proceedings are embarrassing for all lawyers, but it would be particularly embarrassing for our city attorney, since he’s a former State Bar President and sits on the Judicial Tenure Commission (the body that reviews misconduct allegations against judges).

Question #4:  What are the total costs, including but not limited to, legal fees, travel, consultation fees, attendant to the city’s defense and advocacy in this case to date?

The only sources for the total costs to date would be the insurance attorney and the MMLLPP (even though the MMLLPP receives its funding from participating public bodies, who in turn receive their money from taxpayers). The insurance attorney advised the city manager that MY fees are between $300,000 and $350,000, so it’s entirely possible that he’s basing those numbers off of his own charges to the MMLLPP. Only the MMLLPP and the insurance attorney know for sure – and they aren’t going to tell you.

Question #5:  What is the total of costs potentially payable to Ms. Bisio?

As I said, we approached the city in an attempt to amicably resolve the lawsuit. The insurance attorney asked us what our fees and costs were to date so he could advise the city council. They apparently didn’t think the number that we gave them was large enough, since their response was to engage in activities that will only increase my fees. The total amount of my fees and costs is significant, but it isn’t the $300,000-$350,000 estimated by the insurance attorney. We are adding to our fees with every action taken by the city council, which for the time being, will include responding to the motion regarding taxable costs, responding to the motion requesting a rehearing, and participating in a rehearing if one is granted.

Several years ago, Ms. Wylie specifically asked the city attorney who would pay my attorneys’ fees if the city lost the lawsuit, and the city attorney told her that the insurance company would pay them. (September 11, 2017 city council meeting, at time marker 1:37:07, linked at the bottom of this page.)

During a public meeting a few months ago, we learned that the insurance carrier had advised the city attorney that attorneys’ fees were NOT covered as damages under the policy. The city attorney admitted that this was the second time that he’d received a letter like this from the MMLLPP. The city attorney told the council that the first letter was sent shortly after my lawsuit was filed, so he would have had knowledge of that letter at the time he answered Ms. Wylie’s question. (February 24, 2020 city council meeting, at time marker 00:23:20, linked at the bottom of this page.)

I don’t recall any public discussion concerning that first letter, and only the city attorney knows if he shared it with anyone from the city. Neither letter has been shared with the public.

Question #6:  What is the City’s specific rationale for pursuing the almost unanimous court decision and what arguments have been identified to support the appeal?

It’s not an appeal, because there are no appeals left. The city council plans to ask the Michigan Supreme Court for a rehearing to try to change the Justice’s minds – even though the opinion in my favor was just issued on July 24th. Though Mayor Haven apparently wants to keep it a secret, I will post the city’s motion and our response on this page (which is apparently the only way that you will ever know what the city council is up to). Asking for a rehearing isn’t the same as actually getting one, particularly since it’s hard to imagine that the insurance attorney was unaware of any arguments today that he wasn’t aware of from the time the case was accepted by the Michigan Supreme Court in September 2019 until the time of oral argument in March of 2020. If there was an important issue, why wouldn’t he have asked the court for leave to address it in writing before the hearing (as we did in the court of appeals when a new argument was raised)? Alternatively, why wouldn’t he have raised it at oral argument in March? That’s a question that only he can answer.

Question #7:  Will new or different counsel be retained?

The insurance attorney changed law firms and filed an appearance in my case under his new law firm’s name. Oddly, I don’t recall any public discussion indicating that the city council consented to the substitution of the new law firm – and they are the client in this matter. The insurance attorney participated in the closed session on August 4th, and the city council authorized him to contest my request for taxable costs and to file a motion for rehearing. There have been no appearances filed for any other attorneys or firms.

Here’s something you might not know, because it’s never been publicly discussed. Even though the city attorney and the insurance attorney publicly refer to each other using surnames and speak of each other in a way that suggests they only interact at arm’s length on Clarkston litigation matters, would you be surprised to know they are friends?

Here is a cut and paste from the city attorney’s deposition in my case:

Here are the links to the city council meetings I’ve referenced above: