The City’s Freebies for Friends Program Will Continue (But Only If They Beg Really Hard)

Unbelievable. After reading the packet for Monday’s city council meeting, it’s crystal clear that Clarkston government officials feel such an enormous sense of entitlement to do “what we’ve always done” that they literally won’t stop doing the wrong thing until a lawsuit is filed and a court order stops them. It took a five-year Freedom of Information Act (FOIA) lawsuit before the city attorney was forced to stop hiding records in his office. It took a lawsuit from my husband and a criminal complaint from the Clarkston News before the city council was forced to start taking the Open Meetings Act (OMA) more seriously. Two weeks ago in a secret closed session, the city attorney provided advice regarding, presumably among other things, the city council’s Depot Park user fee giveaways. Apparently based on that secret advice, someone prepared a steaming pile of excrement, er, resolution, for the city council’s consideration at the Monday, June 24, 2024, city council meeting that the author thinks will give the city council cover to continue to do what it’s always done. It won’t, and the city council and city attorney made things much worse by discussing these issues in a secret closed session rather than in an open public session.

Before we go further, and if our city attorney is responsible for this latest debacle, let’s make a brief trip down memory lane to recall the enlightening comments the city attorney made at an April 27, 2015, city council meeting. This meeting occurred after the city attorney deliberately exposed the city council members who voted to unlawfully close a public meeting to civil and criminal liability but before any OMA or FOIA lawsuits were filed. It all began when the city attorney requested a closed meeting session to discuss a matter involving a local businessman (cough cough Curt Catallo) and later personally participated in the unlawfully closed session, permanently cementing the OMA violation for the city council members who voted to unlawfully close the meeting. (Please note my editorial comments are in parentheses and brackets.)

• 1. “We’re a rule of law, not a rule of men, or women.” (But we don’t follow the law if it means we can’t do whatever the heck we want, gosh darn it.)
  2. “I’m not the smartest guy in the world . . .” (Agreed.)
  3. “I did not present an actual memo” [as the basis for the city council to go into closed session] (Bingo! This was OMA violation #1.)
  4. “[B]ut this was a legitimate issue, a legitimate reason to go into closed session, in my opinion. (Incredibly, he said this after having weeks to, you know, actually read the OMA and confirm he’d screwed up as opposed to doubling down on stupid.)
  5. “[I] did that calculation on the fly. I believe I’m right.” (This comment related to the number of yes votes required to go into closed session, and he wasn’t right. This was OMA violation #2.)
  6. “So, in my opinion . . . it was a valid closed meeting. If there’s a court that wants to say it wasn’t, they can do that.” (Nothing like daring people to sue you when you’re clearly wrong. See paragraph #2.)

At that same April 27, 2015, city council meeting, the city attorney also claimed that a letter sent to the city from that local business owner (cough cough Curt Catallo) discussing a zoning agreement with the city was not a public document. The city attorney was angry the public got to see this public document and declared “this information comin’ out of city hall is gonna have to be adjusted, frankly, to make sure that something like this doesn’t happen again . . . The public doesn’t have to know every little hiccup in life that happens.” (“Adjusted” meaning hiding those little government hiccups from public view. Yeah, he’s not so good with the FOIA either.)

Speaking of FOIA and the city attorney, I filed a second FOIA lawsuit against the city after months of unsuccessful back and forth trying to get records last year. I made a last-ditch effort explaining the problem to the city council and warning the city I’d file a lawsuit if they didn’t give me the records I’d asked for. After receiving no response and filing the promised lawsuit, I learned the reason the city continued to ignore my FOIA request was because the city attorney expressly advised the city to continue to withhold public records and ignore me – apparently because I told the city I would file a lawsuit if the city continued to withhold public records and ignore me (because that totally makes sense.) The city offered exactly zero legal defenses for what it had done, threw itself on the mercy of the court to be fair when deciding how much the city had to pay me and my lawyer for the trouble of suing the city as a result of the city attorney’s super bad advice, and the city ended up providing all the records I’d asked for and paying the fees incurred in my filing the lawsuit.

You might be wondering what the elements of a legal malpractice claim are in Michigan and how it relates to last year’s FOIA lawsuit (or perhaps an upcoming lawsuit regarding user fees and unauthorized charitable contributions). No worries – I looked it up for you and put my commentary in parentheses. (See Charles Reinhart Co v Winiemko, 444 Mich 579; 513 NW2d 773 (1994).) There are four elements:

• • The existence of an attorney-client relationship. (Sections 5.1 and 5.6 of the Clarkston charter establish the office of the city attorney and the attorney-client relationship.)

• • Negligence in the legal representation of the plaintiff. (The plaintiff in this scenario is Clarkston or someone who stands in the shoes of Clarkston if the city council refuses to pursue a claim. The question in the second FOIA case is whether it was negligent for the city attorney to advise the city council to ignore someone threatening a FOIA lawsuit when the city had no legal defense that would allow it to withhold the requested documents.)

• • The negligent legal representation was a proximate cause of an injury. Proving “proximate cause” means showing that the city attorney’s advice was the factual cause of an injury to the city that was foreseeable. (So, was it foreseeable that someone who’d spent five years suing the city all the way to the Michigan Supreme Court over FOIA records would sue the city again over FOIA records the city had no legal basis to withhold – after telling the city she intended to sue them again if they didn’t provide the records – resulting in an award of attorneys’ fees and costs? You be the judge.)

• • The fact and extent of the injury. (The city was forced to pay $8,974.25 to reimburse my attorney and me for the legal fees and costs involved to sue Clarkston over the failure to provide public records that were withheld solely on the city attorney’s advice but without any legal basis to withhold them.)

The good news for taxpayers is attorney malpractice claims have a two-year statute of limitations, so we have time to explore reimbursement from the city attorney in the future. Forcing the city attorney to reimburse for legal fees wouldn’t be a new thing for him, since his legal malpractice carrier had to cough up $35,000 toward my attorneys’ fees and costs in the five-year FOIA lawsuit for his actions in that case.

That brings us to Clarkston’s unsupported user fees and the city council’s user fee freebie giveaways to people and organizations they like. Rather than running to court on the user fee issue or asking our county prosecutor to look into the city manager’s conduct, I sent an April letter to the city explaining the legal prerequisites for charging user fees to anyone for anything (not just for the exclusive use of all or part of Depot Park); why they are prohibited from waiving fees for anyone once they properly establish user fee schedules (because there’s no authority for the city council to give away the taxpayers’ right to collect user fees from groups the city council likes under state law or our charter); and why the city manager cannot be on both sides of a transaction with the city (on one side in his role as a charter-appointed officer and on the other as the president and treasurer of a private organization receiving financial benefits controlled by the city manager). I wrote about it here, and you can read my letter to the council here.

I simply asked the city to do the right thing, and I provided them with the legal basis for that request. Unfortunately, our city government has difficulty complying with the law until a lawsuit forces it to do so – even after a secret, closed session with its attorney to explain the law to them some more. (Or at least we hope the city attorney knows more about this area of the law than he knows about the FOIA or the OMA. Since whatever advice he dispensed was given in a secret closed session, we have no way of evaluating it.) If the resolution the city council is considering on Monday regarding Depot Park user fee waivers was drafted by our city attorney, he should be fired, but since he hasn’t been fired for the other things I’ve told you about, I wouldn’t hold my breath.

So, let’s take a look at Monday’s resolution one piece at a time. You can read it in full here.

WHEREAS, a resident has challenged the legality of the City Council waiving Depot Park fee [sic] and challenging the City’s published fee schedule for utilizing Depot Park; and

That resident would be me, and I “challenged” four things, not two: 1. The city has exactly zero fee studies to support any fee it’s been charging to anyone for anything, including but not limited to Depot Park user fees; 2. The city has no authority under the Michigan constitution, case law, or the city charter to give away the taxpayers’ right to collect Depot Park user fees when organizations the city council likes ask for the exclusive use of all or a part of the park for their private events; 3. The city manager has no authority to make taxpayers foot the bill for Department of Public Works employee labor used for these private events; and 4. The city manager has an unwaivable conflict of interest that puts him on both sides of a financial transaction between the city and his private organization, the Clarkston Community Historical Society (CCHS).

WHEREAS, the City Council wishes to study these issues to establish a comprehensive fee waiver protocol (if any) and an updated cost schedule for Depot Park usage using current DPW costs and other related costs of usage, to be updated by City Council Resolution on an annual basis; and

There are really two issues here. First, the city has no authority to make charitable donations in the form of Depot Park user fee waivers. Second, the city is required to conduct a user fee study to support all user fees, not just Depot Park user fees. It risks a lawsuit if it continues to do so.

To the first point, the city is prohibited from giving charitable gifts to an organization without a charter amendment authorizing it to do so. We don’t have one. Even if Clarkston voters agreed to change the charter to allow the city council to make limited charitable donations, the city would have to evaluate each request on a case-by-case basis. This rules out any “comprehensive fee waiver protocol.” The reason I wrote my April letter was because the city council planned to consider a resolution that would establish an automatic fee waiver policy for 501(c)(3) organizations. A “comprehensive fee waiver protocol” is undoubtedly the same thing but with more and fancier words.

The implication in this language is the city council might decide to continue to give away user fee waiver gifts to organizations it likes unless and until a court prohibits it from doing so. Well, if that’s what they want and they’re willing to foot the bill for another lawsuit (that won’t be covered by insurance), then I can’t wait to see their “comprehensive fee waiver protocol.” And if this “comprehensive fee waiver protocol” allows the city manager to continue to be on both sides of a financial transaction with the city, then I will unfortunately have to ask the Oakland County Prosecutor’s Office to review what been happening because it honestly sounds like misconduct in office to me (though I have no criminal law experience, I’m not a prosecutor, and bringing any criminal charges would be up to the prosecutor). I do know what it’s like to watch someone go through a prosecution for misconduct in office, however. It’s personally painful and expensive, which is why I chose to send a warning letter to the city council first with the hope they would address this issue.

The second issue is the “updated cost schedule.” I asked for Clarkston’s user fee studies for Zoning Board of Appeals fees, the $200 resident and $250 nonresident “gazebo rental fees” (which is how the city refers to the Depot Park user fees), the $25 event administration fee, and the $25 per hour fee for Department of Public Works employee labor. (The city also gratuitously threw in what it referred to as the “City of the Village of Clarkston – Building Department Fee Study” prepared by Carlisle/Wortman and primarily based on a “comparative review” of what other communities charge).

Guess what? The city doesn’t have any user fee studies that would show the fees it charges have any relationship to the cost of providing services. If the city attorney concluded that the only user fees that need to be reviewed are Depot Park user fees, then I suggest he read my email again and at least make an effort to familiarize himself with this area of the law. The bottom line is the city has no fee studies to demonstrate that any of its user fees relate to the actual cost of providing the service and every user fee needs to be reviewed, not just Depot Park user fees.

WHEREAS, to establish these two goals, the City Council believes a moratorium on any fee waivers should be established, pending final resolution of these issues by City Council.

Since they aren’t legally allowed to waive fees, a moratorium is a jolly good idea. 😉

NOW, THEREFORE, BE IT RESOLVED that the City of the Village of Clarkston City Council declares a moratorium effective June 24, 2024 until September 24, 2024 for the waiver of Depot Park fees.

The city council isn’t legally allowed to waive user fees for private individuals or organizations they like now or after September 24, 2024. And out of curiosity, where did the end date come from? Is there a favored person or organization planning an event on September 25, 2024, or later? This is Clarkston after all, where friends are rewarded, and enemies punished.

The resolution should have stopped here. Unfortunately, it didn’t.

BE IT FURTHER RESOLVED that during the effective period of this moratorium any aggrieved person or entity shall be entitled to a hearing for the purpose of attempting to demonstrate to the City Council the temporary moratorium pronounced in this Resolution will result in an extreme economic hardship to the person or entity, or otherwise violates applicable state or federal law. Such hearing shall be conducted on an expedited basis before the City Council. At the conclusion of the hearing, the City Council shall make findings with respect to whether the Petitioner has demonstrated this moratorium on its face or applied constitutes an unreasonable economic burden on the applicant or a violation of applicable constitution or law. If it is found and demonstrated the moratorium has an unreasonable economic burden on the person or entity, or that it violates law or constitutional provision, the City Council shall grant relief from the moratorium to the degree necessary to cure the specific harm in question.

Apparently, they saved most of the stupid for last. This paragraph resolves all doubt that the point of this resolution is to give the city council an avenue to continue providing Depot Park user fee freebies for people and organizations the city council likes. The person who added this language is either a lawyer who needs to be fired or an uniformed layperson who should stop cutting and pasting crap from the internet and calling it good. I’d really like to know which.

Let’s break this down.

[D]uring the effective period of this moratorium any aggrieved person or entity shall be entitled to a hearing for the purpose of attempting to demonstrate to the City Council the temporary moratorium pronounced in this Resolution will result in an extreme economic hardship to the person or entity, or otherwise violates applicable state or federal law.

“Any aggrieved person or entity.” Translation: People and organizations we like might be really mad/sad that they won’t be able screw the taxpayers out of user fees to use all or part of Depot Park unless they pay the $200 resident or $250 non-resident user fee – the same fee that a bride or the parents of a six-year-old birthday boy would have to pay for two hours of use. Feeling sympathetic yet?

“Entitled to a hearing.” Entitled? Give me a break. These favored people and organizations aren’t “entitled” to jack squat. This wording suggests people who have been getting legally unauthorized taxpayer-funded freebies have some due process right to take up time during a public meeting to b*tch and complain about why they shouldn’t have to pay a user fee – just like they’ve done every time they’ve come before council to ask for a fee waiver. The city council always allows them on the agenda on request, listens to them plead poverty and tell everyone how wonderful they are, and then the city council grants a user fee waiver.

“Extreme economic hardship.” Seriously? The city has given away Depot Park user fee freebies to private companies who operate at a profit (Mueva Fitness), non-profits like the city manager’s CCHS (that had over $130,000 in net assets as of the last tax return they posted), and the Milo Project (a privately owned group that charged a $30 admission fee per family for its event). These organizations could simply ask for additional donations to cover the Depot Park user fee that everyone else has to pay but think they are special snowflakes who shouldn’t have to do that. Here’s a thought – maybe the special snowflakes could ask the bleeding hearts on city council to chip in and personally help with their “economic hardship.” (Yeah, like that would ever happen. 😂)

“Otherwise violates applicable state or federal law.” Give me an effing break. Better yet, please cite the state or federal statute that would obligate Clarkston taxpayers to support freeloading private individuals or entities with user fee waivers. I’ll wait. Ding-ding-ding! Time’s up. Are we living in a bizarro world now, where everything is the opposite? The applicable law is the Michigan constitution that prohibits public bodies from giving away things that belong to the public, our city charter that doesn’t authorize the city council to make charitable contributions, and Michigan Supreme Court precedent that requires a fee study before user fees can be charged to anyone. It appears this proposed resolution language was copied from some other resolution or ordinance (such as those that try to place a moratorium on new wind farms or short-term vacation rentals) without thinking about what the language really means or how it applies to this particular situation.

Hey, here’s a thought. Is this B.S. resolution creating an equal protection violation class made up of all the people who have never received these freebies and therefore aren’t “aggrieved” and entitled to demand a prompt a hearing to try to prove they are suffering “extreme economic hardship” if they have to pay the $200 or $250 user fee to use part of the park for a wedding or birthday party? Maybe the city council should consider the possibility that they could be creating new and unexpected liabilities for the city by trying to continue their practice of making unauthorized charitable donations by setting up an appeals process for organizations they like to get their precious user fee waivers. Hmmm. Maybe someone on city council should ask the city attorney about that – unless of course he was the one who wrote this garbage resolution and/or it’s consistent with whatever advice he provided in closed session at the June 10^th city council meeting. If that’s the case, see the malpractice discussion above for possible next steps depending on how things might play out. Just sayin’.

Such hearing shall be conducted on an expedited basis before the City Council.

The managing partner of the Millpond Inn Bed & Breakfast couldn’t even get a spot on the city council’s agenda while his business was being pursued for imaginary code violations with a city goal to put his facility out of business. But special freeloaders get special treatment by asking for expedited hearings to demonstrate “extreme economic hardship.” Seriously? That equal protection issue is looking more and more interesting, isn’t it?

At the conclusion of the hearing, the City Council shall make findings with respect to whether the Petitioner has demonstrated this moratorium on its face or applied constitutes an unreasonable economic burden on the applicant or a violation of applicable constitution or law.

So, now the writer of this insane resolution has shifted from worrying about “extreme economic hardship” to “unreasonable economic burden,” all in the same paragraph. This is what happens when people cut and paste things they don’t understand.

To the best of my knowledge, octogenarian Gary Casey is the only attorney on the city council, he frequently has a hard time paying attention to what’s going on at regular meetings, and he was a complete failure when he tried to run a city council meeting a few weeks ago in the mayor’s and mayor pro tem’s absence despite being on the city council for years. So, he and the rest of our legally uneducated city council are going to make “findings” on economic burdens and constitutional or other law for or against a “petitioner,” are they? Just like a judge would do. Except with no standards because we don’t need no stinkin’ standards!

OMG. This could only happen in Clarkston and should be fun to watch. It’ll be better than Judge Judy! 😂

The phrase “on its face or applied” often comes up in the context of first amendment violations. An example of an ordinance that is unconstitutional on its face is the city’s sign ordinance because it singles out political speech for different treatment based on the content of the speech. If the city ever tried to punish anyone for putting a political sign up too early or not taking it down fast enough, that would be an example of an “as applied” first amendment violation. (And no, I haven’t forgotten that’s an ongoing issue that anyone can sue over at any time, and they don’t need to get a ticket before they can file suit.)

The bottom line is the city council can have all the kangaroo court hearings it wants, but it’s not going to provide any legal cover over user fee issues and unauthorized charitable donations. However, it may create additional lawsuit opportunities, including possible equal protection violations.

The legal issue is whether the city council has the authority to give away the taxpayers’ right to a user fee they’re not authorized to charge to anyone without an appropriate fee study. They should fix that and stop playing games.

If it is found and demonstrated the moratorium has an unreasonable economic burden on the person or entity, or that it violates law or constitutional provision, the City Council shall grant relief from the moratorium to the degree necessary to cure the specific harm in question.

“Found and demonstrated”? “Grant relief . . . to the degree necessary to cure the specific harm in question”? 😂 Since we’re having a full-blown hearing with all those constitutional findings and whatnot, will the taxpayers be allowed a representative to cross-examine the freeloader at the hearing? Will “aggrieved” people have a right to an appeal? After all, in for a dime, in for a dollar. If the city council is going to go all in on this “due process” thingy, they should go all the way, right?

This is one of the dumbest tricks the city has ever tried to pull, and that’s saying something. The author of the resolution apparently thinks using legal sounding words he or she doesn’t understand (but perhaps found somewhere on the internet) makes giving away the taxpayers’ right to collect user fees from people and organizations the city council likes seem all justified and legal-like.

News flash. It doesn’t.

Does the author of this execrable resolution think we’re so stupid that we can’t see that the resolution doesn’t change anything at all? Freeloaders will still flock to the city council, claim they can’t afford to pay the Depot Park user fee, and then they’ll get a fee waiver – just as they always have. The only thing this resolution adds is the superfluous announcement that there has been some sort of finding of law and fact involving purported economic hardships and unreasonable economic burdens, constitutional law, or unnamed state and federal statutes the city council members don’t understand (and shouldn’t have to understand because it’s not their job to understand them).

Let me spell it out for Clarkston government – the taxpayers are the injured party in this scenario, not the freeloaders.

For now, I’ll be popping popcorn and watching the clown show. If the city does something more stupid than approving this resolution, I’ll decide what I’m going to do about it at a time of my own choosing.

Clarkston government is a continuing embarrassment. It’s unfortunate that potential home buyers likely don’t realize this until it’s too late.