No, I am not making this up.
As you know if you read this website, I send a goodly number of Freedom of Information Act (FOIA) requests to the city. The facts underlying what I write about come from responses to those requests, city council meetings, and/or information from city council packets. Why do I send these requests? Most often it is because the city is doing something without disclosing the supporting justification. Or it is taking actions that violate, or potentially violate, the law. Or a city official says something that is demonstrably wrong.
Our city attorney has been billing an effing lot of money for my FOIA requests. Speaking from my own first-hand experience, it’s not an exaggeration to say he’s billing at the same rate I would expect from an associate attorney hired fresh out of law school. We expect new lawyers to take two to three times longer to do things, but it’s inappropriate conduct from a municipal attorney who’s supposed to know what he’s doing after purportedly doing it for decades.
I also think, after reviewing his invoice numbers, our city attorney is semi-retired and Clarkston taxpayers are supplying a significant part of his semi-retirement pin money. The city attorney sends Clarkston two invoices a month – one for general civil work and one for criminal work (if any). For example, we received invoices #11111 and #11112 for March billing, #11115 and #11116 for April billing, #11119 and an unnumbered invoice with no criminal billing activity for May billing, and #11123 and #11124 for June billing. The city attorney is apparently issuing only four invoices for his legal services each month, and half of them are sent to Clarkston (if my assumption based on his invoice numbers is accurate).
But let’s focus on the city attorney’s recent stellar FOIA work. I’m going to discuss his June billing charges in detail in this post, why I think the city is being overbilled, and the city’s reliance on Oakland County for purported legal advice to respond to a simple FOIA request. (One can reasonably wonder whether the city attorney suggested this bizarre course of action.)
I used to work for the largest county in the state. We divided the county into functional units, each with one or two FOIA “officers.” Those officers were responsible for processing FOIA requests. They didn’t contact an in-house attorney unless they had a rare question, needed a countersignature on a denial (something we required since denials can potentially trigger a lawsuit), were going to charge an extraordinarily large fee for records, or if they received a specific type of request (media FOIAs were handled through the press secretary, for example). Otherwise, despite having primary jobs and no legal training, all our FOIA officers managed to collectively answer hundreds and hundreds of FOIA requests every month without ever sending a copy of those FOIA requests to a lawyer or consulting with a lawyer about every FOIA response. Gosh, how did all these employees manage to handle things all by themselves? Because we trained them (in-person or with online FOIA training that I developed), gave them a detailed FOIA manual, and most importantly, none of our lawyers had a pecuniary interest in billing for our consultations because the county directly employed us.
Contrast that with Clarkston. Our city staff apparently forwards every single FOIA request to the city attorney to review as soon as it’s received, often follow it with requests for city attorney handholding (usually in the form of phone calls), and then the city attorney reviews the final response to FOIA requests. These charges might be worth it if it meant FOIA lawsuits could be avoided, but as you know from my experience, that’s not the case. If I wanted to rack up victories by filing recreational lawsuits, the city continues to present me with a boatload of opportunities – in spite of all the crackerjack legal advice from the city attorney. In fact, the city dodged another lawsuit recently because I simply didn’t feel like suing (and winning) over a simple request for the resume our new city clerk voluntarily submitted to the city. We’ll never know the content of that stellar legal advice because it’s protected by the attorney/client privilege (something the city could waive, but it never does because it prefers to keep these things secret). Even though we won’t ever know exactly what the city attorney advised the city, it’s entirely fair to infer what that advice was based on the city attorney’s billing dates and description and what city employees did after that contact with the city attorney.
I sent several FOIA requests in June. On June 6th, I sent a request asking for information regarding the multi-year screw up involving our city employees paying thousands and thousands and thousands of dollars on improperly calculated Independence Township bills for police and fire services, a problem that came to light a couple months ago. Our employees never bothered to double-check the invoices or read the contract, and at least in the case of police services, they didn’t even have a full contract in the city office. My June 6th request asked for the city’s correspondence with Independence Township, the calculations that I knew were distributed at a finance committee meeting, invoices from Independence Township for improperly calculated amounts, and the applicable contracts, all of which should have been sitting in a file on the city manager’s desk since he’d discussed this mammoth problem at city council and finance committee meetings. I also asked for a copy of the salary study from the Michigan Municipal League the city manager told the city council he relied on when asking for salary increases this year, something that also should have been immediately available (since he relied on it). Lastly, I asked for copies of records documenting the quarterly profit-sharing income we’ve received from Charge EV for the electric vehicle charging stations this year. City employees sent this request to the city attorney on June 6th, the day it was received, and we were billed a half hour of attorney time for reading the FOIA request. (The city attorney always bills at least a half hour for anything he does, even if it takes only a few minutes.)
Generally speaking, public bodies get sued for taking improper exemptions (blacking out information), not responding on time to requests (or not responding at all), or asserting they don’t have records when it’s obvious they do. I’m careful when I write my requests so I won’t trigger an exemption, and I usually know the records exist based on comments from city officials. On June 19th, the city attorney purportedly spent an hour and a half reviewing the city’s response to my June 6th FOIA request before it was sent to me that day (with no exemptions taken). I received most of the material I requested, and the city manager decided to send me more salary information than I asked for (apparently as a way of justifying the salary increases he’d proposed to the city council for himself and staff members). I received only seven years of police and fire invoices with a fishy description that said they “dat[ed] back seven (7) year [sic] per the City’s Record Retention Policy” and a generated report with no backup documentation showing the city has received only $70.31 in electric vehicle profit sharing for our many dedicated electric vehicle charging spaces since the budget account was established on July 1, 2023.
Despite spending so much time reviewing the response, the city attorney apparently didn’t notice that failing to provide all the invoices was a partial denial, there was no certification that the records didn’t exist (as required by the FOIA statute), there was no appeal and right to sue language provided (as required by the FOIA statute), and there was no reference to the city’s procedures and guidelines or its summary of its procedures and guidelines (as required by the FOIA statute). Am I being picky? Perhaps. I’ve never sued the city over these issues, even though these requirements are not optional under the FOIA statute. But if we’re going to pay an attorney for an hour and half of time to review a FOIA response, I think it’s reasonable to expect he should have pointed out these obvious deficiencies. There are FOIA requesters who care only about making a living suing public bodies over improper FOIA responses. Should any of these people ever set their sights on Clarkston, they could make a decent living collecting attorneys’ fees and lawsuit costs (while depleting our treasury to pay them plus the attorney fees we’d pay to defend lawsuits based on responses the city attorney reviewed and approved).
I sent a quick follow up to ask for a certification that police and fire invoices older than seven years really didn’t exist because it wasn’t clear (and to confirm I wanted all the quarterly statements from Charge EV except for the one I already had, as opposed to a budget report). Even if a public body could have destroyed a record under its record retention policies, it needs to cough it up if it still exists at the time a FOIA request is made. Certifications of nonexistence are not complicated, but MCL 15.235(5)(b) requires them. For example, I added no record certifications in response letters, saying something like – “Your request for _____ is denied (or denied in part). After a diligent search, we have determined and certify these records do not exist.” I shouldn’t have to ask for a no records certification, and I don’t usually do so, but the problem created by our city employees’ negligence over the years in police and fire services overpayments could have easily paid for repaving two streets and the language in the city’s response left ample wiggle room for concealing the older records. (Think I’m exaggerating? The city manager estimated our city employees overpaid Independence Township $171,799.60 over the last fourteen years, and I think it could potentially be even more than that.)
The city responded with a fully formed denial letter and a no records certification in response to the police and fire invoices request (and a claim that there was no additional detail from Charge EV for profit-sharing). I’d love to tell you how much the city attorney billed for the certificate, but he engages in a practice known as “block billing” which has the effect of hiding the actual time spent working on an individual issue because the billing hours aren’t broken out by subject. I suppose this might make sense to him since he’s also engaging in the unusual practice of billing in half-hour increments (rather than in tenths of an hour most firms I’m aware of bill in). Our city attorney charges a low rate, but the larger billing increment can boost his effective hourly rate far higher than it appears on its face. His bills state he charges $95/hour, but if he handled four different matters for five minutes each, he could effectively charge the city $190/hour using the half-hour billing increment. The problems associated with block billing and billing in larger blocks of time are discussed in this article, and I think these practices raise an excessive fee question under the Michigan ethics rules that govern lawyers:
Rule 1.5(a) of the Michigan Rules of Professional Conduct (Fees) states:
(a) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee. A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
I’d really love to hear the city attorney’s justification for his practice of block and half-hour increment billing beyond “that’s how I’ve always done it.”
The city attorney billed some amount of time on June 24th and June 27th for a simple certification that records don’t exist, even though this is something the city attorney should have known how to do, and city employees should do every time they deny a FOIA request because records don’t exist. Despite the city attorney’s involvement, the “certification” I received consisted of something obviously cut and pasted from the internet. How do I know? Because the appeal and right to sue language explained that I could receive damages from “the District” (a school district perhaps?) if I sued over the response, and if I were interested in reviewing the city’s “FOIA Forms,” I could find them “on the District’s website” at the Clarkston general website address (where it is not immediately obvious how to find any information about the FOIA without digging). The city attorney was also inexplicably involved in my request for the few pages of requested backup budget material from Charge EV and billed time for this issue on June 24th, June 27th, and June 28th.
I sent additional FOIA requests in June seeking the clerk’s resume and the probationary period policy the city manager invoked when hiring the new city clerk; bonding information (the insurance policy required by the city charter) for any person involved in overpaying Independence Township for police and fire services for years and years and years to see if we could recover some of the money our city employees negligently overpaid; and a ZBA file for one address. Of the three, the only request that might have required a little clerical digging was the insurance policy for the bonding information because multiple years were involved, though a good attorney would have already asked to review these materials as a potential avenue of recovery once Independence Township told the city it wasn’t going to reimburse us for anything beyond six years of overpayments for police and fire services.
The city attorney billed a half hour for reviewing my FOIA request for the clerk’s resume and probationary period policy on June 21st; an additional half hour for the city manager’s phone call about my three requests (and apparently someone else’s FOIA request) on June 24th; an hour to review correspondence from the city manager on June 24th relating to my three requests (along with the no records certification and the backup profit-sharing records for electric vehicle charging previously discussed); two hours for review and a phone call from the city manager for three FOIA requests on June 27th (along with the no records certification and the backup profit-sharing records for electric vehicle charging, previously discussed); and two hours on June 28th – the day after the city responded to my requests and provided a certificate of nonexistence for the Independence Township invoices. This is an insane amount of attorney time spent on FOIA requests for materials that should be readily available on the city manager’s desk or in a file cabinet, and it’s unclear why the city attorney continued to bill for work after the city sent the responses to me.
Let’s now focus in particular on the city’s response to my request for the clerk’s resume and any policy regarding probationary periods in addition to the policy spelled out in the city’s Policies and Procedures manual approved by the city council.
The city manager extended an offer to the clerk on June 13th (the same day he interviewed her) that included a promise of a shortened probation period, reducing it from 180 days to 60 days, and also stiffing her out of the full, council-approved pay rate for those 60 days. (This was the same nonsense the city manager pulled with the previous clerk.) Since there was no policy authorizing the city manager to set aside the council-approved six-month probationary period – for the second time – that was an easy one and could have been handled with a denial that such a policy exists. Instead, the city manager justified his actions by admitting what he’d done at the council meeting scheduled a few days after I sent my FOIA request. (At that meeting, the city manager falsely told the city council the probationary period was just a “guideline” that he’d made an exception to.) This allowed him to advise me the city council ratified his policy violation when he responded to my FOIA request. Why did he claim there was a ratification? Because the city council didn’t expressly object to his action. Exactly what was the council supposed to do at that point? Tempt a lawsuit by pointing out that only the full city council could authorize a waiver of the probationary period and change it to the required 180 days?
Setting aside the fact the city manager is clueless about salary administration generally, the obvious reason he sneaks around the probation policy is because the policy forbids salary increases during the probationary period (see page 6-7, linked here). Rather than suggesting a change to the policy to either decrease the probationary period or allow salary increases during that time, the city manager does what he wants and then reports his policy violations to the council for after-the-fact approval. The policy’s purpose is to “assure consistent application of city personnel and procedures throughout the workforce and eliminate the need for individual decisions on matters already determined.” (I wonder if the city manager will be waiving the probationary period for everyone else, or is this exception limited to white women applying for the clerk’s position? 🤔)
The second part of my FOIA request asked for our new clerk’s resume. The council extensively discussed her employment background and experience at the June 24th city council meeting, including her FOIA experience, volunteer work, and her then-current employment (and planned continued Friday work) at the Oakland County Sheriff’s Office. I asked for her resume because I wanted to learn more about her background, particularly since so few people were considered and the hiring decision was made relatively quickly.
I was incensed when I received the city’s response on June 27th, which consisted of a two mostly blank pages. I was given only her name, employment history from nine-and-a-half years ago, what appeared to be partial education and skills listing, and a “volunteer work” section title with nothing underneath it. Everything else was whited out even though the information was freely discussed at a public meeting. Why? After all those consultations with the city attorney, the city manager claimed he was entitled to remove every bit of pertinent information because MCL 15.243(1)(b)(iii) protected information that “could endanger the life of [sic] physical safety of law enforcement personnel” from disclosure. Apparently, it was safe to forward the resume to city council members and freely discuss its contents at a public meeting but releasing the resume (which is a public record) to me was a danger to our new clerk’s life.
What the eff?
The FOIA exemption the city manager used was both miscited and inappropriately applied. MCL 15.243(1)(b)(iii) allows investigating records compiled for law enforcement purposes to be redacted, but only to the extent that disclosure would constitute an unwarranted invasion of personal privacy. An entirely different section, MCL 15.243(1)(s)(vii), allows a law enforcement agency to withhold information that would endanger the life or physical safety of law enforcement personnel, but only if the public interest in withholding it is greater than the public interest in providing it. Newsflash – a resume submitted to Clarkston for a clerk’s position was not information compiled for law enforcement purposes and Clarkston is not a law enforcement agency. Therefore, none of the exemptions pertaining to law enforcement apply to Clarkston – by any stretch of the imagination.
And really. Could submitting a resume for the city clerk’s position really endanger the applicant’s life?
Really?
It would not be an exaggeration to tell you I tell you I came this close →← to immediately filing another FOIA lawsuit. That I would have won. That would have allowed me to collect my lawsuit costs and legal fees for the trouble of filing it. Instead, I sent a very pointed email to the city council, city manager, and city attorney objecting to this moronic response and asking for more information about the hiring process since the city was engaging in its usual practice of hiding as much information as possible from the public for some inexplicable reason.
On July 11th, I received a copy of the resume and application with unobjectionable things removed (name, address, and social security number, which the city still collects on employment applications for some stupid reason). The city manager attempted to justify the inappropriate and heavy-handed redactions by claiming they were done “based on input received from the FOIA coordinators within the Oakland County Sheriff’s Office.” However, after further discussions with Oakland County, he said these same people now acknowledged the information could be shared with me.
Again, what the eff?
To recap – though we paid hundreds of dollars to the city attorney for legal advice, someone (perhaps the city attorney?) thought it would be an awesome idea to call another public body to get more advice (because the city attorney didn’t know the answer or how to read the FOIA statute?); our city manager relied on bad advice from that other public body and unlawfully removed information from a Clarkston public record; and the bad advice was shared with the city attorney and then shared with me (potentially triggering a lawsuit). And, after I pointed out the insanity of the response, the city manager contacted the Oakland County Sheriff again for the apparent purpose of getting Oakland County’s approval to release Clarkston public records. Trust me, darlin’ city manager, Oakland County is never going to stand next to Clarkston and absorb any of the blame, or any of the costs, should Clarkston get sued for relying on bad FOIA advice from Oakland County employees suggesting how Clarkston should handle requests for Clarkston records under the FOIA, which is something the city attorney should have told you. (I also wonder if the Oakland County Corporation Counsel is aware that Oakland County employees are dispensing free FOIA advice to Clarkston.)
Un-effing-believable.
One of the great Clarkston mysteries is why the city council hasn’t yet fired the city attorney.