BY PHIL CUSTODIO
Clarkston News Editor
The next time City Council meets with attorneys about pending litigation, it will probably be in closed session.
“I would really like to have Mr. (James) Tamm present and we can go into closed session to ask him some of these direct questions” about the Susan Bisio vs. the City of the Village of Clarkston case, said Mayor Steven Percival at the Oct. 9 meeting.
City Council members need to be careful about what they say in public about the lawsuit, said Council member David Marsh.
“The public does not have the right to know everything,” said Marsh, who is running for reelection on Nov. 7. “At some point, we have to trust not only our attorney, or the other attorneys, or Mr. Tamm or the circuit court judge, that have seen the documents, that said ‘nope, these are not FOIA-able….’ Why are we making such a huge deal over this unless there’s possibly something in those documents that could hurt the city and certain individuals want it out?”
Attorneys Tamm and/or Julie McCann O’Connor, the city’s legal representation provided through insurance by the Michigan Municipal League, will meet with council on Oct. 23, Ryan said.
The lawsuit alleges the city improperly withheld 18 documents requested by Bisio under the Freedom of Information Act.
“I made the initial decision, the documents should not be disclosed because they never came to the city,” said Ryan, who based his denial on his opinion the city attorney is not a “public body.” Also, the information was not created nor obtained by a public body, such as the City of the Village of Clarkston, and thus was not a public record, he said.
“It’s not me out there lone wolfing or shotgunning this decision – I made the decision, that’s true, but that decision has been upheld at least the two levels above me,” Ryan said. “Now it’s in the hands of the Court of Appeals.”
According to the City Charter, administrative officers of the City of the Village of Clarkston include the city attorney, along with city manager, clerk, treasurer, assessor, and financial officer.
If city council members never saw the document, then they didn’t base decision on them and therefore are not FOIAable, said resident Bill Basinger, member of the Zoning Board of Appeals.
“It’s all about us looking over your shoulders as a council and saying what did you have, what did you know, and how did you use it,” Basinger said at the meeting.
If the city gives up this legal principle, city planners, city engineers, and other contractors will increase their fees, he said.
“In my personal opinion what Mr. Bisio is doing is a personal vendetta against the City of Clarkston by pursuing this appeal – he just wants his pound of flesh,” Basinger said.
Resident Stuart Mahler said the important thing is the city council makes the decision.
“Mr. Ryan has unilaterally withheld the information from the city that was part of the city-related business, paid for with city taxpayer funds, and put the city in the Michigan Court of Appeals – he should not have been paid for these services,” Mahler said. “This is a lawsuit about a decision Mr. Ryan made. The city officials have not had the opportunity to make a decision on that. It may be material and it may not be. The choice should be the city council’s decision.”
Ryan, who directed most questions to the next meeting with Tamm, told the council he will not charge to review further correspondence in the case, backdated to Sept. 1.
“I need to review correspondence from Mr. Tamm’s office but I’m not going to bill for them because I discerned some of the council members weren’t happy with that,” he said. “To try to assuage the issue, I’m not going to bill for that – if it’s an issue then I’ll take the issue away.”
To meet in closed session, council will have to state the specific exemption allowed under the Open Meetings Act, and two-thirds of the total membership, five council members, will have to vote to approve.

18 documents

The 18 documents at issue in the Susan Bisio vs. the City of the Village of Clarkston lawsuit were all correspondence send or received by city attorney Thomas Ryan in 2015 about environmental issues in proposed developments at 148 N. Main Street, and at Waldon Road and M-15. They were billed to the city in Ryan’s invoices, $47.50 each, with payment approved by City Council in their consent agendas:
1. Jan. 30, from Neil Wallace re: water table re: 148 N. Main;
2. Feb. 4, from John Cecil at HRC re: having developer provide correspondence from MDEQ re: any impacts to the existing contamination plume; NPDES permit waiver is fine re: 148 N. Main Street;
3. Feb. 5, from Neil Wallace re: project re: 148 N. Main Street
4. Feb. 23, from Neil Wallace re: response to Gary Tressel’s email regarding approval of MDEQ etc. and a copy of the referenced email;
5. March 23, from Neil Wallace re: indemnity for storm water system re: 148 N. Main;
6. March 26, to Neil Wallace re: did HRC receive a copy of the revised groundwater mounding analysis;
7. March 27, 2015 – correspondence to Neil Wallace re: proper party for Hold Harmless Agreement and forward appropriate language re: 148 N. Main Street;
8. March 27, from Neil Wallace re: revised draft of Hold Harmless Agreement re: 148 N. Main;
9. March 30, from Thomas Biehl at HRC re: comments relative to Hold Harmless Agreement re: 148 M. Main;
10. March 30, to Thomas Biehl and Kevin Gleason re: Hold Harmless Agreement re: 148 N. Main;
11. April 2, from Neil Wallace re: the status of the Hold Harmless Agreement;
12. April 13, from John Cecil at HRC re Hold Harmless agreement and final site plan;
13. April 13, from Neil Wallace re: Hold Harmless Agreement re: 148 N. Main Street;
14. April 23, to Jeff Leib re: meeting on May 16, 2015 re: vacant property at Walden & M-15;
15. April 23, from Jeff Leib re: vacant property cleanup at Walden and M-15;
16. May 7, from Jeffrey Leib re: property at Walden and M-15;
17. May 13, correspondence to Jeff Leib re: vacant property at Walden and M-15; and
18. May 20, from Jeff Leib re: Walden Road and M-15 property.

Deposition talk about confidentiality

A deposition of city attorney Thomas Ryan by Richard Bisio in the Susan Bisio vs. City of the Village of Clarkston case on Aug. 9, 2016, included an exchange about confidentiality:
Ryan: Confidential is a colloquial term meaning two lawyers talking about trying to resolve a matter, and until the matter can be resolved, keeping the information between the two lawyers.
Bisio: And you are — and your understanding is this is not a specific exemption under the Freedom of Information Act, is that right?
Ryan: Right.
Bisio: Rather, it’s a —
Ryan: Common practice —
Bisio: Okay.
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Bisio: Did any elected official of the city authorize you to make that confidentiality promise?
Ryan: No. Again, you’re referring to the act, and this is a practice and procedure between lawyers trying to resolve a problem.
Bisio: Other than what you characterize as a typical procedure, is there any authority you’re aware of for you to make a promise that records that you send and receive in the course of conducting city business be kept confidential?
Ryan: I’m sorry. Repeat that question because I don’t understand the premise. If you could repeat it, I’d appreciate it — other than the fact that as an attorney with an ethical obligation to honor another attorney’s request to keep something confidential, if it doesn’t impact the client and it’s in the preliminary stages of discussion attempting to resolve a matter, I would say have an ethical obligation to honor his request until and unless we come to an agreement which I can then present to my client.
Bisio: What rule of ethics imposes that obligation on you?
Ryan: I think in fair dealing with brother counsel — brother or sister counsel, I mean, if somebody says I need to talk to you about this, keep it confidential for the time being, and I say okay, and we talk about it as lawyers. Otherwise, I don’t think my word means much if I’m not going to keep it confidential if there’s no reason not to, and in this case I didn’t find any reason that I should disclose it at his request because we were still talking preliminarily about trying to resolve the issue.