BY PHIL CUSTODIO
Clarkston News Editor
For resident Stuart Mahler, it’s high time for City Council to readdress two lawsuits against the city.
“Every one of you has been a strong proponent of transparency,” Mahler said at the Aug. 28 meeting. “The issues seem to be settled, as it relates to us. Why we should continue to spend money, is my question. I’d like you to reexamine it, to see why we need to continue them.”
Clarkston Mayor Steven Percival agreed, though council may need to go into closed session at the Sept. 11 meeting to discuss legal issues impacting the city financially.
“We’ll bring whatever we can back to you,” the mayor said.
“I would like to know more also,” said Council member Susan Wylie. “I think we all need better understanding.”
Resident Susan Bisio is suing the city in a Freedom of Information Act case, and CBC Joint Venture filed suit against the city over development of the Sutherland House on S. Main Street.
The city is represented by attorneys with the Michigan Municipal League in the lawsuits, which is funded through insurance, in consultation with city attorney Thomas Ryan.
Resident Chet Pardee pointed out the city’s MML insurance premium was 52 percent higher than budgeted due to increases in its errors and omissions insurance.
The $2,000 increase was offset by a dividend from MML of $1,450, said City Manager Jonathan Smith.
“It’s still alarming we got hit with this huge increase,” Smith said. The lawsuits, and the errors and omissions insurance contributed to it, he said.
“It’s some concrete evidence it is costing the city money,” said the city manager.
CBC Joint Venture won the lawsuit it filed in October 2015, when Judge James M. Alexander agreed the city had no legitimate reason to deny its rezoning request for the Sutherland House at 59 S. Main Street, particularly when faced with nearly identical requests from others, which were approved. The city argued rezoning would jeopardize the historic nature of the area.
Alexander’s ruling, which was filed on Jan. 4, 2017, ordered the city to approve CBC Joint Venture’s request to rezone 59 S. Main Street, known as the Sutherland House, for use as a restaurant.
By a 4-3 vote of council, the city appealed the case on Jan. 9. Council members Sharron Catallo, Eric Haven, Jason Kneisc, and David Marsh voted to appeal, going with attorney Ryan’s advise. Percival, Wylie, and council member Rick Detkowski voted against appealing the case.
Bisio, represented by attorney Richard Bisio, her husband, sued the city in December 2015 for violating FOIA. The city was represented by James E. Tamm and Paul T. O’Neill, provided through the Michigan Municipal League.
The lawsuit stems from a FOIA request Susan sent to the city on June 7, 2015, requesting records created by Ryan. The city responded on June 30, 2015, producing over 700 pages of documents, but declining to provide 18 records, saying they were not public records according to state law.
The contested records included emails from Jan. 30, 2015, to May 20, 2015, between Ryan and other attorneys and agencies related to 148 N. Main Street and a hold-harmless agreement for its development, as well as vacant property at M-15 and Waldon.
The issue in this case was whether the contested records are “public records” subject to FOIA. The city argued its attorney is not a “public body” and his records are not public records, as defined by FOIA.
The City Charter says the city attorney is a city administrative officer but not its employee, receives no benefits, and doesn’t send or receive emails from the city email address or have an email address associated with the city.
Ryan said the records were never in the possession of city officials or personnel.
The defendants also said state law and case law intentionally omits “city attorney” from its definition of “public body.”
Susan Bisio believes the records of a public official who conducts public business are subject to FOIA even if they are in its attorney’s private files. She filed the FOIA request for city records, not its attorney, and the records are public even if in possession of a public body’s agent because “to conclude otherwise would mean no records would be in the possession of a public body.”
The city budgeted $30,000 for legal fees for the 2016-2017 fiscal year. For 2015-2016, legal fees were $29,735; and $25,761 went to legal fees in 2014-2015.
For insurance and bonds, which pays for the city legal representation in this case through the Michigan Municipal League, $3,444 was budgeted for 2016-2017, and $3,656 has been spent as of Jan. 31, 2017. Insurance for 2014-2015 was $3,344; and in 2015-2016, $3,398.
BY PHIL CUSTODIO