BY PHIL CUSTODIO
Clarkston News Editor
Eighteen records central to a city Freedom of Information Act (FOIA) lawsuit aren’t just a mystery to the public. City Council is in the dark about them, too.
Mayor Steven Percival struggled to understand why.
“We paid you to do these documents – something came of it because we paid you for it,” Percival said at the Sept. 11 City Council meeting. “We had to pay the bills without knowing what we paid for.”
The mayor was correct, said city attorney Thomas Ryan.
FOIA doesn’t apply to the documents because “for it to be a public record, it has to come to the city. These 18 documents did not come to the city,” Ryan said.
Council member Susan Wylie said she was “shocked” by Ryan’s response.
“I assumed the city manager, the mayor knew and were in agreement to withhold the documents,” Wylie said.
The council member requested an update from the city attorney about two lawsuits facing the city – against resident Susan Bisio regarding FOIA and against CBC Joint Venture about a rezoning request.
The FOIA lawsuit stems from a request Bisio sent to the city in 2015, requesting records created by Ryan. The city produced over 700 pages of documents, but the city attorney withheld 18 records, saying they were not public records according to state law.
“I’m the guy who said they’re not public records – thus far that decision has been upheld by the court,” Ryan said.
He is also not a “public body”, as regulated by FOIA.
“I’m just a little old lawyer. I just represent the city,” he said.
Council member David Marsh said the city attorney should have “discussions with attorneys he respects to get opinions about cases.”
“None of us on council is an attorney,” Marsh said. “We’ve had a judge a lot smarter than us say this was right. I don’t know why we’re questioning when we don’t understand – we don’t need to know everything out there.”
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.
“If the city engineer has a document where, from his observations, he views something perhaps is unsafe, as long as they’re not shared with the city, it’s not FOIA-able,” Wylie asked.
“Probably not,” Ryan said.
Public health and safety issues are a different story, he said.
“Wow,” Wylie said.
The city has been “dragged through mud” lately because of this case, she said.
“Public feeling throughout the country is government should be as transparent as possible. This goes in the opposite direction,” she said.
Ryan said he and the attorneys representing the city through the Michigan Municipal Leagure, Jim Tamm and Julie O’Connor, know what the documents are.
“There’s no nefarious scheme here,” he said. “I wasn’t out there Lone Rangering it.”
The documents are about issues in town that were going on, Ryan said.
“Discussion between lawyers to make a deal about something that never came to fruition,” he said.
“We’re in a lawsuit and we absolutely have no idea what’s on the documents,” Percival said.
“That’s the whole point of the case,” Kneisc said.
“Our names are associated with this lawsuit,” Wylie said.
The case represents an important legal principal, Ryan said.
“We’re at the tip of the spear,” he said. “We’re trying to preserve an important legal right for the city.”
Across the Michigan Municipal League and Michigan Township Association, 80 percent are represented by consutant lawyers like him, with their own offices, he said.
“This is a critical issue to the whole legal community, frankly,” he said. “”FOIA is very important – but the public is not entitled to all documents.”
MML and MTA wrote amicus curie briefs on behalf of the city, and Michigan Press Association and Detroit News wrote briefs on Bisio’s side.
“We’ve got lot of people involved in this lawsuit,” Ryan said. “It’s an important legal issue, bigger than us. A lot of people are interested in it.”
The suit doesn’t seek financial damages, but is a case of legal principle, the attorney said.
“If the city loses, you could appeal to the Michigan Supreme Court,” he said.
Four percent go beyond the Court of Appeals, he said.
Council member Sharron Catallo said it’s an important issue or else the MML and MTA wouldn’t have gotten involved.
“There’s going to be times and there’s going to be things not public records, that never come to us,” Catallo said. “If a contractor comes here to do something, that could be FOIA’d, but not whatever is in his office.”
It takes 12-18 months to work through the Court of Appeals system, and is about a third of the way through. No hearing date has been set yet, and probably won’t be until this winter, Ryan said.
City vs. CBC Joint Venture
Ryan also updated City Council about the CBC Joint Venture case. Owners of 59 S. Main sued the city after it denied their request to rezone the property from multiple family to village commercial, in order to make it a restaurant.
They prevailed in court this past January, and the city is appealing.
“Council felt it was important to appeal to protect the residential component of zoning in downtown,” Ryan said. “If you don’t enforce the ordinance, there will be other challenges to the city.”
City Council can vote to discontinue the lawsuit, but that could cause problems, he said.
“The city is appealing because they believe the judge made an erroneous decision,” Ryan said. “This property could be and is being used as multiple residential. To be rezoned, the property isn’t supposed to have any other econonically viable use. That clearly is not the case.”
Legal fees for the lawsuits have been covered by insurance, he said.
Ryan is not involved in arguing the cases, but consults with the MML attorneys and bills the city for that, he said.
“I think I need to be in the know,” he said.
For Ryan’s August billings, he billed about $475 out of a total of $1,805 for review and phone calls about the FOIA and rezoning lawsuits. Insurance costs through MML for the city went up due to errors and omission by about $2,000, Smith said.
The increase was offset this year by a dues rebate from MML. Total increase was about $600, for total premiums of about $12,600.
“We are feeling the pain of this,” Smith said. “At what point can we cut our losses?”
“We’re not there yet,” Ryan said. “Let the Court of Appeals rule.”
“Sometimes you have to defend yourself,” Catallo said.
The attorney update was not included in the agenda prepared before the meeting. At the beginning of the meeting, Wylie made a motion to add it to the agenda, which was approved unanimously. Marsh asked why it wasn’t included on the agenda, and Ryan said the appellate lawyer was going to write a memo to the council for next meeting.
Percival invited the public to submit questions to the city manager for discussion at the next meeting Ryan attends.
“I want to hear the questions but in a productive manner, not to try the case, but to be informed about it,” he said.
Call city hall at 248-625-1559.
BY PHIL CUSTODIO