BY PHIL CUSTODIO
Clarkston News Editor
A review by the Oakland County Prosecutor’s Office found Clarkston City Council probably violated the Open Meetings Act last year, but no charges will be filed.
“It does not appear that the violation of the OMA was intentional, but was the result of some confusion about the law,” said John R. Slevin, Warrants Division chief, in a letter to Clarkston City Council dated June 3. “For this reason, no further action will be taken by this office on this matter. However, the City Council members should be aware of these OMA issues so as to avoid future actions that may lead to complaints by citizens.”
The Open Meetings Act violation complaint concerned a closed session at a City Council meeting on March 9, 2015.
City resident Richard Bisio, former City Council member, received the letter through the Freedom of Information Act and posted it on social media. The complaint was filed in August 2015 by Andrea Beaudoin, Clarkston News reporter at the time. The News was not informed of the results of the investigation, and the prosecutor’s office did not respond to phone messages asking for comment.
Only City Council members Al Avery and Sharron Catallo responded to requests for comment.
“Since I was not part of the council on the date the meeting was held I don’t think it would be proper for me to comment regarding the letter from the prosecutor,” Avery said. “The letter has not been discussed at any council meeting to my knowledge.”
Catallo said she doesn’t think she saw the letter, but at some point, they should discuss what could be done differently.
“Going forward, I’m sure that’s what we will do,” Catallo said. “Obviously, I was the one who excused herself from the meeting. I left without voting to close the meeting and that was a mistake, with my vote there would have been the five votes necessary for the closed meeting.”
The topic of the March 2015 closed session was 148 N. Main Street, which was being developed at the time by Curt Catallo, Sharron’s son.
“I have never asked what the discussion was, because of the conflict of interest,” Sharron said. “I don’t think anyone thought they were doing anything improper, because closing a meeting is rare and taken very seriously.”
Rick Detkowski, candidate for City Council, agreed council was probably unsure how the Open Meeting Act applied in this case.
“Perhaps this supports the growing suggestions for new legal counsel as part of an overall fresh approach for the city,” Detkowski said. “Preventing funds from being spent on legal expenses would obviously help our bottom line.”
After the election, the new council would benefit from training as a group withmunicipal experts, he said.
“Not only could this serve as a teambuilding opportunity for the council members, but it would help any newly-elected members to flatten their learning curves,” he said.
Sue Wylie, also a candidate for city council, agreed.
“To eliminate these types of problems in the future, the next city council should undergo training from professional municipal experts, such as the Michigan Municipal League’s Elected Officials Academy, regarding the OMA and the Freedom of Information Act,” Wylie said. “In addition, the city should look into new legal council to help prevent events such as these, and as part of an examination to reduce its legal bills.”
State law says public officials who “intentionally violates” OMA are guilty of the offense. According to the law, “a public official who intentionally violates this act is guilty of a misdemeanor punishable by a fine of not more than $1,000.”
Also, “a public official who intentionally violates this act shall be personally liable in a civil action for actual and exemplary damages of not more than $500 total, plus court costs and actual attorney fees to a person or group of persons bringing the action”
Bisio sued the city on June 2, 2015, calling for the Sixth Circuit Court to determine city council violated OMA. The city admitted the March 2015 closed session was improper in a consent judgement agreement with Bisio filed on March 14, 2016, which settled the lawsuit.

Letter from Prosecutor Jessica Cooper’s office

Dear City Council members,
Please be advised that the investigation of a complaint of an alleged Open Meetings Act violation concerning a closed session held at the March 9, 2015, meeting was presented to the Oakland County Prosecutor’s Office by the Oakland County Sheriff Office. The case has been reviewed and the decision has been made that there will be no further action on this matter by this office. However, the holding of a closed session at that meeting appears to be a violation of the OMA and therefore I am bringing the matter to your attention.
As I am sure you are now aware, closed sessions are only allowed for very limited purposes under the OMA. The subject matter that is legally appropriate for a closed session is restricted to the limited purposed set forth in MCL 15.268. The purpose stated as the reason for holding the closed session on March 9, 2015, does not appear to fall within the statute.
There also may have been a violation in the council’s vote for a closed session. MCL 15.267 require a “2/3 roll call vote of members elected or appointed and serving.” With a seven-member council, five council members would have to vote in favor of the closed session to comply with the statute. There may have been some confusion on this issue because one council member excused herself from the vote because of a conflict of interest. A literal, conservative reading of the OMA requires a 2/3 vote of the council members serving, not 2/3 of the council members present or voting at the meeting. The record shows that only four council members voted in favor of the closed session which falls short of the necessary 2/3 vote requirement.
It is noted that a civil suit arose out of the City Council’s decision to go into a closed session at the March 9, 2015 meeting. That suit was resolved in a consent judgment wherein it was acknowledged that a violation of the OMA occurred.
It does not appear that the violation of the OMA was intentional, but was the result of some confusion about the law. For this reason, no further action will be taken by this office on this matter. However, the city council members should be aware of these OMA issues so as to avoid future actions that may lead to complaints by citizens. This awareness may have already been accomplished by the resolution of the civil suit, but the city council should also be mindful that there are possible criminal sanctions provided in the law in violations are found to be intentional.
If you have any questions about the matters set forth in this letter, please contact the Prosecuting Attorney or the Chief Assistant Prosecutor.
Respectfully,
John R. Slevin
Chief, Warrants Division

  closed session, Open Meetings Act