BY MATT MACKINDER
Clarkston News Editor
The month of July was a roller coaster for the City of the Village of Clarkston, specifically for the government.
And residents have taken notice.
First, the city was ruled to be in violation of the Freedom of Information Act (FOIA) when the Michigan Supreme Court ruled for plaintiff Susan Bisio in her case against the city regarding city files containing potential development information that city attorney Tom Ryan had stored off-site.
The city said because the files were not in city-owned files that FOIA would not apply, but the Supreme Court ruled otherwise on July 24.
Clarkston resident Michael Fetzer, in an email to Mayor Eric Haven and obtained by The Clarkston News, Aug. 5, asked for transparency regarding the matter and the financial impact the lawsuit could have on the city.
“Many in the community are seeking greater city transparency in the Bisio-city records matter,” wrote Fetzer. “Will you please arrange to inform the community about the status? What specific records have been sought by Ms. Bisio? There seems to be some concern, based on representations by city officials, about whether the records have been retained and secured. Are all the records preserved, and who holds them? What are the total costs, including but not limited to, legal fees, travel, consultation fees, attendant to the city’s defense and advocacy in this case to date? What is the total of costs potentially payable to Ms. Bisio?
“It has been reported that the city council recently voted to appeal or otherwise further pursue the matter to the Supreme Court. What is the city’s specific rationale for pursuing the almost unanimous court decision and what arguments have been identified to support the appeal? Will new or different counsel be retained? What are the estimated costs to the city to pursue the matter, and when can (another) final adjudication be expected? Will a special tax assessment be sought to fund the costs associated with this case?”
Haven responded by saying it’s not easy to give easy answers with the ongoing litigation.
“We must, therefore, be careful what we say publicly, but rest assured the Clarkston City Council is doing all possible, with expert counsel, to protect the city,” said Haven.
“I think the city’s ‘care’ in public comment is a mischaracterization/misnomer for what has transpired,” replied Fetzer. “The secrecy and lack of candor have been contributing factors in the dilemma now confronting the city. The city’s strategy seems to be increasing costs and liability, and citizen trust has been significantly diminished. No one except city officials and counsel seems to think it reflects good government.
“I have considerable government experience and cannot understand what specific answer to any query I’ve posed would harm the city beyond the damage that has already been done.”
The mayor added details on costs associated with the Bisio ruling.
“Clarkston has won in two lower courts,” Haven said. “The Michigan Municipal League Liability and Property Pool, our insurer, has covered all the costs so far, and will continue to cover the costs for the next steps. In Monday night’s special city council meeting (Aug. 3), we did two things publicly – authorized our attorney to object to the plaintiff’s bill of costs and authorized our attorney to seek a rehearing of the Michigan Supreme Court decision. The Michigan Supreme Court is in recess until likely October.
“I will say this. Good outcomes require the process to continue, unhindered and unabated with the privacy to allow it to happen decently and in order, for all parties. That is the legal, American way. I ask for everyone to be patient as we work through this delicate process.”
Previously on July 31, resident Cory Johnston filed a FOIA request with the city to acquire the full recording from the July 27 council meeting, saying the recording on Independence Television only has approximately 47 minutes of the meeting that was over two hours long.
“I take responsibility for the fact that the recording of the July 27 council meeting is not complete,” said Clarkston City Manager Jonathan Smith in an email to Johnston and obtained by The Clarkston News. “While not legally required, I recognize that the recording is an important form of documenting what was said. This was not intentional; it was just an oversight that was the result of starting the virtual meeting differently than we had in the past. In the previous virtual meetings, I have read an announcement that preceded the start of the meeting. The last comment in that announcement states that the meeting will be recorded, which triggers me to start the recording.
“Unfortunately, the July 27 meeting was initiated without the reading of the announcement and it was an hour into the meeting before I realized my error. I have subsequently changed my process to initiate the recording immediately after I log in and start the meeting for everyone.”
That was not enough to satisfy Johnston, however.
“The clerk is no longer recording meetings?” asked Johnston. “Is anyone? Are you relying solely on a temporary technology for remote meetings that people cannot attend in person, only know what you put on the screen and in meeting information packets, and the extremely limited meeting minutes?
“All of this and probably more immediately after a Michigan Supreme Court decision against the city for attempting to keep city information from the public. Unbelievable.”