BY PHIL CUSTODIO
Clarkston News Editor
After nearly an hour of discussion in open session with attorney James Tamm, City Council member Sue Wylie learned something.
“The lesson I take from this is continuously question all the bills that come in,” Wylie said. “I do not want to see this happen in the future.”
Tamm, Michigan Municipal League lawyer who is representing the City of the Village of Clarkston in its lawsuit against resident Susan Bisio, recommended a closed session for the discussion.
A motion to go into closed session was defeated, 4-3. State law required three-fourths of the council to approve the motion, five council members.
Voting to go into closed session were council members Sharron Catallo, Eric Haven, Jason Kneisc, and David Marsh.
Voting “no” were Mayor Steven Percival, and council members Rick Detkowski and Sue Wylie.
After the vote, Wylie repeated a question she posed to city attorney Thomas Ryan on Sept. 11.
“What downside to the city if we stop the case and, release the documents,” she asked.

Tamm said consequences could include an order to pay Bisio’s attorney fees, and affect future insurance costs and coverage.
“If you voluntarily do something to compromise your defense that’s been going on for well over a year, it could very well create a problem,” Tamm said.
Bisio’s lawsuit alleges the city improperly withheld 18 documents she requested under the Freedom of Information Act.
Ryan based his denial on his opinion the city attorney is not a “public body,” and 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. Judge Leo Bowman ruled in favor of the city in October 2016, and Bisio appealed.
The city attorney said at the Oct. 9 meeting, he didn’t “lone wolf” the decision. Tamm confirmed that.
“There was a discussion with perhaps the then city manager (Carol Eberhardt) because there were documents that were ultimately produced and they went through those,” Tamm said.
Wylie and Percival were surprised.
“So you’re saying someone in the city, the city manager, went through all the documents and between she and Mr. Ryan, they chose to hold back those 18,” Wylie asked.
“Well, I think you just blew your case out of the water if you say the documents were here in the city and we had the documents in the office,” Percival said.
“No, I’m saying that somebody reviewed them and participated in the decision – I had at least had discussion later on about what documents were produced with the then city manager,” Tamm said. “I’m not saying that physically they were maintained here or seen here (in city hall). I don’t know if she went to his office or how that happened but I know he made the decision that, I never gave these documents to the city, and they were appropriately not part of the FOIA.”
Wylie asked when City Council voted on whether the 18 documents would be made public. Tamm said there was no vote of which he was aware.
“The question was, did the city violate FOIA,” Tamm said. “The city attorney said no, they were appropriately withheld – the city was sued, and the response to the lawsuit was filed on its behalf.”
Marsh said City Council didn’t vote to not release the 18 documents, but coming out of closed session, voted to accept the recommendation of the city attorney.
“I’m sure that was what it was,” he said.
Thirteen of the 18 documents are in regards to proposed development of 148 N. Main Street, particularly contamination at the former automotive service station and a hold-harmless agreement to protect the city.

“Why did there need to be a hold harmless talk about the (contamination) plume – all of that should have been brought up at the time, in my opinion,” Percival said. “It should never have been withheld from the public. I do find it a little suspect, 13 of these documents all surround this one subject – sooner or later we’re going to know what the documents were. And then city council can make intelligent decisions about why we’re in this lawsuit.”
Before the closed-session vote, Percival asked if Catallo would recuse herself, as she did when City Council voted to go into closed session on March 9, 2015. The 2015 meeting was to discuss 148 N. Main Street, which was being developed at the time by Curt Catallo, Sharron’s son.
“It has nothing to do with me,” Sharron Catallo said at Monday’s meeting. “I have no idea what they are anyhow.”
Haven said they lost an opportunity to learn more during closed session.
“We’ve opted not to do that. He’s going to walk out of here and we’re not going to know,” he said. “That troubles me.”
Percival didn’t see the need for closed session.
“At this point, I don’t know what strategy we need to discuss that isn’t already public knowledge. It’s all been filed. Now we’re waiting for oral arguments,” he said. “It’s poor practice on our part to pay for stuff we don’t get. We’ll probably rectify that in the future.”
Tamm said state law allows for closed session to discuss an attorney’s memorandum of advice, which is exempt from FOIA due to attorney-client privilege.

  148 N. Main, city council, FOIA, James Tamm