Category: Oakland-Macomb Interceptor Drain Repair Assessment

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July 27, 2020, City Council Meeting (held virtually)

Note: links to the video recording and the council packet can be found at the bottom of this post. Please note any errors or omissions in the comments. Anything noted between brackets was inserted by Clarkston Sunshine.

Meeting:

[City Manager Jonathan Smith didn’t begin recording the meeting until after the discussion on Agenda Item 10b had begun. Omitted, among many other things, was a discussion between Sue Wylie and Eric Haven – Wylie had asked that her motion to release the 18 records involved in the FOIA lawsuit be added to the agenda. Wylie understood from Haven that it would be added, but it was not. Smith also displayed a portion of a memorandum from attorney James Tamm and subject to the attorney/client privilege on the public viewing screen in connection with Agenda Item 10b.]

Agenda Item #1, Call to Order (Video time mark N/A):

[The recording was not turned on until after discussion on Agenda Item 10b had begun.]

Agenda Item #2, Pledge of Allegiance (Video time mark N/A):

[The recording was not turned on until after discussion on Agenda Item 10b had begun.]

Agenda Item #3, Roll Call (Video time mark N/A):

[The recording was not turned on until after discussion on Agenda Item 10b had begun. Based on subsequent discussion, Eric Haven, Sue Wylie, Al Avery, Joe Luginski, Gary Casey, Ed Bonser, and Jason Kniesc were present.]

Agenda Item #4, Motion: Approval of Agenda (Video time mark N/A):

[The recording was not turned on until after discussion on Agenda Item 10b had begun.]

Agenda Item #5, Public Comments (Video time mark N/A):

[The recording was not turned on until after discussion on Agenda Item 10b had begun.]

Agenda Item #6, FYI:

Item 6a, FYI: Election updates (Video time mark N/A)

[The recording was not turned on until after discussion on Agenda Item 10b had begun.]

Agenda Item #7, Sheriff Report, June 2020 (Video time mark N/A, page 3/39 of the council packet):

[The recording was not turned on until after discussion on Agenda Item 10b had begun.]

Agenda Item #8, City Manager Report (Video time mark N/A; page 4/39 of the council packet):

[The recording was not turned on until after discussion on Agenda Item 10b had begun.]

Agenda Item #9, Motion: Acceptance of the Consent Agenda As Presented (Video time mark N/A)

    • 06/22/2020 Final Minutes (page 6/39 of the council packet)
    • 07/13/2020 Draft Minutes (page 8/39 of the council packet)
    • 07/23/2020 Draft Minutes (page 10/39 of the council packet)
    • 07/27/2020 Treasurer’s Report as of 06/30/2020 (page 11/39 of the council packet)
    • Revenue and Expenditure Report for the Period Ending 06/30/2020 (page 12/39 of the council packet)
    • 07/09/2020 Clarkston Glass Service invoice (page 22/39 of the council packet)
    • 07/20/2020 Shiver Tree Service invoice (page 23/39 of the council packet)
    • 07/01/2020 Southeast Michigan Council of Governments (SEMCOG) invoice, page 24/39 of the council packet)

[The recording was not turned on until after discussion on Agenda Item 10b had begun.]

Agenda Item #10, Old Business

Item 10a, Discussion: Oakland-Macomb Interceptor Drain Assessment (Video time mark N/A)

    • 07/27/2020 Oakland-Macomb Interceptor Drain (OMID) Extension and Improvement Project (page 25/39 of the council packet)
    • Charter Township of Independence County, Resolution to pay $2,012,636.00 drain assessment in full no later than September 1, 2020, pursuant to the Oakland-Macomb Interceptor Drain 2020 Special Assessment Roll No. 1 (page 29/39 of the council packet) [Note: this resolution includes the apportionment percentages for each of the communities that are part of the Oakland-Macomb Interceptor Drain toward the $84,000,000 total cost to improve the Northeast Sewage Pumping Station and North Interceptor East-Arm]

[The recording was not turned on until after discussion on Agenda Item 10b had begun.]

Item 10b, Discussion: Bisio vs City of Clarkston, Michigan Supreme Court Decision (Video time mark 0:)

[The recording was not turned on until after discussion on Agenda Item 10b had begun.]

Wylie wants the city to do the right thing. There are going to be some legal costs, and maybe the city can stop the clock if the documents are released. If we fight and pursue this longer, the costs will go up. This is a black mark on the city. The Detroit News has already written an article on this, the Clarkston News will probably write an article, and Wylie was surprised that the Oakland Press and Free Press haven’t written an article, though she noted that the Free Press was one of the people filing an amicus brief. We don’t need any more black marks on us, and we don’t need to be the city that opposes transparency in government who tries to keep things private. Wylie didn’t care what was in the documents and hasn’t seen them; she doesn’t like keeping things private.

Avery said that the idea of a subcommittee wasn’t to argue about the case. The Michigan Supreme Court has decided. We need to think about how the city is going to proceed. Will we have coverage from the Michigan Municipal League [Michigan Municipal League Liability and Property Pool] or not? How do we proceed? That needs to be discussed. The purpose of the committee isn’t to decide whether or not to turn the documents over, it’s whether some of the costs can be passed on. Avery didn’t want to say too much at this point, but the city needs to know what all of its options are relative to all the players. The more information the council has, the more of an informed decision the council can make. A subcommittee can be helpful with that.

Luginski had no problem with a subcommittee taking a look at this.

Wylie wanted Haven to clarify the role of the subcommittee because her impression is that this is just more secrecy. Is this going to be a public meeting, something on GoToMeeting? We can’t hide things anymore. Haven said that wasn’t his intent. The goal is for the group to condense and consolidate the information with the help of the attorney, so they know what action to take. If you turn the council into a committee, it becomes very difficult to do this. The city has a matter of a few weeks to make some decisions. Secrecy is not the issue.

Wylie said that Haven had mentioned putting the lawyers – Avery and Casey – on the subcommittee. Wylie said that she is the one person who has been very vocal about not keeping the documents hidden and should have a place on the committee if that’s what the council decides to do.

Avery didn’t think the subcommittee should decide whether or not to release the documents; that’s a decision for the council based on discussions with attorney James Tamm [the attorney representing the city in the FOIA lawsuit]. Tamm is looking at where we go from here. Mr. Bisio is going to likely bring a motion for his costs and fees. We may have an issue with the Michigan Municipal League providing coverage for those damages. Do we walk away or look at other options? Avery doesn’t care about the documents. The court has ruled and he’s looking at what happens next and protecting the city’s financials, getting ahead of the issue rather than behind it.

Haven thinks that releasing the documents is a given at this juncture, not whether or not they will be released. This just happened on Friday and he’s recommending getting a team together.

Pardee said that Avery had introduced an issue regarding the Michigan Municipal League’s coverage. A few months ago, the council believed that there would be no coverage. Avery said that the insurer sent a reservation of rights letter putting us on notice that they may not provide coverage for the damages. He didn’t think that they’d made a final determination, but if that happens, the city needs to decide what it is going to do next.

Kniesc asked City Attorney Tom Ryan if there is a timeline for deciding if we need to file something to cease damages and awards. Ryan said that it would be filed in the Oakland County Circuit Court after 21 days. Kniesc wanted to know if it could be filed six months from now, and Ryan said it would be filed sooner rather than later.

Bonser supported the idea of a subcommittee to help mitigate the cost of the damages, even though we don’t know what they are. A few meetings ago, the council talked about the possibility of cuts to some city workers and programs. They won’t know these things for at least another 21 days, so if the subcommittee could help with that, he supports it. Haven said that mitigating the costs would be their issue.

Bonser said that while he’s not a lawyer, there isn’t anything stopping the city from releasing the records, since he thought that’s what the Michigan Supreme Court said. Avery said that Ryan can speak to this, but he thought that this was something that Judge Bowman [the Oakland County Circuit Court judge assigned to handle the FOIA lawsuit] would decide on his own or on a motion by Mr. Bisio. Ryan said that’s one way that it could happen. The opinion said that the case was remanded for proceedings that were consistent with the order, and that would be consistent with the order.

Kniesc said he was in favor of the subcommittee and would like to see Wylie be a part of it.

Casey said that we have to consider both costs and process and will need some guidance from Tamm. If there are too many people on the subcommittee, it will turn into a quorum [which would require a meeting that is open to the public] and he didn’t think that was the way to go. Casey viewed the subcommittee as advisory only, with the full council considering any recommendations. If there are four council members on the subcommittee, that turns it into an open meeting issue. If the council thinks that it’s advisable for Wylie to be on the committee, he will bow out. Haven thanked Casey for offering.

Haven tried to clarify Wylie’s statements. She wasn’t in favor of the committee, but if there is a committee, she wants to be on it? Wylie said that was correct. Wylie was already hearing that the council doesn’t want to have open meetings. She didn’t like the feeling of being secret, but if she could be on the committee, she would be in favor of it.

Haven asked Ryan if it was legitimate to do this as a private meeting that is less than a quorum, with the point of the committee being to advise the council and any decision-making would be public. Casey said that the committee could not make decisions because that’s the council’s responsibility. The committee can only carefully consider the facts and advise the council what the options are.

Haven said that it sounds as though everyone wants to go ahead with the idea of a non-quorum committee of Haven, Avery, and Wylie to go forward and get information so the council can make some decisions.

Haven made a motion that the subcommittee be established, consisting of Haven, Avery, Wylie, and Smith to work with Tamm to come up with options, especially relative to the costs moving forward.

Cory Johnston said that in 2008, the city council passed a resolution regarding the policies for meetings. Committees are defined in the city charter, and unless the council delegates responsibility, they are not decision-makers. If they are making decisions, they are subject to the Open Meetings Act, whether or not they have a quorum. Haven agreed.

Johnston said that the policies required that the committees provide their findings to the council in writing, which addresses Wylie’s issue. If Tamm is involved, there could be attorney/client privilege issues, but that’s for the lawyers to decide. With regard to Wylie’s concern about being as open as possible, you want to follow the path set by the council. The committee will list the pros and cons of the options, and the council can decide how they want to proceed.

Johnston said that Tamm works for the council. Neither Tamm nor Ryan make decisions. This should come back to the council and be discussed openly unless there is an attorney/client privilege issue. Time could be of the essence and the court will issue a schedule at some point and doesn’t care about the council. The committee that you are forming needs to address the charter, Open Meetings Act, and how and when it will report to the council. Johnston wasn’t sure whether the council wanted to put all of this into the motion now or amend it in the future, but these things should be addressed before the council starts working and finds out that no one really knows what the committee is doing and then has to do this later.

Avery would expect that Tamm would come before the entire city council to talk about the merits of the case. The subcommittee is looking at what do we do now, what are the options. We may be looking at a substantial financial obligation to the city. Avery didn’t see the committee consulting with Tamm because Avery didn’t think this was any of Tamm’s busines. Avery doesn’t want to consult with Ryan either. Avery just wanted to look at the options, address the potential obligation, and report back to the city.

Wylie most agreed with that, but she asked if Avery had a chance to read the letter that Tamm sent and suggested that Avery talk to him about it. Avery said that’s for the whole council to discuss in a closed meeting with Tamm at which point he could talk about the options relative to the case. Avery didn’t think that is part of the what the subcommittee should be concentrating on. The city is looking at a potential judgement, we don’t know how much the attorney fee award will be, we don’t know if the Michigan Municipal League is going to pay it, what if coverage is denied, and what are our options. Avery wants to have an understanding of the options to present to council. It may include writing a check out of city funds, but there may be other options. Haven said we don’t know what the options are and it’s dangerous not to know.

Avery said he had some ideas. He is not an expert, but he does a little bit of insurance defense work but not insurance coverage. He has a working knowledge of it, so if the city needs to get into a battle with the Michigan Municipal League regarding coverage, he thinks that the council would want to have some background knowledge regarding what we are looking at and how to proceed. Just because the Michigan Municipal League says that they are denying coverage doesn’t mean that we have to sit here and take it, but maybe it does. We need to figure that out.

Wylie wanted to know what the format would be. Will others be allowed to listen in? Will they meet in person? Haven said that it’s strategic in the sense that it’s the city’s affairs. It’s less than a quorum so it’s a conversation. Committee meetings are public too.

Haven asked Ryan if it’s an open meeting. Ryan suggested that Haven talk with Tamm about that. If they are meeting with their lawyer to discuss options and strategy, it’s probably not an open meeting, but that advice should come from Tamm. This will be his meeting. Ryan said he knows that people are worried about secrecy and what not, but a public corporation is allowed to meet in private session with its lawyers to discuss strategy over pending litigation and what not. It’s not a violation of the Open Meetings Act. Sometimes clients need to discuss matters confidentially with their attorneys, and they should talk with Tamm about that.

Motion to form the subcommittee passed unanimously.

Haven said we have work to do.

Pardee said that there needs to be some discussion about timing. Pardee wanted to know if the committee would make its report to the council at the next meeting and whether Tamm would come to the next council meeting. Haven said that’s a possibility, but they have work to do before then and should report at the next meeting.

Agenda Item #11, New Business

Item 11a, Resolution: City Hall Building Dedication Plaque (Video time mark 0:)

    • Resolution – City Hall Building Dedication Plaque (page 32/39 of the council packet)
    • Rendering of proposed plaque (page 33/39 of the council packet)
    • Bid comparison, City Hall Building Dedication Bronze Plaque (page 34/39 of the council packet)

Haven said that we spent the money on the city hall building and asked Smith if what was presented is close to where they wanted to go as far as text is concerned. Haven said that they had talked about writing thank you letters to the participants and having a dedication ceremony when it can be done safely based on the COVID restriction requirements. Haven wanted Smith’s thoughts regarding whether we should mount the plaque on the building.

Smith said that the city leaned on the community to help with the project and we need to thank them for their contributions. There were different levels of involvement, but they aren’t calling people out with regard to what someone did versus what other people did. There definitely were contractors who worked hard on the project, including Clarkston schools, Sam Moraco, and Burrow Construction. There were people who were heavily involved in this and we need to show our thanks to them.

Smith said that the rendering in the council packet is a simulation of the plaque. There is one name that still needs to be added, so Smith is asking for an allowance of $100 for some additional text. He needs to double and triple check to make sure that no one was missed. This will be a solid bronze plaque that is weatherproof and could be mounted outside.

Smith had five bids, but one was incomplete and removed from the packet. We use Village Trophy a lot, but they came in significantly higher than some of the other companies. While Smith would like to give them the work and they are a Michigan company, they would send this out to another supplier, and it might be one of the companies that Smith called directly.

Smith received a solid response from the other four suppliers, they are very quality oriented, and they are all bidding on the exact same specifications – a 20 x 30 plaque with raised lettering, all mounting hardware, and a lifetime warranty. The only variance between the suppliers was the delivery time.

Haven asked if a date could be placed on the plaque relative to the public dedication. Smith said that he doesn’t know if we can make it on August 24th. It’s July 27th now, and if you include delivery time, that would be cutting things tight. The next weekend gets you into Labor Day, and he would like to get the sign in before that, though it’s not a hard requirement.

Bonser doesn’t think that there’s a problem with the cost, but he wondered if we could ask the people named on the plaque if they could donate $100 for it to help offset the costs and give them some advertising. Haven said that the plaque is a thank you to people who worked on the project. Two of them contributed generously. They contributed time, talent, or treasure to make the building happen. Other contractors worked and we paid them, but they didn’t contribute over and above. Smith said that some contractors just came in and did a good job for what we paid them, while another contractor took $10,000 off a $25,000 bill. Smith thought that was an incredible reduction and wouldn’t want to go back and ask for $100 to defray costs. As Haven said, this is meant to be a thank you for generous donations, whether in cash, a price reduction, or extra work. Bonser said that he understood.

Wylie said that she couldn’t decide what to do. On the one hand, these people really deserve thanks. Some worked on private time and gave great prices. On the other hand, we have a big legal expense, and we don’t know how much it will be. We are going to have to start tightening our belt until we have paid off our obligations.

Pardee said that related to Wylie’s point, we are getting ready to spend $49,000 for a parking lot at city hall. That’s half of the $98,000 we are dealing with for the Interceptor, and we are going to spend that $49,000 next week. It may make good sense to put the $49,000 spending on hold because it represents half of what our Interceptor obligation is.

Haven asked Smith to discuss the budget in the event that we incurred some larger expenses that weren’t expected, including the lawsuit. We have projects that can be curtailed or postponed, and this is one of them. We could spend it later rather than now, and we’ve thanked everyone.

Smith said that it is the capital improvement plan list. In the 2021 budget, we had just under $200,000 listed for a variety of projects. The biggest project is $76,000 for the road, $12,000 for sidewalk replacement, $7,000 for streetlight investigation research, and $69,500 for a gazebo – clearly that kind of thing could be put on hold. We have a couple of other projects that we’ve started on – $8,500 for the back slab and fencing for city hall, $12,000 for the Your Speed signs that we’ve already purchased, and $6,000 for clock repair. These are the big things that add up to around $200,000. When you asked how we would pay $200-$300,000 in legal fees as an estimate that could be higher or lower, the bulk of that would come out of capital improvements.

Smith said that with regard to the $49,000 that Pardee is referring to for the driveway, $22,500 would come from the remaining city construction project fund with the balance to come from the parking fund. That wasn’t part of the capital improvement plan. That’s not to say that it’s not fair game – anything is, including salaries.

Smith said that they would have to do a quick deep dive to see where funds could be pulled from, and capital improvement is the low hanging fruit that you go after first. If you need more, the next big-ticket item is salaries. We need to get a grasp on the potential risk as quickly as we can. Deferring some projects like the driveway would be a real challenge. It’s torn up right now because we are leading up to pouring it next week. Pulling the plug on that would be difficult and there may be some costs involved if we back out at this point, but it’s the council’s decision.

Haven said there are unknowns, but at this time, the only thing that’s before the council is $1,475. We can vote it up or down and address the other issues in the next two weeks.

Wylie said that she’d made up her mind after reviewing the capital improvement plan on her laptop. She saw some things right away, such as street signs. We have street signs and don’t need new ones. We have to thank these people. We wouldn’t have this building if it weren’t for Steve Wyckoff and his crew of young men, Terry Summerlee, Mr. Carter and everyone else who contributed so much. She thought this was appropriate and will be voting yes.

Haven asked Smith if the letters had been sent, and Smith said that was in process. Haven said that we are sending personalized letters acknowledging the nature of their contributions. The dedication has been delayed, and everyone understands that it’s due to COVID. They will receive our sentiment in writing, and they’ve also talked about a full-page ad replicating the plaque once it’s nailed down. We can defer the payment of $1,475 now and give the same sentiment going forward. We can come back later after we know what our costs are going to be if we would like to do it that way.

Motion to purchase the plaque passed unanimously.

Agenda Item #12, Adjourn (Video time mark 0:)

Motion to adjourn was approved unanimously.

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