February 12, 2021, Special 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 welcomed everyone to the meeting and reviewed the rules for virtual meetings as they were presented on screen, noting that the video from the open session would be shared with Independence Television.

Agenda item #1, Call to Order (Video time mark 0:01:50):

Meeting called to order by Haven.

Agenda item #2, Pledge of Allegiance (Video time mark 0:01:55):

Pledge of Allegiance said.

Agenda item #3, Roll Call (Video time mark 0:02:18):

Eric Haven, Cary Casey, Jason Kniesc, Joe Luginski, and Sue Wylie were present and calling from Clarkston. Al Avery was present and calling from Waterford. Ed Bonser was absent.

Haven noted that Bonser was absent due to his work schedule.

Agenda item #4, Motion: Approval of Agenda (Video time mark 0:03:02):

No discussion.

Agenda approved unanimously.

Agenda Item #5, Public Comments (Video time mark 0:03:50):

Chet Pardee:

• • Pardee asked why there was no budget amendment to go along with the resolution to pay $35,000 in damages in the Bisio lawsuit. This amount is not budgeted. State law requires that before there is a commitment for an unbudgeted expense, the budget must be amended. If there is no budget amendment today, when will the budget be amended?
  • The city manager and city council were aware that damages needed to be paid for several months and are familiar with state budgeting law. Smith has restrained city expenses in anticipation of the need to pay damages in the Bisio lawsuit. Before the current budget was approved, attorney James Tamm told the city manager that the damages could be $350,000.
  • The city’s portion of the damages is small. Perhaps this is due to the $14,000 budgeted for attorney Mark Peyser and the Bisio-suggested facilitation process.
  • City officials have been uninterested in pursuing money from the city’s Errors and Omissions insurer and the city attorney’s professional liability insurer. Pardee hoped that the insurers are paying the larger amount of the damages and that the Bisios are receiving a fair amount for the damages incurred since 2015.
  • The city could have amended the current budget and followed the law by using a portion of unspent funds. Money that has been budgeted for capital expenses has not been spent. For example, $69,000 is budgeted to rebuild the Depot Park gazebo but this intention has changed. Was there any discussion about amending the budget in this meeting as part of the approval to spend $35,000?

Haven thanked Pardee. Haven said that the council isn’t obligated to answer anything at this time but if Smith or anyone else would like to respond, they should feel free to do that. Haven thought Pardee might find some answers to his questions subsequent to this meeting and may want to wait for that.

Smith said that the $35,000 will be discussed in closed session and he didn’t feel that they were quite ready to do a budget amendment. Smith is aware that Michigan law requires that a budget amendment be done before a commitment to write a check is made. Smith will endeavor to get a budget amendment made as quickly as possible but needs to talk with council about where the funds will be pulled from.

No additional public comments.

Public comments closed.

Agenda Item #6, Resolution: Closed Session to Discuss Pending Litigation; To Hold a Closed Session Meeting as permitted by state statute MCL 15.268(e) to discuss the Bisio v City of Clarkston lawsuit (Oakland County Circuit Court case number 2015-150462-CZ pending before Honorable Leo Bowman) (Video time mark 0:08:11):

• • Resolution to Go Into Closed Session to Discuss Specific Pending Litigation (page 3/6 of the council packet)

Haven read from the resolution and asked Peyser if they needed to take an additional roll call; there was no audible response from Peyser. Clerk Jennifer Speagle indicated that a vote was necessary to go into closed session. Smith didn’t believe that an additional roll call was necessary. They will adopt the roll call taken at the beginning of the meeting.

The resolution to close the meeting passed unanimously.

Haven said that they will come back into public session at the conclusion of the closed session.

Smith went over what he described as logistics. Smith said that when he ends the open session, those who are in the open session will be bumped off. Anyone who wishes to return to the open session when council returns should call right back in again and will be held in a waiting room. When the meeting restarts, participants in the waiting room will hear their voices and know that the meeting has resumed. That is the easiest way to do things for anyone who wants to hear the second portion of the open meeting.

Smith advised any council member with connection issues to call or text Smith’s cell phone.

The meeting was closed.

Item 6a – Call to Order

[This portion of the agenda occurred during closed session.]

Item 6b – Roll Call

[This portion of the agenda occurred during closed session.]

Item 6c – Discussion: Legal Matters; Legal matters relative to the Bisio v Clarkston lawsuit

[This portion of the agenda occurred during closed session.]

Agenda Item #7, Return to Open Session (Video time mark 0:12:30)

Smith said that the meeting was now open and all of council had rejoined.

Agenda Item #8, Roll Call (Video time mark 0:12:42)

Eric Haven, Cary Casey, Jason Kniesc, Joe Luginski, and Sue Wylie were present and calling from Clarkston. Al Avery was present and calling from Waterford. Ed Bonser was absent.

Agenda Item #9, Resolution: Agenda Amendment (Video time mark 0:13:26)

Haven said that the first thing that needed to be done was to amend the agenda to add a budget amendment regarding where the $35,000 settlement would come from.

A motion was made to amend the agenda for the meeting to include a vote on a resolution for a budget amendment to identify the payment of the funds for the settlement.

The resolution passed unanimously.

Agenda Item #10, Resolution: Budget Amendment (Video time mark 0:14:47)

A resolution was made to amend the 2020-2021 budget to include a $35,000 payment for settlement of the Bisio lawsuit to come from the #101 account (and leaving the particulars to Smith).

Pardee said he was supportive of amending the budget, but the council should specify where the money will come from.  Avery and Smith said that it will come from the general fund balance and go into the #101 general account.

Pardee wanted to know if this would have its own budget line. Smith said he needs to consult with the Treasurer, but it will be going into the #101 general account.

The resolution passed unanimously.

Agenda Item #11, Resolution: To Accept the Facilitated Settlement in the Bisio v Clarkston lawsuit (Video time mark 0:17:37)

• • Resolution to Accept the Facilitated Settlement in the Bisio v Clarkston Lawsuit (page 5/6 of the council packet)

Haven read from the resolution.

The resolution passed unanimously.

Agenda Item #12, Adjourn (Video time mark 0:20:13)

The motion to adjourn passed unanimously.

Resources:

• • Link to video recording – http://216.11.46.126/VOD/3363-Village-of-the-City-of-C-v1/vod.mp4
  • 20210212 – City Council packet

[Following the vote on Agenda Item #6 to go into closed session, the city immediately disconnected all external calls into the virtual meeting as Smith had warned. Though Smith also advised members of the public that they should immediately redial into the meeting to be placed in a waiting room, that is not how GoToMeeting (GTM) works. GTM allows a person to call in to a meeting as long as s/he has an access code, but the call is disconnected after ten minutes if the host doesn’t join the meeting within that timeframe. There is no waiting room available for callers. This means that an interested member of the public calling into the meeting would have had to either go through the dial in/ten-minute wait/disconnect sequence until the council returned from closed session or successfully guess when the council would return to open session and call back at that time. Even though the city recorded what happened after the council returned to open session, and Independence Television was able to publish the video of the second part of the open meeting, the public was not able to virtually attend the open session in real time as they are entitled to do under Michigan law.

If Smith meant to say that the public should use the GTM link that he provided to join the meeting in a virtual waiting room, as opposed to using the dial in number (described here: https://support.goto.com/meeting/help/lock-your-meeting-g2m040025), this is still problematic. Only GTM users can use a GTM meeting link, and user names are displayed. MCL 15.263(6) of the OMA states: “A public body shall not, as a condition of participating in an electronic meeting of the public body held under this section, require a person to register or otherwise provide his or her name or other information or otherwise to fulfill a condition precedent to attendance, other than mechanisms established and required by the public body necessary to permit the person to participate in a public comment period of the meeting.”

Since the city is forcing users to choose between identifying themselves as a condition of attending a public meeting or playing the dial in/ten-minute wait/disconnect game, it’s not a stretch to suggest that the Open Meetings Act (OMA) was violated – again. In addition, the resolution adopted by the council was also arguably insufficiently vague under the OMA, because it suggested that the council decided on a matter in closed session that was not disclosed to the public. MCL 15.263(2) requires that “[a]ll decisions of a public body must be made at a meeting open to the public. . . .”

Violations of the OMA are not a joke. Since this is the third time that the city has closed a virtual meeting without providing an option for the public to readily witness and observe the subsequent open session in a manner that is consistent with the OMA, city officials are exposing themselves and the city to civil and criminal liability. Not only is it possible for the city to be sued (again) for violations of the OMA, such violations can also subject individual public officials to civil and criminal penalties. MCL 15.272(1) states: “A public official who intentionally violates this act is guilty of a misdemeanor punishable by a fine of not more than $1,000.00.” MCL 15.273 (1) states: “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 $500.00 total, plus court costs and actual attorney fees to a person or group of persons bringing the action.”

The city was sued for an OMA violation in 2015. After that lawsuit was resolved, the Oakland County Prosecutor’s Office sent a letter to the city council members and warned them that criminal penalties are possible when the OMA is violated. The June 3, 2016 letter from the Oakland County Prosecutor’s office is linked here.

The city must open, close, and reopen the meeting in a way that complies with the OMA. If the city can’t do that using GTM, then city officials should use a different software program to conduct meetings when there will be a closed session. Public bodies across the state have been able to function virtually during the pandemic, with open and closed sessions, without violating the law. Clarkston should be capable of doing this too.]