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 and went over the rules for virtual meetings under Public Act 254, which was adopted on December 22, 2020.
Agenda item #1, Call to Order (Video time mark 0:01:40):
Haven called the meeting to order and wished everyone a Happy New Year.
Agenda item #2, Pledge of Allegiance (Video time mark 0:01:51):
Pledge of Allegiance said.
Agenda item #3, Roll Call (Video time mark 0:02:11):
Eric Haven, Al Avery, Ed Bonser, Gary Casey, Joe Luginski, and Sue Wylie were present, and all were located in Clarkston, Michigan. Jason Kniesc was absent.
Agenda item #4, Motion: Approval of Agenda (Video time mark 0:02:53):
Agenda approved unanimously.
Agenda Item #5, Public Comments (Video time mark 0:03:37):
Chet Pardee submitted written comments that were read by Smith:
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- Six months after the Michigan Supreme Court ruled against the city in Bisio v Clarkston, the council seems to be ready to take action. The action appears to violate Michigan budget law which requires approved budgeted funds before a financial commitment is made, and Pardee believes that a budget amendment is necessary to comply with Michigan law. While there are unspent funds remaining in the city attorney’s budget (and Smith agreed), they aren’t available without impacting the city attorney expenses. Pardee noted that there are budgeted funds for the Depot Park gazebo that are not likely to be spent this budget year.
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- Pardee asked the city manager to add the 2021 budget presentation, which included a commitment to follow Michigan law, to the financial transparency section of the city’s website. Pardee noted that the financial transparency section of the city’s website currently incudes audit information to 2017 and budget information from 2014, 2015, and 2016, but there is no information for 2018, 2019, and 2020.
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- Pardee thanked Smith for adding the RAMP (Road Asset Management Plan) report from 2018. This wasn’t available anywhere on the city’s website for public comments as of December 14th, and it wasn’t available in the packet for the city council meeting in which it was presented. Pardee noted that the report concluded that 90% of the city’s roads are in fair to poor condition, the cost to improve roads within the city is estimated to be as high as $850,000 per lane mile, and the city has 5.7 miles of roadway that has been assessed by Hubbell, Roth & Clark.
No additional public comments.
Agenda Item #6, Resolution to Adopt Rules for Electronic Meetings (Video time mark 0:07:26):
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- Memo from Thomas J. Ryan, City Attorney (page 3/14 of the city council packet
- Public Act 254, Enrolled Senate Bill No. 1246 (page 4/14 of the city council packet)
- “Resolution to Adopt Rules for Electronic Meetings, As Amended” (page 8/14 of the city council packet)
Haven said that this is consistent with what Smith has put in place, and he read from Tom Ryan’s memo discussing the extension of virtual meetings to March 31, 2021. The prior conditions are continued, and we are operating under these rules right now.
The resolution passed unanimously.
Agenda Item #7, Closed Session to Discuss Pending Litigation (Video time mark 0:09:34, page 8/14 of the council packet):
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- “Resolution to Go Into Closed Session to Discuss Specific Pending Litigation” (page 12/14 of the city council packet)
The resolution passed unanimously.
Smith said that at this point, the council will leave the open session and go into the closed session. A separate link to the closed session was sent to the council members. Councilmember Casey had difficulty with the link, and Smith sent the link to him via text message at Avery’s request.
Haven had a question regarding the language of the resolution, which says that the open meeting will be adjourned and then the council will go into closed session, but it didn’t reference opening another public meeting after the closed session for announcement purposes. Haven wanted to know if the next public meeting scheduled for January 11th could be used to announce the results of the closed session.
Luginski said that the council had to go back into open session to officially close the meeting. Haven said that people need to know that’s the council’s intent but hanging around might not work. Luginski said that the vote has to be taken in a public meeting.
Smith said that in the interest of time, the vote needs to take place tonight. The council will return to the same open session and have a vote on the resolution if that’s the desire of the council. Luginski and City Clerk Jennifer Speagle noted that agenda item #8 is the return to the open session, and it has the same access number as the current open meeting session.
Haven said that the council will be going back into open session for public purposes if they need to know that. They will adjourn this part of the meeting and return after closed session.
Agenda Item #8, Return to Open Session (Video time mark 0:15:24)
Agenda Item #9, Roll Call (Video time mark 0:15:24)
No formal roll call was taken. Haven noted that they were all from Clarkston and still are.
Agenda Item #10, Resolution to Obtain Additional Legal Council for Bisio v Clarkston Lawsuit (Video time mark 00:15:32, page 14/14 of the council packet):
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- “Resolution – Retain Additional Legal Counsel for Bisio v. Clarkston Settlement” (page 14/14 of the council packet)
Haven summarized the closed session discussion. The city council has generally agreed to non-binding facilitation using Judge Sosnick. The council has also generally agreed to Mr. Bisio’s January 5th conditions with the notation that the insurance carrier will pay for facilitation costs. After discussing the city’s representation, the city council thought it was in the best interest of the city to hire Mr. Mark Peyser, in addition to Mr. Tamm, because our city attorney has a conflict. Those were the general points of the discussion, and we have a simple and straightforward resolution. Haven read the resolution to retain Mr. Peyser and noted that the maximum per hour charge is $350.
The resolution passed unanimously.
Agenda Item #11, Adjourn (Video time mark 00:18:50)
The motion to adjourn passed unanimously.
Resources:
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- Link to video recording: http://216.11.46.126/VOD/3341-ClarkstonCityCouncil-1-6-2021-v1/vod.mp4
- 20200106 – Final meeting agenda
[Notes from Clarkston Sunshine:
Clarkston uses GoToMeeting (GTM). GTM allows a person to attend 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.
Following the vote on Agenda Item #7 to go into closed session, the city immediately disconnected all external calls into the virtual meeting. To be able to listen live when the council returned to open session on January 6th, an interested member of the public would have had to either go through the dial in/ten-minute wait/disconnect sequence until the council returned from closed session or be gifted with psychic abilities to 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 (something that didn’t happen the last time the city closed a virtual public meeting), and Independence Television was able to publish the video of the second part of the open meeting later in the week, the public was not able to virtually attend the open session in real time as they are entitled to do under Michigan law.
Mayor Haven was correct to express a concern about this before the meeting was closed. He asked about delaying the public discussion portion of the meeting to the January 11th meeting, but absent that option, he wanted the public to know that they could return to the public meeting that evening using the original access codes. While the effort is appreciated, it didn’t fix the problem because the public has no way of knowing when the council will return to open session.
It’s not a stretch to suggest that the Open Meetings Act (OMA) was violated again. The virtual meeting room should remain open to allow the members of the public to continuously wait online for the meeting to reconvene if they wish to do so.
In the event that another closed meeting is scheduled while virtual meetings are allowed to continue under state law, the city should either open, close, and reopen the meeting in a way that complies with the OMA or establish a specific time when the open meeting will reconvene so that the public will have the option to dial in again at that time.
For those who are interested in learning more about the city’s new attorney, Mark Peyser’s firm biography can be found here:
https://howardandhoward.com/attorneys/mark-w-peyser
End notes.]
The now approved minutes to go into closed session state;
Resolution: Closed Session To Discuss Pending Litigation Motion by Luginski Second by Avery to enter into Closed Session @ 7:23pm as permitted by State Statute MCL 15.268 (e) to discuss the Bisio v Clarkston Lawsuit (Oakland County Circuit Court Case Number 2015-150462-CZ Pending before the Honorable Leo Bowman). Haven, Avery, Bonser, Casey, Luginski, Wylie – Yes. Kneisc Absent. Motion Carries.
And the action taken afterwards is:
Resolution: To Obtain Additional Legal Council For Bisio V Clarkston Lawsuit
Motion by Avery Second by Bonser to approve the hiring of additional legal counsel to co-represent the City in the Bisio v Clarkston lawsuit in a not to acceed [sic] amount of $350.00 per hour due to conflict with City Attorney Tom Ryan. Haven, Avery, Bonser, Casey, Luginski, Wylie – Yes. Kneisc – Absent. Motion Carries.
The reason for going into closed session is not reflected in the resolution that followed as no closed session is required to hire an attorney. It is a right of the city council as contained in the city charter.
The approval of a not to exceed hourly cost is meaningless since there is no stipulation of actual cost or a budget amendment to pay the bill. That did follow at the next meeting.
There is also no indication of what conflict exists for city attorney Ryan. As noted, the council can hire additional legal counsel at any time so why state an unidentified conflict?
There is no mention of facilitation in the resolution, even though discussed at the meeting, and it is unclear as to what role the three attorneys involved in this matter for the city have in regards to what they each do, how they coordinate or what direction their client, the city, has given them.
I find it very troubling that a matter of freedom of information that the city fought and lost in the Michigan Supreme Court is still so fraught with no information.