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Investigation into open meetings violation will go on


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By Judy Reed

 

The Cedar Springs City Council voted last month to conduct an investigation into whether a violation had occurred under the Open Meetings Act last July, when the Council voted to take Mayor Bob Truesdale into closed session to hear complaints against him.

The Michigan Open Meetings Act states that a closed session may be called to hear complaints against a public officer, when the person requests a closed hearing. It can also be rescinded by the individual at any time.

According to Truesdale, he did not ask for the closed session, but was instead told by two of the council members that they were going to do this in closed session. Truesdale said he voted with the council figuring he had nothing to hide, and was not aware of his rights to end it at any time.

Two of the council members—Patricia Troost and Ashley Bremmer—are up for recall and the alleged open meetings violation is one of the reasons listed.

While Councilmember Dan Clark originally voted for the investigation, he began to have second thoughts last week, after reviewing two opinions by former State Attorney General Frank Kelley in connection with recalls and using public funds to defend the members up for recall. So he asked to have the matter revisited when the council met last Thursday for a special goals workshop session.

“I voted for it (the investigation) last month because I was not a councilmember at the time it occurred and did not want to interfere, “ he explained. “But when I realized that there was a conflict with an attorney general opinion, I tried to have them change the language to take it away from the recall.”

At the workshop, Clark proposed that they delay the investigation until they could find out whether the two opinions he read would cause the council to do something illegal. “In connecting the investigation with the recall, we are putting together two areas that should not be—the electoral and the judicial,” he explained.

The two opinions he cited were from former State Attorney General Frank Kelley.  In opinion 6704, dated March 22, 1991, Kelley answered the question on whether a municipality can use its funds for the purpose of paying expenses incurred by its city commissioners in the defense of a recall petition arising out of their performance of their duties as elected officers. He answered that no officer has any duties regarding the…outcome of  a recall election, and that his opinion was that the township may not expend public funds to challenge the sufficiency of  recall petitions.

The second opinion, no. 6715, dated March 17, 1992, also addressed public funds to pay legal fees of village council members who are subject of a recall. He again stated that a village may not use its funds for the purpose of paying legal fees to legal counsel opposing a recall petition.

Clark likens those opinions to what he sees the council is now doing—performing an internal investigation using public funds to exonerate the two members under recall. But Mayor Mark Fankhauser sees it differently. He says the investigation is not on behalf of Troost or Bremmer.

“We rely on our lawyer to act legally on our behalf. The recall was the catalyst that caused the entire to be compromised, and I felt it was important to address whether the council had done anything improper. It will be a small impact financially.”

City Manager Thad Taylor told the council that he had asked City Attorney Jeffrey Slugget whether they were using the funds improperly, and he told them that the city’s charter says they can use public funds as long as they are using it for a public purpose. He explained that the city must do the initial gathering of information, then show any evidence they gather to the prosecutor. If the prosecutor feels there is a case, it gets turned over to the Michigan State Police for further investigation.

Fankhauser said he felt the investigation should continue so that the public knows whether or not something illegal has been done.

Troost agreed, saying the investigation would tell them if five of them still on the council did something wrong.

Clark said the real issue is that they shouldn’t spend money on an electoral process.  “I want us to have a good image. I don’t want to spend public money on this. As a public body, we are influencing the electorate unintentionally.”

He said if there had to be an investigation, he felt it should come from a private source, not one funded by the city.

Clark also took issue with lawyer Sluggett’s response when asked at a previous meeting about who can call a closed session. “Mr. Sluggett said over and over that anyone can call a closed session and it is not so. I would like to have more than his opinion. As a council I don’t want to be diametrically opposed to what the attorney general says.”

Clark moved to amend their motion to investigate and asked for Taylor to stop the investigation and not restart until further info was gathered. It was defeated 6-1, with Truesdale saying he accidentally voted no when he meant to vote yes. That may have been true for one other council member as well.

Mark Laws, the Cedar Springs resident who has filed the recall petition, has also filed a complaint against the Council under the Michigan Campaign Finance Act. Under that act, a public body must maintain strict neutrality in each election and not attempt to influence the outcome of an election.

 

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City Council takes a gamble


 

Sometimes governing bodies risk public money in the hope of benefitting the public.  And sometimes city governments use their power to take actions where their authority is questionable. Last Thursday I sat on the council trying to persuade my fellow council members to delay using  public time and resources for what I considered a questionable purpose; an investigation into last July’s alleged Open Meetings Act violations.  Admittedly, the intent of the council was not thoughtless foolishness nor has the amount spent so far been large.  But, depending on the course of the investigation and decisions of the state prosecutor, spent public funds could grow significantly. Secondly, and of even greater concern, these uses of public resources may infringe on voting process integrity. Three members of council were willing to at least put off the investigation to allow time to better understand the City’s position.

We are currently gambling at the one-dollar table, where public resources are concerned. The voting process issues cannot be valued. They are connected to the recall petition. Many readers are aware of the current recall petition seeking to replace two of our current council members. The council is using public money to conduct an investigation to demonstrate innocence. This use of public money may be illegal. Rather than show restraint until we can be legally clear, the council is pushing ahead risking our integrity, the very item they say they are trying to protect.

Here are the three numbers on which the council can still gamble:

1.  Delay  investigation (low risk)

2.  Continue  investigation  (high risk)

3.  Cancel investigation (no risk)

My number is (3).  I do not feel the investigation will lead to public confidence or satisfy all of the council members. However, if the council chooses (2), then I believe they must show responsibility by insuring the investigation is in no way violating the voting process. Would this additional time and information gathering cost more money? No, if the council will consult the attorney generals office for their opinion, yes if we go through our city attorney. Costs will also increase if the state prosecutor decides to proceed with the recall-connected investigation, number (2.)

I encourage council members and citizens to consider the most responsible course, not what might make us feel justified or avenged.

Please contact council member Dan Clark at 616-263-7172 if you want to receive more information about this issue:

a) Open Meetings Act quotes

b) Attorney General Kelley’s opinions on public money spent on recall-related activities

These comments and opinions do not represent the City of Cedar Springs nor the majority of council.

 

Dan Clark, Cedar Springs

 

 

 

 

 

 

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