Oakland County Circuit Courtwas scheduled a hearing on a request Wednesday for sanctions against Richard Bisio of Clarkston.
Bisio, former Clarkston City Council member who is suing City Council for violating the Open Meetings Act and Freedom of Information Act, is accused of improperly publicizing a proposed consent agenda that was supposed to be kept confidential.
“The city requests the court prohibit plaintiff from making extrajudicial statements regarding this matter on social media, or to representatives of traditional media,” said attorneys James Tamm and Paul O’Neill, representing the city, in their statement to circuit court. “And, further, require plaintiff to pay $1,000 in costs and attorney fees” for violating Michigan Rules of Professional Conduct.
Bisio issued a public statement about it on Facebook, Oct. 30.
“There’s been discussion about the city council’s uncivil treatment of people who had critical comments for the city at the last council meeting,” Bisio said. “That pales in comparison to what the city wants to do to me for having the audacity to publicly reveal the city’s settlement offer for my open meetings act/freedom of information lawsuit.”
The city has no basis for requesting a
gag order, he said.
“Apparently, the city’s lawyer is unaware of the First Amendment,” Bisio said.
The motion for sanctions stems from Bisio’s Oct. 20 posting on Facebook regarding a settlement offer from Tamm, dated Sept. 18.
“The city now admits that the March 9 closed session of the city council was illegal and that the documents that purportedly were the basis of the closed session were public records,” said Bisio, who is an attorney. “This is the city’s proposed consent judgment. This is not a binding admission, since it was made in the course of settlement discussions and I did not accept this in settlement of my lawsuit because it does not address other claims in the case. Nonetheless, this is some progress and refutes the city attorney’s repeated insistence that the closed session was proper.”
These statements are false, Tamm said in the motion.
The Michigan Rules of Professional Conduct state an attorney “must not make a false statement of material fact,” he said. “A lawyer participating in the investigation or litigation of a matter shall not make an extrajudicial statement the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceedings in the matter.”
Tamm’s Sept. 18 letter states, ‘the City Council’s decision to convene a closed meeting on March 9, 2015, was in violation of MCL 15.268(h) because the stated purpose for convening a closed meeting, to discuss an attorney-client communication, was not accompanied by a written memorandum required by Booth Newspapers v. Wyoming.?
Also, City Attorney Thomas Ryan’s March 9 memorandum to City Manager Carol Eberhardt and Mayor Joseph Luginski regarding 148 N. Main Street, and another March 9 letter from Hubble, Roth and Clark to Eberhardt regarding the proposed muffler shop at 148 N. Main, ‘presented to the City Council that formed the basis of the closed meeting shall be determined to be public.?
In a written response to the city’s motion, Bisio said he was not acting in his “professional capacity as a lawyer in this case and the Rules of Professional Conduct should not apply,” and “in any event, there is no ‘false statement’ within the scope of the rule.”
Also, his Facebook postings don’t reach enough people to prejudice a jury, he said.
Mayor Luginski did not respond to a request for comment.