Before Clarkston City Council voted unanimously to go into closed session, Sept. 14, to discuss a lawsuit alleging an improper closed session, resident Steve Wylie had a question.
“Is this eligible for a closed meeting,” asked Wylie, also a former city council member. “There needs to be a demonstration it would have a detrimental financial impact on litigation or settlement ? furthermore, if it meet that standard, it requires a two-thirds vote of the council.”
Former City Council member Richard Bisio’s lawsuit alleges City Council illegally entered into closed session on March 9, 2015.
Discussing the lawsuit in open session would present a “detrimental financial effect” to the city, said James E. Tamm, representing the city in the matter through the Michigan Municipal League.
“In my view, Mr. Bisio is in multiple paragraphs asking for attorney fees and costs ? going into closed session, hopefully would avoid additional costs and attorney fees,” Tamm said. “Discussing the matter in open session could increase our costs and exposure.”
Coucil member Michael Sabol proposed a resolution to go into closed session, which was approved 5-0 without discussion. Council members Sabol, David Marsh, Al Avery, Eric Haven, and Sharron Catallo voted for the resolution.
Mayor Joe Luginski and Mayor Pro Tem Thomas Hunter were absent from the meeting.
According to the Open Meetings Act, a public body can go into closed session “to consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body.”
“I do appreciate that their lawyer properly cited provisions in the Open Meetings Act allowing closed session, unlike what happened in March,” said Bisio, an attorney, who is representing himself in the case.
The plaintiff is not seeking monetary damages against the city in his suit.
“I did that intentionally,” he said. “I don’t want to cost the taxpayers any money.”
Court costs would amount to about $300, he said.
“I suppose you could say there is some financial impact,” Bisio said.
Tamm recommended the closed session to discuss with council an Aug. 28 letter containing confidential attorney-client information.
The Open Meetings Act requires two-thirds of the council to approve the closed-session motion, regardless of absences. In Monday’s case, all five attending council members had to vote in favor, or the motion would have failed.
The case is pending in Sixth Circuit Court, Judge Leo Bowman presiding.
Bisio presented a settlement offer to the city ? City Council would agree the closed session on March 9, 2015, violated the Open Meetings Act because two thirds of the members did not vote to call a closed session and there was no permissible purpose for closed session.
At the March meeting, four of six council members in attendance voted for closed session ? Mayor Joe Luginski, and Council members Thomas Hunter, Eric Haven, and Mike Sabol.
Also, council would have to agree the March 9, 2015, letter from Hubbell, Roth & Clark, Inc. to City Manager Carol Eberhardt regarding storm water detention at the 148 N. Main Street auto shop, and City attorney Thomas Ryan’s March 9 memo to Eberhardt and Mayor Luginski regarding 148 N. Main Street are public records not protected by attorney-client privilege, and were not a legal basis for the City Council to hold a closed session. It also calls for council to follow the Open Meetings Act and Freedom of Information Act.