A controversial closed session, attorney communication and water pollution issues surround development of 148 N. Main.
At a March 9 Clarkston City Council meeting, city attorney Tom Ryan cited attorney client privilege when calling for a closed session regarding talks on the property. Councilman Richard Bisio said attorney-client privilege did not apply in this case.
‘It is a letter from the city engineer discussing two alternatives for dealing with stormwater runoff. This document doesn’t contain any legal advice and it is not transformed from non-privileged to privileged by attaching the city attorney’s two-sentence memo that purports to make it privileged,” said Bisio.
Mayor Joseph Luginski, and council members Eric Haven, Thomas Hunter, and Mike Sabol voted to enter closed session.
Council member Sharron Catallo recused herself due to conflict of interest and Council member David Marsh was absent.
Bisio voted not to enter the closed session, but participated in the meeting.
‘I stayed because I believe my constituents and the public is entitled to know what occurred at this meeting,? he said.
Other council members had no comment on the closed session.
“As counsel advised before we went into the session, any explanation might result in divulging confidential information,” Sabol said.
Bisio said the closed session included Ryan telling council about stormwater detention and retention discussions held with a local property developer, and a request for guidance.
According to the state Open Meetings Act, closed session is permitted to discuss personnel matters such as evaluation and discipline, collective bargaining, property purchase negotiation, and discussion of employment applications. Closed session is permitted to discuss lawsuit strategy with the city attorney only if an open meeting would have a “detrimental financial effect” on the city’s position.
The council can go into closed session to discuss material exempt from discussion or disclosure by state or federal law, but “a board is not permitted to go into closed session to discuss an attorney’s oral opinion, as opposed to a written legal memorandum.”
Bisio, an attorney, said the meeting didn’t meet that criteria, and came to the council meeting with a copy of OMA laws
‘This would seem to be good public policy since closed meetings deny the public’s right to know,? he said.
At the meeting, Bisio questioned Ryan and said he believed issues given for the hearing were not valid. After Bisio’s questioning, Ryan rescinded his request to enter closed session, but the council voted to do so anyway.
Michigan Press Association attorney Robin Luce Herrmann said city council and attorney actions are ‘extremely disturbing.?
‘The requirements for entering into a closed session are clearly set forth in the Open Meetings Act. It is also very clear that a public body may not meet in closed session simply to receive an oral report from their attorney. It is extremely disturbing both that an attorney for a public body apparently did not properly advise the public body on compliance with the Open Meetings Act and that a public body is apparently unconcerned with whether their actions are in compliance with the law,? she said.
Public officials charged with violating the law, a misdemeanor, could be held personally liable for actual and exemplary damages of not more than $500 for a single meeting, if found guilty. A government body’s decision could also be invalidated by a court if made in violation of the law.
A lawsuit would be required to bring action, Bisio said.
‘I considered suing the city for an injunction against holding such improperly closed meetings in the future, but decided against it for several reasons,? the council member said.
It would cost the city’s taxpayers money to defend against the lawsuit and any other fees if successfully sued, he explained.
‘City residents are entitled to know what their government is doing. There should not be meetings behind closed doors to set city policy. It engenders suspicion and disrespect for city government,? said Bisio.
‘I pointed out that Michigan Supreme Court precedent holds that it is a violation of the Open Meetings Act to go into a closed session to discuss an attorney’s oral opinion or advice. The city attorney said he had planned to draft a written memo on the subject, which could conceivably have been something that was protected by attorney-client privilege would justify a closed session. But he didn’t have time to do it, having just received the city engineer’s letter that afternoon,” he added.
Located on the north east side of Clarkston and Main Street, the business is currently a muffler and brake shop. The building has been automotive related, and once a gas station, since 1929.
City council approved a site plan and conditional rezoning of the property, proposed by Curt Catallo’s ‘Union Joints” to be a coffee and deli shop, in June 2014. Part of a re-zoning and site plan approval agreement addressed storm water issues at the location.
Pollution and storm water trouble has plagued the property for years. Heavy traffic is also an issue at the bustling corner.
Memos from 2003 address residents concerns over the stormwater issues in the area to protect property and water resources in Clarkston.
Stormwater is discharged in local waters. The city bid the jobs to extend the water main and other work in the area . Contractors estimated the project to cost between $2.9 million and $4 million.
Terri Golla of the Michigan Department of Environmental Quality said the property is still not in compliance with the law. Golla added the property is contaminated with petroleum-based contaminants and any type of digging taking place on the site could stir up contamination.
In 2014, Golla said a baseline environmental assessment is required within 45 days of purchase in order to not be held liable for contamination issue. Neil Wallace, attorney for Catallo, said phase one and phase two of an environmental baseline were completed.
City Engineering Firm Hubbel, Roth and Clark proposed a stormwater and detention system to deal with the contamination.
Retention work will require a waiver to protect the city and engineers from any movement that occurs from the plume of contamination. Another option is constructing a storm outlet. Currently an open ditch and culvert runs from the property and into the Mill Pond. No waiver is required for the action. Constructing a storm outlet would not impact groundwater or the contamination plume.