Lake Orion officials respond to The Review’s questions about attorney bills, public hearing

By Jim Newell

Review Editor

Village of Lake Orion officials have sent The Lake Orion Review several responses to questions posed to the village council in a Review column last week about the village’s handling of events surrounding a public hearing to remove Orion Township Supervisor Chris Barnett from the Lake Orion Downtown Development Authority Board of Directors.

The Review column questioned why village officials would not release information or offer official comment on the public hearing to remove Barnett from the board for conflict of interest and incompatible offices allegations.

The Review also questioned how much the village had spent on attorney bills on the public hearing, which had been scheduled for June 29 but was canceled without explanation; and why the village did not provide the information after The Review submitted two Freedom of Information Act requests in July.

Council President Ken Van Portfliet and village Manager Joe Young provided the prepared response to The Review on behalf of the Village of Lake Orion, giving explanations to several unanswered questions.

The four-page response was also reviewed by the village’s attorney before the village sent the question-and-answer-style response to The Review, a letter from Young stated.

Editor’s Note: The 1,450 word response from Council President Ken Van Portfliet and Manager Joe Young is presented below in it’s entirety, without editing or abridgement.

QUESTION: Why, village leaders, did you schedule and then cancel a public hearing to remove Orion Township Supervisor Chris Barnett from the Lake Orion Downtown Development Authority?

ANSWER: The June 29, 2021 Public Hearing was cancelled due to serious HIPAA protected health issues of the Village Manager, coupled with citizen comments. The Village Manager is responsible for the administrative functions of the Village including some responsibilities for the Lake Orion Village Downtown Development Authority. The Village Manager or designee by law had to present the case against Mr. Barnett at the public hearing and, more importantly, the Village Manager was to be the main witness at the hearing. The Manager signed the letter of notice of the necessity for the public hearing and, therefore, Mr. Barnett’s due process rights would have only been ensured by the Manager’s presence and ability to be cross examined. The only way to fully explain why the meeting was cancelled was to tell the public about Mr. Young’s HIPAA protected condition which prevented the meeting from occurring as instructed by his doctors.

Due to HIPAA laws, Council and administration were unable to disclose the type, seriousness, or details of Mr. Young’s illness, yet he was required by law to attend the hearing. Due process demanded cancelation.

Due to the uncertainty of when the Manager would be medically released to attend, and testify, or prognosis for the future, the hearing was not able to be rescheduled. This was also done for Mr. Barnett’s benefit so there could be a certainty of closure. In the interest of transparency the Village Manager released some medical records to his employer, the Village Council. The Manager disclosed that he was hospitalized June 17 for treatment and returned to work on June 22 with restrictions that remain in effect to this date, including limiting his daily hours of work and work

load.

A letter was sent from our attorney dismissing the public hearing, which was our prerogative. The June 21 letter concluded with, “It is believed that we can work together to find a common ground and all work towards serving the citizens of the Village and the interests of the DDA. We look forward to sitting down together to find solutions and a positive resolution to these issues.” The offer to sit down was rejected.

QUESTION: How much have you spent in attorney fees?

ANSWER: The Village is providing the total amount of attorney fees spent to protect the Village and the DDA. Attorney fees were necessary to protect the interest of the Village taxpayers as to the loss of DDA capture funds, the complaints of conflict of interest and incompatible office holding by DDA Board Member who also is the Township Supervisor. The disclosing of attorney fee details, other than dates and amounts, would require Council approval as it is an attorney/client privilege communication. To spend $7,344.50 to prevent $100,000 annual draw is worth it. It’s why we have lawyers. It’s the Village’s job to defend attacks on the Village. That is what we did.

QUESTION: Why does the village and its attorney feel the village did nothing wrong?

ANSWER: This was a DDA Board matter based on complaints of conflict of interest that came from the public and Board members alike whom, brought forth their concerns to Village Council to resolve as proscribed by law and bylaws.

The DDA and Village Council followed the legal path to these challenges raised of a Board member’s activity, in this case a conflict of interest.

DDA Oath of Office and Bylaws are legal and binding and direct the actions of Board members.

As prescribed by state law and Village

ordinance, DDA Board members are

primarily responsible for the budget and planning to assist downtown Lake Orion to revitalize and prosper, which is its only function.

Chris Barnett is the Orion Township

Supervisor. As such his primary responsibility is the Township budget and planning. As a DDA Board member, however, his primary responsibility must remain to the Village Downtown Development Authority and its budget.

The Village took the necessary steps to protect the interest of the Village taxpayers as to the loss of DDA capture funds and any other liability issues. In January 2021 the Township Supervisor and Township Board allowed the Orion Library to opt out of the DDA capture that resulted in a loss of $45,000 annually to the Downtown Development Authority. The Township Supervisor failed to report such action to the Village or at any DDA Board meeting. Why was the Supervisor hiding/not disclosing/sharing this with the DDA Board that he sits on and took an Oath of Office of fiduciary responsibility? This is an action for the case of incompatible office and conflict of interest since the funds were taken away from the Village Downtown Development Authority (DDA) state law capture and allowed to remain with the Township Library. The Village was not notified of this intent and did not become aware of the Library taxes not being captured for the DDA until April 2021 when the annual tax settlement takes place. The Township collects all property taxes and distributes the funds to the various taxing jurisdictions including the school, community college, library, county, Village and DDA. The DDA funds are not remitted until the tax settlement in April, while the other jurisdiction funds are remitted at least monthly.

Previous Township action stripped the DDA of Township Library DDA fund capture. Though specifically allowed by statute, it is not allowed if there is debt. The Village had DDA debt, but has chosen not to challenge the Township on this issue through costly litigation.

Then the Township came back yet again to seek another $100,000 to be diverted to the Township when the Township Supervisor made a request and an attempt to coerce the DDA Board into returning Fire Department Millage captured funds of $100,000 annually, with $45,000 for the current year. This was presented at the April Board meeting by the Township Supervisor and a Board Trustee member.

The request was in conflict with state law as to the use of DDA funds which must be spent for the benefit of the Downtown District and was included in the Fire millage ballot language as legal and authorized by state statute. The request presented also did not include accurate specific details for the direct benefit to the Village DDA. These meetings can be viewed on Orion TV.

Supervisor Chris Barnett was alleged to

have violated the separation of public offices by requesting DDA funds of nearly $100,000 per year be diverted to fund the Orion Township Fire Department and its operations, even after they have received a $5.5 million dollar ballot proposal which included the DDA capture language.

DDA members were aware of the DDA capture portion being on the ballot, and were concerned that it would be illegal to divert money back to the Township without receiving specific services to the DDA for the funds.

DDA Board members felt extremely pressured from DDA member Chris Barnett especially when he brought several trustees and Orion Township Fire Department leaders to the DDA meeting asking to divert Village funds to the Township.

Chris Barnett cannot as Township Supervisor act “biased” on behalf of the Township budget, even though he admitted he was in two statements, while somehow representing the Village DDA Board and being a steward with fiscal duties to the DDA.

QUESTION: Why would you not fulfill a Freedom of Information Act request about public funds being spent on attorney fees? What are you trying to hide?

ANSWER: As stated in the Editor’s article of August 11, 2021 a legal explanation was made as to why the details of the attorney invoices were not released. Invoices detail documents received from the Village Attorney are attorney client privileged documents and are exempt from the Freedom of Information Act (FOIA). The Village attorney advised that a favorable vote of the DDA Board would be required to release the DDA invoice details. The release of the attorney invoice details was presented to the DDA at the July, 2021 meeting but was not approved by the DDA Board as noted in the previous article.

There is no secret. There is nothing to hide. The Village did nothing wrong. We have the right to cancel any hearing and change course. Village Council President Ken Van Portfliet, Village Manager Joe Young and Council members are protecting and defending the Village taxpayers, residents and businesses who would have been harmed by the Township’s request. That’s our job.

The Village is doing its best to remain non-combative, with intentions to not hide anything. We are protecting the legal and financial interests of the Village residents and taxpayers with our due diligence as to the facts and the whole truth. The facts have been twisted in social media and multiple attempts have been made to blame others for something that is self-imposed. All questions and accurate details for discussion are welcome at anytime.

All DDA Board members are volunteers, and we respect that. The Village also desires that the relationship with the Township would be in harmony working together for the best interests of our shared common unity.

 

5 Responses to "Lake Orion officials respond to The Review’s questions about attorney bills, public hearing"

  1. Cory Johnston   August 18, 2021 at 11:37 am

    While I appreciate that the Village of Lake Orion government finally responded to this issue, one has to question the response given since it does nothing more than support the premise that this is how the village is going to continue to act.
    I strongly disagree that the subject of village attorney billings can be kept secret by attorney/client privilege. Municipal attorneys I have talked to agree that it is wrong. It is the use of public funds that both the village council and public should know about. Those on the village council that voted to not release this information are wrong, as is the village attorney. The attorney cannot expect to simply submit an invoice without saying what it is for. Even more troubling is that this appears to be how it is normally done. This is a complete disregard for the intent of Michigan’s Freedom of Information Act and the obligations of the council to represent the public. You can’t do that by hiding legal issues from the public as if it is the council and attorney versus the public. The council serves the public, not the attorney or village manager.
    Mr. Barnett, The Lake Orion Review, and every member of the public have every right to ask how public funds are spent. We also have every right to know what village employees and staff are doing. The Village government, and particularly the Village Council, have a duty and obligation, legally and morally, to inform the public on how and why public funds are spent. The response provided is nothing more than legalese on how they are not going to do this because their privacy and secrecy is somehow more important than the public they serve.
    I would also like to know if the council approved this message and if so, how? Since we are discussing Michigan’s Freedom of Information Act, we should also discuss the Open Meetings Act and why it appears that decisions that directly affect the public’s right to know are being made in private.

    Reply
    • James Newell   August 19, 2021 at 1:05 pm

      Thank you for your response. It is greatly appreciated, as are you observations on this issue.

      Reply
  2. Greg   August 19, 2021 at 10:39 am

    Public officials should not be using lawyers to address the public. The Village’s response was clearly written by an attorney vs the leadership that is elected to represent the council. We need leadership, I would be embarrassed to be sitting on the village board right now. Transparency is what the people are looking for. Good arguments from the village on why they feel there is a conflict of interest, however, setting up a hearing to remove Chris vs talking with him first about the concerns is not leadership, it continues to drive the friction b/t the Village and Township.

    Reply
    • James Newell   August 19, 2021 at 1:04 pm

      Thank you for your response. I always like to hear the perspectives of The Review’s readers and what concerns them.

      Reply
  3. Eric   August 19, 2021 at 4:38 pm

    I have a question, when we vote for a mileage is their anyway to keep the DDA’s dirty hands off those dollars?

    I’m not sure I would vote for a fire mileage or a library mileage again if the DDA can just use those dollars for anything that they want.

    Reply

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