Supreme Court hearing set in trial of Oakley ‘public official’

Oakley Clerk Cheryl Bolf

Oakley Clerk Cheryl Bolf

(Brad Devereaux | MLive.com)

Update: Oakley case litigated in Michigan Supreme Court

LANSING, MI — A case that began in the wood-panelled assembly hall in the Village of Oakley will be heard in the chambers of Michigan’s highest court, where justices will consider defining the term “public official” as it applies to the State’s Open Meetings Act.

Philip Ellison during a hearing in Saginaw County Court in 2014.

The proceedings began three years ago in April 2013, when Hemlock’s attorney, Philip L. Ellison, sued Oakley Village Clerk Cheryl Bolf on behalf of Oakley resident Shannon Bitterman, alleging violations during a closed meeting in November 2012.

The directors held a closed meeting that violated the open meeting law, according to the lawsuit, and Bolf improperly edited the minutes of the meeting, intentionally violating the law.

Lawyers representing Bolf argue that she is not considered a public official for the purposes of the open assembly law.

The original lawsuit alleges officials met privately and approved employment contracts, including some that kept village posts filled by outgoing administrators.

Bolf, a nonvoting elected official, faces no charges related to the allegations.

A Saginaw County Circuit Court judge ruled in December 2014 that violations of the law had occurred, but did not issue an injunction as Ellison had requested. Ellison appealed the case, and the Court of Appeal ruled in February 2015 that Bolf was not considered a public official under the Open Meetings Act.

Ellison appealed to the state Supreme Court, which agreed in November to hear arguments related to the “public officials” issue.

“The practical reality of the outcome of this is that it’s going to determine who is responsible for ensuring that government operates in an open and transparent manner,” Ellison said Monday, April 4.

Bolf’s attorney, Mary Massaron of Bloomfield Hills-based Plunkett Cooney, argues in a petition to the Michigan Supreme Court that Bolf is not considered a public servant and, in the alternative, argues that he is not There’s no evidence that she intended to break the law.

Bolf admits that she changed the minutes of the meeting, according to Plunkett Cooney’s brief, but did not intend to violate the law. She explains how she altered the documents in the previous deposition testimony included in Massaron’s brief:

“I was trying to put the minutes as they were recorded. I made a mistake. I corrected it because I had to. That’s what happened at the meeting. If I didn’t, it wouldn’t be recorded,” Bolf said. during a deposition during the case, the brief states.

Village Clerk Cheryl Bolf and President Douglas Shindorf at a village board meeting in March 2014.

Bolf testified that she spoke with then-Oakley chairman Doug Shindorf and that he advised her to make the changes, the brief statement. Shindorf died in June 2014.

Ellison said meeting minutes are important because they are “the official record of what the government did or did not do.”

Changing the minutes can legitimize or “cover up” things a public body may have done incorrectly, Ellison said. Meeting minutes can be changed if there’s a mistake, he said, “but you can’t do that in secret.”

Oakley administrator Francis Koski said he was present as a member of the public at the November 2012 meeting when the board met behind closed doors. Koski said he was an elected director at the time, but did not attend a meeting as a director until December.

Koski thinks Bolf should be considered a public official.

“Everyone present should be held accountable for their actions during these closed meetings,” Koski said. “They shouldn’t be allowed to participate in a closed meeting otherwise.

“If she’s not a public servant, she should never have been in a closed meeting.”

Bolf did not respond to a request for comment.

Village administrator Sue Dingo was present at the November 2012 closed meeting and said that in December officials had “done nothing sneaky”.

She said in December that the case alleging wrongdoing against the Village and Bolf was unwarranted and ludicrous. Everything officials did wrong was “an honest mistake,” she said.

Plaintiff Shannon Bitterman, co-owner of the Oakley Family Tavern with her husband, Oakley Trustee Dennis Bitterman, said the fight is important for Oakley residents, but also for government areas outside the hamlet of a few hundred people. in southwestern Saginaw County.

“If the legal documents can be manipulated or altered, it invalidates the entire open assembly law process,” she said.

Others join

Since the Supreme Court agreed to hear arguments, the Michigan Press Association and others have joined the battle on the issue, filing briefs in support of their opinions in the case.

Michigan Press Association attorney Robin Luce Herrmann said she and Ellison will make oral submissions to the Supreme Court at Wednesday’s hearing.

The press association submitted the brief which argues that the open assembly law should apply to “public officials”, instead of “members of public bodies”.

Adopting the definition of “public official” advocated by counsel for Bolf “would invite public agencies to return to the days before the adoption of the OMA enforcement mechanisms – the days of secret politics – and would violate the public’s fundamental constitutional right of access,” the Michigan Press Association briefing said.

Herrmann declined to comment until after the hearing.

The Michigan State University First Amendment Law Clinic and the Michigan Coalition for Open Government also submitted a brief in the case, raising the issue of a loophole in the open assembly law.

“The OMA and (the Freedom of Information Act), in tandem, establish a presumption that all government information is publicly available, subject to a few narrowly circumscribed exceptions,” the group’s brief reads. “In the present case, there is no doubt that the residents of the Village are in fact entitled to the type of government information sought.

“Rather, the question is whether otherwise accessible government information can be concealed by a public official acting in concert with the broader public body simply because a technicality in the definition creates a loophole in the OMA.”

On the other side of the argument, the Michigan State Bar’s Public Company Law Section (PCLS), a voluntary membership section of the state bar, filed a supporting brief. of Bolf’s part in the case.

The group includes lawyers “who generally represent the interests of state corporations,” including cities and towns, according to the brief.

The Michigan Municipal League joined the PCLS brief, which says the groups are interested in a definition of “public official” that will advance OMA goals without inviting “a flood of litigation against individual public officials regarding the ‘accuracy of minutes of meetings’. .”

The groups “recommend defining members of the category (of public officials) as
those who have a specific legal obligation under the AMO for which personal liability may be imposed. These public officials are members of public bodies.”

Costs associated with the lengthy legal battle are covered by the village’s old insurance policy that was active in 2013 when the original lawsuit was filed in Saginaw County.

The village was removed from its insurance policy in 2014 and now has another insurer.

Bitterman said open meeting law issues are among the many lingering issues in the village. Bitterman strongly criticized the village’s handling of a complaint against Police Chief Rob Reznick and other complaints about his controversial police department.

Bitterman also filed a lawsuit seeking to make public the names of people who applied to be a member of Oakley’s reserve force.

The battle dragged on for years and led to the village being forced to relinquish documents related to the police department and reserve force, only after Bitterman’s daughter, Brandi Cramer, filed a lawsuit in court. Shiawassee County Court to view the information.

Shannon Bitterman said she decided to take the open assembly law case to the state’s highest court because “public official” needed a definition.

She will be there as the arguments are presented and hopes for a response.

“What would make anyone think she’s not a civil servant?” Bitterman said on Monday, April 4. “What would make anyone think she shouldn’t be held liable under the Open Meetings Act?”

“We have to solve this problem.”

— Brad Devereaux is a public safety reporter for MLive.com. Follow him on Twitter and Facebook.

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