By Melodee Mabbitt
An attempt to follow the story of Flint’s pipeline replacement led a Flint resident to file a complaint to Genesee County Circuit Court, now under consideration by Judge Kay Behm, alleging that the City of Flint failed to follow the Open Meetings Act, Freedom of Information Act (FOIA), and the Flint City Charter.
“The overall tendency that I am seeing is one of avoiding the requirements of these statutes in order to suppress embarrassing information,” said Linda Pohly of Flint, a local attorney and plaintiff in the case.
Pohly regularly attends meetings of the Flint City Council and closely follows the newly formed Ethics and Accountability Board. The 11-member board was created by Flint’s new city charter, approved 2-to-1 by voters in August, 2017.
As detailed on the city’s website, “Effective January 1, 2018, the updated charter is now the guiding document for the City of Flint.” A nine-member elected charter review commission created the new charter. After numerous town halls and community meetings, Flint voters approved the new charter to replace the previous charter which had been in effect since 1974.
The Ethics and Accountability Board is charged with investigating complaints against public servants and city agencies. Another of its main mandates is to appoint an ombudsperson, which has not happened. Its meetings have failed to achieve a quorum several times and it struggled through most of 2018 to establish bylaws and set its budget.
According to Pohly, neither the City nor the Ethics and Accountability Board have seriously implemented the new charter, which voters approved to take effect on Jan. 1, 2018.
According to Pohly’s complaint, the City failed or refused to:
— Provide funding for the Ethics and Accountability Board.
— Appoint an ombudsperson.
— Require the chief financial officer to make monthly reports to council.
— Establish a Revenue Estimating Commission,
— Require public bodies to comply with the Open Meetings Act.
— Obtain council approval before approving services from contractors.
— Compile rules, policies, and procedures on the website, and
— Establish a Human Relations Commission.
“There are things that go on in every organization, including the City of Flint, that the people who are responsible for the decisions would really rather not have publicly known. These charter requirements, the Freedom of Information Act, and the Open Meetings Act are antidotes to that human tendency,” Pohly said.
City Attorney Angela Wheeler’s office referred EVM’s request for response to the mayor’s office. The receptionist at the mayor’s office connected EVM to the office of Candice Mushatt, the City’s public information officer, who requested questions be submitted in writing via email. That process is underway.
Contacted through a phone number provided by Pohly’s attorney, former interim chair of the Ethics and Accountability Board John Daly declined to comment on the litigation. He confirmed that he was not provided and didn’t expect to receive a City email address.
EVM is attempting to contact the new chair appointed by the mayor, Loyce Driskell, however no email contact for her is available through the City.
If Pohly wins everything sought in the case, the complaint would require the City to undo decisions made in closed meetings, provide all information sought, uphold the new city charter, and take actions to prevent further violations.
Pohly said she hopes these outcomes will encourage the City’s transparency during ongoing issues like pipeline replacement and financial struggles.
“I am not seeking any damages for myself. As a citizen of this city, I want the City to follow the law. It doesn’t seem like too much to ask,” she said.
Claim related to “predictive model” settlement
Pohly alleges that both Flint City Council and the Ethics and Accountability Board violated the Open Meetings Act.
According to her complaint, Flint City Council violated the act by entering into a closed session to discuss a settlement agreement. That agreement, approved by the council in February, requires the City to use a predictive model for pipeline replacement that advocates contend may result in higher rates of lead and galvanized steel pipeline replacement per excavation.
The City’s answer in writing to the court agrees that council entered into closed session, but denies that it was in violation of the Open Meetings Act because the council intended to discuss the settlement agreement from which conflict resolution proceedings were pending.
Pohly’s attorney, Alec Gibbs, argues that existing precedent does not exempt the City from the Open Meetings Act because settlement agreements do not constitute ongoing litigation.
“There was no pending motion when they went into closed session. Furthermore, you have to establish that the risk of financial harm to the City from disclosure outweighs any benefit of disclosure,” Gibbs said.
“In this case, it makes absolutely no sense because the settlement and all of its contours had to be entered into the court record the following day. So it is completely nonsensical to argue that there was any risk to the City. They just didn’t want the deliberations to be open,” he stated.
Pohly alleges that the Ethics and Accountability Board also violated the Open Meetings Act by entering into closed session to make decisions, failing to keep required meeting minutes, and deliberating in secret over email.
These allegations stem from a request for investigation submitted by Pohly to the board. Pohly requested the board investigate an alleged Facebook post by a board member that advocated for the resignation of four city council members, including describing two members as “evil.”
At the first meeting after receiving Pohly’s request, the board went into closed session to discuss her request for investigation.
In answer to this allegation, the City admitted in their response in writing that the Ethics and Accountability Board inappropriately entered closed session and requested that it be remedied at the next meeting, but denied all other Open Meetings Act allegations against the board.
Alleged Freedom of Information Act violations
In order to prove her allegations against the Ethics and Accountability Board, Pohly submitted a Freedom of Information Act request on Jan. 10, 2019, to the City for Ethics and Accountability Board minutes and attendance records, complaints and requests for investigation, and communications both among board members and between board members and public servants.
In response, the City required $201.69 for providing the documents. Pohly paid in full and in return received a box of documents that she alleges did not include her own emails with board members or any communications among board members unless there was a communication with a person using a City of Flint email address.
In answer to the court, the City argued that it had produced all records in its possession and that the Freedom of Information Act cannot require the City to produce City records from personal emails.
“I don’t think they can circumvent the Freedom of Information Act by using private emails,” he said. “The problem with the City’s argument is that it would allow public servants to conduct business, including, we believe, deliberations in violation of the Open Meetings Act, which can only be revealed through disclosure of those emails. We’re confident that the courts will agree with our position.”
According to Gibbs, the City failed to provide City email addresses for the board members. “Because the City was trying to bury the Ethics and Accountability Board and not give it any resources so that it couldn’t take any complaints and they wouldn’t have to implement that part of the charter, they weren’t giving them the very basic resources that they needed to do their jobs,” he stated.
In its efforts to obtain responses to Pohly’s allegations, EVM attempted to contact the Ethics and Accountability Board by calling the City “contact us” line, the mayor’s office, human resources department, and City Attorney Angela Wheeler’s office.
No one who answered at these departments could provide a point of contact for the board. The receptionist did not recognize the name of the chair of the Ethics and Accountability Board and the board is not listed on the City’s website at the time of publication. The person in City Attorney Wheeler’s office said they do not provide information about the Ethics and Accountability Board because “it is not a city board.”
Alleged Flint City Charter Violations
In light of the 18 months that have passed since the Jan. 1, 2018, effective date for the new charter, Pohly’s attorney Gibbs asserted the City is failing to implement it.
“The City appears to view the charter and its demands for greater accountability and transparency as an obstacle that they can ignore,” Gibbs said.
The City’s answer provided in writing to the court argues that efforts to uphold the charter are moving forward and that an ordinance allows approvals of services without council approval.
Pohly disagrees. “If there isn’t enough money in the budget to follow the law, then they need to amend the budget to follow the law. If I get caught driving without insurance, nobody cares that I don’t have the money to pay for it. The people that make the rules around here ought to be following the rules themselves. That is what this is about,” she said.
In June, the case entered a six-month discovery phase, as is typical for this type of litigation, Gibbs explained. If no motions arise during the discovery phase, the court may schedule a hearing unless both parties are able to reach prior agreement.
New EVM Staff Writer Melodee Mabbitt can be reached at email@example.com. This is her debut post for the magazine. EVM Editor Jan Worth-Nelson contributed to this report. She can be reached at firstname.lastname@example.org.