Failed FOIA lawsuit costs me $3,376.62

Failed FOIA lawsuit costs me $3,376.62

September 25, 2018

On August 10 of last year, the Lansing State Journal printed a story called "Overtime spikes pensions for dozens of Lansing police, fire retirees." The story was based on pension amounts obtained from the City of Lansing for 160 police and fire retirees. I suspected that the pension amounts were not the full amounts. Pensions are calculated as service times final average compensation (FAC) times a multiplier - in this case, 3.2%. For example, if a firefighter has 25 years of service (the minimum required) and his average pay for the last 2 years was $80,000, his pension would be $64,000 (25 x 80,000 x .032). This amount is called the "straight life amount," and is not necessarily the same as the pension. The pension payment amount may be less depending on the survivor option chosen by the retiree. One option allows the surviving spouse to receive 75% of the pension, and to pay for it, the pension received by the retiree is reduced to 93% of the full allowance. Another allows the surviving spouse to receive 86% of the pension and the pension received by the retiree is reduced to 86%. The full text of that part of the city ordinance is here.

I set about getting the straight life amounts. I sent a Freedom of Information Act request asking for the same information provided to the LSJ, but with straight life pension amounts. The City wanted well over $1000, so I withdrew that request and asked for the same information provided to the LSJ. They sent me that document for free. It is a 168 page PDF document. The first 4 pages are a list of retirees and amounts. Here's a portion of the first page:

Each of the remaining 164 pages contained a document that showed - among other information - the employee's base pay amount. Here's an example:

Still determined to get the straight life amounts, I sent a new request, this time for the straight life amounts for a list of 20 employees who retired in 2015 and 2016. The City responded with a one-page list. I was not charged.

All of the amounts matched what was given the LSJ except for P. Medina's. The "monthly retirement benefit" given the LSJ was $5.576.67, which is $66,920.04 a year, while the straight life amount they gave me (above) was $71,956.98. $66,920.04 is 93% of $71,956.98, which suggests that $71,956.98 was indeed the straight life amount. I could not believe, however, that the amounts given for the other 19 were straight life amounts.

The reason I thought that is that I had the straight life amounts for 42 retirees from 2010-2012, and for 9 of those 42 - over 20% of them - the pension provided to the LSJ was substantially lower than the straight life amount. Starting in 2010 and ending before April 2013, when Public Act 347 of 2012 went into effect banning the release of information regarding the calculation of retirement benefits, I routinely obtained pension calculation sheets for City of Lansing retirees and posted them to this website. It is from those documents that I obtained the straight life pension amount.

In the chart below, straight life amount is from the pension calculation sheet, which you can see by clicking the retiree name. LSJ annual ret benefit is the monthly retirement benefit provided to the LSJ multiplied by 12. Any instance in which the straight life amount substantially exceeds the annualized monthly retirement benefit suggests that a survivor option was selected that requires a pension reduction. There are 9 of them:

	Retiree	Dept	Retirement Date	Straight Life Amount	LSJ Monthly Ret Ben	LSJ Annual Ret Benefit	SLA-ARB	ARB/SLA
1	Ramsey, Matthew J.	Police	1/14/2010	55,063	4,588.60	55,063.20		100.0%
2	James, Timothy A.	Fire	1/29/2010	76,780	5,985.58	71,826.96	4,953.04	93.5%
3	Priebe, John P.	Police	2/14/2010	53,831	4,171.93	50,063.16	3,767.84	93.0%
4	Stevens, Mary	Police	3/19/2010	61,698	4,486.61	53,839.32	7,858.68	87.3%
5	Ness, David T.	Fire	5/7/2010	70,919	5,909.95	70,919.40		100.0%
6	Koenigsknecht, Frank	Police	6/8/2010	59,486	5,000.94	60,011.28		100.9%
7	Dionise, Joseph	Police	6/14/2010	67,177	5,611.42	67,337.04		100.2%
8	Lindeman, Andrew J.	Police	6/14/2010	60,146	5,078.10	60,937.20		101.3%
9	Meaton, Richard T.	Police	6/14/2010	53,826	4,485.52	53,826.24		100.0%
10	Person, Stephen	Police	6/14/2010	68,159	5,679.88	68,158.56		100.0%
11	Read Jr., Vern A.	Police	6/14/2010	56,631	4,719.24	56,630.88		100.0%
12	Relyea, Steven H.	Police	6/14/2010	69,827	5,950.13	71,401.56		102.3%
13	Schuelke, Scott	Police	6/14/2010	66,664	5,555.36	66,664.32		100.0%
14	Wirth, Dennis	Police	6/14/2010	54,077	4,506.38	54,076.56		100.0%
15	Burnett, Todd E.	Fire	6/14/2010	61,813	5,115.51	61,386.12		99.3%
16	Fulger Jr., Charles J.	Fire	6/14/2010	65,259	5,656.99	67,883.88		104.0%
17	Ferguson, Bruce	Police	6/16/2010	59,067	4,509.86	54,118.32	4,948.68	91.6%
18	Ford, David R.	Fire	6/21/2010	70,356	5,862.99	70,355.88		100.0%
19	Walsdorf, Joseph R.	Fire	6/21/2010	63,346	4,773.61	57,283.32	6,062.68	90.4%
20	Huff Jr., Orval D.	Fire	6/23/2010	64,774	5,397.86	64,774.32		100.0%
21	Smith, Paul M.	Fire	6/23/2010	69,084	5,757.03	69,084.36		100.0%
22	Haueter, Peter L.	Fire	6/26/2010	71,350	5,945.82	71,349.84		100.0%
23	Perrone, Daniel A.	Fire	6/30/2010	55,505	4,539.05	54,468.60		98.1%
24	Halverson, Kim A.	Police	2/14/2011	53,580	4,464.97	53,579.64		100.0%
25	Klaus, Larry S.	Police	2/14/2011	71,461	5,955.10	71,461.20		100.0%
26	Barnes, William	Police	3/10/2011	55,966	4,010.90	48,130.80	7,835.20	86.0%
27	Blackman, David S.	Police	3/10/2011	52,867	4,405.54	52,866.48		100.0%
28	Medrano Jr., Frank	Police	3/20/2011	73,109	5,665.95	67,991.40	5,117.60	93.0%
29	Doerr, David B.	Fire	6/15/2011	61,812	5,150.98	61,811.76		100.0%
30	Kirchen, Thomas J.	Fire	6/15/2011	56,883	4,827.73	57,932.76		101.8%
31	Squire, James E.	Fire	6/15/2011	60,242	5,020.15	60,241.80		100.0%
32	Holden, Walter M.	Fire	6/16/2011	62,288	5,190.66	62,287.92		100.0%
33	Tolbert, Jerome C.	Fire	6/18/2011	64,459	5,158.30	61,899.60	2,559.40	96.0%
34	Pulver, Lynn A.	Fire	6/19/2011	64,613	5,384.56	64,614.72		100.0%
35	Bey, Donald	Police	6/24/2011	51,039	4,296.96	51,563.52		101.0%
36	Christainsen, William	Fire	6/24/2011	50,976	4,291.71	51,500.52		101.0%
37	Peacock, Matthew A.	Fire	6/30/2011	72,526	6,060.91	72,730.92		100.3%
38	Wojtysiak, Mark	Fire	6/30/2011	73,269	6,082.85	72,994.20		99.6%
39	Sabon, Philip D.	Fire	7/1/2011	76,318	6,359.85	76,318.20		100.0%
40	Trost, Jay S.	Police	8/19/2011	58,495	5,093.31	61,119.72		104.5%
41	Janeski, Charles T.	Police	9/15/2011	70,529	5,465.97	65,591.64	4,937.36	93.0%
42	Hall, Raymond	Police	2/18/2012	73,178	6,171.62	74,059.44		101.2%

So if over 20% of the older 42 had survivor option reductions, why did only one of the recent 20?

I thought maybe I was using the wrong term. Until then, I hadn't actually read the section in the city ordinance about survivor options, and when I did, I realized that the term "straight life pension" does not appear. I sent a new FOIA request:

I have to apologize. In my previous FOIA requests, I asked for the "straight life" pension amounts for certain Police & Fire retirees. I now realize that this term is not used in the Police & Fire Retirement System. It does not appear in the ordinance. The term for what I want is "full retirement allowance." I would like the full retirement allowance for [the 20 Police & Fire Retirement System retirees].

This time, there was a charge: $125.88. There was no charge for the straight life pension amounts I'd received earlier. Did that mean that the straight life pension and the full retirement allowance were different?

I paid the $125.88. On December 1, I got another one-page list:

On this list, the amounts matched exactly the amounts given to the LSJ.

On December 2, I sent another another request:

I realize that in my original FOIA request I did not specify that I wanted the source documents that showed the full retirement allowance for the 20 retirees listed in that request. However, the source documents are what I need, and the $125.88 I paid should get me more than the single-page list of retirees and amounts identified only as "monthly" that was provided . . .

My request was denied:

I appealed the denial to the city council president Patricia Spitzley on December 11:

Dear Councilwoman Spitzley,

I would like to appeal the denial of a FOIA request.

On October 17, I requested the "full retirement allowance" for a list of 20 police and firefighters who retired in 2015 and 2016. The full retirement allowance is the calculated pension before any reductions for survivor options. It has also been known as the straight life pension.

On December 1, after receiving my payment of $125.88, the Office of City Attorney sent me a one-page document (attached) listing the 20 retirees along with amounts identified only as "Monthly." Since the "full retirement allowance" is normally an annual amount rather than a monthly amount and since no supporting documents were provided, I suspected that the amounts provided were monthly pension payment amounts rather than the full retirement allowance.

On December 2, I submitted a new request asking for the source documents for the retirement allowances and I attached a "Retirement System Computation Sheet" for a 2011 retiree ("Halverson," attached) as an example of what I wanted.

On December 11, my request was denied ("Denial Letter," attached) because "information regarding the calculation of actual or estimated retirement benefits . . . are exempt from disclosure.

I accept that this is the law. However, the information regarding the calculation of the benefit could be redacted. That would consist of the final average compensation (FAC), which is of no interest to me. My only interest is the "full retirement allowance" or "straight life amount." I already have retirement date, retirement age and service amount, all of which are provided in Retirement Board meeting minutes.

Please ask the Retirement Office/City Attorney to provide the 20 computation sheets with the FAC redacted.

Patricia Spitzley

The City has had no problem with redacting documents in the past.

I received her response December 20. She upheld the denial of my request.

On January 5, 2018, I sent the city attorney another FOIA request. I asked again for those 20 pension calculation sheets, this time specifically asking that all calculation details other than the straight life amount be redacted. My request was denied on January 26. The reason? "[B]ecause the only information sought in this request, straight life pension amounts, has already been provided to you . . . on October 9, 2017. The City confirmed that the information provided under your earlier request has not changed since that time."

I appealed. New city council president Carol Wood denied my appeal.

On June 11, I filed a lawsuit asking the Court to compel the City to provide the 20 pension calculation sheets. The delay in filing was partly because I was in Florida through April and partly because of the time it took to find an attorney.

On July 6, the City filed a motion for summary disposition. They gave two reasons. The first was that the records were statutorily exempt from disclosure. However, the statute - MCL 15.243(1)(d) - does not exempt records. It exempts "information regarding the calculation of actual or estimated retirement benefits. . ." The records - the calculation sheets - could have been provided with the calculation information redacted.

The second reason was that the complaint was not filed within the 180 day limit. My January 5 request was definitely within the 180 days, but the City claimed it was not FOIA request "because Plaintiff acknowledges that he knows the information requested is exempt from disclosure under FOIA and instead instructs the City of Lansing how to redact the requested information, a power not granted to the individual requestor under FOIA." Apparently, their feelings were hurt because I suggested how they could do their job.

The hearing on the motion for summary disposition was held August 15 before Judge Clinton Canady III. He denied the City's motion, but did not order the City to provide the pension calculation sheets. Instead, he told them to provide me the straight life pension amounts.

The City complied in an August 29 letter that includes this chart:

Judge Clinton Canady III

The letter points out that "Patricio Medina is the only employee on the list whose straight life amount varies from the actual retirement benefit amount selected."

I decided there was no point in pursuing the issue. Although it is hard for me to believe that only one of the 20 chose a beneficiary option that required a pension reduction, I could not prove otherwise without the pension calculation sheets. I told my attorney to ask Judge Canady to order the City to reimburse me for my attorney fees and pay the $1000 penalty for improperly denying a FOIA request. Instead, the judge granted the City's request for summary disposition and declined to order the City to pay anything. So I am stuck with $3,376.62 in attorney fees.

I did prove that some of the pension amounts provided by the City to the Lansing State Journal for their August 9, 2017 article were misleadingly small. Although only one of the 20 more recent retirees had a straight life amount that was larger than the pension, 9 of the 42 2010-12 retirees did - over 20%.

The reason it matters is that the LSJ found that 70 of 160 police and fire retirees received pensions over 90% of their base wage. That is 43.8%. Twenty-seven of the straight life pensions for the 42 retirees from 2010-12 were over 90% of base wage. That is 64.3% Here they are:

	Retiree	Dept	Retirement Date	Base Wage	Straight Life Amount	Straight Life/ Base Wage
1	Ramsey, Matthew J.	Police	1/14/2010	61,195	55,063		90.0%
2	James, Timothy A.	Fire	1/29/2010	97,251	76,780		79.0%
3	Priebe, John P.	Police	2/14/2010	61,195	53,831		88.0%
4	Stevens, Mary	Police	3/19/2010	67,198	61,698		91.8%
5	Ness, David T.	Fire	5/7/2010	78,481	70,919		90.4%
6	Koenigsknecht, Frank	Police	6/8/2010	67,198	59,486		88.5%
7	Dionise, Joseph	Police	6/14/2010	67,198	67,177		100.0%
8	Lindeman, Andrew J.	Police	6/14/2010	63,310	60,146		95.0%
9	Meaton, Richard T.	Police	6/14/2010	61,195	53,826		88.0%
10	Person, Stephen	Police	6/14/2010	73,930	68,159		92.2%
11	Read Jr., Vern A.	Police	6/14/2010	61,195	56,631		92.5%
12	Relyea, Steven H.	Police	6/14/2010	67,198	69,827		103.9%
13	Schuelke, Scott	Police	6/14/2010	67,198	66,664		99.2%
14	Wirth, Dennis	Police	6/14/2010	61,195	54,077		88.4%
15	Burnett, Todd E.	Fire	6/14/2010	68,121	61,813		90.7%
16	Fulger Jr., Charles J.	Fire	6/14/2010	71,725	65,259		91.0%
17	Ferguson, Bruce	Police	6/16/2010	73,930	59,067		79.9%
18	Ford, David R.	Fire	6/21/2010	78,481	70,356		89.6%
19	Walsdorf, Joseph R.	Fire	6/21/2010	68,121	63,346		93.0%
20	Huff Jr., Orval D.	Fire	6/23/2010	68,121	64,774		95.1%
21	Smith, Paul M.	Fire	6/23/2010	78,481	69,084		88.0%
22	Haueter, Peter L.	Fire	6/26/2010	78,481	71,350		90.9%
23	Perrone, Daniel A.	Fire	6/30/2010	60,958	55,505		91.1%
24	Halverson, Kim A.	Police	2/14/2011	61,195	53,580		87.6%
25	Klaus, Larry S.	Police	2/14/2011	74,669	71,461		95.7%
26	Barnes, William	Police	3/10/2011	57,192	55,966		97.9%
27	Blackman, David S.	Police	3/10/2011	57,192	52,867		92.4%
28	Medrano Jr., Frank	Police	3/20/2011	74,669	73,109		97.9%
29	Doerr, David B.	Fire	6/15/2011	71,725	61,812		86.2%
30	Kirchen, Thomas J.	Fire	6/15/2011	60,958	56,883		93.3%
31	Squire, James E.	Fire	6/15/2011	68,121	60,242		88.4%
32	Holden, Walter M.	Fire	6/16/2011	68,121	62,288		91.4%
33	Tolbert, Jerome C.	Fire	6/18/2011	71,725	64,459		89.9%
34	Pulver, Lynn A.	Fire	6/19/2011	68,121	64,613		94.9%
35	Bey, Donald	Police	6/24/2011	58,050	51,039		87.9%
36	Christainsen, William	Fire	6/24/2011	78,481	50,976		65.0%
37	Peacock, Matthew A.	Fire	6/30/2011	78,481	72,526		92.4%
38	Wojtysiak, Mark	Fire	6/30/2011	78,481	73,269		93.4%
39	Sabon, Philip D.	Fire	7/1/2011	78,481	76,318		97.2%
40	Trost, Jay S.	Police	8/19/2011	62,113	58,495		94.2%
41	Janeski, Charles T.	Police	9/15/2011	68,888	70,529		102.4%
42	Hall, Raymond	Police	2/18/2012	83,342	73,178		87.8%

As for the 20 more recent retirees, we just don't know. The City expects us to take their word on the straight life amounts when they could easily have provided the source documents - the pension calculation sheets - rather than a compilation, which the FOIA explicitly does not require. Instead, they fought shamelessly to keep them from public view.

Send comments, questions, and tips to stevenrharry@gmail.com, or call or text me at 517-505-2696. If you'd like to be notified by email when I post a new story, let me know.

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