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City Council members Wood and Spitzley must be replaced

April 30, 2019

The filing deadline for Lansing City Council candidates was April 23 and only three candidates have signed up to challenge Carol Wood and Patricia Spitzley, the two at-large members up for election.

The challengers are Yanice Jackson-Long, Terry Eagle and Julee M. Rodocker. Profiles and photos are in this City Pulse story. Information on all the City Council candidates is here on the City Clerk's website.

The reason I want Wood and Spitzley out is that they failed their responsibility to hear appeals of Freedom of Information Act request denials.

FOIA requests are handled by the City Attorney's office. The law provides that FOIA denials must be appealed to the president of the City Council. You would expect that since this duty is established by state law, it would be taken seriously. Wood and Spitzley have failed to do so.

A story titled "Overtime spikes pensions for dozens of Lansing police, fire retirees" appeared in the Lansing State Journal in August 2017. I suspected that the pension amounts obtained from the City of Lansing were not the full amounts - and I set out to prove it. I sent a FOIA request asking for the pension calculation sheets for a list of 20 police and firefighters who had recently retired because I knew those sheets contained the straight life amounts. The straight life amount is before any reduction is made due to survivor options chosen by the retiree.

My request was denied by the City Attorney because a state law says information regarding the calculation of retirement benefits is exempt from the FOIA. I appealed to then council president Patricia Spitzley saying

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.

Spitzley upheld the denial in a December 18 letter. It was as if she hadn't bothered to read my appeal. She simply parroted the City Attorney, saying "Your request was denied because the information requested is exempt from disclosure by state statue [sic]."

In early January of 2018, I sent the City Attorney another FOIA request. I again asked 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."

Instead of submitting a formal appeal, I emailed new mayor Andy Schor. He'd just taken office and I thought maybe he'd be a champion of openness.

My hopes were dashed; he chose not to intercede. His January 26 reply:

Mr Harry, 
 

I will refer this request to the City Attorney to review as a FOIA request according to Michigan law. 

 

Sincerely,

Andy Schor 

The formal response came February 2 from Carol Wood, who had replaced Patricia Spitzley as City Council president in January. She said my appeal was "defective because it does not conform to the City of Lansing's Policies and Procedures adopted by the City Council." Even so, it was her "decision, as the current City Council President, to uphold the denial of the documents." There was no indication that she had given any consideration to my argument. I ended up filing a lawsuit asking the Court to compel the City to provide the 20 pension calculation sheets. That didn't go well. The case was heard by Judge Clinton Canady III, who ordered the City to provide a list of straight life pension amounts for the 20 retirees, but not the pension calculation sheets. I got stuck with $3,376.62 in attorney fees. We will remember that when Judge Canady comes up for re-election. The next FOIA denial appeal upheld by Carol Wood was on a different matter. I wrote a story

Judge Clinton Canady III

in July 2018 called McIntyre disagreed with Bernero on retiree health insurance premiums. It was about a group of City employees who retired with the belief that their health insurance premiums would be paid by the City, only to to be told later (March 2010) that any changes negotiated with active union members applied to them, too. Premium payments were suddenly being deducted from their pensions. Then, in October 2016, a confidential memo from then-City Attorney Janene McIntyre to Mayor Virg Bernero turned up. It was dated November 23, 2015. In it, McIntyre supported the retirees' position that the health care coverage they had at the time they retired was not to be diminished. In that memo was a footnote that said

This memo is intended to supplement the March 18, 2015 memo from the City Attorney, Janene McIntyre, to the Mayor. Therefore, the exhibit lettering in this memo will be the same as, and continue from the March 18, 2015 memo.

I submitted a FOIA request for the March 18, 2015 memo. My request was denied on July 24 due to attorney-client privilege:

In my July 28 appeal, I said this about attorney-client privilege:

You can’t claim attorney-client privilege simply because an attorney participated in the communication. There are very strict guidelines. This is from the site Leagle.com (www.leagle.com/decision/1975762401fsupp3611715):

The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

Attorney-client privilege doesn’t apply in this case because it applies only to communications from the client to the attorney. In addition, the privilege must be asserted by the client. The assertion of privilege here comes not from Virg Bernero, but the City Attorney’s Office.

City Council president Carol Wood denied my appeal "because I have been advised by the City Attorney office that the denial is proper and consistent with the applicable law." The public was denied access to this 3-year old communication between two former City employees.

City Council members represent the people of Lansing. They need to stick up for us, not the City Administration. And they need to fight for transparency. Carol Wood and Patricia Spitzley have failed to do so and need to be replaced.

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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