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August 04, 2020 Special City Council Meeting (held virtually)

Note: links to the video recording and the council packet can be found at the bottom of this post. Please note any errors or omissions in the comments. Anything noted between brackets was inserted by Clarkston Sunshine.

Meeting:

No introductory remarks by City Manager Jonathan Smith.

Agenda Item #1, Call to Order (Video time mark 0:00:00):

Meeting called to order by Haven.

Agenda Item #2, Pledge of Allegiance (Video time mark 0:00:05):

Pledge of Allegiance said.

Agenda Item #3, Roll Call (Video time mark 0:00:27):

Roll call was taken by Smith; Clerk Jennifer Speagle was absent because she was attending to election matters.

Eric Haven, Al Avery, Ed Bonser, Gary Casey, Jason Kniesc, Joe Luginski, and Sue Wylie were present.

Smith asked if James Tamm was present on the call, and Tamm said he was.

Agenda Item #4, Motion: Approval of Agenda (Video time mark 0:1:18):

No discussion.

Motion to approve agenda passed unanimously.

Agenda Item #5, Public Comments (Video time mark 0:02:08):

Chet Pardee had public comments:

    • Pardee wasn’t sure if Lieutenant Hill was on the call, but Pardee wanted to publicly thank him for his efforts to get the Oakland County Road Commission (OCRC) to change the turning lane from westbound Clarkston Road to northbound Main, M15, to no righthand turn on red. Despite Lieutenant Hill’s reference to accidents in the crosswalk area, the OCRC declined to make the change based on the expectation that traffic would become backed up on Clarkston Road.
    • Neither the city nor the OCRC have any plan to repair the road surface or resolve the stormwater drainage issues on westbound Clarkston Road just before to north Main Street, which is the southern boundary of 148 North Main Street. The public can’t access documents from city council meetings prior to 2017. This would include references to the 18 withheld documents from Tom Ryan’s 2015 invoices concerning 148 North Main and have drainage references. Ironically, most of the withheld documents relate to the development at 148 North Main, the muffler shop, the coffee shop, and stormwater drainage. Pardee believed that potential solutions to the Clarkston Road drainage issues are referenced in a portion of the withheld documents. Stormwater drainage resulting from the development of 148 North Main was studied by Hubbell, Roth & Clark, the city’s engineering company. The withheld documents reference potential liability issues involving Parke Lake and lower Mill Pond. Pardee suggested that the city manager use the information developed by Hubbell, Roth & Clark in finding an environmentally satisfactory solution to the Clarkston Road drainage issue. The city’s contract with Hubbell, Roth & Clark states that the city owns any information developed by Hubbell, Roth & Clark for work in the city.

Smith responded to Pardee’s comments and advised that there is a plan for repair on the Clarkston Road drainage issue. Smith has worked with the OCRC, and they have done some preliminary engineering work. There are no plans to do paving work this year. The next step is to have AT&T, Comcast, or a combination of the two utilities move the existing utility box and the utility pole that is very close to Clarkston Road and preventing any longer righthand turn lane from Clarkston Road onto North Main Street. It’s not uncommon for it to take a year to move the utilities. Once they are moved, we can move on to the next step of the repaving work.

Smith hasn’t seen plans regarding drainage so he can’t speak to that, but he wanted to let Pardee know that there is work progressing on Clarkston Road. Pardee thanked Smith and noted that he’d referenced yellow marks indicating that engineering had occurred. They were unwilling to tell Pardee about any engineering work.

No additional public comments.

Agenda Item #6, Resolution: Closed Session; To vote to enter closed session to discussion pending litigation pursuant to MCL 15.265(e) pending in the Michigan Supreme Court, Docket No. 158240 decision dated July 24, 2020 (Video time mark 0:07:51):

[There is no resolution in the council packet.]

Haven moved that the council convene in closed session as permitted by MCL 15.268(e) to consult with the city’s attorney regarding trial or settlement strategy in connection with Bisio v Clarkston because discussion in an open meeting would have a detrimental financial impact on the litigating or settlement position of the city. In addition, Haven moved that the council meet in closed session under MCL 15.268(f) to consider a confidential attorney/client communication, which is exempt from discussion or disclosure under state statute MCL 15.243(1)(g), particularly the privileged and confidential written communication from the city’s attorney dated July 29, 2020 and a settlement proposal from counsel for plaintiff dated July 24, 2020.

Resolution passed unanimously.

Smith discussed the procedure for closing a virtual meeting. He said that he would turn off his microphone, camera, and screen sharing, but he would leave the meeting running. The council will go into a separate meeting, and those who are critical to that meeting have received their call and log-in numbers. At the end of the closed meeting – during which time there will be no votes – they will return to the open meeting that will continue to run.

Avery was concerned that the audio from the closed session might bleed over into the open meeting if the meeting is left open. Smith said that they are totally separate events. He can see who is involved in the meeting and will confirm at the beginning of the meeting that it’s only the council and the legal support. Smith said that they are two separate events in the GoToMeeting system.

Wylie said she planned to leave the open meeting, go into the closed meeting, and come back when the closed meeting is over.

Luginski couldn’t see any reason why the council shouldn’t just shut the open meeting down, go to the closed meeting, and then come back to the open meeting after they’ve finished. Wylie said that the session can stay open, but those who are participating in the closed meeting should leave and reenter when the closed meeting is finished. Smith said that’s correct.

Item 6a – Call to order

[This portion of the agenda occurred during closed session.]

Item 6b – Roll call

[This portion of the agenda occurred during closed session.]

Item 6c – Discussion: Legal Matters; “Discuss legal matters relative to the Bisio v Clarkston case with Jim Tamm, attorney representing MML”

[This portion of the agenda occurred during closed session.]

Item 6d – Motion: End of Closed Session

[This portion of the agenda occurred during closed session.]

Agenda Item #7, Resume the Open Special City Council Meeting (Video time mark 0:13:09):

Roll Call – Haven, Avery, Bonser, Casey, Kniesc, Luginski, and Wylie were present.

Haven said that he wants to bring two motions for the council as a result of their attorney/client privileged closed meeting.

Motion #1:

To direct the attorney to contest the bill of costs that the city has received.

Pardee asked who the attorney was, and Haven said that the attorney is James Tamm.

Pardee wanted to know if Tamm would be contesting the bill of costs, and Haven said he was.

Pardee wanted to know who was paying, the city or the Michigan Municipal League? Wylie said that the Michigan Municipal League is paying; Smith agreed and said that the Michigan Municipal League is still paying at this time.

Casey, Kniesc, Luginski, Haven, Bonser, and Avery voted yes; Wylie voted no.

Motion #2:

To direct the attorney to apply for rehearing in the Michigan Supreme Court.

Pardee wanted to know how long the process would take. Tamm said that the motion for rehearing would need to be filed by next Friday, but he had no idea how long it will take for the court to decide. There is no response allowed unless the court directs a response to be filed. [This was not a correct statement; the court rules allow a response to be filed.]

Tamm said that he expected that the issue wouldn’t be decided until the fall. Haven asked for clarification regarding what “fall” meant, and Tamm said that he didn’t expect a decision until October.

Pardee asked if the city was going to restrain the city’s costs and expenditures between now and October. Haven said he doesn’t know that the council decided that, it’s to be determined, and there is no decision on that.

Avery, Casey, Kniesc, Luginski, Bonser, and Haven voted yes; Wylie voted no.

Agenda Item #8, Adjourn (Video time mark 0:18:57)

Motion to adjourn was approved unanimously.

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