Category Archives: City of New Buffalo

Who wrote this policy anyway?

images (3)Although we all have the legal right to public information, on the city’s website, the city council posts a list of names of citizens who have made Freedom of information (FOIA) requests.  It is an attempt to create animosity toward the people who are seeking public information and an attempt to shame those making the requests to stop.  What the council members don’t realize is that if they were transparent in their actions and followed the law, there would be no need to attack citizens who seek the truth. If it wasn’t for the Freedom of Information Act, we would not know the following violations.

At the October 17, 2017 city council meeting, City Manager Dave Richards recommended that the council adopt a video surveillance policy that he said was written by Lock Master Security and the city’s IT providers.  There was no discussion and the only dissenting vote was Council member Ennis. The new policy became local law and the audio/video surveillance equipment was moved from the police department to City Manager Richards office.  There is no documentation to support Richards contention that anyone else but him was involved in writing the policy.  FOIA Video Surveillance Policy

At the city council’s November 15, 2016 meeting, Attorney Sara Bell told the city council “The Chief Law Enforcement Officer of the City is the logical person to watch or review these recordings if there is a concern, threat, or an alleged issue, particularly if criminal activity or inappropriate behavior is alleged.”  At the same meeting, the council voted unanimously to hire Bell to write a video surveillance policy for the city.  It appears that City Manager Richards ignored their directive and instead wrote a new policy that put him in charge and overruled the recommendation of Attorney Bell.

The saga of the surveillance equipment began in 2013, when then Police Chief Pitchford wrote a grant proposal to the city’s risk management insurance company, Michigan Municipal Risk Management Authority (MMRMA)  for audio/video surveillance equipment. The grant request was awarded after Pitchford stated ‘The New Buffalo Police Department experienced a fire bomb attack on our department which is housed within the New Buffalo City Hall.  The fire bomb fell just short of the Police Department striking one of the department’s patrol vehicles then igniting under the rear of the vehicle then spreading to the parking lot,.  Minutes before this attack one of our officers had just cleared the station and resumed his patrol duties.  If this attack had been successful the officer would have had no idea the attack had just occurred and would have had no idea the Police Department and city hall was on fire.  A suspect was in fact arrested for this event and convicted in Circuit Court for Berrien County Michigan.”   MMRMA granted funds to provide the police department with both video and audio surveillance equipment to ensure the safety of the police force and the protection of city assets and to lessen expensive risk exposure.  City Manager Dave Richard’s new video surveillance policy violates the terms of the grant agreement, giving himself oversight authority instead of the police department, eliminates the audio equipment and compromises the risk exposure that was a requirement in the grant.

The state’s record retention law is the basis of the city’s record retention policy.  FOIA Record Retention Policy  The city’s Record Retention Policy requires electronic records todownload (4).jpg be retained for at least 10 years.  It also requires that documents not be destroyed if requested through the Freedom of Information Act until the request is resolved.  But Richards new video policy only requires the videos to be retained 30 days and does not address the FOIA requirements. Richards violated his own policy in January 2018 when he allowed the destruction of a surveillance video prior to 30 days when a FOIA request was made thus also violating state and local requirements for record retention. video request

Up until August 2016, the police monitored health and safety through the use of the surveillance equipment without a hitch.  But in August of 2016 Street Supervisor Tony Ashbaugh was recorded on the audio equipment using questionable language while working at city hall.  Since then he appeared to have a burning desire to impact the usage of the surveillance equipment. Through the actions of City Manager Richards and the men on the council, he succeeded.  The equipment is no longer there for the safety of the men/women in blue or the protection of city assets.  The equipment’s viability has been made impotent to ensure that no embarrassing or potentially illegal acts committed by city employees are audibly recorded and that any compromising videos can easily disappear without the protective legal enforcement by the police department.  This was the case of the video I requested in January 2018 of Ashbaugh harassing me in the parking lot next to city hall, Richards either made it disappear or else the surveillance equipment overseeing city hall’s parking lot was disabled. In either case, the city council should be concerned.  

download.pngIn October 2016, then City Council member Donna Messinger requested the men on the council do something about Street Supervisor Ashbaugh due to his statement caught on an audio/video surveillance camera ‘Hey Donna, when you’re bitching at council meetings, do you ever worry about Diana (Selir) shooting you?  It’s okay, she’s sane!’  (Laughter)  Although there was an expensive attempt by both the city and Ashbaugh to keep the audio/video out of the hands of the public, through Kirkus v City of New Buffalo, the public  recording had to be released.  Messinger again brought this issue back to the city council in December 2017 with no response although the city council and the city manager are violating the city’s Workplace Violence Policy by not addressing the issue. Perhaps the reason the council is so loathsome to those who seek public information is to continue their laissez-faire attitude concerning law compliance. Note that all the law and policy violations are due to one city employee. 

Workplace Violence Policy  ‘The City of New Buffalo recognizes the need to provide for the safety and security of all employees, contractors, customers and visitors. In doing so, the City is complying with Section 5(a), the Federal Occupational Safety and Health Act of 1970 (OSHA). Therefore, the City will not tolerate threats, threatening behavior. or acts of violence (or any other intimidating or disruptive behavior) against employees, visitors, guests, or other individuals by anyone on the City’s property.  This includes ….. verbal or physical threats …’ 

While downtown New Buffalo sits in snow

While everyone on the DDA is focusing on the style of lighting for downtown New Buffalo, they are ignoring one of the most important upgrade that could increase the viability of the business community.  Other cities along the Lake Michigan coast realized years ago that installing a snow melt system, when making improvements, was a wise and profitable move, why not New Buffalo?

Grand Haven


Democracy, New Buffalo Style

images (11)Mayor Lou O’Donnell and Council members Liz Ennis, Mark Kroll, Robert Spirito, and Mark Robertson allow a two tier system of government.  One tier is for city employees and the other is for the general public. City employees control the information and treat themselves differently than the general residents. If it wasn’t for the Freedom of Information Act, we would never know.

When City Manager Dave Richards completed a Freedom of Information Act request on September 20, 2017 for a surveillance video of the parking lot next to city hall because he thought some citizens might be making harassing statements about him, his employee, City Clerk Lori Vander Clay fulfilled it on October 4, 2017. This is when the police department had responsibility for health and safety at city hall.

Richards FOIA Request

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City Manager Dave Richards vs Citizen Susan Gotfried

When I made a Freedom of Information Act request four months later for a surveillance video for the same location as Richards’ request that would visually document Street Supervisor Tony Ashbaugh’s harassment of me, I was told by City Clerk Vander Clay that the video did not exist. This is after the city council gave City Manager Dave Richards sole responsibility for health and safety at city hall.

The City Council allows the city employees to engage in disregarding or violating laws to protect themselves and disenfranchise the public – the people who pay the bills.

My FOIA Request

Record Retention, New Buffalo Style

imagesAfter Street Supervisor Tony Ashbaugh harassed me in the city hall side parking lot on December 19, 2017 during a city council meeting, I made a report to the mayor and city council members the next day, December 20, 2017.  When I did not get a response, I made a police report on December 21, 2017 and Ashbaugh was warned to stay away from me.

I didn’t receive a copy of the police report until January 10, 2018.  Six days later, after discussing the continued harassment with my attorney,  I made a Freedom of Information Act request for a copy of the surveillance video from the side parking lot for a visual record of the harassment.   images (1)

On January 23, 2018, I received a reply from City Clerk Lori Vander Clay that the video surveillance recording of Street Supervisor Ashbaugh’s aggressive behavior toward me did not exist.  She sent me a copy of the city council’s newly adopted video surveillance policy that  states recorded videos are retained for thirty days. But the new policy also states that a video recording will not be destroyed when there is a safety or security issue warranting the retention of it.
video request

Through this new policy, the city council took safety and security authority of city property away from the police department and gave it to the city manager. Isn’t this ridiculous?  The new police chief if walking into a position with a devalued status by the city council members. One can only imagine the diminished morale of the police officers.

download (1)The police oversaw the report I filed and were aware of the email I sent to the city council members.  Had the police continued in their oversight responsibility for our safety when we are on city property, they would have retained a copy of the surveillance recording because it was important documentation of a potential law violation.  The police officers have a duty to protect the citizens while the city administration appears to have a duty to protect Tony Ashbaugh. It is interesting that the city council paid $900 for a new video surveillance policy that protects Street Supervisor Tony Ashbaugh while they previously paid approximately $50,000 in an attempt to keep a public video of him from the residents. This must be the only small town with boss rule by a street supervisor.

Michigan issues retention schedule #24 to city clerks.  The retention schedule requires adownload city clerk to immediately cease the destruction of relevant records when a Freedom of Information Act (FOIA) request is made and that electronic records must be retained for over ten years. Since I submitted my FOIA request within the thirty day city ‘retention’ policy plus the State requires a 10 year retention period, it was a violation of the law that City Clerk Lori Vander Clay did not stop the destruction of the records I requested and penalties should be imposed.  At the very least, the city council should investigate this issue and give the safety and security of our public buildings back to the police officers.  Although the city council members don’t appear to understand this, the police are people trained and duty bound to care for our safety and security.

Below is from an introduction of the Michigan’s Retention Schedule #24 for City Clerks

Government agencies are responsible for ensuring that all of their records (regardless of format) are properly retained and remain accessible during this entire retention period. All records need to be stored in a secure and stable environment that will protect them from tampering, damage and degradation.  As a result, government agencies should work with their information technology staff to develop preservation plans for retaining electronic records with long-term (more than 10 years) retention requirements. Various laws (including the Records Reproduction Act, MCL 24.401-24.406) identify acceptable formats for retaining public records; agencies are responsible for understanding and complying with these laws.

Government agencies must immediately cease the destruction of all relevant records (even if destruction is authorized by an approved Retention and Disposal Schedule) if they receive a FOIA request, if they believe that an investigation or litigation is imminent, or if they are notified that an audit, investigation or litigation has commenced. If relevant records exist in electronic formats (such as e-mail, digital images, word processed documents, databases, backup tapes, etc.), the agency may need to notify its information technology staff. Failure to cease the destruction of relevant records could result in penalties.

No reply

At the December 19, 2017 City Council meeting, former City Council member, Donna Messinger requested the City Council investigate the ethics complaint she filed a year before on December 23, 2016 against Street Supervisor Tony Ashbaugh, Mayor O’Donnell and City Council members Spirito and Kroll.  When she first requested an investigation at the January 17, 2017 council meeting, Mayor O’Donnell told her due to a legal opinion by the city attorney, the complaint could not be addressed  until the Ray Kirkus Freedom of Information Act request (FOIA) lawsuit was resolved. O’Donnell went on to publicly state that he believed the ethics complaint against him was “frivolous” although he authorized $10,000 for an investigation of a truly baseless and frivolous ethics complaint filed by Street Supervisor Tony Ashbaugh against then Police Chief Larry Pitchford.

Although Ashbaugh didn’t want two public surveillance videos to become public, one images (18)that revealed that he spoke about a co-worker shooting Messinger at a council meeting, the videos were made public in October 2017.  Based on O’Donnell’s promise to address her ethics complaint once the FOIA lawsuit was settled, Messinger in good faith again requested an investigation a year after the infraction took place. She heard nothing from the mayor or any of the four council members who didn’t bother to discuss the issue or contact Messinger.  This is truly disrespectful after stringing her on for a year, leading her on to believe they would investigate it.  It appears that a street supervisor’s concern about public videos becoming public is more important to the mayor and council members than a woman worried about violence against her. Let’s face it, the mayor and council members have realized they can ignore the concerns and issues of the public, protect the inappropriate behavior of employees and only focus on the issues their supporters care about.  Although Section D of the Code of Ethics ordinance states a public official shall treat all members of the public with professional courtesy, impartiality, fairness and equality, it appears none of the council members worry about their own ethics as long as their base supports them.

Below is the request made by former City Council member Donna Messinger.  Attached is her original ethics complaint.  Donna Messinger’s Ethics Complaint

December 19, 2017
TO:  Mayor Lou O’Donnell, Council members Ennis, Robertson, Spirito, and Kroll

At the January 17, 2017 New Buffalo City Council meeting, I requested my December 23, 2016 ethics complaint be addressed. Mayor Lou O’Donnell stated that the Council was advised by its attorneys not to comment on this complaint until Mr. Kirkus’ Freedom of Information Act lawsuit was resolved.  Mayor O’Donnell further stated that he believed my complaint to be ‘frivolous’. Because the Mayor’s opinion led to the Council not seriously considering a violent threat voiced by a male employee against the only female council member, it is now being investigated by the Michigan Department of Civil Rights. Although Mayor O’Donnell assured Council member Ennis that I was told that city attorneys had advised the Mayor not to address my complaint until Mr. Kirkus’ lawsuit was resolved, I never received any such communication. I request copies of that communication and copies of the opinions from the attorneys that advised the Council not to address my complaint until after the lawsuit was resolved. I don’t believe they exist. 

The Council members are ethically obligated to review the statement made by Street Supervisor Tony Ashbaugh concerning me. This statement can be found on the Sunday, August 7, 2016 public audio surveillance recording in city hall at 9:55 am when Mr. Ashbaugh used the key to the file cabinet in the front office to access a psychological evaluation in the personnel file of Diana (Selir), a female employee.  Then he stated ‘Hey Donna, when you’re bitching at council meetings, do you ever worry about Diana shooting you?  It’s okay, she’s sane!’  (Laughter)  At 14:27:26, Mr. Ashaugh said to Debra Lambrix who was also working in the office, ‘So they can listen in on us huh?’ and she replied, ‘uh-huh.’ Mr. Ashbaugh responded ‘if you’re listening, kiss my ass.’ Given that Mr. Ashbaugh understood that city officials could listen to the recorded conversation through electronic recording, I continue to contend that instead of trying to cover for a male employee’s inappropriate language concerning a female official, the Council had an obligation to address it at the time. My attached complaint still stands and I request it be resolved through the termination of the male employee because I don’t think it was frivolous nor was it innocent ‘locker talk.’

Donna Messinger


In 2015, Traverse City officials took their cue from the success of the heated sidewalks and streets in Holland, MI and in 2016 began plans for ripping out old sidewalks, replacing them with new snowmelt systems.  Much of the concern for cities bordering Lake Michigan is not only that a snowmelt system increases the economic viability of a city but also increases fresh waterway sustainability.  Pollution caused by salt runoff from deicing roads and streets harms water quality while increasing health issues for humans, animals and vegetation.

As a blog contributor stated on another post. “One would HOPE local officials would have been smart enough to seek out best practices, to emulate successful municipalities, to attend advanced MSU workshops on city planning, and/or to garner specific information to do the project well, using 21st century concepts, especially considering how much moolah they are expending. Does anyone on that council know how to replicate proven concepts? Has anyone on that city council conducted a site visit at Grand Haven, etc. to learn about such “advanced” municipal systems, to better an idea of how to improve their city? Or, do the NB council members just go about projects with their own limited, unskilled perspective, thinking they are grand because there is casino money at hand to throw at a project? Shameful ignorance of what COULD be (and I thought at least one of them had a degree).”


Walking downtown New Buffalo this time of year is a challenge since many of the property owners don’t clear the snow from their sidewalks, either because there is no images (22)place to pile it or they aren’t around in the winter. But whatever the reason, it’s safer to walk down the middle of Whittaker than struggling over the snow and ice. But it doesn’t have to be that way. If you ever have the opportunity to escape to Grand Haven, Holland or Grand Rapids this time of year, the sidewalks clear of ice and snow makes walking and shopping a pleasure.

‘The snowmelt system is made up of a series of tubes beneath the sidewalks and roads in the first three blocks of Downtown Grand Haven. Water diverted from the Grand River and nearby Board of Light and Power runs through the tubing, warming the substructure and preventing the surface from accumulating snow and ice. As a result, people can wander around without worrying about slips and falls. The next time the weather threatens to shut down your excursion, head on down to Downtown Grand Haven where the sidewalks and streets are always clear!’

When the downtown sidewalks and streets in Holland, Michigan were torn up in 1988, it was decided a snowmelt system made sense to the city on the shore of Lake Michigan.  Expansion over time continued due to the success. From a radio interview from a past Holland mayor ‘Imagine, in the wake of a big snowstorm, city sidewalks and streets that never get caked with snow and ice. No salt, no slopping your way through slush or gingerly walking on ice.’ Holland Radio Interview

The residents of Grand Rapids made shutting off of the snowmelt system an annual  ‘rite of spring’ event.  From a MLIVE article ‘The 16-year-old snowmelt system works with Grand Rapids2heated water that flows through tubing laid beneath the brick pavers on downtown sidewalks. The cost of the system is borne by a special assessment district funded by downtown property owners who benefit from the system. There also are several privately owned snowmelt systems in the downtown area.’


Although the costs are substantial, cities with snowmelt systems generate more revenue due to the increase in year round  accessibility.  Since the Downtown Development Authority (DDA) captures all increases in taxes in the downtown district through Tax Incremental Funding (TIF), these taxes can be used for maintenance and operating costs for a snowmelt system.
3682126If green technology isn’t part of the master planning for New Buffalo’s downtown, as it continues to be more accessible and financially viable, it should be.  Solar and wind are clean energy sources of the future that are capable of heating and lighting the entire DDA district at a much lower cost. Winters are harsh but with the environmentally friendly aspects of solar energy, it could make New Buffalo a welcoming green city destination for everyone all year round.

Ashbaugh and my police report

images (2)At the December 19, 2017 City Council meeting, Donna Messinger spoke truth to power about Street Supervisor Tony Ashbaugh and his inappropriate behavior against her that was documented on a public video. (I will publish her statement to the City Council next week) During the same meeting, he demonstrated disturbing and bizarre behavior toward me.  It was not the first time and every time Ashbaugh exhibited this aggressive behavior toward me, I told him to stop and for him to move away.  The behavior continued until I finally wrote an email to the mayor and city council members complaining about it.  There was no response,  so in fear of continuously aggressive behavior by him toward me, I filed a police report. The email to the council follows and the police report is attached. Police Report

Street Supervisor Tony Ashbaugh stated to Berrien County Sheriff Lieutenant Julie Flickimages (3)  that he knew his actions toward me were stupid just as he admitted to 57 News in October that his verbal statements on two videos were dumb.  A member of the City’s administrative team should know how to act appropriately to women while serving in a government position.  The City Council should never accept stupidity as an excuse for inappropriate behavior towards women by a public servant.  The Council needs to start representing the tax payers instead of protecting their employees.

images (7)The Sheriff Lieutenant told Ashbaugh not to attempt physical contact with me in any way.  In response, Street Supervisor Ashbaugh told Ms Flick to tell me not to interrupt him when he is having conversations.

City Council members, truth to power, is this really necessary?  Shouldn’t a member of your administration team know when interrupted in a conversation that lunging forward and trying to kiss the person is not how to handle the situation? Surely you must know this is not professional nor appropriate and that you as elected representatives must do something about it.

Although the Prosecuting Attorney’s office ruled there was not enough evidence to images (4)authorize criminal charges, I was also advised that if the aggressive behavior by Ashbaugh continues, it could be considered stalking.  The City Council should take action.

December 20, 2017
Mayor O’ Donnell and Council Members Liz Ennis, Mark Kroll, Mark Robertson, Robert Spirito
New Buffalo City Hall
New Buffalo, MI 49177
Dear Mr. Mayor and Council Members,
     Last evening, December 19, 2017 in the parking lot adjacent to city hall, during the city council meeting, I joined in to a conversation with Ray Kirkus, Ralph Hullet, and Street Supervisor Tony Ashbaguh. Mr. Ashbaugh became agitated with me, loudly telling me not to interrupt him although Mr, Kirkus and Mr. Hullet did not seem to mind.
     Mr. Ashbaugh suddenly raised outstretched arms and quickly advanced toward me stating that he loved me and wanted a hug. I told him to get away from me and that I considered that sexual assault. This is not the first time he did this to me but this was the first time I had witnesses. The first time he did it was after a hearing at the Berrien County Courthouse on October 2, 2017. It was the same type of quick advancement with arms outstretched telling me he loved me and asking for a hug. I backed up and told him if he ever touched me I would report him for sexual assault. I consider this type of behavior extremely inappropriate for a member of the city’s administrative team.
     I am debating whether to file a police report. I volunteered at a sexual assault organization and was taught that inappropriate behavior tends to escalate and since Mr. Ashbaugh continued this type of behavior even after I firmly told him in October that I felt it to be inappropriate, I fear it will continue. In an August 2016 reprimand then City Manager Anderson warned Mr. Ashbaugh about using inappropriate behavior but that warning appears to have gone unheeded.
     As I said, I am not sure if I will file a police report but I knew I needed to document this incident after just listening to Donna Messinger state what Mr. Ashbaugh said about her and how he has access on Sundays to female employees’ personnel files, now without any surveillance oversight. I can only hope that these continued incidents help Ms. Messinger’s Civil Rights Suit and might help to stop Mr. Ashbaugh from continued threats and sexual advances on other women. Please take this seriously and not shrug it off as frivolous.
Sincerely,Susan Gotfried
CC: Ray Kirkus Ralph Hullet

After I sent the email to the council members with copies to Ray Kirkus and Ralph Hullet.  Ray Kirkus responded to all of us with the following email.  

For the record, I also witnessed the incident outside the courtroom and so did my wife, who commented that he was lucky he did not try something similar with her.  I also heard Ms. Gotfried tell Ashbaugh to never touch her at that time. In addition, it was Ashbaugh who came out and interupted the converstion  I was having with Mr. Hullett. I have told him numerous times not to talk to me nor engage me in converstaion.   After Ashbaugh attempted his “hug” on Ms Gotfried, he Told Mr. Hullett to give him a hug and physically engaged him. Mr. Hullett had to push Ashbaugh off of him telling him , “Don’t  effen touch me!”  Ashbaugh continued with sarcastic and condescending remarks toward Ms Gotfried until finally urged by Mr. Hullett and myself to go back inside.  He finally did so. 
Ray Kirkus

Hurrah for safe routes to school!

One must appreciate the vision and genius of the city council when they decided that almost a million dollars should be spent on sidewalks for children to walk to school.  In anticipation of the many winter school days, they promised in their Safe Route to School grant application sidewalk snow removal maintenance. We could all rest assured that during those dark winter mornings when ice and snow covered most of our City, the children would be able to walk safely to school on the expensive new sidewalks.  But DSCN0444unfortunately, it appears that this was never the intent of the City Council because on the first day back to school after Christmas break, this is what the sidewalk looked like on the city owned lot at the corner of Indiana and Jameson. Great fun when playing King of the Mountain, not so much when trudging to school while carrying heavy  backpacks.

Division Administrator for the Michigan Division of the Federal Highway Administration Russell Jorgenson seemed unconcerned with lies on the City’s grant applications, ruling there was no fraud. If the number one man in Lansing is fine with lies on grant applications so is the City’s leadership and then of course the employees who report to them.

download (3)Street Supervisor Tony Ashbaugh cannot be faulted when he violates the requirements of the grant application because it appears that when the City Council approved it, they had no vested interest in the actual requirements they pledged to enforce.  More than likely, the City Council’s laissez-faire attitude toward government requirements trickles down to city employees. In other cities, it is a no-no for city employees to pile snow on sidewalks, here not so much even though the City Council committed to snow removal maintenance in their pledge to safely routing children to school.

In the dead of winter, this is how children should walk to school in a city that has accepted thousands of grant dollars for Safe Routes to School.

       images (1)

In New Buffalo, children have no safe route.

images (9)  images (15)

In their rush to get ‘free money’ from the State, it appears the City Council give no thought about the upkeep of their expensive sidewalks.  They used their concern for the children walking safely to school as the rational to apply for Safe Routes to School funding but in reality, it was always about the free money.

Progressive cities use the following equipment to keep children safe in winter, why doesn’t New Buffalo?



Within the walls of city hall, we should all have a window

Here’s a collective New Year’s resolution for the residents of New Buffalo – make sure the city council and employees are accountable to us instead of each other. This can only become a reality if citizens become involved, informed, and are willing to give voice to their concerns.

downloadThe New Buffalo City Council, their employees and The New Buffalo Times try to limit freedom of speech by discrediting people who question the use of tax dollars and the job performances of the City Council and their employees.   But in an unanimous decision by the Supreme Court in 1964, the Court favored the United State’s unique system that allows citizens to participate in discussion and debate without fear of retribution by those in power. 

Since the The New Buffalo Times reporters shrug off their journalistic duty to examine the decisions made by their buddies at city hall, it is left to us, the tax payers, to insist on accountability with checks and balances in local government.  It is our constitutional responsibility to challenge the decisions of elected and appointed government officials when we see misuse of their leadership duties.  Starting in 2018, working together we can make a stronger goverment. Write letters, attend meetings, make comments during public input.  Do not allow them to intimidate you because the United States Constitution has your back.

‘In a unanimous decision, the United States Supreme Court ruled in favor of the New York Times. In order to prove libel, a “public official” must show that the images (2)newspaper acted “with ‘actual malice’–that is, with knowledge that it was false or with reckless disregard” for truth. The Court asserted America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Free and open debate about the conduct of public officials, the Court reasoned, was more important than occasional, honest factual errors that might hurt or damage officials’ reputations.’

Moving funds, New Buffalo style

At last night’s New Buffalo City Council meeting, the council members voted to pursue using The Pokagon Funds and some small grants to complete a new dune walk at the beach.  Street Supervisor Tony Ashbaugh ignored the invitation of the DNR to apply for a large match grant in 2017 but council members did not seem concerned about the employee’s neglect because it is easier to access funds from The Pokagon Fund instead. DNR Communications

Not one member of the council questioned why the voter restricted park improvement funds were not being used for the dune walk since that is the intended usage of those funds.  Had they asked, city employees would have to tell them that the restricted funds were being misused for general park operations and dredging the harbor to ease the strain on the city’s general fund.   By using The Pokagon Fund’s money for major park improvements instead of the restricted park funds, then using the restricted park improvement funds for general operations, The Pokagon Fund is helping to supplement the city’s general fund.

In August 2016, Street Supervisor Tony Ashbaugh asked contractual Treasurer Debra Lambrix if he could use the voter approved park improvement millage to purchase a John Deere tractor that he could use for the streets as well as the Parks.  Her answer was for him to be careful because the park millage was for park improvements only.


In January 2017, the city’s auditor told the council that the drain from the city’s General Fund was getting pretty scary noting specifically funds being transferred for general park operations.

Recently, the council members congratulated the city staff for maintaining a strong general fund.  But instead of living within the city’s budget, the city employees are using the park improvement millage for purchasing and leasing equipment plus $35,688 was transferred to the Harbor Dredging Fund. It is illegal to use special assessments for purposes other than the reason they were established. The park improvement fund should only be used for improvement projects not to help balance the city’s budget.
Park Fund 2017 Audit    20162017 expenses Restricted Park Fund

Through three voter approved park improvement millages, the city has collected over 1 million dollars yet we see continued deterioration of the shoreline, dune walk, concession stand, boardwalk, and playground equipment.  Every five years, approximately $500,000 is collected through the park assessment. The first assessment went to improvements at Oselka Park then from 2010 – 2012, $280,000 of the special assessment was used for debt reduction.  (The Pokagon Fund withdrew approximately $350,000 from the project due to mismanagement of the project).
The Pokagon Fund Letter    Park Improvement Millage Ballot Questions
letter about park millage to city council

Since the third voter approved park assessment, during fiscal year 2016/2017, much of the expended $133,000 was used inappropriately that included harbor dredging, equipment leasing, and even $4,950 was paid to Bill McCollum for a drawing of a concession stand.  None of these expenditures can be traced back to capital improvements that enhance the parks.

The City Council must stop robbing Peter to pay Paul, using park improvement money to supplement general funds.  Equipment used for general operations should be purchased or leased through the general fund. Debt reduction due to poor management should also come out of the general budget not restricted park improvement funds.  And finally, dredging the harbor is not a park improvement and our elected council members should be providing better oversight.  It isn’t acceptable to misuse the Restricted Park Millages and then use The Pokagon Funds to cover for the misuse of the restricted funds.

“That is it. It is plain and simple.”

imagesAt the end of the November 21, 2017 City Council meeting, Mayor Lou O’Donnell stated the following.

“In Mrs Gotfried’s comment she totes the fact that we did no release those videos (Tony Ashbaugh, August 2016).  We were advised by three different sets of attorneys including MMRMA, our insurance carrier, we were advised by every single one of them not to release those tapes because there was always the question of whether they were illegally obtained.  Had we released those tapes for a FOIA request, we could have opened the city to unlimited liability.  That is the only reason we did not.  We are not trying to hide anything.  That is it. It is plain and simple.”

Via a FOIA request, there was only one legal opinion given concerning the release ofuntitled.png the August 2016 Tony Ashbaugh public videos and that was by Attorney Sara Bell at the City Council’s November 2016 meeting.  There was no documented  legal opinion provided by the MMRMA or any other attorneys.  If there were conversations with other attorneys, this information was not dispersed to council members through an open meeting nor did the council members go into closed session to discuss legal opinions.  Why did Mayor O’Donnell state there were other legal opinions when there is no documentation to back him up?  FOIA request for legal opinions.

Via another FOIA request, there was no documented threats of intent of a lawsuit against the city by Tony Ashbaugh’s attorney.
FOIA request for documentation from Tony Ashaugh to sue the city

Attorney Bell’s and Mayor O’Donnell’s opinions not to release the public video due to the city facing unlimited liability appears to be based on a non legal opinion made by Street Supervisor Ashbaugh in a Request for Investigation. FOIA request for Request for Investigation   

  • On page 2, number 1, Ashbaugh stated ‘My lawyer says that electronic eavesdropping on a face to face conversation is illegal under 18 USC Sec 2511(1) and could lead to lawsuits or prosecution.’

This one non legal opinion by a city employee appears to be the entire basis for Mayor O’Donnell’s decision to violate the Freedom of Information Act, to believe the city faced unlimited liability and to spend $33,250 on attorney fees.  In his Request for Investigation, Ashbaugh went on to provide the content of the videos to defend his position that the ‘face to face’ conversations were entirely work related not private conversations thus refuting his claim to eavesdropping.
FOIA request for lawsuit expenses     Order for city to pay Ray Kirkus’ attorney

  • images (4)O’Donnell continued ‘That is all we did is what our attorneys told us to do and I had mentioned it at several council meetings over the past year plus while this was all in the court system that once a judge decides cause we can’t decide, you know, we all have our opinions and attorneys’ have their opinions but until a judge takes his gavel and says release them, we were not going to release them because we could have subjected, if they were found to be obtained illegally, the city to just unlimited liability and therefore we did not release them and it’s that plain and simple and yes it did cost us $12,500 to pay for the attorney fees for Mr. Kirkus.  But its money well spent because it could have been a lot worse because it’s not up to us to decide these and yes there was another lawsuit filed over all this so looking back I have zero regrets whatsoever on how we approached this. Because we are not to determine whether or not something was illegally obtained so therefore we couldn’t release it and it’s that plain and simple.’

The council members should not base their decision to violate the law on a non images (6)legal opinion by a city employee nor should they accept a legal opinion by Attorney Bell that is based on a city employee stating ‘my lawyer says.’ O’Donnell said he and the council members are not to determine whether or not something was illegally obtained is correct but the Freedom of Information Act’s exemptions are very specific and do not include threats of lawsuits.  Even if there had been documentation of an actual threat of a lawsuit, the council members were obligated to follow the law.  If the council continues to violate the FOIA based on the unfounded threats of a city employee, attorneys like Mike Homier will continue to find an easy avenue to $12,500 in legal fees paid by the city.


The nail that sticks out gets hammered down

The city council in Riviera Beach, Florida discussed among themselves how to intimidate and silence Fane Lozman, a critic of the council.   Mr. Lozman took them to court – all the way to the Supreme Court – and won.  Our city council members would most likely consider him a foe, I consider him a hero.

There is an old Japanese proverb  ‘The nail that sticks out gets hammered down.” Local leadership, through humiliation, intimidation and threats, will attempt forced conformity.  But there will always be citizens who value their first amendment constitutional right of free speech and not be distracted by the animosity of council members like Mr. Robertson in New Buffalo.

Mr. Lozman stated, “What makes America beautiful is our personal freedoms.  Constitutionally protected free speech cannot be suppressed at the whim of elected officials and public servants.”

New York Times – December 5, 2017

NYT Article

Accepting Responsibility

Last month at the end of the New Buffalo City Council meeting, several council members took aim at me with self righteous indignation for what I write on this blog about the decisions they make.

At tonight’s meeting, I addressed them during the three minutes allowed to me during public input since even if I had been there when they berated me, they wouldn’t have given me an opportunity to respond.

Here is my response to them.

images.pngMark (Council member Robertson), last month I missed your comments about me writing fake news on my blog. I quoted you word for word so that was not fake and through the authorization of the council to proceed with the sidewalk project without input at a public hearing or input by a licensed tree expert, the council is solely responsible for the outcome.  You might be angry to hear it, but by allowing the mutilation of the roots of healthy mature trees, you are in fact responsible.  It might take two to three years for the trees to die but as they die, it was due to the project going forward without proper vetting, the council’s responsibility.

Lou (Mayor O’Donnell), you accused me of delaying the beginning of the sidewalk project, costing the city a great deal of more money in the process then you read a letter from the Michigan Federal Highway Commission addressed to me.  Had you asked Bryan Armstrong with the Michigan Department of Transportation, he would have told you that in the fall of 2016, City Manager Anderson had not submitted the engineering reports required for the project to begin and if he hadn’t by the end of the year, the funding would be withdrawn.  This is what held the project up, not my complaints. I don’t give myself so much credit.

I might be guilty of believing you committed fraud by not complying with the Michigan images (1).pngPlanning Enabling Act, but you actually did violate the Freedom of Information Act and it was proven through a lawsuit. Do you ever let the public know when you lose a case or when you violate the law? Why not read Judge Wiley’s ruling to the audience then post it on the city’s web-site. I have a copy here. Wiley’s ruling against the city  If Kirkus had lost, it’s a given you would try to publicly humiliate him by reading the ruling and posting it but he was right and you were wrong, time to apologize to the public and Kirkus because for over a year you denied information to the public that cost thousands of dollars in legal fees that included the city paying $12,500 to Kirkus’ attorney. Order for city to pay Ray Kirkus’ attorney16-280 Order Granting MSD

And because of your decision to block distribution of public information, I ended up in a baseless lawsuit brought by Street Supervisor Ashbaugh, costing me thousands of dollars.  As well as it costing the city thousands of dollars.  (It most likely will be dismissed in December due to the allegations by Ashbaugh not being true).

Accepting responsibility for violating the law isn’t easy but trying to cover it up is even worse. But truth be told, if it wasn’t for me or my blog, the residents of New Buffalo would never know.

First segment of Tony Ashbaugh audio recording

This is the first five minutes of audio from the August 7, 2016 Tony Ashbaugh video recording.  After a year of defying the Freedom of Information Act, the city council was finally forced by a court order to release the recording.  The copies released by the city were of such poor quality, experts had to be called in to increase the volume and decrease excessive background noise.  The conversation on the recording between Street Supervisor Tony Ashbaugh and then contracted treasurer Debra Lambrix might be why Mayor Lou O’Donnell and the council members didn’t want it released.
In 2006, we were asked to support a 5 year restricted park millage to be used for the improvements of Oselka Park.  Those funds were mismanaged and misused, leaving the park to continued deterioration each year.
In 2011, Rusty Geisler requested a renewal of another 5 year restricted park millage stating ‘The proposed continuation of the five-year 0.5 parks millage will be used primarily to protect the Gallien River shore line which runs just west of the beach parking lot. This river bank is eroding at a very rapid rate and, if not addressed, will, in the near future result in very large maintenance costs to both the shoreline and beach parking lot. This erosion protection is a key element of the planned Riverfront Improvement Project.” letter about park millage to city council
And in 2016, Street Supervisor Tony Ashbaugh wondered how he could misuse the restricted park cover-upmillage funds to purchase equipment for street projects while there continues to be deterioration of Oselka Park, the Gallien River shore line plus the beach dune walk and concession stand.  Are the restricted park improvement millage funds supporting equipment for general city use instead of major park improvements?  And is this why thousands of dollars were spent on legal and court fees to keep this information from the public?
download It is disturbing to hear two city employees (City Street Superintendent, Tony Ashbaugh and then contracted Treasurer, Debra Lambrix) discussing misappropriation of funds. Ashbaugh was seeking an avenue to misappropriate funds from the restricted park millage and place it into a street fund. Instead of stopping the discussion, Lambrix warns Ashbaugh to be careful. Ashbaugh wondered who would give a shit if there was an 80% -20% split of funds to be used for equipment except for a ‘Nancy Smith’ type of person.. The conversation ends with an explicative.
But what might be even more disturbing is when former Police Chief Larry Pitchford became concerned about the recorded conversation and took it to then City Manager Rob Anderson and Mayor Lou O’Donnell, he was reprimanded and the recording sealed. The city council chose to cover up the possible misappropriation of funds and then to fire the police chief.

stuff they don't want you to know

Tony Ashbaugh Recording

What’s this about?

As Chief Executive Officer of the City of New Buffalo and designated to rein above the police department per the City Charter, City Manager Dave Richards has total access to all city documentation including surveillance videos. So it is puzzling why he completed a Freedom of Information Act (FOIA) request for over 60 hours of city hall surveillance videos unless he wanted them for private use. The dates of the videos are from September 11 through September 19  just after Richards terminated former Police Chief Larry Pitchford but prior to the city council’s approval at their September 19 meeting. While all other FOIA requests are fulfilled by city employees, Richards ordered an IT expert to complete the task with total cost for the service unknown. (see copy of the FOIA request below)

When a male manager, for his private benefit, accesses 63 hours of a female imagessubordinate at work, who also happened to be the assistant to the former police chief he just terminated, it is not just puzzling but mostly worrisome but Diana Selir’s work area was targeted through Richards’ FOIA request. Remember that Street Supervisor Tony Ashbaugh first used a frivolous ethics complaint against Pitchford, then he targeted both Pitchford and Selir in a baseless federal wiretapping lawsuit to harass them yet Ashbaugh was never reprimanded for either of these two actions. Now it appears that Selir might be the object of personal harassment by Richards privately viewing 63 hours of her in the work environment. .

Additionally, the videos from August 2016 of Tony Ashbaugh and Pitchford’s subsequence  investigation are central to two current Michigan Civil Rights complaints, one claiming gender bias while the other race. In both cases, it appears that the decision of the city council’s cover-up of the videos led to the complaints being filed and we can only speculate on Pitchford’s swift removal from his position as police chief that eliminated any further review of the facts involving these complaints.

Besides targeting Selir’s work area for private viewing, Richards also requested the video recording of the front hallway for a half hour prior to the September 19 council meeting and the side parking lot for an hour after the meeting.  Since Richards was aware that police department employees planned to attend the meeting in support of Pitchford, his request could be another avenue of employee harassment. The loyalty of employees to their direct supervisor could seem as disloyalty to an insecure manager.

With the cooperation of the mayor and city council members, Richards got rid of Pitchford, clearing the way for him and Ashbaugh to have easy access to the police department with Richards in the position to hire a new chief leaving the employees with no buffer between them and Richards. Then at the October council meeting, the council members again cleared the way for Richards, giving him direct supervision of the surveillance videos.  He no longer needs a FOIA request to spy on city employees.

Richard's FOIA_0004

Public shaming, New Buffalo style

to learn who rules over you, simply find out who you are not allowed to criticizeAt the October council meeting, Mayor Lou O’Donnell pointed out that a letter from the Michigan Federal Highway Commission to me, a private citizen, could be viewed on the city’s web-site while claiming my concerns increased the cost of the Safe Route to School sidewalk project. The posting of my letter serves as a warning to others that it is inappropriate to challenge the authority of the council.

This is the first time the city council used the city’s web-site to try to publicly shame a resident for challenging council actions. While they are allowed to use the publicly owned web-site for their own agenda, we have no access to the outcomes of bad decisions and waste of money by them and their employees.

To promote transparency, the city council should post the following on our publicly owned city web-site.

  • Two correspondences to Street Supervisor Tony Ashbaugh from the Department of Natural Resources (DNR) that informed him the city was ineligible for large state grants in 2016 but he could reapply in 2017. By not applying in 2016 and 2017, the street supervisor lost the potential of a great deal of much needed funding for the beachfront while the city council is trying to piece together $200,000 of local grants to patch the dune walk and cover up the error committed by their employee. DNR Communications
  • The court order issued by Judge Wiley that required the city to release public videos because the council had violated the Freedom of Information Act. There was no mention that the City and Street Supervisor Tony Ashbaugh were held responsible for all the legal fees and court costs. 16-280 Order Granting MSD
  • A public apology to Ray Kirkus for forcing him to hire an attorney to obtain videos that the public owned.
  • Judge Donahue’s findings in the city’s lawsuit against the Planning Commission last year. The city council lost the case but never told the public the total cost of their actions that  included legal fees and court costs for both suing and defending the Planning Commissioners.
  • A public apology to the Planning Commissioners, the owners of the Home Town Pharmacy, and the owners of the New Buffalo Drug Store for a baseless lawsuit.
  • The judge’s finding in a zoning violation suit against Vito and Rubia Jasinevicius that the city lost.
  • A public apology to the couple for the money they spent on attorney fees to prove the city had violated state law.
  • A letter to the city council that Shannon Swindle read at a special meeting earlier this month that pointed out numerous zoning violations made by the Planning Commission following the recommendations of City Manager Richards. Instead of a public apology to Swindle, the majority of the council supported Richards’ bad advise that violates zoning ordinances.  Ms. Swindle had no alternative but to hire an attorney to prove the various violations of zoning ordinances.   SpecialCouncilMeetingLetter10-3 (3)
  • The private lawsuit by Street Supervisor Although that could make the responsible for $840,000 in damages he is demanding.  Corrected Motion
  • At least three city violations that are being investigated through the Michigan Department of Civil Rights, with one recently found in favor of the complainant.  These cases have the potential of large financial settlements by the city yet not a word is said to the public.

The power of decisions that impact all of us solely rests with the council because imagesthey routinely bypass state mandated public hearings where citizen input is supposed to be documented and considered.  Because the public hearing process is ignored, the only opportunity for input is a complaint to the state or retaining an attorney and taking the city to court.  While the council members chasten those who challenge them, it is appropriate and necessary to question their actions. They are supposed to be public servants not authoritarians. Even the downtown project was supposed to go through a public hearing process prior to beginning but as long as the council’s political base is satisfied, the council members are free to run the city in a vacuum.

The Safe Routes to School grant contained the following fabrications.

  • Inflated numbers of children within the walking boundaries of the proposed sidewalk.
  • Documentation of a public meeting that never took place.
  • The number of children who could use the Norton Street sidewalk in the 2015 grant revision.
  • Sidewalks that had no school foot traffic.
  • Public input that was never substantiated.

The Michigan Department of Transportation allowed the grant even though the city never provided the prerequisite of a public hearing with a documented public input process, violating the Michigan Planning Enabling Act. FHA Division Administrator Russell Jorgenson ruled that the falsifications and disregard of state law dd not meet his definition of fraud. But then, the Michigan EPA didn’t think there was a problem with lead in the drinking water in Flint.


While Tony talked

Note:  After reviewing the video recording of the June 20, 2017 Council meeting, I verified that the council approved $200,000 for improvements to the dune walk. Council woman Ennis stated that it was a shame that the stairs had been allowed to deteriorate.  Someone stated that Tony Ashbaugh had only been with the city for 18 months and the deterioration stared long before that time. Ashbaugh had a list of local Foundations to approach but he, Mayor O’Donnell, nor Council member Bobby Spirito mentioned that they had been considered ineligible for a large DNR fund the previous year but had been invited to reapply in 2017.

images (4)Much of government activity would remain behind closed doors if it wasn’t for the Freedom of Information Act. Due to a lawsuit, we know the city council violated the FOIA by keeping the public surveillance videos of Tony Ashbaugh and Debra Lambrix out of the public domain but on more than one occasion the city clerk and city manager violated it by claiming public documents didn’t exist.  Appeals to the mayor were referred back to the city manager instead of investigated. If city employees are either destroying or hiding public information, the mayor and city council members have a responsibility to safeguard public records.

In the spring of 2016, the former parks supervisor began a grant application process with the Department of Natural Resources (DNR) through the Land and Water Conservation Fund for a new concession stand and dune walk.  It was confirmed that the city’s need fit the criteria for the grant and with that assurance the city council authorized $4,000 for a simple drawing of a new concession stand by a local architect.  Many grants awarded in 2016 were for over well over a hundred thousand dollars and there was a good chance that with two applications the fund would cover both a new concession stand and dune walk with the help of matching grants that could be both financial and in-kind. Grant awards for 2016

There were two prerequisites for consideration of a grant request.  The City had to have a five year parks and recreation plan and provide evidence of an advance notice for a public meeting held to discuss the grant application (a public hearing notice).  Although the city had the five year plan the city council didn’t require a public hearing process prior to moving the project forward. And although required by both state and local laws, since Rusty Geisler, the new city managers no longer require public hearings prior to beginning city projects.

Instead of completing the requirement for a public hearing last year to receive the grant funding, the city council earlier this year allocated funding for repairs to the dune walk.  Remembering that the DNR had rejected the grant request due to the omission of the public hearing and that the DNR had stated ineligibility one year would not reflect badly on resubmitting the following year, I filed a FOIA request for any communications between the DNR and the city concerning the grant.  Although the city clerk sent over 40 pages of an email stream between the DNR and former park supervisor, she did not include the communications documenting the rejection of the of the grant.  Through a FOIA request to the DNR, I was provided two  correspondences addressed to Tony Ashbaugh who had taken on the duties of park supervisor with a large increase in pay.

These were two correspondences from Christie Bayus of the DNR to Ashbaugh, one dated October 17, 2016 and the other dated October 18, 2017   The correspondences noted that the information was a high priority and she mentioned that in July, Ashbaugh had spoken to a DNR representative when he was told that he needed a copy of the advance notice of a public hearing.  Ashbaugh evidently never replied because there was no documentation from him to the DNR and so the city lost out on a new concession stand and dune walk.  While the city clerk and city manager might be trying to protect Ashbaugh by not providing the correspondences the DNR provided, they can’t destroy or deny public information, it is illegal. The main reasons for the Freedom of Information Act is to provide to the public an avenue for oversight of government officials. DNR FOIA Response DNR Communications

At Tuesday’s city council meeting, the city clerk accepted a check on behalf of the city for a William J Deputy Endowment Fund donation to help repair the dune walk.  It might not have been needed had Ashbaugh followed through with the requirements of the grant last year and requested the Planning Commission hold a public hearing.  Or if time became an issue, he could have completed a new application for 2017, ensuring that a public hearing process was completed.

Although Ashbaugh had time to sit around thinking of ways to get even with the police chief and bad mouth co-workers, he didn’t have time to bother with completion of a grant request that could have provided the city a new concession stand and board walk that would enhance the lakefront and protect the dune.  Instead of wasting funding to patch the deteriorating dune walk, it could have been used as leverage for the DNR funding for the completion of a new one along with a new concession stand.

The city council didn’t bother with a public hearing process prior to accepting a grant for new sidewalks, bypassing the opportunity for residents to voice their concerns about sidewalks they didn’t want or need. Yet the council members find fault with residents who complained that there was no official process for public input.  The council also didn’t bother with a public hearing process prior to beginning the downtown project bypassing the ability for state funding to help with the costs.  And just last night, a woman spoke to the council about their decision to allow a zoning variance that appeared to violate a number of zoning ordinances.  Had the Planning Commission held a public hearing process as required by both law and zoning, the Commissioners might not have recommended the variance to the council for approval.  Documented public input through a public hearing process can and should impact the decisions made by both volunteer commissioners and elected council members. We pay the bills, why not include us as required by law in the decision making?

The City Council felt it was appropriate to post on the city’s web-site a letter from a state agency to a private citizen as they did when they posted a letter from the Michigan Highway Administration addressed to me because I felt that fraud might have been committed in the Safe Route to School grant.  Since the DNR sent a letter to a city employee, Tony Ashbaugh, stating the city was no longer eligible for a concession stand and dune walk grant, why doesn’t the city council post it?  It seems much more appropriate to post a letter to a public employee than a private citizen.

Disturbing Transcripts

knowledge is powerA year ago November, the entire city council voted to keep the August 2016 public surveillance videos of  Street Supervisor Tony Ashbaugh and contractual treasurer Debra Lambrix away from the public due to bad advise of an attorney.  Ray Kirkus had to retain an attorney and file a lawsuit to uncover the cover-up through a court order by Judge Dennis Wiley who ruled the videos to be within the public domain.  Although the videos were ruled to be available to the public, they have only been provided to Kirkus and his attorney at this time. Yesterday I received a partial transcript that was made at the time that the videos were handed over to then City Manager Rob Anderson by then Chief Larry Pitchford.  The council members like to congratulate themselves for acting legally but they violated the Freedom of Information Act, spending thousands of dollars on legal fees and court costs apparently just to protect Ashbaugh.

A previous post detailed a trail of actions and reactions taken against Pitchford after he blew the whistle on the videos to his supervisor Anderson.  Whistleblower beware It appeared that there was an ongoing effort to damage the Chief with an end result of the council’s forcing retirement just months prior to him retiring on his own.

“The U.S. Supreme Court has issued seven decisions addressing retaliation under EEOC-enforced laws, and the filing of EEO claims that include a retaliation allegation has continued to grow. Charges of retaliation surpassed race discrimination in 2009 as the most frequently alleged basis of discrimination, accounting for 44.5 percent of all charges received by EEOC in FY 2015.”  EEO Fact Sheet

According to the transcript, it appears that Tony Ashbaugh knew where the keys were to the main workplace-harasementoffice filing cabinets. He said he noticed the keys were gone but Debra Lembrix told him they were in the drawer and he found them.  Personnel files are kept in the front office cabinets so the street supervisor had access to them.  Is it a coincidence that the reprimand of Larry Pitchford that was supposed to be expunged from his personnel file through the results of the investigation by Attorney Sara Bell showed up recently through FOIA requests? According to the transcript, Ashbaugh suggested to Lambrix (contractual treasurer) to put her ‘cranial cap out there for something about Larry (Pitchford), something that can’t be tracked to us.’ According to the transcript, Ashbaugh suggested they were looking for skeletons in the closet for “something that could be brought into public at a council meeting like they did with me and the barter thing.” “Since all of them (police)look upon me with ‘fucking distain’.’

Shouldn’t the city council be more interested in the policies and practices of the city than to work so hard to keep public documents out to the hands of the public?


Whistleblower beware

True or False?  Street Supervisor Tony Ashbaugh is the source of a $10,000 ethics complaint against the police chief and two lawsuits costing thousands of dollars due to talking nasty about fellow employees.

True for sure.  After being recorded on a public surveillance system, Police Chief Larry Pitchford reported the problematic talk to City Manager Rob Anderson.  Pitchford’s whistle blowing was rewarded with a written reprimand by Anderson, then an ethics complaint by Ashbaugh and finally termination by the City Council.

Truth be told to other city employees, if you see a fellow employee misbehaving, you might better keep your mouth shut, otherwise you could face having your name dragged through the mud ending up with a termination just months prior to your planned retirement.  The city leadership’s response to whistle blowers.

After reporting Ashbaugh’s  inappropriate conversations on the public  surveillance equipment, Ashbaugh received a reprimand but so did Pitchford, apparently for blowing the whistle.

Following the reprimand, Ashbaugh filed an ethic complaint against Pitchford, leading to animages (8) extensive investigation by Attorney Sara Bell that included a review of the reprimand to Pitchford. Bell wrote “There is no evidence of wrongdoing on behalf of Chief Pitchford as it relates to the recordings from August 7, 2016, or any recordings of which I am aware that were reviewed thereafter. It is important to note that this finding is based on the fact that the recordings were kept in-house (given only to the City Manager and Mayor) and not released publicly by Chief Pitchford.”

Pitchford was expunged of all wrongdoing with the council accepting Bell’s dismissal of his reprimand and four other recommendations, one being that due to Ashbaugh’s threat of a lawsuit, the videos should not be released without a court order.  Another was that city employees be banned from sharing the videos or discussing the content.

While using the excuse of fear of a wiretapping lawsuit by Ashbaugh, the council abided Bell’s advise not to release the videos. The advise was bad, the videos public, the law violated, end result being the council losing an expensive FOIA lawsuit by Ray Kirkus.  Thousands of dollars in legal fees were wasted because the council chose the street supervisor over obeying the law.

Yet Ashbaugh wasn’t through with Pitchford, using the same accusations of illegally distributing a private conversation, he included Pitchford as a defendant in a federal lawsuit.  A baseless lawsuit with inflicting pain as the only apparent purpose.

Let this be a warning to city employees, the city leadership does not appreciate disclosure of wrongdoing or transparency in government. Pitchford was used as an example for workplace expectations.  After blowing the whistle, Pitchford was forced from his job by the city council two months prior to his official retirement. No dignified finish for a man with 40 plus years of service after he reported the inappropriate behavior of a co-worker that led to a forced early retirement, costing him his reputation and the gratitude of the community.  

Get this, by trying to protect Ashbaugh, the city council was first sucked into a FOIA lawsuit that they lost and then a baseless federal lawsuit brought by team member Ashbaugh.  Instead of trying to protect the reputation of an employee who was the center of the most expensive ethics complaint in the history of the city and two lawsuits, a better idea for the City Council would have been to abide the law by releasing the videos thus resulting in Ashbaugh’s demise.

To top it off, while Ashbaugh filed suit with accusations of illegal  disclosure of the videos by employees and the city broke the law to keep the videos private, then violated a Judge’s verbal order to release the videos, Ashbaugh himself failed to comply with Bell’s directive not to discuss the videos.  On February 2, after i was denied a copy of the videos at city hall’s front desk, Ashbaugh, sitting in City Manager Dave Richards’ office, discussed the contents of the videos on TV 57 while the reporter held up Pitchford’s expunged reprimand.  The council members and their employees disregarded all the recommendations of  Sara Bell except the one to cover for Ashbaugh, leading them to violate the law. Tax dollars wasted by a council played the fool by one of their team members.

Although the threat of a lawsuit by Ashbaugh led to the council’s decision not to release public information, a new threat of a  lawsuit got this response from Council member Liz Ennis as reported in the Harbor Country News, “If it’s illegal, we’ll find that out,” after she made the motion to accept a site plan fraught with legal holes.  Instead of knowing and following the law, it was easier for Ennis to move it to the legal system.  The City will lose yet another lawsuit because the City leadership continues to support employees instead of caring about the legal and ethical rights of residents. Should private citizens continuously have to hire attorneys to defend their zoning rights?