The City of New Buffalo, a former council member and two current employees are being represented in two separate lawsuits by law firms hired by the Michigan Municipal Risk Management Authority (MMRMA). The MMRMA is the City’s risk management company.
One law firm was engaged to defend a suit brought against the City by Ray Kirkus after he was denied a copy of an August 7, 2016 public surveillance video through a Freedom of Information Act (FOIA) request. In denying the request, the City has stated in its amended answer to the complaint that the video is not a public record and that the public surveillance video is exempt from disclosure under FOIA as “a clearly unwarranted invasion of an individual’s privacy.”
At the same time and on behalf of the City, the MMRMA has retained another law firm to represent a former city council member (Donna Messinger) and two city employees (Larry Pitchford and Diana Selir) in a baseless lawsuit brought against them by Street Supervisor Tony Ashbaugh. Ashbaugh also sued me.
In this lawsuit, Messinger, Pitchford and Selir have stated in their answer to the complaint that the video of Ashbaugh and Lambrix was a “public recording” in a “public building” and “served as the basis of discipline imposed on [Ashbaugh].” Ashbaugh’s lawsuit alleges damages against EACH defendant in the amount of $210,000.
Obviously the recorded conversation can’t be both private and public. Yet, two (2) law firms engaged on behalf of the City are arguing opposing views on the same issue. The City could have figured out that the video was public information based on Tony Ashbaugh’s own words in a document he wrote entitled ‘Request for Investigation.’ All five members of the city council and their contracted attorney, Sarah Bell, were provided a copy of Ashbaugh’s document yet they all seemingly chose to ignore the contents.
In the attached ‘Request for Investigation’ that was provided by the City through a FOIA request, Ashbaugh states, “My conversation was absolutely work related.” Then he proceeded to describe the contents of the video and conversation he held with another City contracted employee, Debbie Lambrix Ashbaugh Request for Investigation
In his complaint against Messinger, Pitchford, Selir and me, Ashbaugh states “The oral communication included remarks by plaintiff Tony Ashbaugh that he thought that defendant Larry Pitchford, police chief of the City of New Buffalo, had mis-used and was continuing to mis-use city property by letting a local business man use the property without compensation to the city.”
Since the conversation in the video was claimed to be work related and made public by Ashbaugh, it appears the City’s decision not to release the video to Kirkus pursuant to his request under FOIA was based entirely on the threat of a lawsuit or criminal prosecution against the City or City Council. In his ‘Request for Investigation,’ 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.” Although the FOIA has no exemption from providing public information based on threats of litigation or criminal action, it is more than likely that the City kowtowed to Ashbaugh’s threats rather than release the public video as required by law.
Ashbaugh himself admitted in the document he provided to the City Council and then-City Manager, Rob Anderson, that surveillance cameras can be used to “monitor whether employees are responsibly discharging their duties.” He went on to state the conversation was “absolutely work related.” Rob Anderson later issued Ashbaugh a written reprimand based on statements he made recorded on the video. Tony Ashbaugh’s memorandum of counseling.
Even Messinger, Pitchford and Selir state in their answer to Ashbaugh’s complaint that “[t]o the extent an answer is required, it is denied as untrue that the conversation was “private,” as Plaintiff (Ashbaugh) has admitted in writing that the “conversation was absolutely work related.” Plaintiff disclosed the alleged contents of the conversation in his September 29, 2016 “request for Investigation” to then-City Manager Robert Anderson. Further, it was common and public knowledge that the City of New Buffalo City Hall was monitored 24/7 by a video & audio surveillance system, which was installed in 2013 pursuant to City Council approval. Further, the conversation occurred in a public building, the City of New Buffalo City Hall, which was marked at the time with multiple signs that state: “NOTICE: This building is under video & audio surveillance in public areas.”” Additionally, the public recording served as the basis of discipline imposed on Plaintiff, (Ashbaugh) in the form of a memorandum of counseling for inappropriate behavior.”
How did the City, Messinger, Pitchford and Selir end up taking opposing points of view in two different court cases that both center on the public surveillance video of Sunday, August 7, 2016?
The answer lies with the city council’s lack of knowledge or understanding of the legal requirements of the FOIA that led to MMRMA spending thousands of dollars defending them in the two lawsuits. It also led to the uncomfortable employment conditions at city hall when co-workers must closely work with an individual who is suing them. This whole unfortunate situation magnifies the necessity of the council members to educate themselves on their legal duties as related to the public’s access to government information. Public records belong to the public, not any one individual and the public has a right to see them.
Unfortunately, the foolishness of Mayor Lou O’Donnell and Council members Liz Ennis, Mark Kroll, Mark Robertson, and Bobby Spirito will most likely reign again as they believe the MMRMA is providing ‘free money’ in defense of the lawsuits. Little do they realize that through these unnecessary lawsuits, the City’s reputation will be damaged, its credit rating may be negatively impacted which might cause an increase in bond interest rates and may further negatively impact the rate of the risk management insurance premiums.
The losers in this quagmire? The residents of the city.