‘Illegally recording and distributing a private conversation (wiretapping).’ Even from the
get go, members in the legal community were unimpressed with the frivolous Federal lawsuit filed by Street Supervisor Tony Ashbaugh, more so since August of 2017 when Berrien County Judge Wiley found the conversation to be public not private. At that point, Ashbaugh no longer had any semblance of a legal argument in the Federal suit against the City of New Buffalo (third-party defendant), Donna Messinger, Larry Pitchford, Diana Selir, and me but he continued to push on as minimally as possible, just enough so we had to continue to retain and pay attorneys while innuendos that we violated the law continued to followed us. The case limped along for almost a year since we were served by Ashbaugh on Good Friday, 2017. And since he demanded $210,000 in damages per defendant ($840,000 total), we were at his mercy, crossing every ‘T’, dotting every ‘I’ and filing every document as directed by court rules and schedules while Ashbaugh skated, ignoring deadlines and neglecting court filings.
At the December 18, 2017 pretrial hearing, Judge Neff’s decision not to enter a motion for a summary judgment briefing date was presumably in the hope that Plaintiff Ashbaugh would drop his case since his wiretapping charges were in shreds. Although Ashbaugh appeared to shrug off any thought to cease, he made no attempt to bother with discovery in the weeks that followed, providing evidence that he never intended to take the case to jury trial. On January 9, 2018, the day before we were required to attend a Settlement Hearing in Grand Rapids, we were informed the meeting was cancelled due to Ashbaugh not filing the required documents. Several weeks after that, his attorney requested a settlement by way of a letter. Really? After missing the opportunity provided through court rules and scheduling, we were to seriously consider a plea for money through a correspondence?
The next legal hoop for the defendants was to prepare motions for summary judgement for the judge’s dismissal consideration of the case. My motion, along with the co-defendants’ motion were written and delivered according to court rules and scheduling. We awaited the 28 days Ashbaugh was allotted to present his written reply but at the last-minute, he dropped his case. Just like that, he threw in the towel, called it quits, and bailed out.
Well prepared, with a request for oral arguments by both attorneys representing the 
defendants, we had looked forward to our day in court. Our goal was to publicly defend our innocence.and in my case request for sanctions. Timing is everything and Ashbaugh never took the chance of being defeated but was finished when he quit.
Why did Ashbaugh file this baseless, frivolous lawsuit with no obvious intention of carrying it through to trial? This type of suit is called a Strategic Lawsuit Against Public Participation (SLAPP), aimed at silencing public discourse through intimidation and fear. Since the day the City Council was threatened with a wiretap lawsuit by Ashbaugh, they have forfeited their responsibility, allowing City employees to make all decisions concerning policies and procedures at city hall. Since filing this suit, the employees successfully gained control of all surveillance videos and policies, leaving the public with no oversight capabilities. The employees also gained control of the Freedom of Information Act process by first delaying, then issuing misinformation in order to stop the flow of public information and finally they boldly disconnected the live video feed of public meetings to ensure all work at city hall is shrouded in secrecy. They might even claim success in the termination of Police Chief Larry Pitchford since from the day Ashbaugh first filed this suit, Pitchford’s reputation was on the chopping block, maligned through an article written by Linda Henderson in the New Buffalo Times. Frivolous but harmful, someone knew what he was doing.
After 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.
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.
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.
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.
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.
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. 
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.
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.
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.
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.
millage 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?
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.
Exactly how many directions can a police department be moved into? Could it be that there will be no police chief with just an administrative supervisor? Or could there be a younger chief who could be paid much less than Chief Pitchford?
Pitchford might be either the victim of a personal grudge by a person with more political power than him or a casualty of age discrimination – or maybe both. But it is a sad way to end a 40 year career, told to leave and not come back.
Tony Ashbaugh, chose to violate the Open Meeting Act when they denied Ray Kirkus his FOIA request. Mayor O’Donnell’s comment about letting the court decide was an expensive stall tactic by the City that led to other FOIA requests being denied. Stall, bluff, just say no, trying to deny public access is the City Council’s modus operandi.
I have stated before that the cover up is worse than the crime and in this case, the five elected council members covered up for a City employee instead of following the law. Had they followed the law a year ago and handled Ashbaugh correctly, they wouldn’t be in a situation now that could spark new lawsuits once the video is made public. Instead of managing risk, they recklessly gave Ashbaugh a promotion and large salary increase.
members to behave appropriately and ethically. Although those who demand accountability in public officials are called trouble makers, we have every right to expect elected officials and City employees to be truthful, accountable, and to follow laws. Tomorrow night, there is a good chance that the Planning Commission will do some mighty fine backpedaling when they cover up for a multitude of violations at the Merchant Street Cottages development that Tony Ashbaugh originally co-owned.
Do you remember when Mayor Lou O’Donnell, along with Council member Bobby Spirito, insisted it was money well spent when they authorized the city to enter into a lawsuit against both their own Planning Commission and The New Buffalo Drug Store, to stop a prescription drive up window at the pharmacy? Working from bad advise from wild card City Manager Rob Anderson (who they gifted with $25,000 when he left), this and other lawsuits wasted hundreds of thousands of tax dollars. The Planning Commission leadership was even subjected to an accusation of malfeasance by O’Donnell and Spirito (Donna Messinger objected) in a costly ‘Tribunal’ where O’Donnell and Spirito acted as judge and jury, When it was pointed out that Council members were trying to limit the Constitutional guaranteed freedom of speech by the Planning Commission members, they withdrew their ‘tribunal’ but never apologized, either to the Commissioners or the tax payers, for their costly and illegal actions.
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.
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.
On July 1, 2016, I requested and obtained within a few days a copy of an audio/visual recording from the main office of city hall that contained a conversation between the city manager and city treasurer. The video was made public because of the requirement of the Freedom of Information Act.
burden of proof lies with them to prove that the release of a public video invades a person’s intimate private life. So far, there has been no such evidence given.
discriminatory language used by city employees could no longer remain secret. By trying to cover for the employee who is at fault, the council members are denying his victims their right to know their accuser so they can take legal action or request the council to ensure Title VI compliance.
include conversations between employees, while working, who are speaking about city issues, the budget, other employees, the city’s leadership, or individuals in the community. It certainly does not protect them when they are violating a law such as the Civil Rights Title VI Act or violating the city’s Title VI policy.
discriminatory speech within the walls of the publicly owned building even if there is reason to believe it is not being overheard. Employees should employ universal precautions, assuming any inappropriate language is not permissible in a work environment. There is no privacy exemption that allows for the redaction of inappropriate language from public documentation because an employee doesn’t wants to bother to filter his language while employed at city hall even when he violates another person’s civil rights.
The city council has an obligation to weigh the rights of the public against the claims of privacy by one employee, who while working in a public building saw no problem accusing one co-worker of cock-sucking while using a “cotton picking” racial slur about an African-American co-worker and then using misogynistic language when describing a potential violent act against a female council member. The mayor and council members have an obligation to uphold the Freedom of Information Act – not fall victim to the demands made by one employee who was recorded engaging in homophobic, racist, and misogynistic conversations.
Verify and Report.
What if the City Clerk disregards the requirements of the Freedom of Information Act? (FOIA)
FOIA coordinator? In New Buffalo, the mayor is designated FOIA coordinator but the job was dumped on the city manager.
What if the city council uses tax revenues to hire an attorney to give them permission to misuse the privacy exemption in the Freedom of Information Act? What if this attorney is also hired by the city council to write a policy to eliminate audio recording of employee conversations in the public offices so racist remarks about African Americans can continue and will not be recorded?
hands of the public is racially motivated? The city’s leadership might believe that if they hide racism at city hall, they can continue to receive federal funding without having to terminate employees who violate the Title VI Civil Rights Act.
Denial that racism exists by the mayor and city council members?
leadership continues to allow racism at city hall. Instead of filling Freedom of Information Act requests, the city council uses tax revenues to fight the requests, instead of scheduling council meetings to encourage attendance, the council continues to hold special meetings with little notice. Questioning council’s transparency is seen as disloyalty to the city by the mayor and his followers.
It was confirmed today that the State of Michigan, in an ongoing investigation of the current administration and council, is requesting copies of the videos where Tony Ashbaugh laughed about Councilwoman Messinger being shot at a city council meeting and where he used racial slurs against a co-worker. It also was reported that the issue of wiping clean the entire month of August off the city owned surveillance video server has been turned over to the Michigan State Police. It is a violation of the law to destroy public property especially when it is part of an ongoing investigation.
allowing City Manager Rob Anderson to conduct an “internal” investigation on himself. It is reassuring the State is stepping in to monitor the situation.
information out of our hands but in the long run it will backfire. Because if these men are elected tomorrow, they will be facing lawsuits that should tie them up for well over a year. But it shouldn’t come as any surprise to Anderson or Ashbaugh that if push comes to shove, the councilmen will sacrifice them to save themselves. Subordinates never do well in the cover up schemes as their superiors disavow any role.
According to city employees, continuing the cover-up at city hall, City Manager Rob Anderson had an outside IT expert wipe clean the security visual and audio recordings for the entire month of August, 2016. Mayor Lou O’Donnell along with City Council members Bobby Spirito and Mark Kroll were notified but chose not to pursue the serious accusation while allowing Anderson complete access to other sensitive and vital city documentation. If the accusation is true and there was destruction of public property by the city manager but not addressed by the council, it is implicit of a cover-up that could have an impact on Tuesday’s election and is most likely a violation of the law. An immediate investigation could have either given the council evidence that Anderson should immediately be terminated or cleared him. The council owed it to the residents to determine if there was a breach in security causes by Anderson.
Spirito, and Kroll to keep the public video out of the hands of the public until after the November 8 election smacks of a cover-up with the intent to impact the local election. There is no doubt that the report by the $10,000 attorney will clear the police chief – how could a conversation recorded on a security surveillance video be considered an illegal recording of a private conversation? It is the timing of the secret report being released that evidences a cover-up, days before the election and no time to be discussed at a public meeting prior to an election that impacts O’Donnell, Kroll, and Spirito.
illegal but it certainly is unethical. When Council member Messinger recently reminded City Attorney Matt Derby that a month ago he told City Manager Anderson to make her a copy of the videos, Derby’s response was that he didn’t recall the conversation and that now it is out of his hands because it is now in the hands of the $10,000 attorney.
continue to prove they do not represent our best interest but while using our tax dollars, they protect their own special interest that includes keeping public information out of our hands and protects inappropriate behavior of city employees. One more thing, vote no on the city bond issue. It isn’t what these guys say it is!
plans to stick around for beach activities plans he’s cooking up for next summer. Anderson is not a popular guy with the general public but Mayor Lou O’Donnell along with Councilmen Bobby Spirito and Mark Kroll hang on his every word. It is likely that the reason Mayor Lou refuses to acknowledge Anderson’s resignation is that he doesn’t want to see him go. If reelected on November 8, along with Councilmen Bobby and Mark K. they will have a majority to keep Anderson on indefinitely. And since there was no talk about replacing him at last night’s meeting, we can assume keeping him is high priority for the influential in the community who depend on him for “Forward New Buffalo.” The slick campaign slogan for voting their way.
Mayor Lou did not mention the policy violation committed by Anderson when he had the audio security surveillance equipment removed from city hall. Didn’t Richard Nixon do the same when he realized the equipment in his office was working against him? Instead of being outraged by another breach of transparency by a hired administrator, Mayor Lou spoke of the need for secrecy surrounding Videogate, allowing it to sit in the hands of the $10,000 attorney hired by Anderson instead of those of the council members. While they scramble to clear Anderson and his sidekick Street Superintendent Tony Ashbough, they trash the public’s right to know.
Act requests and chastise those seeking them, Mayor Lou forgets he promised a new reign of transparency. As he creates a greater cloud of secrecy that only peaks curiosity, the public is left with the recourse of a legal process that forces the council to respect the public’s right to know.
The slick and expensive brochure for Lou O’Donnell’s reelection includes Bobby Spirito and Mark Knoll, running as a slate called “Forward New Buffalo” – why not? They never vote independently and are the obvious choice of City Manager Anderson and those who control him. Mayor Lou’s campaign literature boldly tells us not only who to vote for but how to vote on the bond referendum, It’s a package deal, vote for them then give them 4 million dollars of our debt to spend as they wish. If you read the language of the bond, its ambiguity leaves it open to interpretation as to just whose pockets it will line.
diligently with the Planning Commission to complete the Master Plan. It was almost two years ago Lou promised the Master Plan would be completed in a year. Do we believe him now because he is publicizing it in an impressive brochure that also attributes Councilman Bobby Spirito’s accomplishments to his lengthy dedication to the New Buffalo Yacht Club? Saying it, no matter how dressed up, doesn’t make it true.
Ashbaugh prior to Videogate we would have demanded that $10,000 not be wasted on the cover-up to keep Tony’s secret video from the public.
Ashbaugh made racial slurs about an African American city employee on the censured video.
investigation began. 
After Donna Messinger fled the special New Buffalo council meeting on Thursday because of talk by employee Tony Ashbaugh about another employee shooting her, Mayor Lou O’Donnell said there was an internal investigation being completed. The internal investigation of Videogate consists of City Manager Rob Anderson, a good friend of Street Supervisor Tony Ahsbaugh, paying $10,000 of our tax revenue to an attorney with the intent to clear Tony while indicting the police chief. And although Donna asked the men on the council if they would stand by Tony or the Chief and her, it didn’t appear they moved an inch away from City Manager Rob Anderson or Street Supervisor Tony Ashbaugh. As it is, there was supposed to be an investigation on who allowed Tony to store his private property at a public building for free. Anderson promised an investigation into that but so far, nothing.
