Category Archives: New Buffalo

The curious lack of curiosity of the city council

City Manager Richards pulled the plug on recording city council meetings.  With some of the comments made at these meetings, one can’t blame him for not wanting the taxpayers to know what is being said.

curiosity 2At last night’s meeting, Street Supervisor Tony Ashbaugh said he is down three employees so he was requesting the city council authorize him to bid out the mowing of the park and marina for $15,000 a season.  Without any curiosity or questioning, the city council approved the request.

Later in the meeting, Council member Ennis stated that there are over 60 homeless students in the school district.  And city data reveals that the mean income in New Buffalo is $43,000 with a poverty rate of 14% yet the street supervisor can’t find anyone to cut grass for $15,000 a season even though the city has the equipment needed to do the job.

The $15,000 for a part-time summer job to mow lawns is more than a third of the mean images (11)income of the taxpayers living in New Buffalo.  With all those folks living on the streets or in poverty, there must be people qualified to work part-time cutting grass.  Aren’t any of the council members curious as to why the street supervisor needs to contract with a company to provide this service?  And aren’t any of them curious as to why there is a shortage of city employees?

The city was always considered a good place to work with competitive salaries and good benefits.  Residents without transportation can walk to work.  In years past, hiring taxpayers to fulfill those jobs was always a priority.  It provided employment for residents and good employees for the city. Could the shortage be due to people no longer wanting to work for the city?

images (12).jpg When Street Supervisor Ashbaugh chose to sue two of his co-workers, a city council member and a private citizen because he didn’t like them questioning his behavior or maybe he just didn’t like them, it created a hostile work environment based on fear.

City Manager Dave Richards was quoted in the South Bend Tribune belittling the training and professionalism of the city’s lifeguards who put their lives at risk to save others.  One can’t help but understand why the lifeimages (1).pngguards would choose to work elsewhere. If Richards is willing to disparage these young professionals, one can only believe he does the same to other employees. ‘Richards questioned the strength of the Great Lakes Surf Rescue Project training, too, which he said was “a couple of hours and it’s not even in the water.” He also said lifeguards often didn’t focus on the job and sometimes quit before the summer season was done. “They’re just young kids that we have to direct constantly to look at the water and not at their phones,” Richards said. South Bend Tribune

At last night’s meeting, I thanked the young man who identified himself as last season’s lifeguard manager.  Although he bravely and articulately defended himself and his team to Richards and the others who don’t value their important contribution, he should never have been put in the position of having to defend the importance of first responders.

 

Why did the beach revenue decline?

images (8).jpgAccording to the city’s draft budget for fiscal year 2018/19, there is a predicted $77,124 decrease in beach parking, marina, and boat launching activities from fiscal year 2015/16 to 2017/18. There is an actual decrease of $146,472 in the first ten months of fiscal year 2017/18.  The predicted 2020 budget shows an overall decrease of $42,124 in beach revenue from 2016. This four-year decrease of income is after all the clamor of increasing tourism due to the costly downtown redevelopment project and last year’s increase in the daily beach parking fee from $10 to $12 that the city employees requested.  Should we be asking if there is an actual decrease in revenue generated or is there a decrease in revenue making it to city hall? Park Budget Page

In 2013, the New Buffalo City Clerk was convicted of embezzling $92,000 of beach revenue over a two-year period from fees collected at the beach parking lot and boat launch.  After this incident, the city’s insurance provider, the Michigan Municipal Risk Management Authority (MMRMA) worked with Police Chief Larry Pitchford on developing policies and then funded a security surveillance system that included audio video cameras that were placed in the business offices at city hall to monitor employee activities.

Through an ethics complaint and several lawsuits centered around the surveillance cameras monitoring inappropriate employee activity, the city employees somehow convinced the city council to first disconnect the audio surveillance oversight and then to move all the equipment oversight from the police department to the employees who were supposed to be monitored.  It is anyone’s guess if the cameras are active. A change in policy earlier this year that was promoted by the employees who are supposed to be monitored, was adopted by the city council, allowing the employees to destroy video recordings after 30 days.    The changes took the city back to pre 2013 conditions.

Recently, City Manager Dave Richards pulled the plug on the  audio and video recording of city council meetings.  Since January 1, 2018, the residents are being kept in the dark. Special meetings are held the day after they are announced, with employees only providing sketchy details about the reason for these meetings.  When there is a requirement for employees to post a public notice, sometimes the announcement is sent to the Detroit Free Press for publication.  The city council was manipulated by their employees who successfully gained control of both the information leaving city hall and the monitoring of their own activities.

Why would the beach revenues be dropping after a multi million dollar downtownimages (1) revision?  Instead of being concerned about keeping the meetings short, Mayor O’Donnell and the other council members should spend some time asking the employees some hard questions.  Of course, due to City Manager Richards pulling the plug on recording the council meetings, even if the council members asked the questions, we would never hear the answers.

FYI:  In Tuesday’s council packet, Street Supervisor Tony Ashbaugh is requesting $15,000 to contract with a lawn service to provide mowing at the parks.  The first question is why is the street supervisor instead of the park supervisor making this request?  The second question should be, why doesn’t the city provide a part-time summer job to a city resident instead?  I would mow the grass during the summer for $15,000.    Request for mowing.jpg

 

 

 

Transparency is Ethical Government

transparency.jpgIf desiring transparency, City Clerk Vander Clay would be more forthcoming in her announcement for tomorrow’s special meeting that only stated that the business to be transacted as ‘Authorization to apply for a Pokagon Grant.’  If the city leadership plans on applying for money through The Pokagon Fund to pay for lifeguards, no wonder Vander Clay is keeping it a secret.  The funding for the lifeguards should be  coming out of our taxes and if it isn’t there, we not only need to take a hard look at how they are spending money at city hall but object to a grant application for a service that should be provided through the city’s annual budget.

Voters approved a four million dollar bond five months ago for street repavement and 1124811.pngalso renewed a special park improvement fund that provides $100,000 in park revenues every year.  The city also received 1.6 million dollars from the Pokagon Fund for the downtown development project. On top of that, the city receives annually at least $300,000 from the Four Winds Local Revenue Sharing  Board. And one can’t forget that in 2016, before the city even raised the parking rate at the beach from $10  to $12 per day, $245,000 was collected.  We all thought the lifeguards were paid through the annual park fees.  Where exactly does that money go?  It has been years since any improvements have been made at the beach even though over one million dollars has been collected through the park improvement millage fund since it was originally approved through a public vote in 2008.

With all these additional revenue sources, it’s not crazy to think the city should provide us with the services our city taxes are supposed to be used for, especially since the majority of tax revenue comes from the higher rates of non-homestead properties.  Every week we are informed by city employees of another belt tightening budget cut that reduces our services.  Even a mere $4,000 to record public meetings had to be eliminated, now the lifeguards, perhaps with any luck certain administrative positions at city hall will be next.  The administrative team could be part-time during the winter months. And why did the city council approve an additional 14 sick days in December 2017 for City Manager Dave Richards when he was an employee for less than a year? Evidently that wasn’t a belt tightening issue and the city council members can say no to public safety at the beach but not to a new employee requesting over two weeks additional time off.

A news release in an article on the 57 News website stated that City Manager Dave Richards said that the City’s risk management insurance provider suggested that lifeguards provide a potential liability.   New Buffalo to eliminate lifeguards

Since the city street supervisor:
filed a baseless lawsuit against three other employees and a private citizen,
was the reason for a Freedom of Information Act lawsuit the city lost,
filed a frivolous ethics complaint against the police chief that cost the city $10,000,
caused $5,000 in damages to a city vehicle when he ran it into another vehicle,
and is the center of at least one MI Civil Rights complaint filed against the city,
it seems that the city’s risk management insurance carrier would be concerned with the liability caused by him. At the very least, the city council members should be more concerned about the continued liability issues caused through an employee instead of a concern about a possible liability issue caused by lifeguards. The lifeguards save and protect lives and haven’t caused any liability issues.  Their funding should be a no brainer for the members of the city council.  One death due to not funding the lifeguards will be laid at their feet.

 

Today at 10:00 – an open forum on eliminating lifeguards that was kept secret.

Lifeguards at New Buffalo beach to end

It appears that the New Buffalo City Council members decided to bury deep down in a proposed 2018/219 budget the elimination of lifeguards at the City’s beach.   City Clerk Lori Vander Clay did not inform the public about this open forum either through an email blast or on the City’s website.  The continued veil of secrecy at city hall disenfranchise the residents in public decision-making.

This might be a budget tightening maneuver since all spare dollars appear to being sucked up in the downtown project.  This year the City employees, in their goal for a wall of secrecy, stopped broadcasting public meetings – thus keeping this decision to eliminate  lifeguards a well-kept secret.  The only way you can find out about this decision or any decision is to attend the meetings. The announcements of the meeting are sketchy and  Vander Clay believes she does not have to abide the City Charter that requires she provide the proceedings of every meeting on the City’s website within 15 days of the meetings.

This display of total disregard for government transparency should not be tolerated by the residents. We always were proud of our lifeguard team who have saved lives a number of times.  To save bucks to spend on downtown lighting, should we risk lives?  Most people would say no but apparently, the council members and the city employees say yes – in secret.

 

Laws made to be broken (by city employees)?

job well doneAccording to the City Charter, the proceedings of every council meeting are supposed to be published on the City’s official website within 15 days after a meeting.   In 2015, the city council requested the voters approve that amendment to the Charter.  Yet the council members aren’t requiring the city employees to fulfill it.  The request for the change in the Charter was due to the council’s pledge to live stream meetings as a way to meet the proposed provision.  The voters approved the amendment so the council fulfilled their pledge to the public.

When Vander Clay and other employees at city hall eliminated the live stream recording of council meetings, they didn’t bother to fulfill the Charter mandate some other way.  There is no posting of the proceedings of the March 20, 2018 council meeting on the city’s website and according to an email from Vander Clay, she isn’t violating the Charter.  Could she believe she is exempt from following laws?

Tomorrow and Friday, there will be two special council meetings.  Will Vander Clay post the proceedings of those two meetings within 15 days of the meetings or should we believe the city employees are not legally required to follow our local laws?

 

It’s not a blame game, it’s accountability!

accountablityWe, the people of the City of New Buffalo, Berrien County, Michigan, in order to procure the fullest benefits of local self-government under the Constitution and laws of the State of Michigan do hereby ordain and establish this Charter.’ Preamble of the New Buffalo City Charter

The City Charter is our own ‘Constitution,’ enacted over fifty years ago when the city’s leadership took the village to city status, laying oversight of the Charter’s laws in the hands of the elected city council members.   It is a grave responsibility for not only the elected council members but also the city administrative staff who are accountable for the enforcement of the Charter.

Today, City Clerk Lori Vander Clay violated the Charter.  She announced a special City Council meeting for tomorrow morning through an email blast instead of posting it on City’s website. She stated the business for the meeting as ‘New Business.’  The City Charter specifies in Section 3.6 that ‘no business shall be transacted at any special meeting of the Council unless the same has been stated in the notice of such meeting.’ Unless Vander Clay posts the new business that the council members are to vote on 18 hours prior to the special meeting, any vote taken will be void. It violates the Charter.  Charter Amendment

This appears to be a further attempt by city employees to disenfranchise the taxpayers download (3).jpgfrom city business.  First they moved public safety video equipment from police oversight to the city manager, then they changed policies that weaken surveillance of possible fraud or embellishment, and finally disconnected the live streaming of public meetings.  These were all victories by the employees to build a secretive wall between them and accountability. Why would they work so hard to accomplish public work behind closed doors?

Vander Clay is disregarding another section of the Charter.  Section 3.14 states ‘the proceedings or an abstract of the proceedings of the Council shall be published on the official website for the City of New Buffalo, once within fifteen days after each Council meeting.’ Section 3.14

This section of the Charter was fulfilled by the live stream recordings of the public meetings. Since Vander Clay and other employees took it upon themselves to discontinue the recordings, this requirement is not being met.  It is another violation of the Charter and another wall between the employees and accountability to the taxpayers.

images.jpgThe real problem appears to be that the kids at city hall have no adult supervision.  The elected city council members are shrugging off their legal duty of oversight for the Charter – our own Constitution. The continued disregard by the Council emboldens the employees to do as they wish without surveillance or oversight. When we allow this to continue, the accountability shifts from them to us.  It’s not a blame game, it’s accountability.

 

 

 

 

 

Plans and Budgets

In the fall of 2015, Becka Shipp applied for the street supervisor position in New Buffalo. Although well qualified with an engineering degree, Tony Ashbaugh was given the position after Downtown Development Authority (DDA) chairman, Robert Kemper gave him a strong recommendation.  Knowing that Shipp was a qualified catch, then City Manager Rob Anderson convinced the city council to create a part-time engineering position to lure Shipp to stay. His proposal was that a staff engineer would save the city tons of money by not having to contract with expensive contractual engineers.

During a good part of 2016, Becka Shipp was charged with developing a detailed and well researched Capital Improvement Plan (CIP) that included streets, water, and sewers. She prioritized projects for a five year budgeting process based on need and condition of the infrastructure item to be improved or replaced and then assigned a price tag to each project with projected annual increases for planning purposes. The five year plan was not overly ambitious, ensuring that budgeting could become part of the annual planning and budgeting process indefinitely. Shipp’s goal was for resurfacing streets to become a routine budget line item until all the streets were resurfaced. From there, annual resurfacing and repair would continue through routine annual budgeting so the city streets would never be in the condition they are today, with all of them needing replacement all at once.  This type of long term planning and budgeting was  lauded by the city council members and this appeared to be a new direction for a new council. In March 2017, the council approved the plan, giving the city manager and Street Supervisor Tony Ashbaugh time to obtain street resurfacing prices for the 2017 budget. It is unclear if the proposed expenditures ever made it into the budget because the Mayhew and Merchant resurfacing planned for 2017 never took place.  Capital Improvement Project

Below is the Capital Improvement Program for 2017 – 2021 announcement that was posted on the city’s website in March 2017 (note that the plan is for five years with a number of streets to be resurfaced each year).

Below the 2017 – 2021 plan is another resurfacing plan currently posted on the city’s website, this one prepared by Abonmarche, one of the high price contractual engineering firms that was to be eliminated through the hiring of a staff engineer.  The city council, city manager, and street supervisor apparently ignored the budget plan for street resurfacing by the staff engineer. In less than a year, they authorized a new resurfacing plan that lacked the planning and budgeting aspect of the first plan.

It would be interesting to know if the water and sewer projects in the five year Capital Improvement Plan are making it into the plans and budgeting by the city or if they too were ignored after being approved.  It appears the city leadership might have reverted back to authorizing projects without the benefit of budgeting or long-term planning.

MARCH 2017 POSTING ON NEW BUFFALO CITY WEBSITE

Capital Improvement Program 2017-2021
On March 21, 2017 the City Council voted to proceed with obtaining prices for resurfacing various streets in New Buffalo.

The priority projects include:

East Clay Street (Kinzie to Bell) – Rehabilitation, 2018
North Eagle Street (Merchant to Water) – Resurfacing, 2019
East Indiana Street (Whittaker to Bronson) – Resurfacing, 2020
South Mayhew Street (Detroit to Michigan) – Resurfacing, 2017
West Merchant Street (Berrien to Willard) – Rehabilitation 2017
West Water Street (Berrien to Willard) – Resurfacing 2021
North Willard Street (Railroad to Water) – Resurfacing, 2021

MARCH 2018 POSTING ON NEW BUFFALO CITY WEBSITE

The City of New Buffalo will be completing street resurfacing as part of a Street Resurfacing Project for 2018. 

  • Water Street from Willard Street to west of Eagle Street
  • Eagle Street from Water Street to US-12
  • Willard Street from Water Street to Washington Street
  • Oselka Drive from Willard Street to Whittaker Street
  • Clay Street from Willard Street to Whittaker Street
  • Merchant Street from Thompson Street to Wilson Road
  • Norton Street from US-12 to Clay Street

public participation.jpgFYI: Although it appears that City Manager Richards and Street Supervisor Ashbaugh are trying to follow the requirements for a Natural Trust Fund grant to build restrooms at the beach, they just don’t get it.  The Fund’s requirement for a public hearing process is to elicit public input and support.  This would require a posting of the public hearings, not just including the hearings as part of a council meeting agenda.  The concept is that public participation adds to the development of public projects.  When the residents are invited to a public hearing by the administration, it gives the administration an opportunity to articulate how the project fits within the Recreation Plan (another requirement by the Trust Fund) and provides the public an opportunity to provide valuable input. A win, win for both the administration and the residents. Perhaps this is yet another example of the city employees trying to shut out the public and their voices.

P.A.T.I.E.N.C.E

The following video contains a message about patience from Mayor Lou O’Donnell and Mayor Pro Tem Liz Ennis to Donna Messinger.

Mayor O’Donnell and Mayor Pro Tem Ennis, Donna Messinger has patiently waited for action by both of you and the other council members ever since she viewed a city surveillance video that caught Street Supervisor Tony Ashbaugh speaking about a gun, a city employee, a city council meeting, and Messinger – all in the same sentence.

images (7).jpgIn December 2016, she filed an ethics complaint against Ashbaugh for his inappropriate language and one against O’Donnell and Council members Kroll and Spirito for doing nothing when she requested action by them.

In January 2017, Mayor O’Donnell told Messinger there would be no investigation of her ethics complaint until a FOIA lawsuit concerning the Ashbaugh videos was resolved.  In August 2017, the city lost that case.

In December 2017, Messinger again requested that the City Council investigate her ethics complaint, taking O’Donnell at his word.  But the Mayor wasn’t as good as his word and there was another excuse to wait, this time for Ashbaugh’s lawsuit against the city to be resolved.

March 2018, Ashbaugh dropped his suit, Messinger attended the council meeting, and no word from the Mayor or any of the Council members images (9).jpgaddressing her long awaited ethics complaint while promises were made but never kept.

Why must Messinger wait when the Council spent $10,000 so Ashbaugh’s complaint against former Police Chief Pitchford could be investigated the month he brought it to the Council?  Is it because Messinger is a woman or because her ethics complaint includes Mayor O’Donnell?

This issue is not going to die and it will be rehashed over and over until the council members take complaints made by women as seriously as the complaints made by men.

Censorship by City Employees, New Buffalo Style

Have you ever noticed that the only correspondences to the City Council that are included in their monthly meeting packet are ones that compliment the city employees?  At the February council meeting, Mayor Lou O’Donnell read two letters included in his packet out loud, one from former city council member Donna Messinger complementing Ken Anderson for work well done.

images (2).jpgBut when Messinger sent a correspondence critical of city employees to City Clerk Lori Vander Clay requesting that she add it to the Tuesday, March 20 agenda packet, it wasn’t included. The letter was critical of city employees because they disconnected the live steam video recording of council meetings.  Even if Messinger attends the meeting and reads the letter during public input, the people at home, will never hear it or see it and of course Mayor O’Donnell will not be reading it at the end of the meeting since Ms. Vander Clay did not include it into the packet. In Messinger’s letter, she reminded the City Council that it was through her vote along with others on the City Council that directed staff to begin live streaming all public meetings so it remains up to the Council to debate and vote to rescind that directive if they no longer want the public seeing or hearing what they are doing.

It is not up to the employees to rescind the policy  decisions of the elected officials.  This is yet another example of how the employees gained control after Street Supervisor  Tony Ashbaugh download.pngfirst threatened and then filed a frivolous lawsuit claiming illegal wiretapping but later dropped it when he knew he couldn’t win.

On Friday, March 9, at 10:13 am, I sent City Clerk an email.
 Ms Vander Clay,
Attached is a letter to the city council that I am requesting that you forward to the mayor and council members and include in their March 20, 2018 council packets.  Please let me know today if there is any problem with fulfilling my request.    
    Have a nice weekend.
     Susan Gotfried
     New Buffalo, MI 

This is the letter that I sent but was ignored by city employees, ensuring the councilimages (1).jpg members never received the letter addressed to them.  

March 9, 2018

TO:  Mayor O’Donnell, City Council members Ennis, Spirito, Robertson, Kroll
From:  Susan Gotfried, City of New Buffalo resident

CC:  City Council March 20, 2018 meeting packet

From the City Charter:  Section 3.1. General power. The government of the City, and all the powers thereof, except the judicial powers, shall be vested in the Council. The Council shall exercise such powers in the manner and through the agencies provided by law; shall exercise the management and control of all municipal property and the administration of the municipal government whether or not such powers be expressly enumerated in this Charter. It shall pass upon and secure the performance of any act necessary to advance the interests of the City, the good government and prosperity of the municipality and its inhabitants; and shall make all laws which may be necessary and proper for carrying into execution the powers granted to the City by law.

The Charter states that the management and control of the city lies with the council, not the employees.  The council is vested to carry out laws and to make laws.  It is an enormous responsibility of power.

Recently, the city employees overturned the policy of the council to video stream all the public meetings and stopped the practice as of January 1, 2018.  This resolution was passed at an open meeting by elected representatives so employees do not have the authority to change it. This power lies with you.

One of the reasons that the council requested the voters change a section in the charter dealing with publishing the proceedings of the public meetings was because they were posting the proceedings on the city’s web-site.  The voters believed that the video streaming took care of the requirement by the charter to post the meetings proceedings within 15 days of the meetings.  This charter requirement has not been fulfilled for any of the public meetings since January 1, 2018. Ensuring that the charter is not violated lies within your power. Section 3.14. Publication of Council Proceedings. [Amended November 13, 2015]

The new policy for storage of surveillance videos contradicts state law and the city’s record retention policy that requires electronic data to be stored at least ten years.  The new policy allows for deletion of the information in thirty days.  Ensuring that local laws do not contradict state law is within your powers. 

The employees have removed or disarmed the surveillance video camera overlooking the side parking lot.  This is documented through my request twice for video recordings of the parking lot and told they do not exist although my request was within the thirty day limit stated in the new surveillance video policy.  That camera was one of the reasons that the MMRMA provided ten thousand dollars for city security.  It was to protect the lives of the police officers and provide evidence if there was any attempt to cause harm to police officers or their vehicles.  And the decision to have the surveillance equipment installed and the locations of the camera, was approved by the city council at a public meeting so any disbarment or removal would need to be through a council motion.  Changing the placement or disbarment of cameras lies within your power.

Mayor O’Donnell was video recorded telling Donna Messinger that her ethics complaint would need to wait until the FOIA suit against the city by Ray Kirkus was resolved.  After the city lost that case, she again requested that her ethics complaint be addressed by the council.  She didn’t hear back from any of you even though the council spent $10,000 on the unsuccessful ethics complaint by Street Supervisor Tony Ashbaugh against then City Police Chief Larry Pitchford.  Ms. Messinger, a private citizen, should receive the same right to pursue an ethics complaint as described in the ethics ordinance as an employee of the city.  Treating all citizens equally and enforcing the ordinances lies within your power.

The 2016 and 2017 city financial statements show that funds were moved from the voter restricted park improvement millage funds to the dredging fund.  The employees indicated to the auditor that an improvement to the park was accomplished by dumping the spoils of the dredging onto the beach. Since the power of overseeing the millage funding lies with you, find out if that was true. If the dredging had nothing to do with the parks and was funded by private donations, why was money moved from the restricted park millage funds and put in the dredging fund.  Where did that money go?

A 2017 article from the New Buffalo Times states the following. All clean spoils, sand, removed from the channel are delivered to the south side of the channel to replenish beaches along Dunewood and Sunset Shores, which have been negatively impacted by the 1975 construction of the harbor break wall. This requirement is part of the original contract with the USACE.  The 2017 dredging will be funded by private funds that have been voluntarily donated to the City’s Emergency Dredging Fund (EDF)

As far as audio/video recording, new technology allows you to provide quality recordings with a computer, camera and microphone.  There are people in the community that most likely could help the setup through volunteering or a small fee. 

Sincerely,

Susan Gotfried
New Buffalo, MI

 

Tony Ashbaugh quits

‘Illegally recording and distributing a private conversation (wiretapping).’  Even from theth 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.

imagesAt 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 imagesdefendants, 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.

untitled.pngWhy 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.

Donna Messinger speaks about transparency

Below is a letter to the editor in the Harbor Country News from former City Council member Donna Messinger.  Donna was motivated into running due in part to decisions being made by City Council members during hurriedly scheduled meetings with few if any citizens in attendance.  The Council did not audio or video record their meetings, leaving the public uninformed for a month until the minutes were finally made available.

images (4)When Donna and the other new Council members made a commitment to sharing public information, it was greatly enhanced by video streamed meetings. This move for a more inclusive government was a public services for people who could not attend the meetings. Shut-in elderly, parents with small children, second home owners, evening shift workers or citizens who traveled all were encouraged to be included in  public discourse through the resolution Donna helped pass.  It was greatly appreciated by many of us who wish she was still on the Council. She never swayed from her commitment to transparency or representing the citizens instead of herself. 

Letter to the Editor from Donna Messinger
Harbor Country News – March 7, 2018

When I was elected to the City Council, one of my most earnest campaign pledges was for more transparency at city hall, It became a reality when I voted with the majority of the council members for a new policy to provide live video stream of all public meetings.

I received many thanks from residents who said that they usually did not have the option to attend meetings but never failed to view the proceedings on the City’s web-site. I was proud of helping to increase transparency and government participation.

 This is why I was so disappointed to read that the city employees took it upon themselves to disregard the public meeting streaming resolution passed by the elected City Council. Because we made that policy at a public meeting it cannot be changed behind closed doors by City employees.

I can only hope the majority of the City Council members understand they hold the responsibility of both making and overturning policies at public meetings and that they take this issue up at their March meeting. The public has a right to public input and to hear the debate by their elected representatives concerning this important issue of transparency. Nobody can possibly think that $4,000 a year for the upkeep of the video streaming equipment is too high a price for open government.  

 Sincerely,

Donna Messinger
New Buffalo

Lies are lies city employees

hot button issueCity Clerk Vander Clay and City Manager Richards maintain the $4,000 annual fee for video streaming the public meetings at city hall is too much to pay for government transparency. They apparently defied a council directive and decided on their own to remove our access to viewing public meetings from our homes.

City Clerk Lori Vander Clay’s legal requirements for minutes is primarily to only download.pngrecord resolutions and votes by the council, giving her a great deal of power. Informative public discourse is not recorded unless Vander Clay makes a personal decision to include it – based on her personal preferences. There are many important community issues presented at public meetings that never make it into Vander Clay’s minutes. Richards’ and Vander Clay’s decision to stop broadcasting the meetings ensure nobody but the handful of people who attend the meeting will ever hear what actually takes place at them. Lies are lies, and their decision is about retaining power because knowledge is power and has nothing to do with cost.

With new technology, live dysfunctial-teamstreaming is cheap and City Manager Richards and City Clerk Vander Clay should be trying to increase transparency not eliminate it. Below are comments from two blog readers that debunk the misinformation by city employees.

images.jpgNew Buffalo Blog reader John stated. ‘As a going on 4 year resident in NB, I really appreciate your blog. and FYI, you can easily record city council meeting with a webcam and laptop, a decent microphone and a cheap USB audio interface will give you very detailed audio. If i was doing it ( I have been a professional audio engineer for over 20 years) I use 2 different pieces of software to record it so the audio and video are saved separately, the only catch is to do it right someone would need to physically operate it , the hardware and software costs not including the laptop could be had for $1000.00 the majority cost being a decent microphone. not sure on the human cost, but you could probably find some good taxpaying Samaritan who owns all this stuff who’d do it for free……’. (As a public service, John might be very helpful)

New Buffalo Blog reader Greg stated. ‘Susan, How-live-streaming-works
they wouldn’t need media level equipment, the mics and soundboard are your biggest costs, mid-tier hardware will last years as long as it’s taken care of and the cost would not be outlandish, maybe $1000 if they shop around. The cameras shouldn’t cost more than $100 to $150 each. People are putting out HD quality content using Logitech webcams, tablets and phones. Domain registration if needed is $12 a year, hosting/storage services can be found for as low as $10 a month, cheaper if you pay annually, or Youtube or Facebook Live for basically nothing.

Below is the Youtube presentation of the Dearborn Heights Council meeting.  Note that the content of the discussions, presentations, comments, and debate would not make it to Vander Clay’s official minutes in New Buffalo.  This democracy in action allows Dearborn Heights’ citizens to view the meeting live or store it for future viewing and share on Facebook. We deserve the same amount of respect for our right to transparency. The New Buffalo City Council should gather up their courage and overrule the staff.  Do the right thing for the public.

Dirty Tricks at City Hall

images (1).jpgFirst City Manager Dave Richards and City Clerk Lori Vander Clay took it upon themselves to violate a City Council directive to video stream all public meetings due to their apparent concern that $4,000 a year of your tax dollars was too high a price for government transparency.  This is after, thanks to the taxpayers, the entire city staff received an end of the year bonus and Richards was provided 12 extra sick days even though he hadn’t even completed a year of service to the city.  While using our money to eliminate our access to government transparency, they also violated the City Charter requirement to post Council proceedings within 15 days of the meeting.

The two of them also use the Freedom of Information Act (FOIA) in an another attempt togpvernment secrecy obstruct government access while wasting taxpayers money. Without a policy or directive from the City Council , Richards and Vander Clay decided on their own to publish on the City’s website the names of citizens requesting public information while at the same time eliminating  public meetings from the website.

New Buffalo City Vehicle

The following is an example of how they waste their time and tax dollars in an attempt to hinder access to public information.  Here’s the background. On a sunny day in April 2017, Street Supervisor Tony Ashbaugh plowed a city truck into a vehicle in downtown New Buffalo.  Although he admitted to Sheriff Deputy Richard Edgerle that he wasn’t paying attention while driving, ran a stop sign and caused over $6,000 of damage to the city vehicle, Ashbaugh wasn’t issued a ticket nor was he required to take a drug test. Ashbaugh did not get a reprimand and it was kept top secret by Richards and Vander Clay.  This is what led to an enquiry as to whether the city manager followed city policy and required a drug test since the sheriff deputy let Ashbaugh skate. Sheriff Report 

February 2, 2018, I completed a FOIA request ‘Please forward me a copy of proof that Tony Ashbaugh was screened for a controlled substance and/or alcohol on April 19, 2017 after having an accident with a city owned vehicle.’ 

February 8, 2018, City Clerk Vander Clay responded that the City had followed policy. FOIA Response 1

February 8, 2018, I completed another FOIA request stating that I had requested proof that Ashbaugh completed a drug test and again requesting the proof.

February 13, 2018, Vander Clay provided me with a copy of Ashaugh’s visit for medical attention due to the accident and worker’s compensation. FOIA Response 2

February 14, 2018, I appealed to Richards that I received the incorrect documentation from Vander Clay.

February 21, 2018, in a certified letter, Richards stated that my request was completed through the FOIA response from Vander Clay. FOIA Appeal Response

February 26, 2018, through a FOIA request I wrote the following to Vander Clay ‘Please forward me the results of Tony Ashbaugh’s drug test dated April 19, 2017. Include the invoice or bill for the procedure’

March 2, 2018, one month from my original request, Vander Clay finally provided me proof that Ashbaugh completed a city policy mandated drug test.  FOIA Response 3

download.jpgThese dirty tricks at city hall by City Manager Richards and City Clerk Vander Clay to deny our access to public information increases cost to taxpayers and are allowed, maybe even encouraged,  by the City Council.

Saving Taxpayers Money, New Buffalo Style

In December 2017, City Manager Dave Richards proposed to the City Council members download (9)that the city employees receive a taxpayer funded year end bonus.  Always eager to please the employees, the Council members rushed their approval. You can view it on the last city council live stream video allowed by the city employees.  By the way, Richards also requested additional paid sick time even though he had not even served a year yet,  Again, the council had no problem spending taxpayers money to support the employees.

images (5)Now the city employees are claiming a budget constraint that could only be eased by eliminating the live streaming of public meetings to save a measly $4,000 annually.  This time the employees didn’t bother with the Council’s approval.  They changed the policy on their own, perhaps in anticipation of a self-imposed Easter bonus.  Administrative staff continues to establish just who is in charge at city hall and it isn’t the people elected to represent us.

The way to have power is to take it

images (5)As reported in the Harbor Country News, when City Clerk Lori Vander Clay was asked  why the city was discontinue live streaming of public meetings, she replied “Because it’s a cost to us, $4,000 a year. It was a staff decision; we didn’t renew the contract.” Regarding why the City Council didn’t make this decision in an open meeting, she said, “We weren’t required to…..”

 

According to the Michigan Municipal League, the Council-Manager form of government requires that all legislative and policy powers are vested in the city council and the download (7)council employs a professional administrator to carry out the policies it develops. At a Council meeting in 2014, the Council voted through a new policy to video stream every public meeting and authorized the budget to support it.  It was left up to the City employees to carry out the directive. As far as legally overruling a policy set by a council, that duty is vested in the City Council who are required by law to make their decision at a public meeting.

City Clerk Vander Clay is incorrect, she is required by her legal duty to follow policy set by the City Council and does not possess any legal grounds to change policy on her own. But since the Council didn’t object to the rogue takeover by an employee of a City Charter power vested in them, the violation lies with them.   Vander Clay’s power play was a violation of the City Charter and the Open Meetings Act.

download (2).pngThe City Council’s decision to spend approximately $10,000 on audio/video equipment to provide live stream of all public meetings was to fulfill a campaign promise of more transparency.  The elected officials voted through the policy at a public meeting making it imperative that the only individuals who can change that policy are the council members who are accountable to the citizens who elected them.  And although City Clerk Vander Clay would like to do away with the democratic process, Abraham Lincoln addressed this in the Gettysburg Address when he stated democratic government is of the people, by the people, for the people.  What was good for President Lincoln and the last 155 years should be good enough for City Clerk Vander Clay and the elected officials who are actually in charge of the democracy in the City.

While the City employees are violating the city council policy to post the live stream meetings on the City’s website, they are also violating Section 3.14 of the City Charter thatimages (14) states that proceedings of the Council must be posted within fifteen days after each Council meeting. Let’s face it, the employees do not want to be accountable for their actions.  Too often, a private citizen will make reference to an archived meeting video that contradicts the current actions of both the Council and their employees that can be awkward and embarrassing for them.  Or a private citizens will rely on an archived video to support their claims against the City or its employees that can cause a reprimand or dismissal of an employee.  The employees might feel no remorse in violating State laws, the City Charter and local policies but they are no fools, if they can work without public scrutiny, they are accountable to nobody leaving the City ripe for abuse.

 

 

Ignoring the Charter, New Buffalo Style

Up until November 2015, the City Charter required that the City publish the Council’s proceedings in the newspaper.  The City’s electorate approved the following City Charter amendment change by a very narrow margin.

Proposal 2 

Shall Section 3.14 of the City Charter be amended to provide that City Council proceedings or an abstract of proceedings shall be published on the official Website for the City of New Buffalo once within fifteen days after each Council meeting?  

images (2)To fulfill this Charter requirement and to provide further transparency to the citizens of New Buffalo, the City Council voted to provide live video feed of all their meetings as well as all the committee meetings.  The live video feed was immediately archived and the residents of the City could review them at will.  This allowed the city clerk to begin abbreviated minutes since  meeting details could easily be accessed on the  video feed. This change was very well received by the community and it allowed people in their homes to view the city council meetings. It brought city government to the citizens, how great is that?

But the following is now displayed on the City’s official website.

Effective February, 2018, the City will no longer be able to provide live feed nor audio/video of City meetings after January 9, 2018.

Why is the City no longer providing this service?  Did the City Council make this decision or did the city employees decide to ignore the City Council decision made in 2015?  This really is a blow to government transparency but it also creates a City Charter violation by the City because the amendment requirement of the proceedings or abstract of Council meetings be posted within 15 days of the meeting.

When I pointed out the violation to City Clerk Lori Vander Clay, she ignored it.  If it is a decision by City Manager Dave Richards or City Clerk Lori Vander Clay to violate the City Charter, they should be terminated.  And if the City Council voted to reverse the 2015  decision to broadcast the meetings, will City Clerk Vander Clay be directed to provide more comprehensive minutes and audio recordings for better transparency?

download (4) But the bigger question here is why are the meetings no longer videotaped?  It is under the leadership of Mayor O’Donnell, and City Council members Ennis, Kroll, Robertson, and Spirito that they are choosing to shroud the City’s proceedings in secrecy.  Why would the members of the City Council reverse the very popular decision made by the Council in 2015?  Is it  because they don’t want to be accountable for their actions or do they have something to hide?

As with all the other decisions by the current Council members, they will not address this City Charter violation.  They are all powerful, believing there is no need to follow the Charter, ordinances, or policies unless a citizen uses the legal system to force compliance.

 

 

 

Green is Good!

Investing in infrastructure is a good thing, but let’s be sure to invest in green and grey infrastructure alike. To do otherwise is simply building bridges over troubled waters.
Amanda Rodewald, Director of Conservation Science, Cornell University

Like cities all across the United States, New Buffalo needs renewable energy goals.

Recently, Consumer Energy announced they have a goal of reducing carbon emissions by 80% while increasing the use of sustainable energy sources.  For the first time ever, renewable energy sources are cheaper than fossil fuels and because they are environmentally friendly, the best choice for today. With the widespread low-cost availability of  solar panels, wind turbines and thermal batteries, renewable energy sources have the potential of not only heating and cooling the sidewalks but the entire downtown if our city leadership wants it. With so many people choosing electric cars, hopefully charging stations are part of the downtown plan, a small step in recognizing that green is good and welcomed here.

When other cities in Michigan installed their downtown snowmelt systems many years ago, renewable energy sources were cost prohibited.  Today that isn’t true and because our downtown is completely torn up, we have a unique opportunity to use sustainable energy sources to create an download (3).jpgeco-friendly zone that could make New Buffalo a highly desirable destination for both business and pleasure – being green is good.

 

“I would recommend snow melt in every capital project involving sidewalks in a snowy area.”

It only makes sense for the leadership of New Buffalo to install a snowmelt system while they replace the sidewalks and streets downtown.  As Albert Camus said, “We can’t possibly change the circumstances of our future if we are fully satisfied with the circumstances of the present.’

Photos of downtown New Buffalo after the February snowstorm.

Photos of the downtowns with snowmelt systems, Holland sidewalks and streets, South Haven sidewalks only, and Grand Rapids, sidewalks only.

Take it from architect, and Sustainability Director of the Dormitory Authority of the State of New York, Jodi Smits Anderson, “I would recommend snow melt in every capital project involving sidewalks in a snowy area.”

1. Long-term Cost Savings
When compared to the costs associated with manual snow removal, snow melting can actually cost less in the long run. A 3,000 ft2 sidewalk snowmelt system cost the Dormitory Authority of the State of New York (DASNY) $50,000 to install and $2,500 a year to operate. Prior costs to manually maintain snow and ice were $8,500 for overtime labor, salt and chemicals, and interior cleaning. Using these numbers, this system begins to save the DASNY $6,000 per year after just 8 years. Payback periods can be significantly shortened if the system is also used to harness solar energy from the pavement.

2. Environmental Savings
Snowmelt systems eliminate the need for salts and harsh chemicals intended to remove and prevent ice. When the snow and ice melts and turns to water, this water transfers the salt and chemicals into the surrounding environment. This can lead to dead plants and salt laden runoff into streams and rivers. Reducing the use of chemicals not only saves money, but it helps the environment as well.

3. Preservation of Aesthetics
The use of erosive materials, abrasive snow removal methods, and thermal shock has harsh consequences on the aesthetics and lifespan of pavements. Furthermore, salt and chemicals are brought indoors via pedestrian traffic and can deteriorate interior flooring made of granite, carpeting, and hardwoods.

4. Safety
By not having to manually remove snow, you reduce injury liability for both staff and pedestrians. “Snow and ice removal is one of the most physically damaging aspects of facility management.” Liability can bear a huge cost when it comes to slip-and-fall accidents. Snowmelt systems can help reduce the liability risk for owners. This is a huge factor when one lawsuit could cost thousands of dollars.

The cost of a snowmelt system depends on many variables, meaning the payback period will be different for any specific system. It is important to look beyond the basic financial analysis of a snowmelt system and realize that there are many benefits that can drastically shorten the ROI.

 

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

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