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Michigan Department of Transportation SUPPLEMENTAL EMPLOYMENT REQUEST
971 (10/87) Approval to engage in employment supplement to Michigan Department
of Transportation work, is herewith submitted (check one):
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New Application ❑ Change of Application ❑ Renewal
If approved, this request expires 12 months from approvatrdate,'_
INSTRUCTION: Carefully read and complete this form.
DISTRIBUTION: Original —Personnel File,Copy—Employee, Copy—Division.
EMPL YEE NAME SUPPLEME/�NTAL EMPLOYER NAME
SUPPLEMENTAL EMPLO R RELATION TO MDOT:
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DUT ES, HOURS, T A EL, SKILL REQUIRED:
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1. This request is made and reviewed pursuant to the provisions of �� �/ ���� �f/G� �/��/,�d� •
(Insert applicable contract provision or Civil Service Rule. �✓N A-
2. No state owned equipment or material will be used during the supplemental employment.
3. The supplemental employment does not include any work or project which requires, or may require, approval by the
Michigan Department of Transportation.
4. The office of Human Resources may review my supplemental employment at any time after approval, should a conflict
or apparent conflict with my departmental duties arise. I may be requested to and will provide information related to that
review.
5. Approval of my supplemental employment may be terminated, upon reasonable notice and appropriate cause, including,
but not limited to; recognition of a conflict between my state and supplemental employment;a change in the supplemental
employment which results in a conflict with my state employment; a change in my state employment which results in a
conflict with my supplemental employment; or failure to notify my Appointing Authority promptly of any change in my
supplemental employment.
I ���
acknowledge I have read and understand the above provisions and terms
pertain for and the approval of my supplemental employment request.
I agree to abide by the above stated restrictions on any supplemental employment I engage in. I have read DR 1600.02 ER,
Supplemental Employment, and this request accurately provides the information required by DR 1600.02 ER.
DATE c
SIGN UR 14
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OR PRINT NA E CIVIL SERVICE CLASS
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City Of Lansing - Board Of Ethics
CANCELLATION NOTICE
The January 25, 1994, regular meeting of the Board of Ethics has been cancelled.
John Mertz.
Chairperson
-- l a^l_(517) 483-4130 City Clerk's Office, 124 W. Michigan Ave. Lansing, MI 48933-1695
04-21 -94 A09 : 59 1 1\I
MINUTES
LANSING BOARD OF ETHICS
REGULAR MEETING
TUESDAY, FEBRUARY 22, 1993 5:00 P.M.
10TH FLOOR CONFERENCE ROOM, LANSING CITY HALL
The meeting was called to order at 5:10 p.m. in the 10th floor conference room, City
Hall, Lansing, Michigan.
BOARD MEMBERS PRESENT: John Mertz, Chairperson
Don Cook, Vice-Chairperson
Marilynn Slade, City Clerk, Secretary
Mel McWilliams, Chief Assistant City Attorney,
attended on behalf of James Smiertka, City Attorney
BOARD MEMBERS ABSENT: Jane Rhodes, Public Member (Excused)
A QUORUM WAS PRESENT
OTHERS PRESENT: Deborah Miner, Recording Secretary
Tim Lewis [500 S. Pine]
Paul Scott [412 W. Kilborn]
Margaret Herp [906 Stanley]
Harold Leeman, Jr. [529 N. Francis]
Jennifer Grau [201 Lathrop]
John P. Ruge [201 Lathrop]
Russell Smith [403 Rosadell]
NEXT MEETING DATE: March 22, 1994
APPROVAL OF AGENDA: It was the consensus of the Board that the Agenda
be approved as submitted.
SECRETARY'S REPORT:
Approval of Minutes - A copy of the 1994 Meeting Schedule was attached to
the Minutes of December 28, 1993 at the request of Chairman Mertz. Motion by
Member Cook to approve the minutes of the December 28, 1993 meeting as
amended. MOTION CARRIED 310
Correspondence Received - City Clerk Slade reported receiving the following:
1
1/ City Council Resolutions #30 & #34 requesting the Board of Ethics to
submit Proposed Revisions to Chapter 290 of the Code of Ordinances
2/ Response from James Ruff regarding complaint filed against Joan
Sheldon
3/ Complaint filed by D. Todd Ness; this complaint is one of many of this
nature received by the Board. It deals with the same issues as the
Knechtel complaint. These complaints will be tied together and a strong
opinion regarding these types of practices will be issued. City Clerk
Slade will write a letter to the fire Department requesting a copy of their
Purchasing Procedures and a letter to the subject of the complaint
stating that the Board has received a complaint
4/ Copy of the Ethics Policy adopted by the Tri-County Office on Aging
5/ City Attorney's Opinion #94-01
6/ Copy of the Resolution #68 Canceling City Council Contract with George
Brookover for investigation of the Early Retirement Plan
CHAIR'S REPORT:
Chairman Mertz reported requesting that the Court Reporter hired by City
Council discontinue making full transcripts of the Ethics Board Meetings on the Early
Retirement Issue.
Chairman Mertz reported being asked to participate in an Ethics Seminar
arranged by the Mayor, to be held March 5, 1994 at Lansing Community College.
This will be a collaboration between; the City Attorney, Mayor's Representatives,
Concerned Citizens to Save Lansing, Citizens for a Better Lansing, Cooley Law School
and a Doctor of Philosophy from Michigan State University. Their purpose is to
review the City Charter and Code of Ordinances for the purpose of revising the Ethics
Ordinance.
OLD BUSINESS:
The Chair requested that the order of business be suspended to allow the
interview of Jennifer Grau and John Ruge to be conducted at this time. The Board
interviewed Jennifer Grau and John Ruge relative to the Scott request for
investigation. This interview was recorded and the tapes are on file in the office of
the City Clerk. The resolution of this matter will be handled as one opinion in
conjunction with similar complaints. It requires an opinion from the City Attorney.
2
1/ Revised Ethics ordinance; Chairman Mertz requested that Vice-Chairman
Cook accompany him to the Ethics Seminar on March 5, 1994
2/ Revised Rules of Procedure, Draft 2; Held over to the next meeting to
allow for input from the City Attorney
3/ Knechtel Opinion #18; This issue requires the cooperation of the Finance
Director, City Attorney and interviews of parties named in similar
complaints; it will be held over to the next meeting
4/ Disclosure, Melvin McWilliams; Held over pending revision of the
personnel rules
5/ Disclosure, Susan Wager; Held over pending revision of the personnel
rules
6/ Request for Opinion from Councilmembers Lilly and Beal; Held over
pending an opinion from the City Attorney, this will be handled as one
opinion in conjunction with #7,8, and 10
7/ Benavides: Sparrow Hospital Expansion; Held over pending an opinion
from the City Attorney, this will be handled as one opinion in conjunction
with #6,8, and 10
8/ Ruge Disclosure/Scott Request for Opinion; Held over pending an opinion
from the City Attorney,this will be handled as one opinion in conjunction
with #6,7, and 10
9/ Eby Complaints; It was the consensus of the Board that the City Clerk
write letters to Rogozinski and Cremins stating that "since Ms. Eby never
took office, she is not in conflict." and "the Board did not agree to
pursue this issue and is not answering your complaint;" a letter to Mr.
Powers stating that his complaint "raises no issues that the Board feels
it can respond to" and "your complaints are outside the purview of the
Board."
10/ Scott Complaint: Sheldon; Held over pending an opinion from the City
Attorney, this will be handled as one opinion in conjunction with #63,
and 8
11/ Scott Complaint: Canady; It was the consensus of the Board that the
City Clerk write a letter to Mr. Scott stating that "your letter raises
interesting issues, however, it does not appear to be one over which the
Board has jurisdiction. It has been referred to the Elections Commission
3
with the request that they define what constitutes default to the city."
12/ Disclosure, Rick Lilly; The Board requested that the City Clerk write a
second letter to Councilmember Lilly asking that he comply with the
requests made in their first letter
PUBLIC COMMENTS:
The following individuals made comments:
Russell Smith
Paul Scott
Tim Lewis
There being no further business, meeting adjourned at 7:50 P.M.
Respectfully submitted,
&4a , &,*",
Debor Miner,
Recording Secretary
DATE APPROVED 04/19/94
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March 20, 1994
Eleanor Dillon, President
Downtown Neighborhood Association
328 North Walnut
Lansing, MI 48933
Dear Eleanor,
As the Lansing Neighborhood Council's assistant to Priscilla Holmes,
the Landlord/Neighborhood Organizer, I foresee difficulties with conflict
of interest as LAND Committees are formed in Community Policing areas
: throughout Lansing.
In addition, the code of ethics charge regarding my volunteer
affiliation with the Downtown Neighborhood Association and the Board
of Zoning Appeals has not been resolved in a timely manner.
Both of these situations raise important questions regarding my
ability to be impartial on future issues that may arise.
Therefore, it is in the best interest of the Downtown Neighborhood
Association that I resign my board position effective immediately.
As a long time resident of downtown Lansing I will continue to
support home ownership as the best way to improve the neighborhoods
that surround the Capitol.
Keep up the good work, and I will miss you all.
Sincerely,
v•
cc:
Priscilla Holmes, Landlord/Neighborhood Organizer
Mary James, President Lansing Neighborhood Council
Jennifer Grau, Director Lansing Neighborhood Council
Mary Hauser, President Old Forest Neighborhood Assoc.
Donna Brockwell, President Genesee Neighborhood Assoc.
Captain James Rapp, Lansing Police Department
James Ruff, City Planning Department
Nancy Carlson, President Board of Zoning Appeals
John Mertz,Chair Ethics Board
City of Lansing - Board of Ethics
TO: Captain Ken Sailor, LFD
FROM: Marilynn Slade, Secretary, Board of Ethics
DATE: March 3, 1994
SUBP Complaint Received
This is to inform you that the Board of Ethics has received a complaint against you alleging that you
may have a conflict of interest under the city's ethics ordinance.
A copy of this complaint is attached for your information.
In order for the board to proceed, please provide a written response to this complaint for the board.
Should you desire to attend, our next board meeting is scheduled for Tuesday, March 22, 1994, in the
loth Floor Committee Room, City Hall.
ATT.
(517) 483-4130 City Clerk's Office, 124 W. Michigan Ave. Lansing, MI 48933-1695
Office of City Clerk
City of Lansing
Marilynn Slade
City Clerk
TO: John Mertz, Chairperson and Members of the Board of Ethics
FROM: Marilynn Slade, City Clerk
DATE: March 30, 1994
SUBJ: Deadlines for Ballot Proposals for August 2, 1994, and
November 8, 1994 Elections
This is to notify you that final approved ballot wording for local propositions
(regardless of type) must be received by the City Clerk by May 24, 1994 for the
August 2nd election and by August 30, 1994 for the November 8th election.
Prior to this deadline, City Council and the Election Commission must complete their
approval process for these propositions.
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Ninth Floor, CityHall, 124 W. Michigan Ave., Lansing, MI 48933-1695 • 517-483=4131 • 517-483-4088\TDJD
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City of Lansing - Board of Ethics
TO: President Brockwell and Fellow Councilmembers
FROM: Marilynn Slade, Secretary, Board of Ethics
DATE: March 23, 1994
SUB7: Request for Assistance
The members of the Board of Ethics at the meeting of March 22, 1994, directed me to write to City
Council to request assistance. The Board would like to be supplied with the services of an assistant to
gather records and pertinent information to assist the Board in completing the early retirement
investigation. The Board may also need physical space to house such an assistant as well as equipment.
We would be happy to meet with the Committee or the Whole or other Council Committee to discuss
this request. We can provide you with further details at that time.
Thank you for your consideration.
(517) 483-4130 City Clerk's Office, 124 W. Michigan Ave. Lansing, MI 48933-1695
MINUTES
LANSING CITY BOARD OF ETHICS
REGULAR MEETING
MARCH 22, 1994 - 7:00 P.M.
CITY COUNCIL CHAMBERS, LANSING CITY HALL
The meeting was called to order at 7:00 P.M. in the City Council Chambers, City
Hall, Lansing, Michigan.
BOARD MEMBERS PRESENT:
John Mertz, Chairman
Don Cook, Vice-Chairman
Marilynn Slade, City Clerk
BOARD MEMBERS ABSENT:
Jane Rhodes, Public Member [Excused]
Jim Smiertka, City Attorney (arrived 5:35)
A QUORUM WAS PRESENT
OTHERS PRESENT:
Russell Smith
Harold Leeman [529 N. Francis]
NEXT MEETING DATE:
April 26, 1994 is the next scheduled meeting date. This is also election
night. It was the concensus of the Board that the date of the next regular meeting
of the Board of Ethics be changed to April 19, 1994.
APPROVAL OF AGENDA:
It was the consensus of the Board that the Agenda be approved with
the addition of the Bowyer letter as #8 under Old Business.
SECRETARY'S REPORT:
Approval of Minutes: Deferred until the April 19, 1994 meeting.
Correspondence Received and sent since last meeting: City Clerk Slade
agreed to send another letter to Captain Sailor, if she does not receive a response
to her first letter.
CITY ATTORNEY'S REPORT: Mr. Smiertka stated that it is clear in the
Charter that anyone who holds a City Office shall not sit as a voting member of
any City Board. Therefore, he will not vote on issues before this Board. City
Clerk Slade inquired as to the status of a quorum if the City Attorney and the City
Clerk are not voting members. City Attorney Smiertka said they do not sit in a
voting capacity and therefore do not constitute a quorum for voting purposes.
He reported that the Prosecuting Attorneys office is looking at the Early
Retirement issue because they have received the transcripts of the Early Retirement
interviews conducted by the Board.
CHAIR'S REPORT: Chairman Mertz reported having two meetings with the
Mayor's Ethics Committee. They expect to expand the number of Public Members
on the Board of Ethics to 8 people. They expect to retain the City Attorney as
Legal Advisor and the City Clerk as Administrator of the Board. They propose
an amendment to the Charter and the Code of Ordinances pertaining to the Ethics
Code. This amendment must be approved by the Ethics Board prior to being
passed by Council.
He said that it is very likely that this Board will make recommendations as
to the prosecution of certain individuals involved in the Early Retirement Plan.
They need to develop a list of names of these people and notify them.
OLD BUSINESS:
1. Revised Ethics Ordinance; Pending
2. Revised Rules of Procedure; Pending Ordinance
3. Knechtel Opinion #18; Mr. Knechtel must file a disclosure of all
businesses that he is involved with outside of LPD
4. Disclosure, Melvin McWilliams; Pending information from City
Attorney
5. Disclosure, Susan Wager; Pending information from City Attorney
6. Combined Opinion: Lilly/Beal, Sheldon, Benavides, Ruge; Pending
the advice of the City Attorney
7. Disclosure, Rick Lilly; the City Clerk will send Mr. Lilly a second
letter asking for the MDOT policy
8. Bowyer letter; Chairman Mertz will write a letter in the form of a
brief opinion which can be sent to Council and to Mr. Bowyer
NEW BUSINESS:
Discussion was held and the Board determined to ask City Council for a
person who could assist the Board on the remaining portions of the Early
Retirement investigation. Motion by Member Cook "To direct the Secretary to
write to City Council and request them to supply the Board with the services of
'an assistant to gather records and pertinent information to assist the Board in the
Completion of the Early Retirement investigation. Physical space and equipment
may also be required for this individual." Motion carried 2/0; City Attorney
Smiertka and City Clerk Slade not voting.
PUBLIC COMMENT
Harold Leeman requested a letter from the Board thanking him for bringing
an issue to their attention. City Clerk Slade agreed to send a thank you letter.
ADJOURNMENT
Motion by Public Member Cook to adjourn. Motion carried 2/0; City
Attorney Smiertka and City Clerk Slade not voting meeting adjourned at 6:45
P.M.
Respectfully submitted,
It
DEBORAH K. MINER
Recording Secretary
Date Approved: April 19, 1994
MINUTES
LANSING CITY BOARD OF ETHICS
REGULAR MEETING
MARCH 22, 1994 - 7:00 P.M.
CITY COUNCIL CHAMBERS, LANSING CITY HALL
The meeting was called to order at 7:00 P.M. in the City Council Chambers, City
Hall, Lansing, Michigan.
BOARD MEMBERS PRESENT:
John Mertz, Chairman
Don Cook, Vice-Chairman
Marilynn Slade, City Clerk
BOARD MEMBERS ABSENT:
Jane Rhodes, Public Member [Excused]
Jim Smiertka, City Attorney (arrived 5:35)
A QUORUM WAS PRESENT
OTHERS PRESENT:
Russell Smith
Harold Leeman [529 N. Francis]
NEXT MEETING DATE:
April 26, 1994 is the next scheduled meeting date. This is also election
night. It was the concensus of the Board that the date of the next regular meeting
of the Board of Ethics be changed to April 19, 1994.
APPROVAL OF AGENDA:
It was the consensus of the Board that the Agenda be approved with
the addition of the Bowyer letter as #8 under Old Business.
SECRETARY'S REPORT:
Approval of Minutes: Deferred until the April 19, 1994 meeting.
Correspondence Received and sent since last meeting_ City Clerk Slade
agreed to send another letter to Captain Sailor, if she does not receive a response
to her first letter.
CITY ATTORNE'y S REPORT: Mr. Smiertka stated that it is clear in the
Charter that anyone who holds a City Office shall not sit as a voting member of
any City Board. Therefore, he will not vote on issues before this Board. City
Clerk Slade inquired as to the status of a quorum if the City Attorney and the City
Clerk are not voting members. City Attorney Smiertka said they do not sit in a
voting capacity and therefore do not constitute a quorum for voting purposes.
He reported that the Prosecuting Attorneys office is looking at the Early
Retirement issue because they have received the transcripts of the Early Retirement
interviews conducted by the Board.
CHAIR'S REPORT: Chairman Mertz reported having two meetings with the
Mayor's Ethics Committee. They expect to expand the number of Public Members
on the Board of Ethics to 8 people. They expect to retain the City Attorney as
Legal Advisor and the City Clerk as Administrator of the Board. They propose
an amendment to the Charter and the Code of Ordinances pertaining to the Ethics
Code. This amendment must be approved by the Ethics Board prior to being
passed by Council.
He said that it is very likely that this Board will make recommendations as
to the prosecution of certain individuals involved in the Early Retirement Plan.
They need to develop a list of names of these people and notify them.
OLD BUSINESS:
1. Revised Ethics Ordinance; Pending
2. Revised Rules of Procedure; Pending Ordinance
3. Knechtel Opinion #18; Mr. Knechtel must file a disclosure of all
businesses that he is involved with outside of LPD
4. Disclosure, Melvin McWilliams; Pending information from City
Attorney
5. Disclosure, Susan Wager; Pending information from City Attorney
6. Combined Opinion: Lilly/Beal, Sheldon, Benavides, Ruge; Pending
the advice of the City Attorney
7. Disclosure, Rick Lilly; the City Clerk will send Mr. Lilly a second
letter asking for the MDOT policy
8. Bowyer letter; Chairman Mertz will write a letter in the form of a
brief opinion which can be sent to Council and to Mr. Bowyer
NEW BUSINESS:
Discussion was held and the Board determined to ask City Council for a
person who could assist the Board on the remaining portions of the Early
Retirement investigation. Motion by Member Cook "To direct the Secretary to
write to City Council and request them to supply the Board with the services of
City of Lansing - Board of Ethics
TO: Rick Lilly, Council Vice President
FROM: Marilynn Slade, Secretary, Board of Ethics
DATE: March 23, 1994
SUBJ: Recusal on Dept. of Transportation Issues
On January 6, 1994, I wrote you to request a copy of the Department of Transportation policy that
requires you to recuse yourself from voting on issues relating to the Department.
The board needs this information to respond to your 5/17/93 request to former City Attorney Knot for
an opinion relative to recusals based on employment status. The City Attorney's Office referred this
issued to the Board for response.
If you still wish the Board to respond to your 5/17/93 request, we need this information. Our next
Board meeting is scheduled for April 19, 1994.
Thank you for your assistance.
(517) 483-4130 City Clerk's Office, 124 W. Michigan Ave. Lansing, MI 48933-1695
City of Lansing - Board of Ethics
April 13, 1994
Mr. Harold Leeman, Jr.
529 N. Francis
Lansing, MI 48912
Dear Mr. Leeman:
The Ethics Board has reviewed your complaint regarding the process used for procurement of live plants
at City Hall. Discussions were held with Purchasing Supervisor, Amy Magistro, and she submitted
documentation on procurements that had been made. Members of the board are satisfied that the bid
process for live plants is in compliance with the city purchasing ordinance.
The board plans to take no further action with regards to this matter. Thank you for bringing this issue
to our attention.
Sincerely,
Marilynn Slade, Secretary
(517) 483-4130 City Clerk's Office, 124 W. Michigan Ave. Lansing, MI 48933-1695
FROM THE DESK OF: J.F. Mertz
SS'? �� DATE
TO/FROM: `.�W/U,t,Q r��
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RE: "`� �1 U44teA P
ETHICS BOARD R�EL1 ;
Schedule for 199.,1
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every month
mPptin:00 P.M. gs Will be held on the 4th Tuesday
All Board of
City council. gs Will be held in the lOth [7
r'.r,ittee Room of
January 25. 1994
February 22, 2994
March 22 1994
April �6Fr..,2994
Ja e228 1994
1994
August6231994
September ° 1994 h
October-25` 1, 1994
November 22 1534
December 27' 1994
1994ar�N�f1 �
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John iqertz
chairman of the hoard
v U LANSING CITY COUNCIL
Robert L. Brock xcll
Councilmember-At-Lar,,,,
March 24, -1994
Mr. John Mertz, Chairman
Lansing Board of Ethics
c/o 518 Hollister Building
106 West Allegan Street
Lansing, Michigan 48933
RE: Ethics Board Appointment
Dear Mr. Mertz,
Your term on the City of Lansing Ethics Board expires in June of 1994.
Prior to soliciting applications from interested City of Lansing citizens, the
City Council is interested in knowing whether you still wish to serve on this
board.
The Council would appreciate receiving your response by April 15, 1994.
Very truly yours,
4�BERT L. BROCKWELL
CITY COUNCIL PRESIDENT
RB:fek
CITY HALL • TENTH FLOOR • LANSING, MICHIGAN 48933 • (517) 483-4170
BUS/ HOME: (517) 482-6486 FAX: (517) 483-7630
John F. Mertz
ATTORNEY AND COUNSELOR
518 HOLLISTER BUILDING • 106 WEST ALLEGAN
LANSING, MICHIGAN 48933
TFi FpwnNE (517) 482-5200
Pp-ri1 1.3 , 19S4
IIonor.ahle Bob Brockwel_l.
Lans _n.q C .ty Council. Pres.1(?ent
Tenth Floor, City Hall.
1.24 West Michigan Avenue
Lansing, Yti.chigan 48933
Re: Ethics Board Appointment
Dear. Council President Brockwell:
T would consider it an honor to receive the appointment of the
City Council for another three year term to the City of Lan.sin.q
Board of Ethics .
Very tlul.v yours,
JC6II F. MERT7
JFY: id
c:c: M. Slade
P. Cook
J . Rhodes
J. Smiertka
MINUTES
LANSING CITY BOARD OF ETHICS
REGULAR MEETING
APRIL 19, 1994 - 7 : 00 P .M.
NINTH FLOOR CONFERENCE ROOM, LANSING CITY HALL
The meeting was called to order at 5 : 12 P.M. in the Ninth Floor
Conference Room, City Hall, Lansing, Michigan.
BOARD MEMBERS PRESENT:
John Mertz, Chairman
Don Cook, Vice-Chairman
Jane Rhodes, Public Member
Jim Smiertka, City Attorney
Dixie Gilmore, Chief Deputy City
Clerk attended on behalf of Marilynn
Slade City Clerk
BOARD MEMBERS ABSENT:
A QUORUM WAS PRESENT
OTHERS PRESENT:
Deborah Miner, Recording Secretary
Russell Smith [403 Rosadell]
NEXT MEETING DATE : May 24 , 1994
APPROVAL OF AGENDA:
It was the consensus of the Board that the Agenda be approved
with the addition, under New Business, of the approval of a Charter
Amendment containing the revised Ethics Ordinance .
SECRETARY' S REPORT:
Approval of Minutes :
Motion by Member Cook to approve the minutes of February 22,
1994 as written and the minutes of March 22 , 1994 and to ratify the
actions taken by a minority of the board at the March 22, 1994
meeting. MOTION CARRIED 3/0
Correspondence Received and sent since last meeting•
City Clerk Slade reported the following:
1 . Letter to and response from Councilmember Rick Lilly
regarding MDOT policy
2 . Letter to Harold Leeman
3 . Letter to City Council
4 . Notice of deadline for final ballot wording for local
propositions on August and November Elections from City
Clerk Slade
CHAIR' S REPORT:
Chairman Mertz reported several meetings with Jason Nye from
the Mayor' s Office and City Attorney Jim Smiertka regarding the
revision of the Ethics Ordinance . They have a final draft to
submit to the Ethics Board at tonight' s meeting. The Board must
work out the problem with the voting status of the City Clerk and
the City Attorney. The Charter Amendment containing the revised
Ethics Ordinance is slated to appear on the ballot for the November
1994 General Election, but, it has to go to the Governor and State
Attorney General for their approval first . While the issue of the
revised Ethics Ordinance is pending; this Board must get their
revised rules back to the Council for acceptance on an interim
basis . Once the Charter has been amended the Board can re-do the
rules again.
OLD BUSINESS :
1 . Revised Ethics Ordinance; Pending
2 . Revised Rules of Procedure;
Motion by Member Rhodes to add "AT A PROPERLY CONVENED MEETING
OF THE BOARD OF ETHICS" to the end of the last sentence in
paragraph 12 . 6 on page three . MOTION CARRIED 3/0
Motion by Member Cook to "Eliminate all occurrences of the
word Advisory when it appears prior to the word Opinion and in 12 . 5
prior to the word memorandum" . MOTION CARRIED 3/0
Motion by Member Rhodes to approve the Interim Rules of
Procedure as amended and submit them to the City Council for their
Approval . MOTION CARRIED 3/0
3 . Knechtel Opinion ##18 ; Deferred
4 . Disclosures, McWilliams and Wager; Pending
5 . Combined Opinion; Lilly/Beal, Sheldon, Benavides, Ruge;
Pending
6 . Disclosure, Rick Lilly; Pending
7 . Bowyer Letter; Pending
PUBLIC COMMENT
There were no Public Comments
NEW BUSINESS
1 . Charter Amendment containing revised Ethics Ordinance :
Motion by Member Cook to correct the wording of section 5-504
BOARD OF ETHICS, section 5-504 . 2 to state :
. 2 The city shall provide by ordinance, no later than one year
after the effective date of this section, for restrictions similar
to those enacted by the State of Michigan by statute, prescribing
standards of conduct for CITY OFFICERS AND EMPLOYEES . The
ordinance shall generally include, but not be limited to:
Prohibiting the use of CITY office or employment for the private
benefit of any person; divulging of confidential information in
advance of the time prescribed for its authorized release to the
public; the use of city personnel OR resources for private gain;
profit from an official position and acceptance of things of value
by CITY officers or employees; financial disclosure BY city
officers AND EMPLOYEES; lobbyist disclosure BY city officers AND
EMPLOYEES .
and to correct the wording of section, 5-505 CONFLICT OF
INTEREST, section 5-505 . 1 to state :
. 1 AT LEAST 10 DAYS PRIOR TO BIDDING, NEGOTIATION SOLICITATION
OR ENTRY INTO ANY CONTRACT WITH THE CITY, OR PRIOR TO ANY CITY
ACTION BY WHICH ANY CITY OFFICER OR EMPLOYEE MAY DERIVE ANY INCOME
OR BENEFIT, EITHER DIRECTLY OR INDIRECTLY OTHER THAN OFFICIAL
REMUNERATION AS AN OFFICER OR EMPLOYEE, OR OTHER THAN A BENEFIT AS
A MEMBER OF THE PUBLIC AT LARGE, THE OFFICER OR EMPLOYEE SHALL FILE
AN AFFIDAVIT FULLY DISCLOSING THE DETAILS OF SUCH BENEFIT WITH THE
CITY CLERK. Notice of such filings shall be included in the
Council Agenda.
and to correct the wording of section 5-505 CONFLICT OF
INTEREST, section 5-505 . 2 to state :
. 2 An officer or employee who has any other conflict between a
personal interest and the public interest as defined by State law,
this charter, or ordinance shall fully disclose THE NATURE OF THE
CONFLICT to the City Attorney AND FILE A COPY OF THE DISCLOSURE
WITH THE CITY CLERK.
and to correct the wording of section 5-505 CONFLICT OF
INTEREST, section 5-505 . 3 to state :
. 3 Except as provided by law, no CITY officer or employee may
participate in, vote upon or act upon any matter if a conflict
exists .
MOTION CARRIED 3/0 .
Motion by Member Rhodes to approve the proposed Charter
Revision as amended and submit to City Council for submission to
the voters . MOTION CARRIED 3/0 .
ADJOURNMENT
Motion by Public Member Rhodes to adjourn. MOTION CARRIED 3/0
meeting adjourned at 8 : 55 P.M.
Respectfully submitted,
DEBORAH K. MINER
Recording Secrets
Date Approved: MAY 24 , 1994
„ -25- '4 P01 : '�3 I Pl
MINUTES
LANSING CITY BOARD OF ETHICS
SPECIAL MEETING
MAY 5, 1994 - 8:00 A.M.
NINTH FLOOR CONFERENCE ROOM, LANSING CITY HALL
The meeting was called to order at 8:00 A.M. in the Ninth Floor Conference Room, City Hall,
Lansing, Michigan.
BOARD MEMBERS PRESENT: John Mertz, Chairman
Don Cook, Vice-Chairman
Jane Rhodes, Public Member
Marilynn Slade, City Clerk
Jim Smiertka, City Attorney
BOARD MEMBERS ABSENT: None
A QUORUM WAS PRESENT
OTHERS PRESENT: Deborah K. Miner, Recording Secretary
NEXT MEETING DATE: May 24, 1994
APPROVAL OF AGENDA:
It was the consensus of the Board that the Agenda be approved as written.
OLD BUSINESS:
1. Approval of Charter Amendments containing the Ethics Ordinance;
Motion by Member Rhodes to accept the recommendation of the Mayor's Ethics
Committees for revision of the Charter Amendment approved by the Board of Ethics on April
19, 1994, and to amend the language in Section 5-505.1 to state:
.1 AT LEAST TEN (10) DAYS PRIOR TO THE FIRST OF ANY OF THE EVENTS SET
FORTH IN (A), (B), (C), (D), AND (E) BELOW, A CITY OFFICER OR EMPLOYEE WHO
MAY DERIVE ANY INCOME OR BENEFIT, DIRECTLY OR INDIRECTLY, FROM A
CONTRACT WITH THE CITY OR ANY CITY ACTION, SHALL FILE AN AFFIDAVIT
WITH THE CITY CLERK DETAILING SUCH INCOME AND BENEFIT TO BE DERIVED:
(A) THE BIDDING OF THE CONTRACT
(B) THE NEGOTIATION OF THE CONTRACT;
(C) THE SOLICITATION OF THE CONTRACT;
(D) THE ENTRY INTO THE CONTRACT;
(E) ANY CITY ACTION BY WHICH THE CITY OFFICER OR EMPLOYEE
MAY DERIVE ANY INCOME OR BENEFIT, DIRECTLY OR INDIRECTLY.
THE ABOVE PROVISIONS SHALL NOT APPLY TO CONTRACTS, OR ANY CITY
ACTION, PURSUANT TO WHICH A CITY OFFICER OR EMPLOYEE RECEIVES
INCOME OR BENEFIT IN THE FORM OF OFFICIAL REMUNERATION AS AN OFFICER
OR EMPLOYEE OR RECEIVES INCOME OR BENEFIT AS A MEMBER OF THE PUBLIC-
AT-LARGE. AT THE FIRST REGULARLY SCHEDULED CITY COUNCIL MEETING
FOLLOWING THE FILING OF AN AFFIDAVIT PURSUANT TO THIS SECTION, THE
CITY CLERK SHALL NOTIFY THE CITY COUNCIL OF SUCH FILING.
FOR GOOD CAUSE SHOWN, THE BOARD MAY WAIVE THE TEN (10) DAY
PRIOR NOTICE REQUIREMENT CONTAINED HEREIN IN PARTICULAR CASES.
MOTION CARRIED 310.
2. Revised Rules of Procedure; Motion by Member Cook to submit the proposed
interim rules of procedure to the City Council for approval.
MOTION CARRIED 3/0.
ADJOURNMENT
Motion by Public Member Rhodes to adjourn. MOTION CARRIED 310 meeting
adjourned at 9:05 A.M.
Respectfully submitted,
DEBORAH K. MINER
Recording Secretary
&,4. /twxo
Date Approved: MAY 24, 1994
05-26-94 P12 : 21 IN
MINUTES
LANSING CITY BOARD OF ETHICS
REGULAR MEETING
APRIL 19, 1994 - 7 : 00 P .M.
NINTH FLOOR CONFERENCE ROOM, LANSING CITY HALL
The meeting was called to order at 5 : 12 P.M. in the Ninth Floor
Conference Room, City Hall, Lansing, Michigan.
BOARD MEMBERS PRESENT:
John Mertz, Chairman
Don Cook, vice-Chairman
Jane Rhodes, Public Member
Jim Smiertka, City Attorney
Dixie Gilmore, Chief Deputy City
Clerk attended on behalf of Marilynn
Slade City Clerk
BOARD MEMBERS ABSENT:
A QUORUM WAS PRESENT
OTHERS PRESENT:
Deborah Miner, Recording Secretary
Russell Smith [403 Rosadell]
NEXT MEETING DATE : May 24, 1994
APPROVAL OF AGENDA:
It was the consensus of the Board that the Agenda be approved
with the addition, under New Business, of the approval of a Charter
Amendment containing the revised Ethics Ordinance .
SECRETARY' S REPORT:
Approval of Minutes :
Motion by Member Cook to approve the minutes of February 22,
1994 as written and the minutes of March 22, 1994 and to ratify the
actions taken by a minority of the board at the March 22, 1994
meeting. MOTION CARRIED 3/0
Correspondence Received and sent since last meeting:
City Clerk Slade reported the following:
1 . Letter to and response from Councilmember Rick Lilly
regarding MDOT policy
2 . Letter to Harold Leeman
3 . Letter to City Council
4 . Notice of deadline for final ballot wording for local
propositions on August and November Elections from City
Clerk Slade
CHAIR' S REPORT:
Chairman Mertz reported several meetings with Jason Nye from
the Mayor' s Office and City Attorney Jim Smiertka regarding the
revision of the Ethics Ordinance . They have a final draft to
submit to the Ethics Board at tonight' s meeting. The Board must
work out the problem with the voting status of the City Clerk and
the City Attorney. The Charter Amendment containing the revised
Ethics Ordinance is slated to appear on the ballot for the November
1994 General Election, but, it has to go to the Governor and State
Attorney General for their approval first . While the issue of the
revised Ethics Ordinance is pending; this Board must get their
revised rules back to the Council for acceptance on an interim
basis . Once the Charter has been amended the Board can re-do the
rules again.
OLD BUSINESS :
1 . Revised Ethics Ordinance; Pending
2 . Revised Rules of Procedure;
Motion by Member Rhodes to add "AT A PROPERLY CONVENED MEETING
OF THE BOARD OF ETHICS" to the end of the last sentence in
paragraph 12 . 6 on page three . MOTION CARRIED 3/0
Motion by Member Cook to "Eliminate all occurrences of the
word Advisory when it appears prior to the word Opinion and in 12 . 5
prior to the word memorandum" . MOTION CARRIED 3/0
Motion by Member Rhodes to approve the Interim Rules of
Procedure as amended and submit them to the City Council for their
Approval . MOTION CARRIED 3/0
3 . Knechtel Opinion ##18 ; Deferred
4 . Disclosures, McWilliams and Wager; Pending
5 . Combined Opinion; Lilly/Beal, Sheldon, Benavides, Ruge;
Pending
6 . Disclosure, Rick Lilly; Pending
7 . Bowyer Letter; Pending
PUBLIC COMMENT
There were no Public Comments
NEW BUSINESS
1 . Charter Amendment containing revised Ethics Ordinance :
Motion by Member Cook to correct the wording of section 5-504
BOARD OF ETHICS, section 5-504 . 2 to state :
. 2 The city shall provide by ordinance, no later than one year
after the effective date of this section, for restrictions similar
to those enacted by the State of Michigan by statute, prescribing
standards of conduct for CITY OFFICERS AND EMPLOYEES . The
ordinance shall generally include, but not be limited to:
Prohibiting the use of CITY office or employment for the private
benefit of any person; divulging of confidential information in
advance of the time prescribed for its authorized release to the
public; the use of city personnel OR resources for private gain;
profit from an official position and acceptance of things of value
by CITY officers or employees; financial disclosure BY city
officers AND EMPLOYEES; lobbyist disclosure BY city officers AND
EMPLOYEES .
and to correct . the wording of section, 5-505 CONFLICT OF
INTEREST, section 5-505 . 1 to state :
. 1 AT LEAST 10 DAYS PRIOR TO BIDDING, NEGOTIATION SOLICITATION
OR ENTRY _INTO ANY CONTRACT WITH THE CITY, OR PRIOR TO ANY CITY
ACTION BY WHICH ANY CITY OFFICER OR EMPLOYEE MAY DERIVE ANY INCOME
OR BENEFIT, EITHER DIRECTLY OR INDIRECTLY OTHER THAN OFFICIAL
REMUNERATION AS AN OFFICER OR EMPLOYEE, OR OTHER THAN A BENEFIT AS
A MEMBER OF THE PUBLIC AT LARGE, THE OFFICER OR EMPLOYEE SHALL FILE
AN AFFIDAVIT FULLY DISCLOSING THE DETAILS OF SUCH BENEFIT WITH THE
CITY CLERK. Notice of such filings shall be included in the
Council Agenda.
and to correct the wording of section 5-505 CONFLICT OF
INTEREST, section 5-505 . 2 to state :
. 2 An officer or employee who has any other conflict between a
personal interest and the public interest as defined by State law,
this charter, or ordinance shall fully disclose THE NATURE OF THE
CONFLICT to the City Attorney AND FILE A COPY OF THE DISCLOSURE
WITH THE CITY CLERK.
and to correct the wording of section 5-505 CONFLICT OF
INTEREST, section 5-505 . 3 to state :
. 3 Except as provided by law, no CITY officer or employee may
participate in, vote upon or act upon any matter if a conflict
exists .
MOTION CARRIED 3/0 .
Motion by Member Rhodes to approve the proposed Charter
Revision as amended and submit to City Council for submission to
the voters . MOTION CARRIED 3/0 .
ADJOURNMENT
Motion by Public Member Rhodes to adjourn. MOTION CARRIED 3/0
meeting adjourned at 8 : 55 P.M.
Respectfully submitted,
DEBORAH K. MINER
Recording Secretary
6/01)
Date Approved: MAY 24 , 1994
MINUTES
LANSING CITY BOARD OF ETHICS
REGULAR MEETING
MAY 24, 1994 - 5:00 P.M.
NINTH FLOOR CONFERENCE ROOM, LANSING CITY HALL
The meeting was called to order at 5:00 P.M. in the Ninth Floor Conference Room, City Hall,
Lansing, Michigan.
BOARD MEMBERS PRESENT: John Mertz, Chairman
Don Cook, Vice-Chairman
Jane Rhodes, Public Member
Marilynn Slade, City Clerk
Burt Burleson for Jim Smiertka, City Attorney
BOARD MEMBERS ABSENT: None
A QUORUM WAS PRESENT
OTHERS PRESENT: Margaret Herp; Tim Lewis; Lloyd Teets
NEXT MEETING DATE: June 28, 1994
APPROVAL OF AGENDA:
It was the consensus of the Board to add as Early Retirement as item # 8 under Old
Business and to add under New Business consideration of a motion to authorize Chairman Mertz
to ask the Mayor to appoint an investigator for the board for early retirement.
MINUTES:
Motion by Vice-Chairman Cook to approve the minutes of 4/19/94.
APPROVED BY VOTE OF: 3/0
Motion by Member Rhodes to approve the minutes of 5/5/94.
APPROVED BY VOTE OF: 3/0
1
CHAIR'S REPORT:
Chairman Mertz reported that the Charter amendment changes for the Board of Ethics
were reviewed with the Ad Hoc Committee on Ethics and that they had a change that they
wished to have made. This change will have to be reviewed with City Attorney Smiertka before
the Board can vote on approval of the change.
PUBLIC COMMENT:
Lloyd Teets stated that he is pleased that the Charter amendment makes the Board of
Ethics a review board instead of an advisory board. He does not feel that the change requested
by the Ad Hoc Committee should be made as it weakens the language that was there and we
should strive for the strongest possible language in the Charter.
OLD BUSINESS:
Chairman Mertz reported that revisions to the Ethics Ordinance will not be done until
this fall after the vote on the Charter amendment.
Secretary Slade was asked by the Chairman to check with Council staff to see if the
Revised Rules of Procedure submitted to Council on 4/21/94 were received and placed on file
by the Committee of the Whole.
Motion by Member Rhodes to direct Secretary Slade to write a letter to Mr. Knechtel
informing him that he must file full disclosures of all businesses with which he is affiliated
before the Board can issue an opinion on his request.
APPROVED BY VOTE OF: 3/0
Chairman Mertz reported that we need an update from City Attorney Smiertka on the
progress on eliminating the tie bar before an opinion can be issued on the McWilliams and
Wager issue.
Item # 5 under old business, the combined opinion for Lilly/Beal, Sheldon, Benavides,
Ruge was deferred at this time.
Item # 7 under old business, the Bowyer letter, was also deferred at this time as more
research is needed.
Item # 6 under old business, the disclosure of Rick Lilly, was deferred until input can
be received from the City Attorney. Legal research is needed into the possible incompatibility
of offices issue raised.
2
NEW BUSINESS:
Motion by Vice-Chairman Cook that the Board authorizes Chairman Mertz to request the
Mayor to appoint an investigator to assist the Board in the early retirement investigation.
APPROVED BY VOTE OF: 3/0
ADJOURNMENT
Motion by Member Rhodes to adjourn. MOTION CARRIED 3/0 and meeting
adjourned at 5:59 P.M.
Respectfully submitted,
U
MARILYNN SLADE
Secretary
Date Approved: 6/28/94
3
MINUTES
LANSING CITY BOARD OF ETHICS
REGULAR MEETING
TUESDAY, JUNE 28 1994 - 7:00 P.M.
9TH FLOOR CONFERENCE ROOM, LANSING CITY HALL
The meeting was called to order at 5:16 P.M. in the 9th Floor Conference Room, City Hall,
Lansing, Michigan.
BOARD MEMBERS PRESENT:
John Mertz, Chairperson
Don Cook, Vice-Chairperson
Jane Rhodes, Public Member
Marilynn Slade, City Clerk
v
BOARD MEMBERS ABSENT:
Jim Smiertka, City Attorney
A QUORUM WAS PRESENT
OTHERS PRESENT:
Deborah K. Miner, Recording Secretary
Tim Lewis [500 S. Pine]
Margaret Herp [906 Stanley St.]
Harold Leeman [529 N. Francis]
NEXT REGULAR MEETING DATE:
July 26, 1994
APPROVAL OF AGENDA
Motion by Member Cook; "To add the correspondence from Michael Murphy to the
agenda as Old Business Item #9 and approve the Agenda as amended."
MOTION CARRIED 3/0
SECRETARY'S REPORT:
Approval of Minutes: Motion by Member Cook; "To approve the Minutes of the May
1
24, 1994 meeting as submitted".
MOTION CARRIED 3/0
Correspondence Received and sent since last meeting_
A letter to Mr. Knechtel written by the City Clerk was distributed to Board Members.
By motion of Member Cook a letter received from Michael Murphy was included on the
agenda under new business as item #9.
CHAIR'S REPORT:
Chairman Mertz reported that the Board would be considering draft three of the proposed
Charter Amendments at tonight's meeting. He reported that the administration and City Council
are considering now to terminate retirement benefits paid in excess of IRS 415 limits to people
not covered under collective bargaining.
OLD BUSINESS:
1. Ethics Board Charter Amendment: Motion by Chairman Mertz to amend Draft# 1
of the Ad Hoc Committee on Ethics Resolution by:
deleting the final paragraph which begins BE IT FINALLY RESOLVED that the
City Clerk....
- Amended the next to the last paragraph to read "BE IT FINALLY RESOLVED
that the proposed Charter amendment and existing Charter provisions be
published in the Lansing State Journal twice before being submitted to the
electorate."
Deleting the word "approval" in the third from the last paragraph and substituting
"review and comment" so that paragraph reads "BE IT FURTHER RESOLVED
that the proposed amendment to the City Charter as set forth is this resolution be
submitted to the Governor and Attorney General for review and comment before
being submitted to the electorate;"
Deleting the proposition language in both items labeled 1) and substituting the
following:
CITY OF LANSING PROPOSAL
BOARD OF ETHICS CHARTER AMENDMENT
Shall Article V, Chapter 5. BOARD OF ETHICS of the Lansing Charter be
2
amended to increase the membership of the Board of Ethics, to clarify the scope
of the Board's responsibilities, to clarify the voting status of the City Clerk and
the City Attorney and to tighten requirements for the filing of disclosures of
conflicts of interest by officers and employees?
YES
NO
MOTION CARRIED 310
2. Revised Ethics Charter Amendment: Motion by Chairman Mertz to amend the Ethics
Ordinance in section 5-502.06 to delete the word "Document" and insert the word "Information"
so that the section reads as follows:
.6 ALL CITY EMPLOYEES AND ELECTED OR APPOINTED OFFICIALS OF THE CITY
SHALL COOPERATE WITH ANY INVESTIGATIONS BY THE BOARD; SUCH
COOPERATION SHALL INCLUDE THE COMPILATION AND PRODUCTION OF ANY
INFORMATION REQUESTED BY THE BOARD DURING AN INVESTIGATION UNLESS
THE INFORMATION REQUESTED IS EXEMPT FROM DISCLOSURE UNDER THE
FREEDOM OF INFORMATION ACT, MCL 15.243.
To amend section 5-503.3 by striking the words "BY THE APPROPRIATE PERSON
OR PUBLIC BODY FOR POSSIBLE RECONSIDERATION;" so that the section reads:
.3 THE BOARD OF ETHICS DOES NOT HAVE THE AUTHORITY TO REVERSE
OR MODIFY A PRIOR ACTION OF THE MAYOR, CITY COUNCIL, OR AN OFFICER OR
EMPLOYEE OF THE CITY. IF THE BOARD FINDS A PRIOR ACTION OF THE MAYOR,
COUNCIL, OFFICER, OR EMPLOYEE TO HAVE BEEN ETHICALLY IMPROPER, THE
BOARD MAY ADVISE THE APPROPRIATE PARTY OR PARTIES THAT THE ACTION
SHOULD BE RECONSIDERED. UPON SUCH ADVICE BY THE BOARD, THE ACTION
SHALL BE RECONSIDERED BY THE APPROPRIATE PERSON OR PUBLIC BODY. IF
THE BOARD DETERMINES AN EXISTING CITY CONTRACT TO BE ETHICALLY
IMPROPER, AFTER SUCH DETERMINATION AND ADVICE FROM THE BOARD THE
CITY MAY VOID OR SEEK TERMINATION OF THE CONTRACT IF LEGALLY
PERMISSIBLE. THE BOARD MAY REFER A MATTER TO THE CITY ATTORNEY FOR
REVIEW AND CONSIDERATION FOR APPROPRIATE ACTION. UPON COMPLETION
OF REVIEW AND CONSIDERATION, THE CITY ATTORNEY SHALL REPORT ITS
FINDINGS TO THE BOARD.
To amend section 5-504.2 by deleting the word "for" prior to the word
"restrictions" so that the section reads:
.2 The City shall ADOPT, by ordinance, no later than one year after the effective
3
date of this SECTION, restrictions similar to those enacted by the State of Michigan by statute,
prescribing standards of conduct for CITY OFFICERS AND employees. The ordinance shall
generally include, but not be limited to, prohibiting the use of CITY office or employment for
the private benefit of any person; PROHIBITING THE divulging of confidential information in
advance of the time prescribed for its authorized release to the public; PROHIBITING the use
of City personnel resources for private gain; PROHIBITING THE profit from an official
position and acceptance of things of value by CITY officers or employees; REQUIRING THE
FINANCIAL DISCLOSURE BY CITY OFFICERS AND EMPLOYEES; AND REQUIRING
LOBBYIST DISCLOSURE FOR ALL CITY OFFICERS AND EMPLOYEES.
To amend Section 5-505.1 in the third paragraph to read as follows:
THE ABOVE PROVISIONS SHALL NOT APPLY TO INDIVIDUAL OR
COLLECTIVE BARGAINING AGREEMENTS PURSUANT TO WHICH A CITY OFFICER
OR EMPLOYEE DIRECTLY OR INDIRECTLY RECEIVES INCOME OR BENEFITS IN
THE FORM OF OFFICIAL REMUNERATION AS AN OFFICER OR EMPLOYEE, OR ANY
CITY ACTION PURSUANT TO WHICH A CITY OFFICER OR EMPLOYEE DIRECTLY
OR INDIRECTLY RECEIVES INCOME OR BENEFIT AS A MEMBER OF THE PUBLIC
AT LARGE. AT THE FIRST REGULARLY SCHEDULED CITY COUNCIL MEETING
FOLLOWING THE FILING OF AN AFFIDAVIT PURSUANT TO THIS SECTION, THE
CITY CLERK SHALL NOTIFY THE CITY COUNCIL OF SUCH FILING.
IN PARTICULAR CASES AND FOR GOOD CAUSE SHOWN, THE BOARD MAY
WAIVE THE TEN (10) DAY PRIOR NOTICE REQUIREMENT CONTAINED HEREIN.
Motion by Member Cook to approve all changes made tonight to the amendments to the
Charter Article V, Chapter 5.
MOTION CARRIED 310
Motion by Member Cook to submit these changes to the City Attorney for his signature
and subsequent placement on the Council Agenda for Tuesday, July 5, 1994
MOTION CARRIED 3/0
A discussion was held regarding old business #9, correspondence received from Michael
Murphy. It was agreed that Mr. Murphy's letter would be received and place on file since he
is no longer an employee of the City of Lansing.
PUBLIC COMMENT
Harold Leeman asked about the status of his complaint regarding Councilmember Tony
Benavides and his involvement with Cristo Rey Community Center and Sparrow Hospital.
Chairman Mertz informed Mr. Leeman that the Board has not completed their investigation of
this matter yet. There is some reason to believe that they still need to do something on this.
4
REMARKS BY THE CHAIRMAN OF THE BOARD:
Chairman Mertz said that it has been his pleasure to serve for the past year and some
months with Jane Rhodes, who sadly, is leaving the Board. None of the events of the last year
would have occurred and the Board would not have achieved what it has, had it not been for her
tenacity and stubbornness in the face of the impossible issues facing them. She has been a great
help to him and has given a great service to the people of the City of Lansing. He requested
that it be made a matter of record that Member Rhodes was commended at tonight's meeting for
her service to the citizens of the City.
Member Rhodes thanked Chairman Mertz for his compliments and said that this
experience has been a very rewarding one for her. She feels that her greatest accomplishment
on this Board was made here tonight, because, there are so many ambiguities in the Charter.
She feels that tonight will clarify that. Increasing the size of the Board will particularly help in
this end. The people are angry at government right now, and because of that, there must be
review boards to respond to their questions and needs.
ADJOURNMENT
Motion by Member Cook to adjourn. Motion carried 3/0 meeting adjourned at 6:15
P.M.
Respectfully submitted,
DEBORAH K. M ER
Recording Secretary
Date Approved: July 26, 1994
5
MINUTES
LANSING CITY BOARD OF ETHICS
REGULAR MEETING
TUESDAY, JULY 269 1994 - 5:00 P.M.
9TH FLOOR CONFERENCE ROOM, LANSING CITY HALL
The meeting was called to order at 5:07 P.M. in the 9th Floor Conference Room, City Hall,
Lansing, Michigan.
BOARD MEMBERS PRESENT:
John Mertz, Chairperson
Don Cook, Vice-Chairperson
Joyce Meissner, Public Member
Marilynn Slade, City Clerk
BOARD MEMBERS ABSENT:
James Smiertka, City Attorney, Excused
A QUORUM WAS PRESENT
OTHERS PRESENT:
Deborah K. Miner, Recording Secretary
Russell Smith [403 Rosadell]
Margaret Herp [906 Stanley]
Timothy Lewis [500 S. Pine #1015]
Jackie Porter-Lilly [732 Sandlyn]
NEXT REGULAR MEETING DATE:
August 23, 1994 5:00 P.M.
APPROVAL OF AGENDA
It was the consensus of the Board that New Business be moved up to take place directly
following Approval of the Agenda and that the Agenda be approved with this change noted.
NEW BUSINESS:
Motion by Member Cook to nominate John Mertz to serve as Chairperson of the Board
of Ethics from July 1, 1994 to June 30, 1995. Motion Seconded by Member Meissner.
MOTION CARRIED
Motion by Member Cook to nominate Joyce Meissner to serve as Vice-Chairperson of
1
the Board of Ethics from July 1, 1994 to June 30, 1995. Motion Seconded by Chairperson
Mertz.
MOTION CARRIED
SECRETARY'S REPORT:
Approval of Minutes:
Motion by Vice-Chairperson Meissner to approve the minutes of June 28, 1994 as
corrected.
MOTION CARRIED 310
Correspondence Received and sent since last meeting_
Copies of City Council Resolution #426 approving ballot language to place the Board of
Ethics Charter Amendment on the November 8, 1994 General Election Ballot were distributed
to Board members.
CHAIR'S REPORT:
Chairperson Mertz advised the Board that, because of the heavy demands on City
Attorney Smiertka's time, the Board cannot expect his attendance on a regular basis until certain
issues that he is involved in have been resolved.
Ingham County Prosecuting Attorney, Donald Martin has announced that the Grand Jury
will not be convened for purposes of investigation of the Early Retirement Plan. He has
recommended that this investigation be conducted by City Council. It will be undertaken by the
Ad Hoc Committee on Early Retirement with assistance from the Ethics Board.
Chairperson Mertz welcomed Joyce Meissner to the Ethics Board.
OLD BUSINESS:
1. Revised Ethics Ordinance-Pending: Secretary Slade to distribute samples of Ethics
Ordinances received from Councilmember Lilly and the Michigan Municipal
League
2. Knechtel Opinion #18: Amy Magistro will be invited to attend the August
Meeting of the Board of Ethics to explain how the purchasing ordinance works
and what changes are planned to the ordinance
3. Disclosures, McWiliaams and Wager-Pending: Revision of Personnel Rules
4. Combined Opinion -Lilly/Beal, Sheldon, Benavides, Ruge: Pending based on the
Board's identification of objective criteria for controlling this type of situation
5. Disclosure, Rick Lilly; Pending based on the Board's identification of objective
2
criteria for controlling this type of situation
6. Bowyer Letter; Pending
7. Early Retirement-Specific recommendations will be made regarding actions
against individuals involved in formulating and/or implementing the Early
Retirement Plan or individuals who impeded the investigation of the Early
Retirement Plan.
Motion by Chairperson Mertz that: "the Secretary be asked to write a letter to the City
Attorney requesting him to report as to the status of actions against individuals involved
in the early retirement matter including efforts to recover funds illegally received by
former Mayor McKane and former City Clerk Blair and to determine if such a report can
be presented in closed session. Further, that the Secretary invite members of the Council
Ad Hoc Committee to attend the August 23, 1994, meeting of the Board to participate
in this discussion."
MOTION CARRIED 3/0
PUBLIC COMMENT
Tim Lewis asked for clarification as to the election of the Vice-Chair and suggested that
Ms. Meissner not be placed in a position where she has not had sufficient prearation time.
Russell Terry inquired as to whether the Lansing Police Department has their own
purchasing department.
Jackie Porter-Lilly inquired into procedures for disclosing conflicts of interest and
procedures for making complaints to the Board of Ethics.
ADJOURNED
Motion by Public Member Cook to adjourn.
MOTION CARRIED 3/0
Meeting adjourned at 7:00 P.M.
Respectfully submitted,
DEBORAH K. MINER
Recording Secretary
Date Approved: 8/23/94
3
MINUTES
LANSING CITY BOARD OF ETHICS
REGULAR MEETING
TUESDAY, AUGUST 23, 1994 - 5:00 P.M.
LOTH FLOOR CONFERENCE ROOM, LANSING CITY HALL
The meeting was called to order at 5:00 P.M. in the LOTH Floor Conference
Room, City Hall, Lansing, Michigan.
BOARD MEMBERS PRESENT:
John Mertz, Chairperson
Joyce Meissner, Vice-Chairperson
Don Cook, Public Member
James Smiertka, City Attorney
BOARD MEMBERS ABSENT:
Marilynn Slade, City Clerk, Excused
A QUORUM WAS PRESENT
OTHERS PRESENT:
Dixie Gillmore, on Behalf of City Clerk Marilynn Slade
Deborah K. Miner, Recording Secretary
Russell Smith [403 Rosadell]
Tim Lewis [500 S. Pine]
Paul M. Scott [412 W. Kilborn]
Martha Sproul [P.O. Box 6461 E. Lansing]
NEXT REGULAR MEETING DATE:
September 27, 1994, 5:00 P.M.
APPROVAL OF AGENDA
Chairman Mertz requested that the agenda be approved with the addition of
the Letter from Donald Martin, Ingham County Prosecuting Attorney, and with the
correction of the date on the letter from City Clerk Slade to Don Martin to August
9, 1994 rather than August 16, 1994. It was the consensus of the Board that the
Agenda be approved as amended.
SECRETARY'S REPORT:
Approval of Minutes: Motion by Public Member Cook to approve the
minutes of July 26, 1994 as written.
MOTION CARRIED 3/0
Correspondence Received and sent since last meeting_ Copies of
correspondence sent to: Amy Magistro on 07-27-94; City Attorney Jim Smiertka
on 7-27-94; Don Martin on 8-09-94; Paul Rosenbaum on 08-16-94; Ethics Board
Members on 08-16-94; Committee Report from Council meeting of 08-15-94
containing revised ballot language and Charter Amendment Changes; Pending
Resolution of Council regarding the Police Athletic League Fall Soccer Program
Grant; Sample Ethics Ordinances received from Councilmember Lilly; Sample
Ethics Ordinance from Ethics Board File; Letter from Don Martin on August 17,
1994;
CITY ATTORNEY'S REPORT:
City Attorney Smiertka indicated his reluctance to make a written report, but
stated that in his opinion, the Ethics Board can not go into closed session. He
confirmed the receipt of affidavits of disclosure filed by:
-Susan M. Topping, Senior Accountant; Ms. Topping will be asked
to attend a meeting of the Board so that she may be interviewed
-Eleanor Love, Planning Manager; Mrs. Love will be asked to attend
a meeting of the Board so that she may be interviewed
-Marie Patino, Police Technician, LPD; Received and Placed on File
-Julia Schneggenburger, Officer, LPD; Received and Placed on File
-Chris Magnus, Sergeant, LPD; Received and Placed on File
-Julie Williams, Sergeant, LPD; Received and Placed on File
-Kim Lawrence, Sergeant, LPD; Received and Placed on File
-Jerome Boles II, Chief, LPD; Received and Placed on File
CHAIR'S REPORT:
Chairman Mertz said that he anticipates the completion of the Ethics Board
investigation into the Early Retirement Issue with the assistance of City Council.
OLD BUSINESS:
Revised Ethics Ordinance: Pending
Knechtel Opinion #18: The Board interviewed Purchasing Manager, Amy
Magistro, for the purpose of finding out exactly how the City's Purchasing System
operates. What procedures are used to go out to bid, and whether or not, city
employees have inside information that pertains to the purchasing system. Ms.
Magistro explained the City's Purchasing procedures: Purchases over $10,000 go
into the formal bidding process with departments generally writing bid
specifications which are reviewed by the Purchasing Department. Advertisements
are published in the local paper and vendor lists are reviewed by the Human
Relations Department with additions made by them for bids by handicapped,
minority, and women owned businesses. Bids are then opened and reviewed by
the Purchasing Department and the generating department. The Purchasing
Department is the oversight for the bid process. For items under $10,000 three
quotes are sought, either phone quotes, written quotes, or, facsimile quotes. There
are a minimum of three and a average of five quotes solicited. The purchasing
Ordinance specifies that the Purchasing Department shall obtain at least three
quotes. In some cases the quotes are sought by the originating department, but,
with the addition of staff in the Purchasing Department, they are now trying to
solicit quotes themselves. Requests for services differ slightly. Specifications
cannot be written on them, because, they are unique to the needs of the specific
job. They must be more specific and able to issue criteria and measure
backgrounds and qualifications. They obtain a qualifications pool based on past
experience of the vendors. They then issue a statement for the City's needs and
ask individuals in the pool to submit proposals based on the City's needs. They
then chose the best proposal and open price proposals to see how the dollar amount
compares to the proposal. They are matching quality of services with dollar
amount paid for the service. Fees are subject to negotiation with regard to service
contracts.
Chairman Mertz asked if specifications for the purchase of items are written
internally. Ms. Magistro answered that this is not true in all cases. If we do not
have experience in a specific area we put together a list of the City's needs and
send it to a variety of companies and ask them what they will offer. We then do
a sampling across a variety of vendors. Chairman Mertz asked what types of
controls were in place to avoid situations were people with inside information are
awarded a bid. Ms. Magistro said that the purchasing procedures used by her
Department are not necessarily written controls, however, they are policies and
practices that are standard to purchasing offices which require Purchasing
Department interaction with sales people. Written controls would be helpful to
them because it would allow them to be pro--active rather than re-active.
Chairman Mertz said that the Board wants to ensure that the situation does not
arise where an employee, with inside information about a particular need that the
city has, can call Purchasing and persuade them to use a product that he
represents. Ms. Magistro explained that it is not the role of the Purchasing
Department to say what the generating Department will, or, will not use. It is
their roll to provide sources who can provide the goods/services to meet the
Departments needs. It would be helpful to them, she said, if copies of affidavits
of disclosure were sent to the Purchasing Department. In that way they would
know of situations where an employee is representing a company that bids on a
project. Chairman Mertz agreed that these items should be routed to them. She
requested a recommendation from the Board of Ethics that phone quotes for goods/
services under $10,000 be solicited by the Purchasing Department. This would
allow them to be more successful at getting people to file affidavits disclosing their
connections to businesses they represent, thereby protecting the Purchasing
Department from situations where a contract is awarded to a business that, without
their knowledge, an employee is involved in. City Attorney Smiertka suggested
that a question to that effect be put in the bid questionnaire. The question would
state "are you a City Employee, or, related to a City Employee." Chairman Mertz
asked Ms. Magistro if there are policies in place which regulate the types of gifts
purchasing employees may accept from vendors. Ms. Magistro said there is no
written rule, and suggested that this be included in the revision of the purchasing
ordinance. City Attorney Smiertka said that there is no defined rule regarding the
acceptance of gifts by city employees and there should be. Chairman Mertz
thanked Ms. Magistro for her time and the thorough explanation she gave of the
Purchasing Departments procedures and standards. He promised that the Board
would take her recommendations, particularly the recommendation with regard to
phone quotes, under consideration and follow up on them. The purchasing policies
sound fair and as open as they could be expected to be.
Disclosures, McKWilliams and Wager; Pending
Combined Opinion: Lilly/Beal Sheldon Benavides Ruge• Pending
Disclosure: Rick Lilly; Pending
Bowyer Letter; Pending
Early Retirement; Motion by Chairman Mertz that this Board, in an attempt
to identify individuals responsible for the design and implementation of the Early
Retirement Plan and refer them to the City Attorney's Office for prosecution,
adopt a resolution setting forth the needs of the Board relative to the continuation
and completion of it's investigation of the Early Retirement Plan, and that the
resolution (as attached) be certified and placed on the City Council Agenda for
Monday, August 29, 1994.
MOTION CARRIED 3/0
NEW BUSINESS:
Recommendations for Ethics Charter Amendment Ballot Proposal;. Pending
Affidavits of Disclosure Filed in Conjunction with the Police Athletic
League _(PAL) AS FOLLOWS: Marie Patino, Julia Schneg enburger Chris
Magnus, Julie Williams, Kim Lawrence, Jerome Boles II,• Motion by Chairman
Mertz to receive the affidavits of disclosure from the City Employees who are
members of the Police Athletic League and place them on file with no further
action required.
MOTION CARRIED 3/0
Affidavits of Disclosure filed by Susan M. Topping Senior Accountant;
The City Clerk was directed to write a letter to Ms. Topping inviting her to appear
before the Board at it's September 27, 1994 meeting to discuss the disclosure that
she filed.
Affidavit of Disclosure filed by Eleanor Love Planning Manager* The City
Clerk was directed to write a letter to Mrs. Love inviting her to appear before the
Board at it's September 27, 1994 meeting to discuss how decisions regarding her
spouses grant application are made and how they interface with the function of her
job.
PUBLIC COMMENT
Martha Stroul spoke regarding the acceptance of gifts by City employees.
She suggested that employees report gifts that are given to them and that the
reports be audited for appropriateness.
Russell Terry spoke regarding warranty of computer equipment and
questioned existing policies to enforce warranties.
Paul Scott spoke regarding the Police Athletic League and clarified the
process used to establish the Board and the League's source of funding.
ADJOURNMENT
Motion by Chairman Mertz to adjourn. Motion carried 3/0 meeting
adjourned at 8:00 P.M.
Respectfully submitted,
DEBORAH K. MINE*\,,,,
Recording Secretary
Date Approved: September 27, 1994
MINUTES
LANSING CITY BOARD OF ETHICS
REGULAR MEETING
SEPTEMBER 27, 1994 - 5 : 00 l.
P.M. �s :;u Ci l�� Ln+�
CITY COUNCIL CONFERENCE ROOM, LANSING C Y�ALL
The meeting was called to order at 5 : 00 P.M. in the City Council
Conference Room, loth Floor, City Hall, Lansing, Michigan.
BOARD MEMBERS PRESENT:
John Mertz, Chairman
Don Cook, Public Member
Joyce Meissner, Vice-Chairwoman
Marilynn Slade, City Clerk
BOARD MEMBERS ABSENT:
Jim Smiertka, City Attorney (arrived 5 : 35 P.M. )
A QUORUM WAS PRESENT
OTHERS PRESENT:
Deborah K. Miner, Recording Secretary
Lloyd Teets [116 E . Elm St . ]
Tim Lewis [500 S . Pine]
Councilmember Rick Lilly
NEXT MEETING DATE:
Special Meeting - October 11, 1994
Regular Meeting - October 25, 1994
APPROVAL OF AGENDA:
The agenda was amended by the following additions : Written
recommendations for a phone quote process and a policy for
reporting the receipt of gifts as item number 11 under Old
Business; affidavit of disclosure filed by Mayor Hollister as item
number 12 under Old Business; Resolution ##568 , approving the
continuation and completion of the Ethics Board investigation of
the Early Retirement Plan, under Correspondence . It was the
consensus of the Board that the Agenda be approved with the changes
noted.
Chairman Mertz announced that Public Comment would be moved up
to take place directly following the approval of the agenda to
accommodate tonight' s guests .
PUBLIC COMMENT:
Lloyd Teets of 116 E. Elm St . told the Board how delighted he is
that the Board was able to get approval for the completion of it' s
investigation of the Early Retirement plan. He said that he has
studied the ballot language for the Ethics Board amendment and he
believes that both Concerned Citizens to Save Lansing (CCSL) and
Citizens for a Better Lansing (CBL) would be willing to put out
literature to the media in support of the amendment and work with
the Board to secure the approval of the amendment on the November
Ballot . They would also be willing to assist the Board with
requests for investigation. He suggests starting a letter writing
campaign to newspapers and a call in campaign to radio talk shows .
Chairman Mertz thanked Mr. Teets for his offer and said that any
help the Board can get from these two groups with regard to the
passage of the Ethics Board Charter Amendment will be more than
welcome .
Tim Lewis assured Chairman Mertz that he, too, would be as much
help as possible with the campaign.
Chairman Mertz asked Mr. Lewis if he could arrange a contact
between Vice-Chair Meissner and Darryl Burgess for the filming of
a public service announcement to be run on Channel 28 .
Councilmember Lilly told the Board that he has directed Internal
auditor, Greg Koessel, to begin the process for hiring an
additional Internal Auditor immediately so that the Board will have
an auditor available for the investigation. The Ways and Means
Committee has directed Mr. Koessel to draft a report to them
regarding the funding of this position.
SECRETARY'S REPORT:
Approval of Minutes :
Motion by Vice-Chair Meissner to correct the minutes of the
August 23 , 1994 Board of Ethics Meeting as follows : Change the
phrase "Purchase Department" , found on the next to the last line on
page two, to Purchasing Department; Change the word "roll" , found
on line three of page three, to role; Change the word "affect" ,
found on line twelve of page three, to effect, and to approve the
minutes as amended.
MOTION CARRIED 3/0
Correspondence Received and sent since last meeting:
The Secretary reported receipt of : response received from
Ingham County Prosecutor, Donald Martin, dated 8/17/94 ; letter from
Rick Lilly, Chairperson, Ad Hoc Committee on Ethics requesting the
presence of Ethics Board Members at a meeting to be held on
September 21, 1994 ; Resolution #568, approving the continuation and
completion of the Ethics Board investigation of the Early
Retirement Plan, adopted by the City Council on September 26, 1994
CITY ATTORNEY' S REPORT:
City Attorney Smiertka requested a written procedure to help
employees determine the distinction between filing affidavits of
disclosure with the Board of Ethics and placing notices on file
with his off ice . This is with regard to personnel that are invited
to attend banquets and contract dinners . These are situations
where staff members are invited to a dinner that is related to a
project they are working on. These staff members routinely file
letters of notification in his office stating that they have been
invited to attend a dinner. He does not necessarily see these as
disclosures of conflict of interest, and does not bring them to the
Board. On the other hand, the policy needs to be clear about
attendance at seminars that are being held out of town in places
such as Cancun, or Florida. It is a temptation to allow these
types of things to influence the placement of government dollars .
Chairman Mertz agreed that the Board needs to develop a
written ordinance, policy, or personnel rule regarding notifi-
cations of this type . The process should allow the City Attorney
to receive and file notices in his office and help employees
distinguish between when they must put a notice on file with the
City Attorney and when they must file an affidavit of disclosure
with the Board of Ethics .
City Attorney Smiertka stated that in the interests of the
prosecution of the McKane and Blair lawsuits and the integrity of
the City Attorney' s Office, neither he, nor his assistant city
attorneys, should serve as legal advisor to the Board in the
continuation of the Early Retirement investigation.
CHAIR' S REPORT:
Chairman Mertz said that he will develop a notice to be mailed
out to the individuals that the Board determines should be
investigated. The notice will inform them that the Board has
looked into the complaint received against them and has determined
that there is reason to conduct a further investigation into their
involvement in the Early Retirement matter. The notice should also
inform them that they may request that meetings involving the
investigation against them be held in closed session.
OLD BUSINESS:
1 . Revised Ethics Ordinance; Pending
2 . Knechtel Opinion $#18 ; Pending
3 . Disclosures, McWilliams and Wager;
Motion by Public Member Cook that the affidavits of disclosure
received from Mr. McWilliams and Ms . Wager be Received and Placed
on File .
MOTION CARRIED 3/0
4 . Combined Opinion; Lilly/Beal, Sheldon, Benavides, Ruge;
Pending City Clerk Slade' s summary to City Attorney
Smiertka and his subsequent opinion to the Board
5 . Disclosure, Rick Lilly; Referred to the City Attorney for
development of an opinion referring this issue to Council
President Brockwell
6 . Boywer Letter; City Clerk Slade was directed to write a
letter to Mr. Bowyer indicating that the Charter
specifies that review of these activities is handled by
the Internal Auditor and that it does not appear to the
Board that the subject of the complaint violates those
policies and that no further Board action is required at
this time .
7 . Early Retirement; The Board outlined a process for
identification of individuals who could be referred to
the Special Assistant City Attorney for possible
prosecution of violations of the City Charter and/or Code
of Ordinances .
Motion by Public Member Cook to set a special meeting date for
October 11, 1994 for the consideration of the Early Retirement
issue .
MOTION CARRIED 3/0
8 . Recommendations for Ethics Charter Amendment Ballot
Proposal :
-develop handout
-send representative to neighborhood associations
-send representative to Council meetings
-have a rally supporting ballot proposal prior to the
election
The Board identified a process for getting information on
the amendment out to the community and promoting it' s
passage
9 . Affidavit of Disclosure, Susan M. Topping;
Motion by Public Member Cook that the Affidavit of Disclosure
of Mrs . Topping be received and placed on file and that the City
Clerk write a letter to Ms . Topping notifying her of this action.
MOTION CARRIED 3/0
10 . Affidavit of Disclosure, Eleanor Love; The City Clerk
was directed invite Mrs . Love to attend the next regular meeting of
the Board of Ethics for the purpose of discussing the affidavit of
disclosure that she filed. Further, Ethics Opinion #22 was
reserved for the purpose of dealing with this issue . Chairman
Mertz suggested that the Board pull all supporting material that
prohibits this type of practice and send it to all Departments
along with a memorandum telling them that this type of activity
cannot go on and that they must do everything they can to prohibit
it from happening in their department .
11 . Request from Purchasing Manager, Amy Magistro for written
policies for: The procurement of phone quotes; receipt of gifts
from vendors by purchasing personnel; a recommendation that bid
packages contain a disclosure statement; The Board will write
recommendations for procuring phone quotes and send it to the
Purchasing Manager and will make written recommendations to her
that a disclosure statement be contained in bid packages . The
Board approved the concept of routing affidavits of disclosure
through the Purchasing Manager in the future, to prevent the
Purchasing Department from unknowingly contracting with employees .
City Clerk Slade was requested to write to Ms . Magistro and request
a copy of the code of ethics governing purchasing departments in
general .
12 . Affidavit of disclosure, Mayor Hollister; Received and
Placed on File . The City Clerk was directed to write to Mayor
Hollister advising him of this action
ADJOURNMENT:
Motion by Public Member Cook to adjourn.
MOTION CARRIED 3/0 meeting adjourned at 7 : 50 P.M.
Respectfully submitted,
'('44 o rw -
r
EBORAH K. MINER 11
D
Recording Secretary
Date Approved: October 25, 1994
MINUTES
LANSING CITY BOARD OF ETHICS
SPECIAL MEETING
OCTOBER 11, 1994 - 5:00 P.M.
CITY COUNCIL CONFERENCE ROOM, LANSING CITY HALL
The meeting was called to order at 5:00 P.M. in the City Council Chambers, City Hall,
Lansing, Michigan.
BOARD MEMBERS PRESENT:
John Mertz, Chair
Don Cook, Public Member
Joyce Meissner, Vice-Chair
Marilynn Slade, City Clerk
BOARD MEMBERS ABSENT:
Jim Smiertka, City Attorney [Excused]
A QUORUM WAS PRESENT
OTHERS PRESENT: c 7
Deborah Miner, Recording Secretary
Margaret Herp
Greg Koessel, Internal Auditor, City of Lansing
NEXT MEETING DATE:
Regular Meeting; October 25, 1994
APPROVAL OF AGENDA:
It was the consensus of the Board that the Agenda be amended by removing Item
#1 under Old Business; Affidavit of Disclosure, Eleanor Love, and approved as amended.
SECRETARY'S REPORT:
Secretary Slade distributed copies of a sample contract for the Board to use in the
development of a contract with it's chosen attorney.
CHAIR'S REPORT:
Chairman Mertz reported some difficulty in getting a Detective assigned to assist
the Board with the investigation, because the bureau is extremely short handed. There
is a possibility that a retired police investigator can be hired and deputized for the purpose
of this investigation. He will pursue that angle if necessary. He informed the Board that
Purchasing Manager Magistro has indicated to him that the Board is not required to go
through the bidding process with respect to contracting with an attorney. He is working
with the Mayor's Office for the assignment of secured office space for the Board's
utilization.
Greg Koessel, Internal Auditor, volunteered office space on the third floor of City
Hall in the Internal Audit Office. They have ample space available that can be secured
so that only the Board's representatives have access to it. It contains desks and phones.
It should be fully operational for the needs of the Board, with minimal effort, after being
re-keyed by the Maintenance Department. He indicated that he will hire the new auditor
within the next couple of weeks.
OLD BUSINESS:
Motion by Vice-Chair Meissner "to open a formal investigation with respect to the
following people and to determine whether or not these people may have violated chapter
290 of the code of ordinances or the City Charter:
Terry McKane, James Blair, Alvan Knot, Steve Duarte, Jan Lazar, Jim Crawford,
Alfreda Schmidt, Tony Benavides and Executive Plan employees who may have had a
conflict.
And, further, "that the secretary be directed to send certified letters to the above
named eight individuals, within 10 days of October 11, 1994, notifying them that an
investigation is being opened involving them pursuant to complaints received by the
Board."
MOTION CARRIED 310
Motion by Member Cook "That the Board authorize Chairman Mertz to retain
Attorney Tom Downs to assist the Board in the investigation of the Early Retirement
matter. And further; that the Chair be authorized to execute a contract with Mr. Downs
in a form consistent with the City of Lansing Purchasing Ordinance. And that the
Secretary be authorized to forward the name of the selected attorney to the City Council
with a request for designation as a Special Assistant City Attorney and to identify funds
to pay for contracted services."
LEGAL SERVICES AGREEMENT
BETWEEN THE CITY OF LANSING BOARD OF ETHICS AND
TOM DOWNS, A SOLE PRACTIONER
THIS AGREEMENT is executed on the 25th day of October, 1994,
by and between the City of Lansing Board of Ethics ( "Board") , and
Tom Downs, a sole practioner ("Contractor") .
Section 1. Basic Services_
Beginning on the date this Agreement is executed, the
Contractor agrees to provide the Board with legal services in
regard to:
a. all factual and legal issues arising during the Board' s
investigation to determine whether there is probable
cause to believe that individuals formerly or still in
government service with the City of Lansing violated the
City Charter and/or the Ethics Ordinance, or other laws
setting standards of conduct for City officers and
employees by participating in, voting upon, or acting
upon 1992 Council Resolution 201 and related matters; and
if probable cause is found as to any such person,
b. to assist the Board in determining whether the Board
should refer such person to the City Attorney, or a
designated Special Assistant City Attorney, for
prosecution, and/or whether the Board should recommend
some other action be taken by an appropriate governmental
body; and
C. to assist the Board in preparing any pleadings, exhibits,
evidence or documents required for prosecution by the
City Attorney, or designated Special Assistant City
Attorney, or required for other action by an appropriate
governmental body; and
d. to serve as Special Assistant City Attorney in this
matter, if so designated by the Lansing City Council; and
e. to employ, subject to the approval of the Board, the
services of other persons to assist in performing the
duties detailed above, including, but not limited to :
Dennis Path, J.D. , and Leonard Speckin, whose resumes are
attached to this agreement, and to directly supervise
their efforts on behalf of the Board; and
f. to supervise the efforts of the City Auditor and such
other City or law enforcement personnel as may provide
services to the Board during the course of the
investigation.
1
Section 2. Expenditure Limitation_
Total expenditures under this Agreement shall not exceed FORTY
FIVE THOUSAND AND N0/100 ($45, 000 . 00) Dollars, including the
services of all persons employed by the Contractor, without prior
written approval of the Board. It is the Contractor' s sole
responsibility to notify the Board in writing, marked to the
attention of Secretary, Board of Ethics, if it appears that such
expenditures will exceed the level of Forty-five Thousand and
no/100 ($45, 000 . 00) , unless prior written approval has been
received by the Contractor from the Board.
Section 3. Terms of Payment_
At the start of each calendar month, the Contractor shall
submit to the Board, Attention: Secretary, Ninth Floor City Hall,
124 West Michigan Avenue, Lansing, Michigan 48933, an itemized
billing covering all services provided for this Agreement during
the last preceding calendar month. The billing shall be itemized
showing each service and the total amount due. Within thirty (30)
working days after receipt of a billing, the Board shall make
payment to the Contractor.
Section 4. Term of .Agreement.
Both parties understand that the term of this Agreement shall
commence on the date it is executed. Both parties fully understand
and agree that this Agreement automatically terminates on any of
the following conditions :
1 . Expenditure of the total amount set forth in Section 3,
if prior written approval for expenditure in excess of
that is not received first;
2 . The conclusion to the satisfaction of the Board of the
legal services specified in Section 1;
3. The submission to the Contractor by the Board of a
written notice terminating this Agreement .
Section 5. Waiver or Modification.
Both parties understand that no waiver or modification of any
term of this Agreement is valid until reduced to writing and signed
by both parties to this Agreement .
Section 6. Anti-Discrim;nation_
The Contractor agrees that he will not discriminate against an
employee, or an applicant for employment, with regard to age
tenure, terms, conditions, or provisions of employment based on
religion, race, color, national origin, age, sex, height, weight,
2
sexual orientation, marital status or because of a handicap that is
unrelated to the individual' s ability to perform the duties of a
particular job or position.
Section 7. Entire Agreement.
With respect to the subject matter of this Agreement, this
writing supersedes all previous understandings and ageements,
whether written or roal, between the parties or their
representatives, and constitutes the entire contract between the
parties .
IN WITNESS WHEREOF we have executed this Agreement on the date
and year written above.
WITNESSES: CITY OF LANSING BOARD OF ETHICS:
JOHN . MERTZ, air
J CFVMEISSNE , Vice-Chair
DO ALD COOK, Public Member
TOM DOWNS Contractor
Approved as to form only:
I certify funds have been appropriated for the performance of
this agreement in Account No .
(Title)
3
i
I
Tom D oWNs 230 North Washington Square, Suite 306
Lansing, Michigan 48933
Ph: (517) 372-2990
EDUCATION A.B. University of Michigan, 1938
L L.B. University of Michigan Law School, 1940
I
CURRENT Private practice of law in Lansing since 1970
LEGAL
PRACTICE Example of clients past and present:
Aetna Life & Casualty
American Excess Lnsuranm company
Central Credit Union of Michigan
City of Detroit
Fonda, Island & Briggs lake Joint Water Authority
Hispanic Voting Rights
Legislative Apportionment Committee of Michigan,
House of Representatives
Michigan Association of Counties
Michigan United Conservation Clubs
Physicians Insurance Company of Michigan
Wayne County Apportionment Commission
TEACHING Adjunct Professor
Election Law and Legislation
Cooley Law School, 1978-1992
University of Michigan & Michigan State University
Combined curriculum on Labor Law
PROFESSIONAL American Bar Association
ORGANI7.ATIONAL American Judicature Society
AFFILIATIONS Life Member of the National Conference
on Uniform State Laws
Past Member and Chair
Michigan Law Revision commission
State Bar of Michigan
EMPLOYMENT Judicial Assistant to Wayne County Circuit Court
(around 1968)
Michigan CIO and AFL-CIO, approximately from 1948
to 1967
Part-time monitor for Wayne County Circuit Court for
Wayne County Jail, 1970 to 1987
Private practice of law 1968 to present - Detroit and
Lansing
i
I
i
PUBLIC SERVICE ACTIVITIES—PAST & PRESENT
•Vice President, Michigan Constitutional Convention, 1961-1962
(Constitution adopted in 1963)
-Member, Michigan Employment Security Commission, 1949-1956,
Appointed by Governor Williams
*Chairman, Michigan Law Revision Commission, 1966-1986
•Life Member, National'Conference of Commissioners on Uniform
State Laws, 1969—present; past chair of Committee on No-Fault
Auto Insurance; past chair of Study on Proposed Computer
Software Contracts Act, 1988; member of Review on Employment
Termination Act, 1988; and Standby on Uniform Statutory Form
Power of Attorney'Act, 1988
*Past Member, Board of Control of Grand Valley State College,
1974-1982, Appointed by Governor Milliken
-Member, Michigan United Fund Executive Board; past chair of
Adminsssions and Budget Committee
•Member, Michigan Supreme Court Committee on Rules of
Evidence, 1975-1976
*Member, Michigan Council for the Arts, 1978-1982
*Member, Board of Directors, Mid-Michigan Chapter, American Red
Cross, 1988-1990
-Member, Rotary Club of Lansing, 1992—present
-Member, Executive Board of American Civil Liberties Union 1993—
present
•Member, Executive Board of Ingham County Democratic Party
PERSONAL
Married to Mary Elizabeth Downs
Four children: Timothy, Elizabeth, Katy, Sarah
Six grandchildren: Stephen, Geoffrey, Laura, Justin, Ben, Ellen
Born 1916 in Spokane, Washington
Home address: 1200 Prescott, East Lansing, MI 48823
Hobbies: Photography, camping, canoeing, clowning, scuba diving,
and underwater video
i
DENNIS E. PATH
5530 Timberlane Street
East Lansing, Michigan 48823
(517) 332-0600
PRESENT EMPLOYMENT
March, 1993 to Present: Dennis E. Path, Attorney at Law, 115 S. Cochran Ave., Charlotte, MI 48813, Attorney.
Private general practice of law in rural community, the seat of Eaton County, population 8,500, with downtown main
street office. Practice involves municipal law concerns and ordinance violation prosecutions as Assistant Charlotte
City Attorney, and primarily criminal defense, domestic relations, probate, business litigation and state agency
licensing cases. Of Counsel to Robert J. Deitrick, Jr., Esquire.
PREVIOUS EMPLOYMENT
December, 1978 to March, 1993: State Bar of Michigan, 306 Ta...nsend Street, Lansing, MI 48933, Chief Investigator.
Executive staffinember of statewide lawyer's organization. Managed its Investigations Department, concerned with
investigating the moral character and fitness of persons who apply to be licensed as attorneys in Michigan. Also
conducted unauthorized practice of law and client protection fund investigations. Trained and supervised investigative,
paralegal and clerical employees conducting investigations and volunteer lawyers with bar committee functions and
prosecutions in bar admission hearings. Represented State Bar Character& Fitness Committee in appeal proceedings
and litigation matters. Maintained working relationships with law schools, courts, state agencies concerned with
licensing and misconduct of attorneys, judges and other regulated professions, and cooperative relationships with
federal, state and local law enforcement agencies and bar admission agencies in other states.
January, 1978 to December 1978: Dennis E. Path&Assoc., 698 N. Hagadorn Road, E. Lansing, MI 48823, Private Investigator.
Operated a private investigation agency that conducted criminal and civil investigations for law firm clients and theft,
worker's compensation, financial and personal background investigations for business clients. Charter member,
Michigan State Police Private Detective Advisory Board.
January, 1977 to January, 1978: Capital Region Airport Authority, Lansing, MI 48906, Director of Public Safety.
Managed airport law enforcement and crash-fire rescue personnel. Established promotional procedures, rank structure
of officers and formalized training functions. Chaired the planning comnmittee for a simulated, major aircraft disaster
that involved state and local police, fire, hospital, military and news organizations, as well as Federal Aviation
Administration, commercial air carrier and airport personnel.
October, 1968 to January, 1977: Dept. of Public Safety, Michigan State University, E. Lansing, MI 48824, Police Sergeant.
Worked as patrol officer, patrol supervisor, staff assistant, detective and training officer. Assigned to the Mid-
Michigan Police Academy for curriculum development and to give course instruction in a federally-funded grant
program to train experienced area po1_ice officers in iriternersonal communications and personal awareness. Certified
Michigan State Police Instructor and Breathalyzer Operator and qualified by the National Rifle Association as a pistol
expert.
March, 1967 to October, 1968: Ingham County Sheriffs Dept., 630 N. Cedar Street, Mason, MI 48854, Deputy Sheriff.
Worked as a Jailer, responsible for inmate custody and supervision.
EDUCATION, LICENSING & AFFILIATIONS
Thomas M. Cooley Law School, I.D., 1983
Michigan State University, B.S., Criminal Justice, 1975
Admitted to Practice, U.S. District Court, WDMI 1993, EDMI 1991
Admitted to Practice,.State Bar of Michigan, 1984
• Private Detective, State of Michigan, 1978 (inactive)
Commercial Pilot, Single-Engine Land Airplane, FAA, 1967 (inactive)
American Bar Association, Section on Legal Education & Bar Admissions
• Eaton County Bar Association/ Ingham County Bar Association
Thomas M. Cooley Law School, Guest Lecturer on bar admissions and professional responsibility
r�ROf1 $ PHONE NO. 5173494014 Oct. 20 1994 02:1BPM P02
c'? a
October 20, 1994
Mr. Tom Downs
Attorney at Law
230 N. Washington Square, Suite 306
Lansing, Michigan 18933-1312
Dear Mr. Downs,
This is a summary of my educational background and professional qualifications as
you requested;
I received a Bachelor of Arts degree from central Mi&dga-rr
did further study at the Institute of European Studies, Vienna, Austria. During
the vea rR 1 QA9 +-r, i a" -r 4--..-,L., _
into £tie Crime Laboratory at East Lansin to `-"" uaaaVLll�, 1 Kats l.LatlbrerreQ
g begin training as a document
examiner. This involves the examination of handwriting, typewriting, printir�a, . _,
fIIK si2�7 1«�Z'u`cfftg�si $IUiict�tlreB On Shc l 1�, Mro.,n�l g�»rarlbico, cci�l.i'a� Lo atltl iaentitying the author of harassing handwritten or typewritten letters. The
alteration of business or medical records most often takes the form of exculpatory
� io1d rs.�gcc. r�v,�i o1u�l.�lc 1(Ig t,7l11TY 1Tl(] C71<4«-Q to infra --A
aLyvil laDuL" ana t.5.11.A.
Upon completion of my three-year training period, I was sent to t2le State For
Laboratory in Munich, Germany to do additional research in questioned document
problems. I Have testified as an expert witness in district courts, municipal
11rta. Tlo Y i+- D..�.....-.7.,wrings, federal grand juries and numerous state committee`hearingsysomeKtiere in
excess of 500 times. I am also certified by the American Board of Forensic
Document Examiners. Upon my retirement- fr tl.,n..bct<,�.t<-,...ram ._ r_ • _....
rVery truly yours,
LASspas ooard A. Sp2ckin
Document Examiner
DATE INITIAL
�r
MINUTES Posting
Reno lai
LANSING CITY BOARD OF ETHICS Retention
REGULAR MEETING
OCTOBER 25, 1994 - 5 : 00 P.M. CdTY C!ERK'S OFF!`,,
9TH FLOOR CONFERENCE ROOM, LANSING CITY HALL
The meeting was called to order at 5 : 00 P.M. in the 9th Floor
Conference Room, City Hall, Lansing, Michigan.
BOARD MEMBERS PRESENT:
John Mertz, Chairman
Joyce Meissner, Vice-Chairwoman
Don Cook, Public Member
Marilynn Slade, City Clerk
BOARD MEMBERS ABSENT:
Jim Smiertka, City Attorney (excused)
A QUORUM WAS PRESENT
OTHERS PRESENT:
Margaret Herp [No address given]
Tim Lewis [500 S . Pine]
Eleanor K. Love [Planning & Neighborhood Development Dept . ]
Ivan Love [Capitol Area Community Services Director]
Russell Smith [403 Rosadell]
Harold Leeman, Jr. [529 N. Francis]
Greg Koessel [Internal Auditor]
NEXT MEETING DATE:
Regular Meeting November 22 , 1994
APPROVAL OF AGENDA:
It was the consensus of the Board that the agenda be approved
as amended by removing all items with the exception of the Early
Retirement Investigation and the Affidavit of Disclosure filed by
Eleanor Love
SECRETARY'S REPORT:
Approval of Minutes : Motion by Vice Chairwoman Meissner "to
approve the minutes of September 27, 1994 as written. "
MOTION CARRIED 3/0
Correspondence Received and sent since last meeting: City
Clerk Slade reported sending letters to the following per direction
of the Board of Ethics at the September 27, 1994 meeting:
Mayor Hollister, Marie Patino, Julia Schneggenburger, Chris
Magnus, Julie Williams, Kim Lawrence, Jerome Boles, Melvin
McWilliams, Susan Wager, Susan Topping, Eleanor Love, Council
President Brockwell and City Attorney Smiertka.
City Clerk Slade reported sending certified letters to the
following per direction of the Board of Ethics at the September 27,
1994 meeting:
Terry McKane, Jim Blair, Tony Benavides, Alfreda Schmidt,
Steven Duarte, Janet Lazar, Jim Crawford, Alvan Knot .
There have been no inquiries or complaints received since the
last meeting.
Secretary Slade reported sending out copies of the promotional
brochure on the Ethics Board Charter Amendment to neighborhood
organizations . She has asked that they distribute it to their
residents .
CHAIR' S REPORT:
Chairman Mertz distributed copies of a legal services
agreement drawn up between the Board of Ethics and Tom Downs . He
informed the Board that there is a strong possibility that lawyers
involved with the subjects of the Ethics Board Investigation will
attempt to tie together any investigation done by the Board of
Ethics and the investigation that the City Attorney' s Office is
doing.
Public Member Cook asked if the Board had been contacted by
attorneys other than Mr. Knot' s attorney. Chairman Mertz reported
speaking briefly with Mrs . Lazar' s attorney and informing him that
no specific charges had been filed and that if specific charges
were contemplated, Mrs . Lazar would be notified and given an
opportunity to respond to them before they were filed.
OLD BUSINESS:
Affidavit of Disclosure. Eleanor Love : Mrs . Love explained
that she is the Planning Manager of the Department of Planning and
Neighborhood Development under the supervision of Dennis Sykes..
There are four divisions within the Planning Department and she is
the head of one of the four divisions . She is responsible for
staffing four boards; the Planning Board,, the Zoning Board, the
Historic District Commission Board and the River and Waterfront
Board. She is also responsible for rezoning petitions, that are
filed on a daily basis and State of Michigan ACT 285 and Act 31
procedures, as well as subdivision regulations and State Zoning
Enabling legislation. She is responsible for the City' s Master
Plan and for providing comprehensive planning and technical
assistance to the Mayor and City Council . Her department issues
sign permits and zoning and special land use permits .
At the . Request of Chairman Mertz Mrs . Love explained the
Enterprise Community Grant Application filed by the City of Lansing
with the Federal Government' s Department of Housing and Urban
Development (HUD) for empowerment zone grants . The City is asking
for a $3 , 000, 000 grant, the application on which was due in
Washington on June 30 , 1994 . The Planning and Neighborhood
Development Office was directed by Mayor Hollister to make the
grant application on behalf of the City. This grant recognizes
communities and awards points to communities who have group
cooperation among the agencies within it for working together to
mitigate poverty. The physical application was written by a
consultant supervised by the Planning and Neighborhood Development
Department . This was bid under a blind bidding process for
professional services at the Planning and Zoning Department .
Mrs . Love explained the involvement of the Capitol Area
Community Services Agency, which began through a citizens forum
which solicited input from residents and various agencies that deal
with poverty in the City of Lansing. This Forum put together a
strategic plan that focuses on what kinds of programs and plans
they could develop, in a timely fashion, to address and reduce
poverty in the Enterprise Community. The grant application had to
show that the program was viable and applicable; that it could
really work. Chairman Mertz asked Mrs . Love how the Capitol Area
Community Services Agency was involved in the compilation of the
application and the proposal to develop neighborhood focus centers .
Mrs . Love said that the City had $10, 000 available to the Planning
Department for the production of the grant application document .
They went out to bid for the writing of it . At the same time,
there was a grant process that came out of Washington, offering
Community Action Agencies eligibility for federal funds to assist
communities in the development of the EC grant application. The
City of Lansing and Capitol Area Community Services worked together
collaboratively to develop the grant application. If other
community action agencies had applied for funding the City would
have accepted their funding potential also. The City of Lansing
paid $10, 000 and Capitol Area Community Services paid $10, 000 and
a grant application was written utilizing information that the
Citizens groups of Lansing provided. When CACS received a grant
from Washington, in the same amount as the City' s grant, it was
natural for them to contract with the same agencies . It would not
make sense otherwise . It does not make sense to have two competing
agencies filing for the same grant .
Ivan Love explained his agency' s charge and their role in the
Enterprise Community designation. They will build between 10-20
Head Start Centers with approximately 10 of them being in the City
of Lansing. The first of the ten centers has already been built in
Caesar/Donora Park. CACS will contribute approximately $150, 000 to
the building of each center. The centers will be built whether
they get the EC grant funds, or not . The Center at Caeser/Donora
Park will house Neighborhood Activities, a Community Policing
Office and Community based programs .
Chairman Mertz explained that the role of the Board of Ethics
is to gather and assimilate information about how the process was
developed. How did the City get from saying "let' s apply for an
Enterprise Community Grant" to saying "let' s apply for an
Enterprise Community Grant with Capitol Area Community Services" .
Particularly, when the department in charge of developing the grant
application employs, in a managerial position, the spouse of the
director of the Community Agency that will benefit from the grant .
The Board is trying to develop a process through which everyone who
wants to be involved in the allocation of these types of grants
will be given equal opportunity to be involved. Mr. Love responded
that his agency is the recipient of funds from the Federal
Government for the operation of the Head Start Programs in Ingham,
Eaton, and Clinton Counties . As long as they meet the requirements
of the Federal Government, no one else can receive these grant
monies . Mr. Love explained that the City of Lansing will receive
grant funds for the services that CACS provides . Social services
block grants will be given by the agency that oversees the CACS
program. Chairman Mertz said that the fact that the Federal
Government offers CACS a monopoly in this field changes things a
lot . Capital Area Community Services is a past master in this
arena. They have been running their program for 25-30 years and
when these ideas came up, they were a natural to be involved.
Chairman Mertz asked if part of Mr. Love' s salary would be paid out
of the benefits of the grant . The grant application shows wages
and salaries being paid out of grant funds . Mr. Love responded
that they were merely trying to be realistic and show that they
were ready to implement the program. The grant application will
also show federal funds, Enterprise Community funds, State funds
and City funds being paid to match grant funds paid for salaries .
There are twenty-seven different contracts involved in the
Enterprise Community designation. Chairman Mertz asked if the
Enterprise Community grant would make CACS bigger. Mr. Love
answered in the negative . They are going to build the Centers, at
a cost of $150 , 000 per, that will include community space . They
are asking the City for $50 , 000 for each center. The concept is to
create centers that will deliver government services to the people
of the neighborhood without creating a conflict with other
activities in the area. The existing center at the Caesar/Donora
Park has been very successful . They have had no theft and no
vandalism. The neighborhood is helping to pick out the colors and
materials for interior decorating types of things . This type of
community involvement protects the centers, because neighborhoods
have a vested interest in them. He hopes that the City will decide
to add their $50 , 000 to the $150 , 000 that will be invested by CACS .
They have $10 , 000 , 000 in these types of programs . Not one penny of
this money goes into his salary. These programs were started on
February 9 , 1994 .
Chairman Mertz told the Loves' that the affidavit of
disclosure should have been filed in a more timely manner. Mrs .
Love said that the filing of the affidavit of disclosure was an
oversight . It did not occur to her at the time the application was
being developed. Public Member Cook noted that the filing of the
affidavit took place in July. Chairman Mertz asked if there is a
way for Mrs . Love to recuse herself from voting on future projects
like this that involve her spouses agency. Mrs . Love responded
that she only has three staff members to work with. They put in
700 hours on this application. Vice-Chairwoman Meissner reiterated
that the other way to avoid an appearance of conflict was to have
filed an earlier disclosure so that people would know exactly what
the involvement was . Mrs . Love responded that these meetings were
all "out in front" . They held meetings continuously from March
17th to the end of April 1994 . It was not a secretive process .
Chairman Mertz noted that when the Ethics Board Charter Amendment
is adopted by the voters the Ethics Board will develop a policy to
be distributed to employees regarding this type of procedure.
Basically, there are red flags to indicate when a course of action
is necessary. If the City is doing something with your husband' s
business, and you have any input into the process, you need to file
a disclosure. It does not matter whether or not you have the final
say. If it sets off red flags, we are going to want you to come
before the Board and discuss it .
Mr. Love pointed out that CACS is not his business . The
agency is designated by the City of Lansing and by Ingham, Eaton,
and Clinton Counties to carry out projects that the government
bodies do not want to carry out themselves . Capital Area Community
Services is a non-profit agency with an agreement with Cities and
Counties to perform services . They are subject to the Open
Meetings Act . They have to have quorums of 500 of their Board.
They are actually chartered by the City. He has to get building
and zoning permits from his wife' s department . He requested
direction from the Board, because, if he is going to do business in
the City of Lansing, he does not want people raising those red
flags every time he makes a move. Chairman Mertz asked for more
detailed information on the legal structure of CACS . Mr. Love
submitted a copy of their annual report to Chairman Mertz . They
get $55, 000 per year from the City of Lansing. Chairman Mertz
reserved Board of Ethics Opinion #22 to give the Loves' proper
guidelines on how to handle their situation. He asked the Loves'
who supervises the administration of the $55, 000 grant that CACS
gets from the City of Lansing. Mrs . Love replied that the
supervision of that grant is done by Emil Winnicker of the
Development Division. She does not have anything to do with it .
Chairman Mertz indicated that the Board would get back with the
Loves' as soon as possible, probably within a month. Given the
fact of the way CACS is structured there is probably a middle
ground for dealing with some of their concerns . The one thing he
can advise them to do right now is to make sure that disclosures
are filed. Then, if someone raises an objection, the Board can say
they have already filed disclosures on the subject . Mr. Love said
that CACS is a 501 C-3 Non-Profit Corporation. Chairman Mertz
indicated that CACS could be in a distinct legal category that
negates the question of a conflict in this situation because they
are already so heavily regulated. He thanked the Loves' for
appearing in front of the Board and satisfying their questions . He
told his colleagues on the Board that the City Attorney' s
involvement would be helpful on this disclosure . They may have
sufficient regulation that the Board does not have to worry about
the situation any further. Vice-Chairwoman Meissner noted that
Mrs . Love was assigned to this project by her supervisor. It is
something she was told to do.
Early Retirement Investigation: Chairman Mertz reported
making minor changes to the sample contract for legal services
agreement passed out by the City Clerk at the last regular meeting.
The contract will be with Mr. Downs . Most of the changes he made
were to section 1 . It will appoint Mr. Downs to carry out the
investigation and keep the Chair informed as to what is being done .
Mr. Downs will not be required to come back to the Board for
approval to- do things on a step by step basis . Vice-Chairwoman
Meissner asked if an LPD Officer would be required by the Board for
the investigation. Chairman Mertz indicated that the Police
Department does not have an officer to assign to the Board. He
feels there is enough law enforcement experience on Mr. Downs
investigative team without the Police Officer. They have the
ability to produce warrants, and to prosecute . Mr. Downs will
report back to the Board on November 22nd to update them on what
has been done to date .
Motion by Vice-Chairwoman Meissner "to approve the legal
services agreement with Tom Downs as presented by Chairman Mertz . "
MOTION CARRIED 3/0
Following the motion for approval by Vice-Chair Meissner, the
legal services agreement was signed by all three members of the
board. The City Clerk was directed to forward a copy of the
Contract to Amy Magistro, a copy to Doug Rubley, a copy to
Councilmember Benavides as Chair of the Ways and Means Committee,
a copy to City Attorney Jim Smiertka, a copy to the Internal
Auditor and to file a copy in the Clerk' s Office .
PUBLIC COMMENT
Russell Smith asked when the statute of limitations runs out
on this issue . Chairman Mertz responded that it runs out two years
from the date of the offense . Mr. Smith then asked if Tom Downs
has an old outstanding bill for this investigation. Chairman Mertz
responded that Mr. Downs does not now have, nor has he ever had, a
bill for this investigation. He is a public spirited guy and so is
Mr. Path.
Harold Leeman asked how the Board would handle the matter of
the Downs issue being in front of the Committee of the Whole .
Chairman Mertz responded that the Board has received the approval
of the Council to go ahead with their investigation. It is now the
job of the Council to follow through with whatever practical steps
are necessary to deal with the investigation. Mr. Leeman indicated
that his concern is that there may be stumbling blocks put in the
way of the Board after the fact . Chairman Mertz responded that the
Board has been authorized to take action and that is what they are
doing. All they are doing is what they set out to do initially
which is to investigate the early retirement issue .
Tim Lewis said that the CCSL group is willing to hand out
promotional brochures on the Ethics Board Charter Amendment to one
whole precinct, but they have not yet identified which precinct
they will do.
ADJOURNMENT
Motion by Vice-Chairwoman Meissner to adjourn. Motion carried
3/0 meeting adjourned at 6 :45 P.M.
Respectfully submitted,
DEBORAH K. MINER
Recording Secretary
Date Approved: November 22 , 1994
BOARD OF ETHICS
ATTENDANCE ROSTER
MEETING OF OCTOBER 25, 1994
Name Dept./Str. Address Phone #
MINUTES
LANSING CITY BOARD OF ETHICS
SPECIAL MEETING
OCTOBER 31, 1994 - 8:15 A.M.
9th Floor Conference Room, Lansing City Hall
The meeting was called to order by Vice-Chair Meissner at 8:30 A.M. in the 9th Floor
Conference Room, City Hall, Lansing, Michigan.
BOARD MEMBERS PRESENT:
John Mertz, Chair [Arrived at 8:45 A.M.]
Don Cook, Public Member
Joyce Meissner, Vice-Chair
Marilynn Slade, City Clerk
BOARD MEMBERS ABSENT:
Jim Smiertka, City Attorney [Excused]
A QUORUM WAS PRESENT
OTHERS PRESENT: r`
None
NEXT MEETING DATE:
Regular Meeting; November 22, 1994
APPROVAL OF AGENDA:
It was the consensus of the Board that the Agenda be approved
SECRETARY'S REPORT:
Secretary Slade distributed minutes of the 10/11/94 meeting for approval
By Public Member Cook:
To correct the minutes of 10/11/94 by deleting the first four paragraphs under
OLD BUSINESS and replacing with the following:
Motion by Vice-Chair Meissner "to open an investigation to determine whether
there is probable cause to believe the following named individuals may have violated the
City Charter and/or the Ethics Ordinance or other laws setting standards of conduct for
City Officers and employees by participating in, voting upon, or acting upon 1992
Council Resolution 201 and related matters:
Terry McKane, James Blair, Alvan Knot, Steve Duarte, Jan Lazar, Jim Crawford,
Alfreda Schmidt, Tony Benavides and Executive Plan employees who may have had a
conflict.
And, if so, whether the Board should refer such individual(s) to the City Attorney,
or designated Special Assistant City Attorney, for prosecution of the violation(s);
And, further, "that the secretary be directed to send certified letters to the above
named eight individuals, within 10 days of October 11, 1994, notifying them that an
investigation is being opened involving them pursuant to complaints received by the
Board."
MOTION CARRIED 3/0
MOTION CARRIED 2/0 to approve the minutes of 10/31/94 as corrected
PUBLIC COMMENT
There was no Public Comment
ADJOURNMENT
Motion by Public Member Cook to adjourn.
MOTION CARRIED 310; meeting adjourned at 8:55 A.M.
Respectfully submitted,
MARILYNN rLADEF
Recording Secretary
Date Approved: _
C ''
MINUTES
LANSING CITY BOARD OF ETHICS
SPECIAL MEETING
NOVEMBER 4, 1994 - 8:15 A.M.
9th Floor Conference Room, Lansing City Hall
The meeting was called to order by Chairperson Mertz at 8:20 A.M. in the 9th Floor
Conference Room, City Hall, Lansing, Michigan.
BOARD MEMBERS PRESENT:
John Mertz, Chair
Don Cook, Public Member
Joyce Meissner, Vice-Chair
Marilynn Slade, City Clerk
BOARD MEMBERS ABSENT:
Jim Smiertka, City Attorney [Excused]
A QUORUM WAS PRESENT
OTHERS PRESENT:
None
NEXT MEETING DATE:
Special Meeting: November 9, 1994
Regular Meeting: November 22, 1994
APPROVAL OF AGENDA:
It was the consensus of the Board that the Agenda be approved with the deletion
of approval of minutes for 10/25/94
SECRETARY'S REPORT:
Secretary Slade distributed minutes of the 10/31/94 meeting for approval
By Vice Chair Meissner:
To approve the minutes of the 10/31/94 Special Board Meeting
CARRIED 3/0
By Vice Chair Meissner:
To make the changes to the contract with Tom Downs as recommended by the
City Attorney
CARRIED 3/0
By Vice Chair Meissner:
To approve the contract with Tom Downs as amended and that the Ethics Board
Chairman is directed to serve as the liaison between the Ethics Board and the contractor.
CARRIED 3/0
PUBLIC COMMENT
There was no Public Comment
ADJOURNMENT
Motion by Public Member Cook to adjourn.
MOTION CARRIED 310; meeting adjourned at 9:10 A.M.
Respectfully submitted,
MARILYNN SLADE
Recording Secretary
Date Approved:
MINUTES
LANSING CITY BOARD OF ETHICS
SPECIAL MEETING
NOVEMBER 9, 1994 - 5:00 P.M.
9TH FLOOR CONFERENCE ROOM, LANSING CITY HALL
The meeting was called to order at 5:00 P.M. in the 9th Floor Conference Room,
City Hall, Lansing, Michigan.
BOARD MEMBERS PRESENT:
John Mertz, Chairman
Joyce Meissner, Vice-Chairwoman
Don Cook, Public Member
Marilynn Slade, City Clerk
Jim Smiertka, City Attorney
BOARD MEMBERS ABSENT:
A QUORUM WAS PRESENT
OTHERS PRESENT:
Deborah K. Miner, Recording Secretary
NEXT MEETING DATE:
November 22, 1994
APPROVAL OF AGENDA:
It was the consensus of the Board that the Agenda be approved as submitted.
Motion by Vice-Chairwoman Meissner to move into closed session for the
purpose of discussing the lawsuit filed against the City of Lansing, Board of Ethics
and John F. Mertz by Alvan P. Knot and Motion to Intervene filed by Janet L.
Lazar.
MOTION CARRIED 310
The regular meeting of the Board of Ethics was recessed at 4:10 P.M. and
entered into closed session. The sealed minutes of that closed session are on file
in the office of the City Clerk. The Board of Ethics reconvened their regular
meeting at 4:35 P.M.
SECRETARY'S RErORT:
There was no Secretary's Report
CHAIR'S REPORT:
Chairman Mertz noted that we have a brand new Board coming along and
we have to start thinking about the changes that will be necessitated. They have
to find out how the rules of Board of Review operate and obtain a copy of their
rules of procedure. They have to start operating under their new rules within 30
days. Once the Charter changes, we are no longer under the same rules and we
need to have the new rules up and running. It will take us two months to write
our new rules and it will take Council a month to pass them. The next priority of
the Board is to get a new Ethics Ordinance drafted because the ordinance will not
fit with the new Charter. He noted that the Board would need 8 more copies of
Mason's Manual of Legislative Procedure to be given to new Board Members.
City Clerk Slade reported encouraging Mr. Wiener to wait until after the
New Year to appoint new members to the Board of Ethics so that the Board can
finish it's investigation without raising unnecessary procedural issues.
The City Clerk was directed to mail the original copy of Mr. Downs
contract to him.
ADJOURNMENT
Motion by Vice Chairwoman Meissner to adjourn. Motion carried 3/0
meeting adjourned at 4:40 P.M.
Respectfully submitted,
DEBORAH K. MINER .
Recording Secretary
Date Approved: November 22, 1994
MINUTES
LANSING CITY BOARD OF ETHICS',v ,��;'' `�� ' 'j 2: 12
REGULAR MEETING
NOVEMBER 22, 1994 - 5 : 05 P.M.���;��'.0
9TH FLOOR CONFERENCE ROOM, LANSING CITY HALL
The meeting was called to order at 5 : 05 P.M. in the City Council
Chambers, City Hall, Lansing, Michigan.
BOARD MEMBERS PRESENT: John Mertz, Chairman
Joyce Meissner, Vice-Chairwoman
Don Cook, Public Member
BOARD MEMBERS ABSENT: Marilynn Slade, City Clerk (Excused)
Jim Smiertka, City Attorney (Excused)
A QUORUM WAS PRESENT
OTHERS PRESENT: Deborah K. Miner, Recording Secretary
Dixie Gilmore, On Behalf of the City Clerk
Lloyd Teets [116 E. Elm St . ]
Russell Smith [403 Rosadell]
NEXT MEETING DATE: Regular meeting; December 27, 1994
APPROVAL OF AGENDA:
Motion by Vice-Chairwoman Meissner to approve the agenda as
submitted.
MOTION CARRIED 3/0
SECRETARY'S REPORT:
Approval of Minutes : Motion by Public Member Cook to approve
the minutes of the October 25, 1994 meeting as submitted.
MOTION CARRIED 3/0
Motion by Public Member Cook to correct the minutes of the
Special Meeting held on November 9, 1994, in the second paragraph
under Chair' s Report to state : "City Clerk Slade reported
encouraging Mr. Wiener to wait until after the New Year to appoint
new members to the Board of Ethics so that the Board can finish
it' s investigation without raising unnecessary procedural issues . "
MOTION CARRIED 3/0
Motion by Public Member Cook to approve the minutes of the
Special Meeting held on November 9, 1994 ; both executive session
and open session minutes as amended.
MOTION CARRIED 3/0
Correspondence Received and sent since last meeting: Chairman
Mertz directed that correspondence from attorneys, of people who
are the subject of the early retirement investigation, requesting
documents regarding the investigation be forwarded to the City
Attorney' s Office and that copies be distributed to Board Members .
The Board will take no action regarding these requests, but should
be advised of their content . He will see that the Board' s
attorneys receive copies of the November 8th letters and that
letter should be scheduled under New Business on the agenda of the
next regular Board of Ethics Meeting.
Chairman Mertz turned the meeting over to Vice Chairwoman
Meissner at 5 : 35 P.M. for the purpose of considering the complaints
received against Mr. Mertz charging that he is in a conflict of
interest situation while sitting on the Board for the purpose of
the Early Retirement Investigation.
Vice-Chairwoman Meissner reviewed the charges made against
Chairman Mertz and stated that she does not believe that the Chair
made any defamatory statements against Mr. Knot . The quote that
appeared in the paper is just too general and off handed. It is an
opinion statement that the people involved in the planning of early
retirement could not be innocent . This is a statement that just
about anyone could have made if they had had to read the massive
amount of information that was being reviewed by the Chair at that
point in time. It was a very generalized statement that was not
directed towards any one person. She does not see the conclusion
that Mr. Fox is drawing from this statement . They are attributing
the Chair with an attitude of their own choosing. This is not Mr.
Mertz' s attitude . Also, there is no proof that these statements
were really made . The mass of information that Mr. Mertz was
reviewing at the time was enough to convince him that there had to
be some guilt some place . It was the consensus of the Vice-
Chairwoman and the Public Member that the following statement be
entered into the record of this meeting:
"There is no reason for Chairman Mertz not to continue sitting
on the Board for the purpose of the Early Retirement Investigation.
The Board had already issued Opinion #20 and had drawn the
conclusion, of the Board in general, that there seemed to be some
improprieties involved in the early retirement situation. " The
City Clerk was requested to send a letter to Mr. Downs and City
Attorney Smiertka asking for their input on this complaint, and if
they respond with an answer, the Board will consider it at the next
regular meeting.
Chairman Mertz returned to the meeting at 6 :45 P.M.
CHAIR' S REPORT:
Chairman Mertz reported receiving an opinion, from his
attorneys, that there is no difference between his interests and
the interests of the City. The lawyers representing the City are
already representing him and say there is no reason for him not to
continue sitting on the Board for this issue . This opinion is
consistent with the opinion of the Board on this and the Board will
allow the attorneys to handle this matter from here on out .
He distributed copies of the minutes from the General
Employees Retirement System Board of Trustees meetings, and
indicated that these minutes will become very important to the
Board shortly. During the course of the investigation, Assistant
City Attorney McWilliams will be interviewed, as will employees of
the Personnel Department . They will look closely at the tie-bar
claims and at the roles of specific individuals . He anticipates
having to call a special meeting at some point next week, and it
may be at necessarily short notice to Board members . They will be
given documents in advance of the meetings (that they must review
prior to the meeting) that will contain specific recommendations
based on evidence that the investigators and Special Assistant City
Attorney has uncovered. Most of the things they have uncovered
will be documentable in things like the retirement board minutes .
He suggested that Vice-Chairwoman Meissner re-read the transcripts
of former Mayor McKane and former Finance Director Duarte .
Chairman Mertz requested that the City Clerk forward copies of
the rules of procedure from other Review Boards to Ethics Board
members for their review. He would like to have new rules of
procedure to the City Council in February so that they can be
approved by March. The Board will not be able to do too many
procedural things until after the new rules have been approved by
City Council . Once the rules have been approved the Board needs to
devise a drafting committee for a new Ethics Ordinance and put
together sub-committees to deal with issues like Knechtel, etc . He
would like to have the new Ethics Ordinance in place prior to
Public Member Cook' s term expiration.
OLD BUSINESS :
Motion by Vice-Chairwoman Meissner that all items under Old
Business be deferred until the next regular meeting of the Board.
MOTION CARRIED 3/0
1 . Revised Ethics Ordinance; Pending
2 . Knechtel Opinion #18 ; Pending
3 . Affidavit of Disclosure, Eleanor Love; Pending
4 . Early Retirement Investigation; Pending
5 . Recommendations/Policy re : phone quotes; employee gifts;
addition of employee question to bids; routing of
affidavits to purchasing; Pending
PUBLIC COMMENT
Lloyd Teets congratulated the Board on being given new
responsibilities . Concerned Citizens to Save Lansing worked hard
to get the charter amendment passed. All things being considered
it is amazing that the ballot issue did pass . Mayor Hollister, he
said, represented the Board well on this . The Retirement Board
minutes contain some very good information. He has heard that the
Ad Hoc Committee on Ethics will be authorized to do the re-write of
the Ethics Ordinance .
ADJOURNMENT
Motion by Public Member Cook to adjourn.
MOTION CARRIED 3/0
Meeting adjourned at 8 : 55 P.M.
Respectfully submitted,
DEBORAH K. MINER
Recording Secretary
Date Approved: January 24 , 1995
BOARD OF ETHICS
ATTENDANCE ROSTER
MEETING OF NOVEMBER 22, 1994
Name Dept./Str. Address Phone #
b� E
_F'SOiVED BY TEE C—= COUNCIL OF TEE C="_'Y OF Z.ANSINC �
W AS, .he Mavor and Ci v Couzc:1 have acreet zhz: a
reuc:io:, =n once is n e c e s s a to reduce General Fund
and
---he City has negot:Latec a reducti nn force _a
Teamster Supervisory Unit and Tea,-nsre_ ZIericer= Te^._nicer=
Prc=esniona'_ Unit; and
WHYKEAS, the City also intends to offer the same plan to the
Eyemtt and Executive employees to further fac__itate tre
redo=tion in fore in those groups; and
=XAS, the City Council has extensively reviewed -zhe PI: an
a z: its costs and savings ; and
`OW, T-EMIMFORE, BE = RESOLVED, that the Ci-_y CoL^c_1 ccerert
ra.t_ the Voluntary Reduction i n Force Plan. wi�n zre =ezmstLr
supe=visor and Teamster Clerical-Techrscal-Prey essional =s; and
BE TT FDRMR RESOLVED that the same plan shall be c==erect to
Execut=ve and all other nor.-unionized (excluding District Co,.:_-t)
ci:_lian personnel; and
3E -"- DNA LLY RESOLVED that the actuarially dete=.,m.i ned _e=s_cn
=.slzs .or --his elan be funded by mandaz=v reduction 2. mne n•=e_
au-_hor_zed -.)ositl0ns as set -Orta zv' the MdVOr..
Ford
_%em for fur-ner consideration by the `^.+iti:'1't^e of the Wno i a
L'=_ _e: 7' _._ =off:CxJ-17y Vote:
Ford -- -
C--mm-11N _rs Beal, Belen, Benavloes, Brockaell, Cpma1.V,
Beal
To a.-rieand the resel=ion by s`i g mera.—ap^s
".c i,__^"awn �Yv Counf i lme ber Bea:
_a::= ai. L=_i.2-?Ve roll on the '_'esolutlon
�•.... .J J��.:.ry.�,=- �owzng vole:
Belen, Benavides, _'-, Ca:,a6 ',
; jai i �� rcvn �I_ 00" � ,�
0f1, of the City Attorney
James D. Smlertka BLLUe J. O'Berry
City Attorney :ssistant CIL, Attorney
Melvin S. McWilllams �� �/�/ TLmodhy M. Perrone
Chief Assistant City Attorney assistant City Atiornev
John bi. Roberts,Jr. Wm.-Burt-Burleson
Sr.Assistant City Attorney associate Clry Attorney
Brian W. Bevez January 28 , 1994 Landis Y.Lain
Assis tan t City Attorney Assoc late City Attorney
Mayor David C . Hollister
124 West Michigan Avenue
9th Floor, City Hall
Lansing, MI 48933
Re: Early Retirement Plan Adopted by Council Resolution #201
Dear Mayor Hollister:
You have requested an opinion from this office regarding the
legality of the Early Retirement Plan adopted by the City of
Lansing pursuant to Resolution #201 , dated April 13 , 1992 .
Set forth below is the formal legal opinion of the Lansing City
Attorney' s office .
INTRODUCTION
The issues presented and discussed in this opinion involve a matter
which has been a topic of serious controversy, debate and
litigation within the Lansing community for approximately eighteen
months . It stems from the April 13 , 1992 adoption by the Lansing
City Council of Resolution 201 which purported to approve an Early
Retirement Plan ( "Plan" ) for City Employees who were members of the
City' s Retirement Plan . Although Resolution 201 was implemented
and interpreted to affect three distinct groups of individuals
within Lansing city government, i . e . certain Teamsters , Local 580
personnel ; non-union employees ; and elected officials , the
controversy, debate and litigation has centered on the legality of
the adoption of the Plan and the eligibility of elected officials
to receive its benefits . Specifically, the focus has been on the
question of whether or not former Mayor Terry McKane and former
City Clerk James Blair are legally receiving increased pension
benefits from the City of Lansing' s General Retirement System
pursuant to their election to participate in the Plan.
Both Mayor McKane and City Clerk Blair were officials elected to
positions created by the Lansing City Charter. Both opted to
Page 1 of 17
5th Floor. City Hall • Lansing. Michigan 48933 • (517)483-4320 • FAX(517)483-7630
City Attorney Opinio,_ .40 . 94-01 01/28/94
Re : Resolution 201/Early Retirement
participate in the Early Retirement Plan which resulted in
vacancies in their respective positions .
Although the controversy has been raised in three different
lawsuits , no court has reached- the substantive issues of whether or
not the Plan was legally adopted and, if the Plan was legally
adopted, whether or not the former Mayor and former City Clerk were
eligible to participate in the Plan' .
This opinion will analyze the adoption of the Early Retirement Plan
by Lansing City. Council Resolution 201 and will discuss the legal
entitlement to - Early Retirement Benefits by each of the three
Lansing government groups mentioned above . Our discussion will not
be limited to what appears to be the main source of controversy,
the elected officials group .
This Opinion has been difficult to research and analyze simply
because of the volume of written factual and legal material which
has been generated. Our analysis of legal conclusions previously
issued from within City Government and from outside sources has
been especially difficult to analyze because of our difficulty
locating the necessary factual foundations supporting those
conclusions . Indeed, stipulations of fact have been made by former
representatives of the City in litigation that this office has
found difficulty in supporting from a legal standpoint. And,
subject to being accused of having 20/20 hindsight, we are
befuddled by the failure to introduce a . proposed Ordinance, with
its necessary public hearing, for consideration by the Lansing City
Council when the issue of the legal efficacy of Resolution 201 was
raised.
Notwithstanding our personal observations as expressed or implied
1See United Automobile Aerospace and Agricultural Implement
Workers of America, AFL-CIO, et al . v City of Lansing, et al ,
Ingham County Circuit Court No . 92 73590-CZ ; Vaughan v City Bolt
of
Lansing, et al . Ingham County Circuit Court No. 92-73552-CZ ,
v City of Lansing, Ingham County Circuit Court 93-75718-PC .
The UAW, AFL-CIO case was dismissed by stipulation, the
Vaughan case was decided by the Ingham County Circuit Court on the
basis of Lack of Standing and Laches , and the Bolt case is pending .
The Bolt case seeks declaratory relief in that the Plaintiff is
asking the Court to rule that the Early Retirement Plan was
improperly adopted by resolution rather than by ordinance .
Page 2 of 17
City Attorney Opin_ ,n No . 94-01 01/28/94
Re : Resolution 201/Early Retirement
above, set forth below is the analysis and opinion of the Lansing
Law Department regarding the legality of the Early Retirement Plan
adopted by Resolution 201 .
CITY ATTORNEY OPINION NO. 94-01
STATEMENT OF FACTS
On May 19 , 1941 , pursuant to the provisions of Ordinance 132 , the
City of Lansing (City) . established a retirement system for
employees of - the City for the stated purpose of providing
retirement allowances and death benefits to City employees . The
effective date of the Ordinance was July 1 , 1941 . Not unlike many
retirement systems , municipal or otherwise, this system underwent
various changes and modifications over a period of time and
affected subsequently - adopted City policies .
On January 14 , 1985 Lansing City Council (Council) adopted a
comprehensive package of personnel rules and procedures for, among
others , executive City employees , non-bargaining unit City
employees , and elected City officials . These rules and procedures
addressed various aspects of the retirement system.
For executive City employees , whether civilian or sworn, the
personnel rules provided that such employees :
shall be members of the City of
Lansing.' s General Employees Retirement System
and covered by all rules and benefits
pertaining thereto .
In addition, the personnel rules tied the executive employees to
the contracts negotiated with union employees by, in part, virtue
of the following passage :
Subsequent increases in compensation levels
for civilian or sworn personnel above shall be
effective at the same level and date as that
of the Supervisory Professional Technical
Bargaining Agreement, Police Supervisory
Bargaining Agreement, and Firefighters
Bargaining Agreement, whichever is applicable .
Page 3 of 17
' City Attorney Opinion 94-01 01/28/94
Re : Resolution 201/Early Retirement
This rule is commonly known as the "Tie Bar" .
Similarly, for non-bargaining unit employees , whether civilian or
sworn, the personnel rules provided that such employees :
shall be members of the City of
Lansing' s General Employees Retirement System
and covered by all rules and benefits
pertaining thereto .
Also, the personnel rules tied the non-bargaining unit employees to
the contracts negotiated with union employees by, in part , virtue
of the following passage :
Increase in compensation levels shall be
effective at the same level and date as that
of the applicable bargaining unit agreement,
said applicable bargaining unit to be
determined by the Personnel Director in
consultation with the department head.
(This is also referred to as a Tie Bar) .
Regarding elected officials , the personnel rules provided, in part :
All elected officials in the City of Lansing
and the 54-A District Court are exempt from
the personnel rules of the City
The Mayor, City Clerk, and City Councilmembers
shall be members of the General Employees '
Retirement System of the City of Lansing.
District Judges shall be members of the State
Retirement System.
On April 18 , 1988 , pursuant to Resolution 196 , Council approved an
Early Retirement Plan. This resolution approving the Plan provided
that the Mayor and Council agree that a reduction in work force was
necessary to reduce general fund expenditures . It further provided
that the City had negotiated an Early Retirement Plan with two ( 2 )
union units and that it intended to -offer the same Plan to the
City' s civilian non-bargaining unit and executive employees to
further facilitate the reduction in work force in those groups . As
Page 4 of 17
City Attorney Opin_-n No . 94-01
O1/28/94
Re : Resolution 201/Early Retirement
stated in the resolution, the Plan established a new eligibility
formula of age and service credits totalling "65" for vested
employees during a specified window period . Pension benefits were
based upon a 2 . 5% multiplier factor and pension costs associated
with the Plan would be funded from the City' s Retirement System
contingency fund.
Subsequently, on September 17 , 1990 , Council passed Ordinance 823
which, in part, lowered age and service requirements of the
retirement system for executive employees , non-bargaining unit
employees , and. elected officials . The Ordinance referenced these
employees as "covered positions" and was given immediate effect .
On January 22 , 1991 , Council passed Ordinance 830 and gave
immediate effect to various changes regarding the City' s retirement
system. These changes pertained primarily to Sections 291 . 01 ,
292 . 14 , and 292 . 311 of the Codified Ordinances of Lansing. The
changes , among other things , added certain union supervisory and
non-supervisory employees and 54-A District Court employees /
the exception of 54-A District Court judges , to the definition of
"covered positions . "
On March 23 , 1992 the then Mayor McKane presented a budget to
Council which proposed to reduce white collar employees by means
which were not clearly specified. Thereafter, on April 13 , 1992 ,
pursuant to Resolution 201 , Council approved an Early Retirement
Plan for City employees . This action followed two closed session
meetings on the matter by the Council Committee of the Whole . The
resolution approving the Plan provided that the Mayor and Council
agree that a reduction in the work force was necessary to reduce
general fund expenditures . It further provided that the City had
negotiated a reduction in force plan with two ( 2 ) union units and
that it intended to offer the same Plan to the City' s Executive and
all other non-unionized ( excluding District Court) personnel to
further facilitate the reduction in work force of those groups .
The Plan established an additional five years of credited service
to be utilized in calculating monthly benefits and increased the
pension benefit multipliers from 2 . 5% to 2 . 75% . The Plan produced
much debate and discussion in the public forum when it became
apparent that the Plan was being interpreted to apply to elected
officials .
On November 25, 1992 , Mayor McKane announced his early retirement
under Resolution 201 . City Clerk Blair also announced his
retirement under the
D Their
1992 effective
January dates
5 , o1g93 tirp,seof
were respectively ecember 30,
Page 5 of 17
•City Attorney Opin:, .1 No . 94-01 O1/28/94
Re : Resolution 201/Early Retirement
December 1 , 1992 , 144 individuals had elected to take early
retirement . All benefits and procedures were implemented under the
Retirement System and not the General Fund except to the extent
that IRS limitations on maximums payable from the Retirement System
would be exceeded. On December 21, 1992 Resident Kenneth Vaughan
filed a lawsuit against the City and others , alleging, among other
things that the latest' Early Retirement Plan was invalid since the
City effectuated the plan by virtue of a resolution as opposed to
ordinance , contrary to the City' s Charter . Shortly, thereafter,
the United Auto Workers filed a second lawsuit, in which it alleged
again, for among other reasons , that the Plan was improperly
enacted by resolution . These two ( 2 ) lawsuits were ultimately
consolidated in an action over which the Honorable Carolyn Steil ,
Ingham County Circuit Court Judge, presided .
Thereafter, the United Auto Workers dismissed their lawsuit, and
Count One of the Vaughan lawsuit, which alleged the improper
adoption of the Plan by resolution, was voluntarily withdrawn by
the Plaintiff . Subsequent to pretrial discovery and numerous
motions filed by the respective parties , Judge Steil dismissed the
action in its entirety based upon legal doctrines such as laches
and standing . No decision was reached on the esr adopted
etof
whether the Early Retirement Plan was properly P ed
he
Lansing City Council .
This office has been asked to review and analyze the legality of
the adoption of the Early Retirement Plan by Resolution 201 . The
following discussion addresses the issues presented; a factual and
legal analysis of the same; and, finally a conclusion and
recommendation regarding the questions presented to the City' s Law
Department .
ISSUES
I . WHETHER THE EARLY RETIREMENT PLAN
WAS LEGALLY ADOPTED BY COUNCIL
RESOLUTION 201 .
CONCLUSION: NO
II . WHETHER EMPLOYEES OF TEAMSTERS LOCAL
580 WHO OPTED TO RETIRE UNDER THE
PROVISIONS OF THE EARLY RETIREMENT
Page 6 of 17
City Attorney Opinic, No . 94-01 01/28/94
Re : Resolution 201/Early Retirement
PLAN ARE LEGALLY ENTITLED TO THE
INCREASED BENEFITS PROVIDED BY THE
PLAN.
CONCLUSION : YES
III . WHETHER NON-UNION EMPLOYEES WHO
OPTED TO RETIRE UNDER THE PROVISIONS
OF THE EARLY RETIREMENT PLAN ARE
LEGALLY ENTITLED TO THE INCREASED
BENEFITS PROVIDED BY THE PLAN.
CONCLUSION: YES
IV. WHETHER ELECTED OFFICIALS WHO OPTED
TO RETIRE UNDER THE PROVISIONS OF
THE EARLY RETIREMENT PLAN ARE
LEGALLY ENTITLED TO THE INCREASED
BENEFITS PROVIDED BY THE PLAN.
CONCLUSION: NO
ANALYSIS AND CONCLUSIONS
I . RESOLUTION 201 AND THE ADOPTION OF THE
EARLY RETIREMENT PLAN
Resolution 201
Resolution 201, adopted April 13, 1992 , acknowledges that the City
negotiated a reduction in force plan with the Teamster ' s Union and
resolved that the Plan be offered to Executive and all other non-
unionized ( excluding. District Court) civilian personnel . Mention
is also made in the resolution of "Exempt" employees .
Resolution 201 does not purport to be an Ordinance, was not
introduced to Council as an Ordinance, and was not adopted with the
requirements of an Ordinance, such as an introduction, a public
Page 7 of 17
City Attorney Opinic No . 94-01 01/28/94
Re : Resolution 201/,,"rly Retirement
hearing and publication . The reduction in force plan is contained
in a certain Memorandum of Understanding between the City and the
Union which was ratified by Council on April 13 , 1992 . The
Memorandum of Understanding contains an Incentive Program which
changes the retirement benefit multiplier and grants additional
service credits for those who file an intent to exercise rights
under the Incentive by December 1 , 1992 .
The above two documents constitute the Early Retirement Plan .
The Lansing Charter and its Provisions
The City of Lansing is governed by the Lansing City Charter . The
charter of a city is fundamental law and all city ordinances in
conflict with or violating the mandates of the charter uandt va e void.
Hubbard v Board of Trustees , 315 Mich 18 ( 1939 ) ; Cam_
286 Mich 433 ( 1938) .
A city charter is the "organic law" of the city. Sykes v City of
Battle Creek, 288 Mich 660 ( 1939 ) . Where the language of a charter
provision is unambiguous and specific it is controlling; in such a
case, it is presumed that the framers of the charter, and the
people of the city involved, intended that a provision be construed
as it reads . Detroit Fire Fighters Ass ' n v City of Detroit, 127
Mich App 673 ( 1983) .
With respect to pensions , Section 9-203 of the Lansing Charter
provides that all pensions referred to in the previous Charter
shall remain in effect with the same status established in the
previous Charter, unless changed in the manner determined by law.
The Lansing Charter defines Law, in part, as "principles of conduct
which must be obeyed. There is no intention in the Charter to
distinguish among those jurisdictions with power to declare the law
unless specific reference is made to federal law, state law, or
local law An ordinance is defined in the Lansing Charter at
Section 1-205 as "a local law enacted by the legislative body of
the City of Lansing (Council) either prior to the effective date of
the Charter, or subsequently" .
Resolution versus Ordinance
A resolution is not an ordinance . "An ordinance is distinctively
a legislative act; a resolution, generally speaking, is simply an
Page 8 of 17
City Attorney Opi on No . 94-01
O1/28/94
Re : Resolution 2,-./Early Retirement
expression of opinion or merit or policy concerning some particular
item of business coming within the legislative body in official
cognizance , ordinarily ministerial in character and relating to the
administrative business of the municipality. . . It may be further
stated broadly that charters contemplate that all legislation
fecting in any important or material manner
creating liability or af
the people of the municipality should be enacted by ordinances . . .
Whenever the controlling law directs the legislative body to do a
particular thing in a certain manner, the thing must be done in
that manner . . . A municipal corporation cannot accomplish by
resolution or order, at least by one that is not equivalent to an
ordinance, that which, under its Charter, it can do only by an
ordinance . " 5 McQuillin Mun Corp, 515 . 02 , 3rd Ed.
Acts that are not just administrative business must be in the form
of an ordinance . Resolutions are for ministerial functions .
Kalamazoo Municipal Utilities Associationv City 19f68Kalamazoo, 345
Mich 318 ( 1956 ) ; Parr v Fulton, 9 Mich App 719 ( 1968) .
Application of Charter and Law to Resolution 201
With respect to the matter under review in this opinion,
the
can
Charter clearly and unambiguously
ord nancoesly(Seetes that Lansing Pharters9C203oand be
changed by law,
205 "Ordinances" ) .
Furthermore, Section 3-301 of the Lansing Charter states , in part ,
as follows :
"In addition to other acts required by law or
by specific provisionsthose thisact Charter
to e
Ciby
done by Ordinance,
shall be by Ordinance which . . •
( c) Amend or repeal any ordinance previously
adopted . "
The pension system of the City of Lansing is in place by virtue of
Ordinance ( See Statement of Facts , and Ordinance 132 , May 19 , 1941 ,
Chapter 292 , Codified Ordinances of the City of Lansing) ; and the
requirements for Retirement of Age,
, Service
er iionaOrdi ancence are found in
Section 292 . 20 and 29
Consequently, the Early Retirement Plan adopted by Resolution 201 ,
Page 9 of 17
City Attorney Opinio 'Vo . 94-01 01/28/94
Re : Resolution 201/t.arly Retirement
which made changes to the Age, Service and Allowance requirements
of Section 292 . 20 and 292 . 20 , albeit only for a group which took
advantage of the window period" in the Plan, purported to amend an
ordinance contrary to Lansing Charter Section 9-203 and 3-301 .
When an ordinance is required- by Charter, if done by contract or
resolution it would not be legal . 5 McQuillin, Mun Corp § 15 . 03
3rd Ed. In McCarthy v Village of Marcellus , 32 Mich App 679 ( 1971 )
the Court held that an. ordinance cannot be amended or repealed by
resolution .
An ordinance may. not be . . . amended without action of equal dignity
to that required in its enactment . City of Saginaw v Consumers
Power Co, 213 Mich 460 , p 469 ( 1921) . In Rollinqwood Homeowner ' s
Corpv Flint , 386 Mich 258 ( 1971) , the Michigan Supreme Court has
held that a municipal corporation cannot do that which under its
charter can only be done by ordinance .
In Rollingwood, the Court held that where the substance of City
action requires the adoption of an ordinance, a resolution cannot
operate as a de facto ordinance . The attempt to legislate by
resolution is simply a nullity.
A city ' s action is ineffectual where legislative purposes were
sought to be carried out by resolution. Rolling-wood, supra, at
page 264 ; see Schrier v Kalamazoo, 380 Mich 626 , p 636 ( 1968 ) ,
where the Court held that the City Commissioner' s failure to comply
with the City' s Charter requirements for the adoption of ordinances
was declared a nullity. Indeed, the action of implementing .
Resolution 201 is ultra vires . The doctrine of ultra wires
precludes a municipal corporation from engaging in a course of
conduct where it specifically lacks authority. Parker v West
Bloomfield, 60 Mich App 583 ( 1985 ) .
It has been argued by some in the various briefs filed in the
litigation footnoted in this opinion and in various internal
memoranda created during this controversy, that because the Early
Retirement Plan was temporary in duration it is a ministerial or
temporary act and could be adopted by resolution. This position
holds little merit for reason that 144 individuals took advantage
of the Plan and, as a result, had their pension benefits increased
to a level greater than provided in the Pension Ordinance. This
benefit will last for many years . This will result in an
additional burden on the pension system and will likely cause
additional contributions to the pension system by the City of
Lansing because of funding requirements . This effect can hardly be
Page 10 of 17
City Attorney Opini No . 94-01 01/28/94
Re : Resolution 201/ -arly Retirement
called a "temporary" or "ministerial" matter . Furthermore, the
mandate of the Lansing Charter is clear in that the Pension System
can only be changed in the "manner determined by law" , i . e . , an
ordinance .
In conclusion, because the Early Retirement Plan was not adopted by
Ordinance as required by the Lansing Charter and the prevailing
case law in this State, it is our opinion that the Early Retirement
Plan as adopted by Resolution 201 is a nullity and is void.
II . THE TEAMSTER LOCAL 580 MEMORANDUM
OF UNDERSTANDING
The Early Retirement Plan with Teamsters Local 580 was agreed upon
in a Memorandum of Understanding Between the City of Lansing and
Teamsters Local 580 Regarding Voluntary Reduction In Force . This
memorandum was ratified by City Council on April 13 , 1992 .
Notwithstanding our conclusions and opinion as set forth in
"Analysis and Conclusion" , Section I above, we are of the opinion
that the Early Retirement Plan as agreed upon between the City and
the Teamsters as part of the collective bargaining process is valid
and binding .
While the negotiated benefit conflicts with the Charter and
Ordinance as explained above, decisions of the Michigan Supreme
Court make it clear that collective bargaining agreements under the
Public Employee Relations Act (PERA) prevail over conflicting
Charter and Ordinances . Local 1383 v City of Warren, 411 Mich 642
( 1981 ) ; Detroit Police Officers Ass ' n v Detroit, 391 Mich 44
( 1974 ) . Thus , as recognized in Detroit Police Officers Ass ' n,
supra , the substantive provisions of a municipal retirement plan
"are required to be left to collective negotiation under PERA" .
However, we recommend that an ordinance be adopted by the Council
as the Charter requires to amend the Pension Plan to reflect the
bargaining of the Early Retirement Plan with the Union.
III . NON-UNION EMPLOYEES AND THE TIE BAR
PROVISIONS IN NON-BARGAINING UNIT
PERSONNEL RULES
As referenced in the Statement of Facts section, the benefits of
Non-Union Employees are set forth in the Personnel Rules adopted by
the City Council . Those Personnel Rules which were adopted in 1985
Page 11 of 17
City Attorney Opini No . 94-01 ol/28/94
Re : Resolution 201. -arly Retirement
contain the Tie Bar provisions also referred to as set forth in the
Statement of Facts . The Tie Bar provisions contain mandatory
language which make increases in compensation automatically
applicable to Non-Union employees . Compensation has been held in
Michigan to include retirement benefits . Kane v City of Flint, 342
Mich 74 ( 1955 ) .
while we are of the opinion as set forth in Section I that
Resolution 201 did not validly amend the Retirement Ordinance , it
is a strong likelihood that the City of Lansing is contractually
bound to the applicable Non-Union Personnel to provide the benefits
afforded by the Teamster Memorandum of Understanding pursuant to
Toussaint v Blue Cross and Blue Shield, 408 Mich 579 ( 1980 ) .
Toussaint has been applied to public employees . Manning v City of
Hazel Park, Mich Ct of Appeals No . 134556 , Dec . 1993 .
This contract is founded upon the Personnel Rules adopted by the
City Council and specifically the Tie Bar provision .
However, it is our recommendation that the Early Retirement Plan
for non-union employees be ratified by ordinance for the reasons
set forth elsewhere in this Opinion.
IV . ELECTED OFFICIALS
Elected Officials not Included in Resolution 201
Because of the closing of the window period of the Early Retirement
Plan, only two elected officials are at issue in this Opinion.
They are former Mayor McKane and former City Clerk Blair . Neither
of these two elected officials completed their term of the office
to which they were elected by the voters , having opted to take
early retirement under the provisions of Resolution 201 . Each had
approximately one year remaining in their respective terms when
they retired.
The Early Retirement Plan was proposed by Mayor McKane in his
budget message as a cost cutting measure . A review of the message
by this office reveals no mention of reducing the force of elected
officials because of the budget problem . Indeed, the two offices
occupied by McKane and Blair were Charter-created and could not be
eliminated except by a vote of the people . Thus , no savings would
be realized.
A review of Resolution 201 also reveals no direct reference to
Page 12 of 17
City Attorney Opin: .i No . 94-01 01/28/94
Re : Resolution 201/Early Retirement
elected officials as eligible for the Early Retirement Plan . This
latter fact is significant because throughout the Charter, various
Ordinances and the Personnel Rules , the term "elected officials" is
consistently used as a separate class . Although we have reviewed
a document prepared by an actuary purportedly presented in closed
session to the Council which listed McKane and Blair as two members
of the retirement system as being eligible for early retirement ,
our review of the facts of this controversy has led us to the
conclusion that Council was informed after the adoption of
Resolution 201 that the resolution could be interpreted to include
elected officials . In fact, our review of portions of Mayor
McKane ' s testimony in the Vaughan case demonstrates that Mayor
McKane was surprised at a statement that he was included in the
Plan .
In construing Resolution 201 we do not believe it was the intent of
the Council by adopting the resolution as drafted to include
elected officials in Resolution 201 because of the lack of specific
reference to elected officials in the Resolution; the failure to
mention any, such fact in the budget address ; and the reference in
the resolution to executive and non-unionized personnel which are
terms specifically used to denote specific groups of employees
separate from elected officials who have their own Personnel Rules
dealing with compensation and benefits .
In addition, Resolution 201 refers to Exempt, Executive and Non-
Unionized employees . The terms "executive" and "non-unionized" are
specific terms used throughout the City of Lansing Personnel rules
to denote specifically defined groups of individuals . Elected
Officials are not individuals in this group . The term "exempt"
not
had a common understanding in City Hall for many years
include elected officials . In fact , this office has reviewed City
of Lansing documents which list "exempt" employees and we have
found no reference to elected officials in these documents .
In summary, we are of the Opinion that elected officials were not
offered the Early Retirement Plan by Resolution 201 . They simply
are not included in the resolution and there is no reference in the
minutes accompanying Resolution 201 ' s adoption which would
indicated otherwise ..
However, we do not rely on the above conclusion solely in rendering
our opinion for the reasons set forth below.
Page 13 of 17
City Attorney Opin: .i No . 94-01 01/28/94
Re : Resolution 201/Early Retirement
Lack of Ordinance and Lack of Tie Bar
While the two elected officials were members of the Retirement
System pursuant to the 1985 Personnel Rules for elected officials
and pursuant to the provisions of the Retirement Ordinance , for the
reasons set forth in Section One, our conclusion is that the
Retirement System was , not properly amended and that the Early
Retirement Plan was a nullity and ultra vires and elected officials
have no entitlement to early retirement benefits .
We are also of the opinion that no contractual considerations are
present with respect to elected officials . Contrary to conclusions
asserted in various office memoranda and court documents , the
Personnel Rules for Elected Officials specifically state :
"All elected officials in the City of Lansing
. . . are exempt from the personnel rules of the
City. "
The Personnel Rules of the City contain the contractual Tie Bars
discussed earlier .
Since a specific reference to elected officials in the Tie Bar is
missing, and because there is no reference to Elected Officials in
Resolution #201 and further, because of the exemption from the
Personnel Rules found in the Elected Officials rules , it is our
opinion that no early retirement contract obligates either the
Retirement System or the City to the two elected officials .
Public Policy
The effect of the purported Early Retirement Plan was to cause or
induce elected officials to leave the office to which they were
elected by the voters , thus , in effect, thwarting the will of the
voters . Strong public policy considerations are present in a
purported legislative enactment which induces an elected official
to leave office early as in this case . While we have found no
cases directly on point, the case of Ellis v Lennon, 86 Mich 468
( 189 1 ) struck down. an action of a municipality on the basis of
public policy because of the inducement present to vacate office .
We do not rely on- this issue of public policy exclusively in
deciding on elected officials ' eligibility under Resolution 201 ,
however, it deserves mention as a matter of serious concern .
Lansing ' s Charter, at 2-101 . 2 , and the Ellis decision, establish
Page 14 of 17
City Attorney Opinion No . 94-01 01/28/94
Re : Resolution 201/Early Retirement
that an elected official has a public duty to serve to the end of
his term. Official City action should not induce that official to
leave office for a personal benefit .
Estoppel
We have reviewed the issue of whether the doctrine of estoppel may
apply in the case of the elected officials . The doctrine of
estoppel will be applied to a municipality if , under all the
circumstances the acts of the public body have created a situation
where it would be inequitable and unjust to permit it to deny what
it has done or permitted to be done . See Parker v West Bloomfield,
60 Mich App 583 ( 1975 ) .
Under Parker, a party seeking the application of the doctrine of
estoppel against a municipality must show a good faith reliance
upon the municipality' s conduct, lack of actual knowledge or lack
of means of obtaining actual knowledge of the facts in question,
and a change in position to the extent he would incur a substantial
loss were the municipality allowed to disaffirm the previous
position.
Based upon the fact that the two elected officials ,were highly
placed officials in city government and, in fact, one was the Mayor
who proposed the Early Retirement Plan and was "surprised" to find
it included him, and based on the fact that the issue of an elected
official ' s eligibility for the Early Retirement Plan was raised as
an issue before the officials took early retirement, we do not
believe the elements of good faith reliance or the lack of the
means of obtaining actual knowledge of the facts are present . ( It
is also noteworthy that in December of 1992 a proposed ordinance
was presented by the Law Department to the Retirement Board to
ratify Resolution 4201 for recommendation to Council . Mayor McKane
was present at the Board meeting. )
In addition, and more to the point, Parker, at page 596 , holds that
Estoppel does not apply where a defendant I acks the power to engage .
in a specific course of conduct . For the reasons set forth in
Section I of this opinion, the City lacked the power to offer the
Early Retirement Plan to the elected officials because the Early
Retirement Plan was not enacted by Ordinance as required by
Charter.
Consequently, it is our conclusion that the City is not estopped to
Page 15 of 17
City Attorney Opiniva No . 94-01 01/28/94
Re : Resolution 201/Early Retirement
deny these two elected officials the increased benefits .
For this latter reason, we also are of the opinion that Const 1963 ,
Art 7 , Section 24 , which prohibits the diminishing or impairment of
accrued financial benefits of a pension plan is inapplicable .
Under Kosa v State Treasurer, 408 Mich 356 , 370-371 ( 1980 ) "accrued
financial benefits" means a right to receive a specified retirement
allowance based on service performed. Because the adoption of the
Early Retirement Plan was a nullity and ultra vires , the elected
officials have no right to receive a specified retirement benefit .
COMMITTEE OF THE WHOLE CLOSED SESSIONS
We have reviewed the minutes of -two Executive Sessions of the City
Council held on March 28 , 1992 and April 9 , 1992 . To the extent
that deliberations occurred during those meetings regarding elected
officials ' eligibility for retirement under Resolution 201 , such
deliberations most likely would have violated the Open Meetings
Act. This lends further support for our conclusion that Resolution
201 did not include elected officials because we presume that the
elected officials present at the meeting would not have knowingly
violated the Act . It appears that a City Attorney was also present
during those meetings and we likewise presume that he would not
have advised the Council to deliberate concerning elected
officials ' eligibility under Resolution 201 .
SUMMARY AND RECOMMENDATION
It is our conclusion that the Early Retirement Plan was improperly
adopted and is a nullity and void and the two elected officials are
not entitled to its benefits . It is our further opinion and
conclusion that the City is not liable for the increased benefits
to the two elected officials either under Resolution 201 or by
virtue of contract.
However, the City is liable for the increased benefits to the Union
and Non-Union Personnel mentioned in this opinion who elected to
take the Early Retirement Plan. Nevertheless , an Ordinance should
be presented and adopted to ratify Resolution 201 as to those
individuals because 'of Charter requirements .
We recommend that the Pension Board of Trustees be notified of this
Opinion with the advice that the Pension Benefits be reduced for
Page 16 of 17
City Attorney Opinion No . 94-01 01/28/94
Re : Resolution 201/Early Retirement
the two elected officers by eliminating the inclusion of the Early
Retirement Plan provisions .
CITY OF LANSING
DEPARTMENT OF LAW
By:
James D S iertka
City Att ney
cc : Council President Robert Brockwell
and Lansing City Council Members
Page 17 of 17
1 MS . RHODES : --yeah , I want to make a distinction
2 because your resporisibility is to give .legal advice--
3 MR. KNOT: That ' s true .
4 MS. RHODES : --and not political advice .
5 MR. KNOT: Absolutely.
6 MR. DUNNINGS : I mean legal advice . That ' s what I ' m
7 talking about . Preventive law.
8 MS . RHODES : Okay. Because legally, from what I ' ve
9 seen here , the Mayor was eligible for retirement .
10 MR. KNOT: Yes . Oh, yeah, there ' s nothing illegal
11 about whether or. not--
12 MS . RHODES : So when he asked you that question--
13 MR. KNOT: He was--I--he never asked whether he was ,
14 although if he ' d have broken the question out farther--
15 MS . RHODES : Okay.
16 MR. KNOT: --keep in mind the way he asked the
17 question was , are elected officials part of that .
18 MS . RHODES : Okay.
19 MR. KNOT: And what you need to keep in mind is with
20 an election year , I mean, I ' m going to--let ' s say, for
21 hypothetical purpose , to give him the benefit of the
22 doubt , he could very well have known that there was an
23 elected official in particular that qualified--
24 MS . RHODES : Uh-huh.
25 MR. KNOT: --and he was intrigued because he was
65
1 wondering if that person may possibly take it , it would b
L
2 less of a thorn in his side . So maybe he wasn ' t talking
3 about himself .
4 MS . RHODES : So he--okay, and given the
5 organizational structure again, you ' re out here--
6 MR. KNOT: Uh-huh.
7 MS . RHODES : --and you ' ve not been involved with his
8 inner circle--
9 MR. KNOT: Uh-huh.
10 MS . RHODES : You could have said , ves , however ,
11 Mayor , you bla-bla-bla , you could have said , it ' s none of
12 your business .
13 MR. KNOT: Oh, absolutely.
14 :MS . RHODES : Okay. So the organization structure
15 tells me that there was no association that would even
16 purport that you could go beyond that legal advice .
17 That ' s what I ' m--
18 MR. KNOT: That is correct .
19 MS . RHODES : Okay. All right . I just want to make
20 sure I 'm clear on that .
21 MR. KNOT: That is correct .
22 MS . RHODES : Because--you know, there is some--}-ou
23 know, you give advice , but yet if you have a close
24 personal association, you may go beyond that point as
25 opposed to just giving him what he asked for.
66
1 MR. KNOT: And I don' t mean this negatively. The
2 very reason may be politically he would riot , shall ve say
3 verbally sit down with me and discuss his personal plans ,
4 it would be very well because I also work for City
5 Council . And the last thing he might want is the chance
6 that all of a sudden I run into a council member--
7 MS . RHODES : Well , that ' s what I thought--
8 MR. KNOT: --you know, I ' m just saying, because I
9 work for both. And in fact I ' ll tell you that ' s one of
10 the reasons why labor relations , ( inaudible ) fought for
11 years , because the Mayor ' s office is charge of labor
12 relations directly by charter , why the city attorney has
13 never been there because the Mayor has--no matter-- this
14 Mayor and the prior Mayor have said, I don ' t want the ci_t
15 attorney going up to council and saying what ' s happening
16 in labor negotiations . I ' m responsible for it . And in
17 fact when we were cut out of the process from day 1 , I
18 believe it was the finance department ex.-en said that ,
19 Mayor , you can' t trust the city attorney because remember
20 if the city attorney- goes to a meeting up at City Council
21 he works for them too , and if they give him an order , tel
22 me what ' s going on in labor negotiations , he would have t
23 answer . Another department head who works only for the
24 Mayor could tell them, I work for the Mayor , not for you,
25 I ' m not going to give you any answer of what ' s going on i
` 67
JI labor negotiations . So therefore as a result the city
2 attorney has never been in there .
3 MS . RHODES : So at any--no point did the Mayor said-
4 say, am I eligible?
5 MR. KNOT: No , he ci i d not .
6 MS . RHODES : Okay.
7 MR. KNOT: He always used it generically and , as I
8 said , there ' s a number of reasons that--and I know we ' re
9 dealing now with a fact , but back then, and I didn' t thin
10 about it , he could very well have been enquiring because
11 there was maybe another elected official , friend or foe ,
12 that he knew qualified for it , and he was like trying to
13 figure out politically, gee , is that person going to take
14 it , because. I 'm up for election next year and maybe I nee
15 to get someone in line for an appointment to that
16 position. I ' m just saying , I mean, this is a political
17 world . He could very well start thinking that way and no
18 even intend to say, I ' m going to take it myself . I ' m
19 calling Al Knot because I want to know, you know, Let ' s
20 say whether the city clerk is going to take it , because I
21 may want to start grooming someone for that job if they
22 are . I may want to know if Alfreda or Tony are going to
23 take it . Terry lived in the 3rd Ward. He may say, I knot
24 someone who ' d be great and would be a friend, if I could
25 get him appointed to the 3rd Ward position, if Tony' s
68
I going to take it , for iris tance , so I ' m going start workin
2 now. You don ' t start working December 1 . You start
3 working, let ' s say, in June . 5o maybe he heard through
4 the grapevine that one of them was interested . I don ' t
5 know. I ' m just--I know as a fact that it happened, but i
6 fie asked me that question, do elected officials fall in
7 the retirement , he could very well not even--in my mind--
e not even thinking of himself . He could very well have
9 been trying to figure out if somebody else who he didn ' t
10 like on council qualified and whether they would then tak
11 it .
12 MS . RHODES : And you working for council , he sure
13 wouldn' t tell you.
14 MR. KNOT: Absolutely not . Because he would be
15 afraid I ' d go to that council member and say, you know,
16 the Mavor ' s really worried that you' re not going to take
17 it--
18 MR. COOK: Maybe--excuse me . Maybe the city attorne
19 ought to be elected.
20 MR. KNOT: Well , that ' s--
21 MR. DUNNINGS : Yeah--
22 MR. COOK: Well , I mean--
23 MR. DUNNINGS : --it ' s 7 : 30 . I think--I think we
24 appreciate Al coming. I 'm not the chairman, but I think
25 we ought to move the agenda--
69
'•IJV- -- .: 7`t 17•CYJ rftu .l,l ni u�ivL IU.Jl JAL JJIU I nl7L.GIL
Department of Law 1
MEMORANDUM
t , _ t
♦�Cu�'� "Equal Opportunlrr Fmpioycr- r
TO. STl±I.'HEN W. DUARTE, Finance Director Alp f
FROM: MELVIN S. MCWIL 1AMS, Chief Asst. City Attorney
DATE: July 21, 1992
RE: GENERAL EMPLOYEES RETIREMENT SYSTEM ORDINANCE
AMENDMENT/EARLY RETIREMENT 1NCENTYVE
Attached is a proposed ordinance amending the General Employees Retirement System to authorize
the Board of Trustees to grant increased benefits to those members retiring under the early
retirement incentive.
You may wish-to provide this to the Board of Trustees as an informational item. However, more
importantly at this time, the ordinance noeds to be introduced before the Council and a public
hearing set so that it can be adopted. While the City has made the commitment to the early out,
.-the retirement system ordinance does not yet reflect that the trustees have the authorization to
grant the increased benefits.
Please carefully review the draft and if it meets with your approval, forward the same to the
Mayor and the Council for introduction and setting the public hearing.
MSM/sp
Attachment
cc: Mayor McKane
Karen Jackson
Jan Lazar
Al Knot
'IJV-L J 7`i 17%Cl f KUI'I.l,l 1 I n I I UitiYG i
DRAFT #1
07/20/92
1
2 ORDINANCE NO.
3
4 AN ORDINANCE TO AMEND CHAPTER 292 OF THE CODIFIED
5 ORDINANCES OF THE CITY OF LANSING BY ADDING A NEW SECTION
6 292 . 32 TO AUTHORIZE THE BOARD OF TRUSTEES TO GRANT
7 ELIGIBLE MEMBERS INCREASED BENEFITS AS AN EARLY
8 RETIREMENT INCENTIVE IN ACCORDANCE WITH THE TERMS OF
9 COLLECTIVELY BARGAINED AGREEMENTS AND/OR RESOLUTIONS OF
10 THE COUNCIL.
11
12 The City of Lansing ordains :
13
14 Section 1 . That Chapter 292 of the Codified Ordinances of
15 the City of Lansing, Michigan be amended by adding a new section
16 292 . 32 to read as follows :
17
18 292 . 32 EARLY RETIREMENT INCENTIVE.
19 NOTWITHSTANDING ANY PROVISION IN THIS CHAPTER TO THE CONTRARY,
20 THE BOARD OF TRUSTEES SHALL GRANT ELIGIBLE MEMBERS INCREASED
21 BENEFITS AS AN EARLY RETIREMENT INCENTIVE IN ACCORDANCE WITH THE
22 TERMS OF ANY COLLECTIVELY BARGAINED AGREEMENTS AND/OR RESOLUTIONS
23 OF THE COUNCIL.
?4
25 Section 2 . All ordinances or parts of ordinances
26 inconsistent with the provisions hereof are hereby repealed.
27
28 Section 3 . This ordinance shall take effect thirty ( 30)
29 days from the date of its passage unless given immediate effect by
30 the City Council .
1
NUU-20 y4 ly:21 F HUM.1.1 I Y H I I UFKNEY 463-4061 I U:51 f Uc{
Department l,e en of. Law
p
MEMORANDUM
a - �
��C1ftG►�► "Equal Opportunity employer
TO: ALVAN P. KNOT, CITY ATTORNEY
"�l/k
FROM: MELVIN S . MCWILLIAMS , CHIEF ASSISTANT CITY ATTORNEY
DATE: DECEMBER 10, 1992
RE: EMPLOYEES RETIREMENT SYSTEM - ORDINANCES NEEDED
As I have indicated on several occasions the draft ordinance
amendment authorizing the Board of Trustees to pay the early
retirement incentives still has not been forwarded to the Council
and introduced ( forwarded to Duarte on July 21 , 1992 ) . While the
council has adopted the Early Retirement Resolution, and approved
the collective bargaining memorandum of understandings, it is
reasonable for the Board of Trustees to expect the Council to give
it clear ordinance authority since exempt and elective officials
aren ' t covered by the collective bargaining memorandum of
understanding.
Since the Board of Trustees is charged with enforcement of the
retirement ordinance , changes to it , except perhaps for members
covered by the collective bargain agreements , should be made by
ordinance . Michigan law still recognizes the general rule that an
ordinance cannot be amended by another act of council of less
dignity than the original ordinance itself. See McCarthy v Village
of Marcellus , 32 Mich App . 679 , 687 (1971 ) , citing 6 McQuillin ,
Municipal Corporations , 1969 Rev, sec. 21 . 04 , p 199 ; City of
Saginaw v Consumers Power Company, 213 Mich 460 ( 1921 ) ; Whitney v
village of Hudson, 69 Mich 189 ( 1888 ) .
Also, for your information, the draft ordinance forwarded to Steve
Duarte to make mandatory transfers to the defined contribution plan
in the event one transfers to a covered position (Teamster, Exempt
and EP ) , still is yet to go to council . Without this and the
clarification memorandum of understanding being worked on by
Personnel, the deferred benefit plan will not be closed off . This
mandatory transfer requirement Will apply to those hired after
October 1 , or October 29 , 1990 , as applicable .
/tls
7
OFFICIAL PROCEEDINGS OF THE BOARD OF TRUSTEES
CITY OF LANSING
EMPLOYEES RETIREMENT SYSTEM
Regular Meeting for December December 17 , 1992
8th Floor Conference Room Thursday, 8: 35 a.m.
The Board met in regular session and was called to order by the
Chairperson, Robert Moye, at 8 : 35 a.m.
Present: Trustee Brewington, Goodin, McKane, Moye, Murphy and
Pontz - 6
Absent: Benavides - 1
Present: Stephen Duarte, Secretary, Douglas Rubley, Steven Dougan
and Teri Cook, Finance Dept. ; Edward Piloske, Internal
Audit; Melvin McWilliams, Law Dept.
The Secretary reported 0 new members, 1 reinstatements, 0 refunds,
0 transfers and 5 retired. Total active membership: 749. Refunds
made since the last regular meeting: $0 . 00 . Retirement allowances
paid for the month of November, 1992 amount to $399 , 261 . 16 . Total
number of retirement checks printed ERS 537 , total retirement
checks printed for all three systems 940 .
Trustee McKane arrived at 8 : 45 a.m.
It was moved by Trustee Goodin, supported by Trustee Murphy that
the Board approve the request for refund of accumulated
contributions from Susan J. Nye, who left 911 for a position in the
Fire Department. This motion was adopted by the following roll
call vote:
Yeas : Brewington, Goodin, McKane, Moye, Murphy, Pontz - 6
Nays : None
It was moved by Trustee Murphy, supported by Trustee Pontz that the
Board approve the application for Regular Age and Service
Retirement for:
Armsted, James D. , Lansing Housing Commission, 11 years 2 months,
Age 69 , effective December 26, 1992 .
Yerian, Alfred D. , Public Service, 26 years 2 months, Age 51,
effective December 1, 1992 .
The motion was approved by the following roll call vote:
Yeas : Brewington, Goodin, McKane, Moye, Murphy, Pontz - 6
Nays : None
Employees Retirement System
Regular Meeting of December 17, 199a,
Page 2
It was moved by Trustee Goodin, supported by Trustee Brewington
that the Board received and placed on file the following
applications submitted under the Reduction in Force Incentive for
Deferred Retirement until age plus service adds up to 65 points
( 2 .75o multiplier) for :
Ellison, Ricky T. , Administrative Services, effective July 8, 1993 .
Fowler, Pamala K. , Mayor ' s Office, effective December 5 , 1993 .
Green, Karen K. , Police Department, effective December 1 , 2001 .
Kazenko, Rosemarie, Mayor ' s Office, effective July 1 , 1996 .
McCook, Jacqueline J. , Police Department, effective February 5 ,
1993 .
Teall, Stephen D. , Administrative Services , effective March 25 ,
1993 .
This motion was adopted by the following roll call vote:
Yeas: Brewington, Goodin, McKane, Moye, Murphy, Pontz - 6
Nays: None
It was moved by Trustee Goodin, supported by Trustee Murphy that
the Board approved the following applications for retirement under
the Voluntary Reduction in Work Force with 5 additional years
included:
See attached list:
Adopted by the following roll call vote:
Yeas: Brewington, Goodin, McKane, Moye, Murphy, Pontz - 6
Nays: None
Stephen Duarte, Secretary to the Employees ' Retirement System
certified that one nominating petition was received by the
Retirement Office by 4 : 00 p.m. on November 30 , 1992 , for John S.
Brodie, Parks and Recreation. Due to only one party running for
trustee, it will not be necessary to hold an election and that John
S. Brodie shall be deemed Parks and Recreation Trustee to the
Employees ' Retirement System and will serve on the Board from
January 1 , 1993 through June 30, 1994 .
A letter was read from Trustee Roy Murphy resigning his position as
trustee due to his acceptance of the Early Retirement option.
Trustee Murphy' s resignation is effective December 18 , 1992.
Employees Retirement System
Regular Meeting of December 17 , 1992
Page 3
The deadline for receipt of nominating petitions will be 4 : 00 p.m.
on Tuesday, January 19 , 1993 . Nominating petitions must contain
not less than 25 nor more than 50 member signatures. The Primary
Election to determine candidates for the General Election will be
held over the two day period of Monday, February 1, and Tuesday,
February 2, 1993 . The General Election, if necessary, to select
the trustee member will be held over the two day period of Monday,
February 15 and Tuesday, February 16 , 1993 .
Mr. Duarte presented for the Board' s approval the following names
as election inspectors for the upcoming Trustee Election. They
are: Toni Glascoe and Joseph Jardine, Public Service Department.
It was moved by Trustee Brewington, supported by Trustee McKane
that the Board approve the above listed individuals as election
inspectors for the Trustee Election.
Adopted by the following vote: Unanimously.
A letter was received from Julia M. Cherry, District Court,
requesting to buy back her service credits. This items was tabled
for more information.
The schedule for meeting dates for 1993 was reviewed. It was moved
by Trustee McKane, supported by Trustee Murphy that the schedule of
meeting dates for 1993 be approved. Adopted by the following vote:
Unanimously.
Mr. Duarte stated that there were no Domestic Relations Orders
Received.
Mr. Duarte stated that he had certified one Eligible Domestic
Relations Order regarding David Garcia.
It was moved by Trustee McKane, supported by Trustee Goodin to
excuse Trustee Benavides from the meeting.
Adopted by the following vote: Unanimously.
Mr. McWilliams passed out draft 41 of an amendment to Chapter 292
of the Codified Ordinances of the City of Lansing by adding a new
section 292 . 32 to authorize the Board of Trustees to implement
early retirement benefits . Discussion was . held on the wording of
the amendment. Changes were suggested and Mr. McWilliams had the
changes implemented and gave the board copies of draft *2 .
It was moved by Trustee Brewington, supported by Trustee McKane
that the Board approve Draft 42 an ordinance to amend Chapter 292
of the codified Ordinances of the City of Lansing by adding a new
section 292 . 32 to authorize the Board of Trustees to implement
early retirement benefits .
Adopted by the following vote: Unanimously.
Employees Retirement System
Regular Meeting of December 17 , 1992
Page 4
Trustee McKane stated that this was his last Board meeting. He
thanked everyone on the Board. Trustee McKane wished the Board the
best of luck and a Happy Holiday.
Mr. Duarte stated that the Prefunding Ordinance had been referred
to the Ways and Means Committee. The Committee did not want to
recommend it to City Council until they receive an actuarial
report. Mr. Duarte encouraged the Committee to approve the
ordinance. Mr. Duarte encouraged the Board to continue to pursue
this issue.
Mr. Rubley suggested, after meeting with Lazard Freres at Joint
Board Meeting, that the Board put Lazard Freres on six month
probation. Mr. Rubley recommended that the City lower its equity
exposure. He would like to draw $1-2 million.
It was moved by Trustees Brewington, supported by Trustee McKane
that the Board put Lazard Freres on six months probation.
Adopted by the following vote: Unanimously.
Also, Mr . Rubley advised the Board on the external management
performance for December 1992.
The meeting adjourned at 10 : 05 a.m.
Douglas L. Rubley, Interim Secretary
Employees Retirement System
Application for Retirement - Voluntary Reduction in
Work Force with 5 Additional Years Included:
Blair, James D. , City Clerk, 24 years 0 months service credit, age
47 , effective January 5 , 1993 .
Cool, Robert A. , Parks & Recreation , 27 years 9 months service
credit, age 49 , effective January 5 , 1993 .
Coscarelli, Wilma J. , Planning & Municipal Development, 25 years 0
months service credit, age 50, effective January 5, 1993 .
Dryer, Evelyn M. , Public Service, 18 years 8 months service credit,
age 56, effective January 5, 1993 .
Duarte, Stephen, Finance Department, 23 years 5 months service
credit, age 45 , effective January 5 , 1993 .
Gunter, Elizabeth, Planning & Municipal Development, 19 years 7
months service credit, age 45, effective January 5 , 1993 .
Heckaman, Terry, Public Service-O&M, 28 years 0 months service
credits, age 42, effective November 15 , 1992 .
Kanazeh, Joseph, City Council/Internal Audit, 25 years 6 months
service credit, age 50 , effective January 5 , 1993 .
Kessler, Kaye , Administrative Services , 19 years, 8 months service
credit, age 50, effective January 5 , 1993 .
Kruch, Robert A. , Planning & Municipal Development, 22 years 9
months service credit, age 47, effective January 5 , 1993 .
Kundrock, Carlene M. , Public Service/Wastewater, 21 years 6 months
service credit, age 56 , effective January 5, 1993 .
McKane, Terry, Mayor ' s Office, 26 years 9 months service credit,
age 51, effective December 29 , 1992 .
Millet, Catherine M. , Human Relations , 29 years 4 months service
credit, age 53 , effective January 5 , 1993 .
Piloske, Edward J. , City Council/Internal Audit, 24 years 7 months
service credit, age 46 , effective January 5, 1993 .
Pulver, Kenneth D. , Public Service, 17 years , 0 months service
credit, age 55 , effective January 5 , 1993 .
Ransom, Walter G. , Public Service, 30 years 4 months service
credit, age 44, effective January 5 , 1993 .
Spencer, Thomas E. , Public Service, 20 years 11 months service
credit, age 49 , effective January 5 , 1993 .
Stock, Kenneth J. , Assessor, 29 years 7 months service credit, age
46, effective January 5, 1993 .
Stout, Donna J. , Police Department, 25 years 11 months service
credit, age 48, effective January 5 , 1993 .
Stowell, Ronald J. , Administrative Services, 22 years 2 months
service credit, age 43 , effective January 5, 1993 .
City Attorney OpiiL-,on No . 94-01 01/28/94
Re : Resolution 201/Early Retirement
contain the Tie Bar provisions also referred to as set forth in the
Statement of Facts . The Tie Bar provisions contain mandatory
language which make increases in compensation automatically
applicable to Non-Union employees . Compensation has been held in
Michigan to include retirement benefits . Kane v City of Flint, 342
Mich 74 ( 1955 ) .
While we are of the opinion as set forth in Section I that
Resolution 201 did not validly amend the Retirement Ordinance, it
is a strong likelihood that the City of Lansing is contractually
bound to the applicable Non-Union Personnel to provide the benefits
afforded by the Teamster Memorandum of Understanding pursuant to
Toussaint v Blue Cross and Blue Shield, 408 Mich 579 ( 1980 ) .
Toussaint has been applied to public employees . Manning v City of
Hazel Park, Mich Ct of Appeals No . 134556 , Dec . 1993 .
This contract is founded upon the Personnel Rules adopted by the
City Council and specifically the Tie Bar provision .
However, it is our recommendation that the Early Retirement Plan
for non-union employees be ratified by ordinance for the reasons
set forth elsewhere in this Opinion.
IV. ELECTED OFFICIALS
Elected Officials not Included in Resolution 201
Because of the closing of the window period of the Early Retirement
Plan, only two elected officials are at issue in this Opinion .
They are former Mayor McKane and former City Clerk Blair. Neither
of these two elected officials completed their term of the office
to which they were elected by the voters , having opted to take
early retirement under the provisions of Resolution 201 . Each had
approximately one year remaining in their respective terms when
they. retired.
The Early Retirement Plan was proposed by Mayor McKane in his
budget message as a cost cutting measure . A review of the message
by this office reveals no mention of reducing the force of elected
officials because of the budget problem. Indeed, the two offices
occupied by McKand and Blair were Charter-created and could not be
eliminated except by a vote of the people. Thus , no savings would
be realized .
A review of Resolution 201 also reveals no direct reference to
Page 12 of 17
City Attorney Opinion No . 94-01 01/28/94
Re : Resolution 201/Early Retirement
elected officials as eligible for the Early Retirement Plan . This
latter fact is significant because throughout the Charter, various
Ordinances and the Personnel Rules , the term "elected officials" is
consistently used as a separate class . Although we have reviewed
a document prepared by an actuary purportedly presented in closed
session to the Council which listed McKane and Blair as two members
of the retirement system as being eligible for early retirement,
our review of the facts of this controversy has led us to the
conclusion that Council was informed after the adoption of
Resolution 201 that the resolution could be interpretedst of include
elected officials . In fact, our review of portions
o
Mayor
McKane ' s testimony in the Vaughan case demonstrates that Mayor
McKane was surprised at a statement that he was included in the
Plan .
In construing Resolution 201 we do not believe it was the intent of
the Council by adopting the resolution as drafted to include
elected officials in Resolution 201 because of the lack of specific
reference to elected officials in the Resolution; the failure to
mention any: such fact in the budget address ; and the reference in
the resolution to executive and non-unionized personnel which are
terms specifically used to denote specific groups of employees
separate from elected officials who have their own Personnel Rules
dealing with compensation and benefits .
In addition, Resolution 201 refers to Exempt, Executive and Non-
Unionized employees . The terms "executive" and "non-unionized" are
specific terms used throughout the City of Lansing Personnel rules
to denote specifically defined groups of individuals . Elected
Officials are not individuals in this group . The term "exempt"
has
not
had a common understanding in City Hall for many years
include elected officials . In fact, this office has reviewed City
of Lansing documents which list "exempt" employees and we have
found no reference to elected officials in these documents .
In summary, we are of the Opinion that elected officials were not
offered the Early Retirement Plan by Resolution 201 . They simply
are not included in the resolution and there is no reference in the
minutes accompanying Resolution 201 ' s adoption which would
indicated otherwise ..
However, we do not rely on the above conclusion solely in rendering
our opinion for the reasons set forth below.
Page 13 of 17
City Attorney Opin—n No . 94-01 01/28/94
Re : Resolution 201/Early Retirement
Lack of Ordinance and Lack of Tie Bar
While the two elected officials were members of the Retirement
System pursuant to the 1985 Personnel Rules for elected officials
and pursuant to the provisions of the Retirement Ordinance, for the
reasons set forth in Section One, our conclusion is that the
Retirement System was not properly amended and that the Early
Retirement Plan was a nullity and ultra vires and elected officials
have no entitlement to early retirement benefits .
We are also of- the opinion that no contractual considerations are
present with respect to elected officials . Contrary to conclusions
asserted in various office memoranda and court documents , the
Personnel Rules for Elected Officials specifically state :
"All elected officials in the City of Lansing
. . . are exempt from the personnel rules of the
City. "
The Personnel Rules of the City contain the contractual Tie Bars
discussed earlier.
Since a specific reference to elected officials in the Tie Bar is
missing, and because there is no reference to Elected Officials in
Resolution #201 and further, because of the exemption from the
Personnel Rules found in the Elected Officials rules , it is our
opinion that no early retirement contract obligates either the
Retirement System or the City to the two elected officials .
Public Policy
The effect of the purported Early Retirement Plan was to cause or
induce elected officials to leave the office to which they were
elected by the voters , thus, in effect, thwarting the will of the
voters . Strong public policy considerations are present in a
purported legislative enactment which induces an elected official
to leave office early as in this case . While we have found no
cases directly on point, the case of Ellis v Lennon, 86 Mich 468
( 1891) struck down. an action of a municipality on the basis of
public policy because of the inducement present to vacate office .
We do not rely on' this issue of public policy exclusively in
deciding on elected officials ' eligibility under Resolution 201 ,
however, it deserves mention as a matter of serious concern .
Lansing ' s Charter, at 2-101 . 2 , and "the Ellis decision, establish
Page 14 of 17
BOARD OF ETHICS
ATTENDANCE ROSTER
MEETING OF DECEMBER 1 , 1994-8: 15 A.M.
Name Dept./Str. Address Phone #
-Alm
OPINION #21
CITY OF LANSING
BOARD OF ETHICS
TO: James Smiertka, City Attorney
FROM: Board of Ethics
RE: ALLEGED CHARTER AND ORDINANCE VIOLATIONS:
TERRY MCKANE
DATE:
After investigating citizen complaints received by the Board
of Ethics following the passage and purported implementation of 1992
Council Resolution 201, the Board of Ethics determines:
Probable cause to believe violations occurred does exist
and pursuant to Section 290.03(a) of the Code of Ordinances
recommends prosecution of the following violations to the
City Attorney.
See attached Memorandum to the Board of Ethics dated
November 29 , 1994
WARNING!
THE APPLICABLE STATUTE OF LIMITATIONS MAY PRECLUDE
SUCH ACTION AFTER DECEMBER 17, 1994. IMMEDIATE
ATTENTION IS REQUESTED!
Respectfully Submitted,
THE SING BOARD OF ETHICS
4�-74� _C:e
SLADE, JO F. MERT hair
City Clerk
DONALD COOK, Vce-Chair
C ISSNE ,
Public Member
The City Attorney did not participate in this action.
2 TO:: . Board of Ethics of City of Lansing
3 FROM: Tom Downs, Special Assistant City Attorney
4 SUBJECT: Alleged Violations by Former Mayor Terry McKane
5 DATE: November 29, 1994
6 On November 2, 1994, based upon authority granted pursuant to
7 Section 4-304.6 of the City Charter, the Board of Ethics entered into a
8 contract with Tom Downs to, among other things, provide the board with
9 legal services in regard to:
10 All factual and legal issues arising during the Board's
11 investigation to determine whether there is probable cause to
believe that individuals formerly still in government
121 service with the City of Lansing violated the City Charter
and/or the Ethics Ordinance, or other laws setting standards
13 of conduct for City officers and employees by participating in,
voting upon, or acting upon 1992 Council Resolution #201 and
141 related matters...
11
15 The duty of the Board of Ethics upon receiving complaints follow
16 the procedure defined in ordinance 290.03(a) which reads:
17 290.03 COMPLAINTS.
18 (a) Any person may file a signed written complaint with the City
Clerk alleging a violation of this chapter. Upon receipt of such a
19 complaint, the City Clerk shall forward the complaint to the Board
of Ethics which shall investigate to determine whether or not
20 probable cause exists to believe a violation of this chapter occurred.
If the Board determines that probable cause to believe a violation
21 occurred does exist, it may recommend prosecution of the violation
i' to the City Attorney.
22
Probable cause is defined in Black's Law Dictionary (6th Edition, p.
23 1! 1201) as:
i
24 Reasonable cause; having more evidence for than against. A
reasonable ground for belief in certain alleged facts. A set of
25 probabilities grounded in the factual and practical considerations
26
which govern the decisions of reasonable and prudent persons and
is more than mere suspicion but less than the quantum of evidence
27 ', required for convictions.
TOM DOWNS Il14
ATTORNEY AT LAW � December 1, 1994 8:59 AM (pjv) 1
230 N.WASHINGTON SOUARE
SUITE 306
_ANSING, MICHIGAN 48933
it
l
1
21
3 ALLEGED VIOLATIONS
i
4 COUNTI
5 On December 17, 1992, Terry McKane, serving as an officer of
6 the City of Lansing and as a Trustee of the Employee Retirement
System, voted to authorize payment of pension benefits to himself
7 and James Blair in excess of those provided by law, when, in fact,
he had no authority to do so, contrary to Section 290.04(i) of the
8 Code of Ordinances, as made punishable by Section 202.99(a) of j
the Code of Ordinances. j
S I
ELEMENTS
I
10
1. On or about December 17, 1992;
11 2, In the City of Lansing;
12 3. Defendant; j
4. While serving as an officer of the City of Lansing;
13 5. Authorized an action;
6. When he had, in fact, no authority to do so.
14
COUNT II
15
On December 17, 1992, Terry McKane, serving as an officer of
16 the City of Lansing and as a Trustee of the Employees Retirement
System, voted to approve the payment of pension benefits to
17 himself in excess of those provided by law, an act which was an
unauthorized use of his public position, or an unauthorized use of
18 confidential information received through holding such public
19 position, to obtain financial gain for himself that was not his
regular compensation as a public officer, contrary to Section
20 290.04(f) of the Code of Ordinances, as made punishable by
Section 202.99(a) of the Code of Ordinances.
21 ELEMENTS
I
22
1. On or about December 17, 1992;
23 2. In the City of Lansing;
3. Defendant;
24 4. While serving as an officer of the City of Lansing;
5. Did make unauthorized use of his public position, or any
25 confidential information received through holding such
26 pubic position;
6. To obtain financial gain for himself,
27 7. That was not his regular compensation as a public officer.
TOM DOWNS
rTORNEY AT LAW November 29, 1994 2:32 PM(pjv) 2
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U i
1
2
COUNT III
3 On December 17, 1992, Terry Mckane, serving as an officer of
4 the City of Lansing and as a Trustee of the Employees Retirement
System, voted to approve the payment of pension benefits to
5 himself in excess of those provided by law, which was
anunauthorized use of personnel, resources, property or funds
g under his official care and control to obtain financial gain for
himself, contrary to Section 290.04(g) of the code of Ordinances, as
7 made punishable by Section 202.99(a) of the Code of Ordinances.
81 ELEMENTS
�I
9 1. On or about December 17, 1992;
2. In the City of Lansing;
10 3. Defendant;
4. While serving as an officer of the City of Lansing;
I1 5. Did make unauthorized use of personnel, resources,
12 property or funds under his official care and control;
6. To obtain financial gain for himself.
13
COUNT IV
14�
On December 17, 1992, Terry McKane, while serving as an
15 officer of the City of Lansing, participated in, voted upon, or acted
upon a matter in which a conflict of interest existed, by voting, as
16 ! a Trustee of the Employees Retirement System, to authorize the
payment of retirement benefits to himself, contrary to Sections 5-
171 501.1 and 5-505.3 of the Lansing City Charter, as made punishable
18
by Section 1-501 of the Lansing City Charter.
�
19 ELEMENTS
i
20 1. On or about December 17, 1992;
2. In the City of Lansing;
21 3. Defendant;
4. While serving as an officer of the City of Lansing;
22 5. Participated in, voted upon or acted upon a matter;
6. In which a conflict of interest existed.
231
COUNT V
24
On December 17, 1992, Terry McKane, while serving as an
25 officer of the City of Lansing, participated in, voted upon, or acted
upon a matter in which a conflict of interest existed without first
26 having disclosed the conflict of interest, by voting as a Trustee of
27 j the Employees Retirement system, to authorize the payment of
OM DOWNS
'TORNEY AT LAW November 29, 1994 2:32 PM(pjv) 3
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I
VG,HIICHIGAN 48933
1 retirement benefits to himself, contrary to Section 5-501.1 and
5.505.2 of the Lansing City Charter, as made punishable by
2
Section 1-501 of the Lansing City Charter.
3 ELEMENTS
4 1. On or about December 17, 1992;
5 2. In the City of Lansing;
3. Defendant;
6 4. While serving as an officer of the City of Lansing;
5. Participated in, voted upon or acted upon a matter;
7 6. In which a conflict of interest existed;
7. Without first having disclosed the conflict as required by
8 law.
9 COUNT VI
10 On December 17, 1992, Terry McKane, while serving as a
11 officer in the City of Lansing, made or participated in making a
decision in his capacity as an officer knowing that the decision
12 would provide him a financial benefit of more than a jj,- minimus
nature and without disclosing the conflict of interest, by voting as
13 a trustee of the Retirement System, to authorize the payment of
retirement benefits to himself, contrary to Section 290.05(a) of the
14 Code of Ordinances, as made punishable by Section 202.99(a) of
the Code of Ordinances.
151
ELEMENTS
16
1. On or about December 17, 1992;
17 2. In the City of Lansing;
3. Defendant;
18 4. While serving as an officer of the city of Lansing;
19 5. Made or participated in making a decision in his
capacity as an officer;
20 6. Knowing the decision would provide him a financial benefit
of more than a dg minims nature;
21 7. Without first having disclosed the conflict as
required by law.
22
COUNT VII
23
Between April 13, 1992 and December 30, 1992, Terry McKane
24 failed, as Mayor of the City of Lansing, to exercise the proper
course of supervision and coordination over the several heads of
25 government, and to see that the laws, ordinances, and regulations
26 of the City were enforced, by failing to see that an ordinance
implementing 1992 Council Resolution 201 was introduced and
27 passed prior to implementation of the Early Retirement Incentive
OM DOWNS
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i Program, contrary to Charter Section 4-102.1, as made punishable
by charter Section 1-501.
21
3 ELEMENTS
41 1. Between April 13, 1992 and December 30, 1992;
2. In the City of Lansing;
5 3. Defendant
4. Failed to perform his mandatory legal duties as Mayor
6,� set forth in the Charter.
i
7i
ETInF.NCE STTNfMARY
1. Mr. McKane was elected to serve as mayor of Lansing for a
9 fixed term extending from noon on January 1, 1989 until noon January 1,
1994 (Section 2-101.2 of the City Charter). On November 25, 1992, Mayor
10 McKane announced his early retirement under Resolution 201. (See
Exhibit 1) Mr. McKane resigned effective December 30, 1992 and received
i l early retirement benefits until they were terminated in early 1994.
12 1 2. Citizen complaint letters were received by the Board of
13' Ethics in December 1992 and January 1993 alleging that former Mayor
McKane violated the Standards of Conduct required of elective officers.
14 The letters are on file in the City Clerk's office.
1
15,' 3. On March 23, 1992, then Mayor McKane presented a budget
to City Council which proposed to reduce white collar employees by means
1611 which were not clearly specified. (See City Attorney Opinion 94-01)
(Exhibit 2)
17
I! 4. In a taped and transcribed interview with the Board of Ethics
181 on July 1, 1993, former Personnel Director Karen Brewington testified
19' that former Finance Director Stephen W. Duarte had oversight of the
retirement system and served as Secretary to the Employees Retirement
20 System. The testimony of all Council members interviewed by the Board
of Ethics was consistent. All Council members also agreed that Resolution
21I1I, 201 was presented by Mr. Duarte, and presumably drafted by him or at
his direction. Transcripts of the interviews are on file in the City Clerk's
22:1 office.
23 5. 1992 Council Resolution 201 does not include any direct
reference to elected officials. City Attorney Opinion 94-01 finds that
24 elected officials are a distinct class, the stated justification does not apply
to them, the City's personnel rules specifically exclude elected officials and
25 the existing personnel rule "tie-bar" does not refer to elected officials. The
opinion concludes, therefore, that no early retirement contract obligates
26 either the Employees Retirement System or the City to pay such benefits
27 to elected officials.
TOM DOWNS
ATTORNEY AT LAW December 1, 1994 8:45 AM (pjv) 5
230 N.WASHINGTON SQUARE
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ANSING, MICHIGAN 48933
6. On the other hand, then City Attorney Alvan P. Knot
2 tes 11ed before the Board of Ethics on July 1,1993 in a taped and
3 transcribed interview, that Mr. McKane had asked him (possibly more
than once) at unspecified time(s) in 1992 whether Resolution 201
4 authorized elected officials to retire and claim its benefits and that he had
replied that it did. (Transcript, pp. 65-69) The transcript is on file in the
5 City Clerk's office (See Exhibit 3 - July 1, 1993 Transcript, Board of Ethics
Special Meeting, pp. 65-69)
6
7. Additionally, former City Attorney Knot's opinion to Council
7 member Beal of September 24, 1992 assumes Resolution 201 applied to
elective officials, although without stating any grounds for this conclusion.
8
8. However, City Attorney Opinion 94-01 finds no credible legal,
9 factual or public policy argument can be made that Resolution 201
authorized the payment of early retirement benefits to our elected
10 officials. City Attorney Opinion 94-01 also states:
11 Our analysis of legal conclusions previously issued from within
12 City Government and from outside sources has been especially
difficult to analyze because of our difficulty locating the necessary
13 factual foundations supporting those conclusions. Indeed,
stipulations of fact have been made by former representatives
14 of the City in litigation that this office has found difficulty in
supporting from a legal standpoint."
15
9. City Attorney Opinion 94-01 also agrees with Opinion 20 of
16 the Board of Ethics which questions whether early retirement benefits can
even be legally offered to or taken by public officers as a matter of public
17 policy. The Michigan Supreme Court in Ellis v Lennon, 86 Mich 468
(1891), held that elected officers may not personally benefit at public
18 expense by resigning early from their elected positions. The Supreme
19 Court said, "While the law concedes the right of resignation, it is its policy
to take away all inducements to the vacation of office." 86 Mich at 473.
20 10. City Attorney Opinion 94-01 also agrees with Opinion 20 that
21 Resolution 201 purported to amend an ordinance contrary to the Lansing
Charter. The City Attorney's Opinion found Resolution 201 was a legal
22 nullity. The opinion goes on to state that:
23 "...Indeed, the action of implementing Resolution 201 is
ultra vires. the doctrine of ultra vires precludes a municipal
24 corporation from engaging in a course of conduct where it
specifically lacks authority. Parker v West Bloomfield, 60 Mich App
25 , 583 (1985)."
26 11. Lansing Charter Section 2-106 provides:
27
"Every.elective officer and every appointee before entering
TOM DOWNS Ili
ATTORNEY AT LAW December 1, 1994 8:48 AM (pjv) 6
'_30 N.WASHINGTON SQUARE
SUITE 306
\NSING, MICHIGAN 48933
I on official duties shall take and subscribe the following
oath: "I do solemnly swear (or arm) that I will support the
2 affirm)
of the United States and the Constitution of
this State and that I will faithfully discharge the office of
3 , according to the best of my ability,"..."
4 '
12. As Mayor, Mr. McKane also served as a member of the
5 Employees Retirement System Board of Trustees. Pursuant to Chapter
292 of the Code of Ordinances, the Board of Trustees must approve all
6 applications for pension benefits prior to their actual payment from
1 pension funds.
7
13. In a memo to Stephen W. Duarte, (Exhibit 5) then Finance
8 Director, dated July 21, 1992, from Chief Assistant City Attorney, Mel
McWilliams wrote:
9 '
Attached is a proposed ordinance amending the General
loll Employees Retirement system to authorize the Board of
11 Trustees to grant increased benefits to those members
retiring under the early retirement incentive..."
12 "...While the City has made the commitment to the early
13 out, the retirement system ordinance does not yet reflect that the
trustees have the authorization to grant the increased benefits..."
14
Mr. McWilliams also sent a copy of this memorandum to Mr. McKane.
151
14. Mr. McWilliams sent a follow-up memo to the same effect to
1611 former City Attorney Knot on December 10, 1992. (Exhibit 5)
I;
17i 15. Nonetheless, on December 17, 1992, as a member of the
General Employees Retirement Board of Trustees, Mr. McKane voted to
18i approve the payment of early retirement benefits to himself and to James
19ii Blair, then City Clerk, without legal (or factual) authorization to grant the
increased benefits. The action is recorded in the official minutes of the
201
Board meeting on file with the City Clerk. (Exhibit 6)
21I1 16. The minutes also reflect Mr. McKane's action was taken
openly in front of Chief Assistant City Attorney McWilliams who was also
22 present at the December 17, 1992 Retirement System Board of Trustees
meeting.
2311
17. The public record clearly implies Mr. McKane knew the
24 Retirement System Board of Trustees had no legal or factual authority to
approve early retirement benefits for exempt employees and elected
25 officials when he voted to do so. In fact, later in the meeting, Mr. McKane
ii also voted to approve proposed ordinance language to grant the very
26 authority lacking when the previous vote was taken.
27
FOM DOWNS
"TORNEY AT LAW j November 29, 1994 3:10 PM(pjv) 7
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NG.MICHIGAN 49933
I
'i
2 r
3 18. After he retired December 30, 1992, Terry McKane received
4 early retirement annual pension benefits of $48,869.96 (based on a
multiplier of 2.75 plus the additional five years service credit). The City
5 Ordinance provides only for a 2.0 multiplier and no additional five years
service credit. Therefore, in 1993 he received in excess of$10,000 in ultra
6 vires early retirement and other pension benefits.
7 ,
CONCLUSION OF LAW
8
Based on the above, it is the legal opinion of the undersigned there
9 is probable cause that Terry McKane did violate provisions of the Charter
of the City of Lansing and provisions of Chapter 290 Conflicts of Interest
10 of the Ordinances of the City of Lansing as noted.
11 Respectfully submitted,
12
13 Tom Downs
Spe ' 1 Assistant C' y A torney
14 � -
De s Path
16 Attorney-at-Law
17 Dated: November 29, 1994
18
19
20
21
i
22
23
24
25 it
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261
27 ii
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TOM DOWNS ATTORNEY AT LAW December 1, 1994 8:55 AM (pjv) 8
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ANSING MII:HI(:AN.-I "
2
EXHIBITS
3
4 1. Resolution 201
i
5 2. City Attorney Opinion 94-01 of James D. Smiertka dated 1-28-94
6 3. July 1, 1993 Transcript, Board of Ethics Special Meeting, pp. 65-69
7 li 4. July 21, 1992 memo - McWilliams to Duarte, cc: McKane
8 I� 5. December 10, 1992 Memo - McWilliams to Knot
i
9 j' 6. Minutes of December 17, 1992 Meeting of General Employees
I
Retirement System Board of Trustees
10�I
11
i
12'I
I
13
141
Ij
15 it
16i
I
17'
I
18
19'i
20 l
I
I!
21 I
22
it I
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23 it
24
25
2611
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EOM DOWNS iI
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NG,MICHIGAN 48933
MINUTES
LANSING CITY BOARD OF ETW�S,,;
SPECIAL MEETING
DECEMBER 1, 1994 - 9:00 Ar ,.I ? i'i 1 3` C I
CITY COUNCIL CHAMBERS, LANSINNrr77i �y' � ,,
LA C �av
The meeting was called to order at 9:00 A.M. in the 9th Floor Conference Room,
City Hall, Lansing, Michigan
BOARD MEMBERS PRESENT:
John Mertz, Chairman
Joyce Meissner, Vice-Chairwoman
Don Cook, Public Member
Marilynn Slade, City Clerk
BOARD MEMBERS ABSENT:
Jim Smiertka, City Attorney (Excused)
A QUORUM WAS PRESENT
OTHERS PRESENT:
Deborah K. Miner, Recording Secretary
Jodi Upton, Lansing State Journal
NEXT MEETING DATE:
December 27, 1994
APPROVAL OF AGENDA:
The agenda was approved as submitted
SECRETARY'S REPORT:
Approval of Minutes: Motion by Public Member Cook to correct the
minutes of the December 1, 1994, 8:15 A.M. meeting by correcting the location
of the meeting to say the 9th Floor Conference Room rather than City Council
Chambers and remove the 9:00 time designation from the December 27th meeting
MOTION CARRIED
Motion by Pub,__ Member Cook to amend the mh.ates of the december 1,
1994 8:15 A.M. meeting by restating the motion for acceptance of the report of
the Special Assistant City Attorney to read as follows:
"To accept the report of our Attorneys and to designate said report as Ethics Board
Opinion #21; and to refer the matter to the City Attorney with the recommendation
that the violations be prosecuted"
MOTION CARRIED 3/0
Motion by Vice-Chairwoman Meissner to approve the minutes of the
December 1, 1994 8:15 A.M. meeting as corrected.
MOTION CARRIED 310
ADJOURNMENT
Motion by Vice-Chairwoman Meissner to adjourn. Motion carried 3/0
meeting adjourned at 9:10 P.M.
Respectfully submitted,
DEBORAH K. MINER
Recording Secretary
Date Approved: December 20, 1994
r
MINUTES
LANSING CITY BOARD OF ETHICS
SPECIAL MEETING DECEMBER 20, 1994 - 8 :20 A.M. LAN Ii 03 CITY
CL.ERi1
9TH FLOOR CONFERENCE ROOM, LANSING CITY HALL
The meeting was called to order at 8 : 20 A.M. in the Ninth Floor
Conference Room, City Hall, Lansing, Michigan.
BOARD MEMBERS PRESENT: Joyce Meissner, Vice-Chairwoman
Don Cook, Public Member
BOARD MEMBERS ABSENT: John Mertz, Chair (arrived 8 : 30 A.M. )
A QUORUM WAS PRESENT
OTHERS PRESENT: Jim Smiertka, City Attorney
Marilynn Slade, City Clerk
Deborah K. Miner, Recording Secretary
Tom Downs, Spec . Assist . City Atty.
Lloyd Teets [116 E. Elm St . ]
Russell Smith [403 Rosadell]
Tim Lewis [500 S. Pine]
NEXT MEETING DATE: Regular meeting; January 24 , 1995
APPROVAL OF AGENDA:
It was the consensus of the Board that the Agenda be approved
as submitted.
SECRETARY' S REPORT:
Approval of Minutes : Motion by Public Member Cook to approve
the minutes of the November 4, 1994 and the December 1, 1994 9 : 00
A.M. meeting as submitted.
MOTION CARRIED 2/0
Correspondence Received and sent since last meeting Mr.
Downs informed the Board that there is some ambiguity regarding the
statute of limitations . Our Charter is not clear what the intent
is as to the statute of limitations . The City Attorney' s best
advice is that these charges are not limited to a two year statute .
Most cities of our size have a two year limit written into their
charters, however, Lansing' s Charter does not . The possibility
exists that the Courts could impose the two year statute because
they may consider it to be implied.
Motion by Public Member Cook to cancel the regularly scheduled
meeting of December 27, 1994 .
MOTION CARRIED 2/0
Motion by Public Member Cook to approve the schedule submitted
for 1995 Ethics Board meetings .
MOTION CARRIED 2/0
BUSINESS :
1 . Early Retirement Investigation; Mr. Downs reported on
the efforts of the investigative team. They are attempting to
discover the architects of the early retirement plan in order to
determine if there is evidence of anything other than poor
judgement . He anticipates making a report on this matter at the
next meeting. There is no action to be taken on this issue at this
time .
2 . To review and authorize payments for services rendered by
the Special Assistant City Attorney in November; Motion by Public
Member Cook to approve authorization for the payment of $14, 680 . 30
to Special Assistant City Attorney Tom Downs for legal services
rendered in November 1994 .
MOTION CARRIED 2/0
3 . Resolve complaints made against members of the Board;
Mr. Downs reported that he is working on a summary of the
complaints received against the Members of the Board. It will be
made available within a reasonable period of time .
4 . Discussion of Grand Rapids Hearing; Mr. Downs reviewed
the events of the hearing and reported that Judge Bell' s
transcripts were very helpful to him and should be available for
the next meeting. The Judge had studied the issue very carefully
and asked very informed insightful questions . He complimented Vice
Chairwoman Meissner for the excellent job she did of representing
the Board and noted that Judge Bell complimented her in the Court
Record. He reported having a very good discussion with the
Committee of the Whole regarding the privacy issue and compliance
with the Open Meetings Act . He thanked City Clerk Slade for being
very helpful to him.
Vice Chairwoman Meissner thanked Mr. Downs and commended him
for being extremely helpful by facilitating Judge Bell' s
understanding of the research of the early retirement issue . She
noted that the Judge made it very clear that the Board is only
acting as they should act and performing their function as an
ethics board.
Chairman Mertz entered the meeting at 8 : 30 A.M. and noted that
Judge Bell ruled that this Board does not have to comply with due
process in order to investigate complaints . Judge Bell' s findings
indicate that the Board is to go on doing just as they were doing.
The Judge' s opinion is very positive for the Board. There are
complaints about the Chair still pending. This hearing was
basically an attempt to unseat the Chair and Vice-Chair of the
Board in order to cripple the Board so that it could not function.
5 . Other Legal Advice Chairman Mertz asked Mr. Downs if the
Board can continue to conduct business as usual until the other
eight members are appointed. Mr. Downs responded that the general
rule is that a Board member continues to serve on a Board until his
successor is appointed. He thinks this is how the law would see
this issue . Hopefully the new members will be appointed before the
next meeting.
PUBLIC COMMENT
Russell Smith requested that Board members speak more loudly.
ADJOURNMENT
Motion by Vice Chairwoman Meissner to adjourn.
MOTION CARRIED 3/0
Meeting adjourned at 8 : 50 A.M.
Respectfully submitted,
DEBORAH K. MINER ,
Recording Secretary
Date Approved: January 24, 1995
Attorney at Law TOM DOWNS
230 North Washington Square/Suite 306
Lansing,Michigan 48933
(517)372-2990 FAX(517)372-3978
STATEMENT
2-
December , 1994
Marilynn Slade, Secretary
Board of Ethics
City of Lansing
City Hall
124 W. Michigan
Lansing, MI 48933
Legal Services 11/9/94 - 11/30/94
97.3 hours @ $150/hr $14,595.00
Expenses
Photocopies 85.30
Due $ 14,680.30
You will notice there are many black-outs on this statement. That is
because the items blacked out would, under the Freedom of Information
Act, give opposing counsel strategic information.
The original which is not blacked out is available for your inspection and
any other city official providing it is not subject to FOIA.
I have used this procedure with government billings to other units of
government.
A
City of Lansing- Board of Ethics - TIME
11/9/94 Compare City Charter and draft notes for organization of
report 2.1
11/10/94 Draft question for person complained against and review
proposed rules in Tab 14 3.1
11/11/94 Analyze procedure regarding charter for investigation,
constitutional requirement, read letter from
AM representing former , an"errence
with and AIWW and further review of
Opinion#20 7.9
11/12/94 Review Ethics Opinion 320 (Tab 8) and analysis by�
3.1
11/13/94 Prepared questions for to complete notebook of
requested material from ing 15 items for notebook
of 32 items and TCW with
2.8
11/14/94 Preparation of Notebook 32 items with 14 from files of the
�; Conference with Mp� on same, and review
of letter from IMMMIMM and draft answer thereto. 4.3
11/15/94 Review draft of letter to IAMIMMM, showed a copy toGM
GOMfor his approval, mailed copies to mIJIMINAW be to
compiled notebook of 32
itemswith15 WRm=01 conference with
and initial review of files of Legal Department 4.5
11/16/94 Reviewed Ethics Opinion#5 & 6 and revised letter to IIEW
based on city charter and trying to simplify issues and
reviewed items 11 and 24 and 20 in noteook. 3.1
11/17/94 Prepared preliminary draft of report relative to
Researched the City of Lansing personnel rules for
executive (management) plan and comparision and contract
of resolution and ordinance as provided in City Charter
office 4.8; home 3.2 8
1V18/94 Draft proposed finding of facts in Conclusion of Law in re
(6 pages) including TCW with
conference with further
review of ersonnel rules, conference with and
7.2
11/20/94 Draft of first report to Ethics Board, revision of preliminary
report of 11/17/94 4.1
11/21/94 Conference with ;
TCW with Personnel Department; revision of report for
, conference with 1111brn McKane matter;
TCW with 4.7
11/22/94 TCW with Personnel Department, obtained copies of
personnel manuals to review tie-bar, review of memos from
in connection with minutes from
Retirement Board; conference wi
Path; revision of draft, fax and strategy regarding former
namely, emphasize aegis and Retirement
Board where he had a vote rather than Council. 4.1
11/22/94 Review ofAIMIMIh&.file and further research on Resolution
#201 2.3
11/26/94 Draft of first report on nd check notebook
on Opinion Ethics Boad #20, contract of the city with me,
resolution by city authorizing attorney for Ethics Board and
review of charter on role of veto o�►on resolution as
well as ordinance. 3.8
11/27/94 Completion of 8 pages from first report relative to
draft letter to , draft letter
and TCW with and further
review of charter provision and ordinance for violation
showing probable cause for violation of both charter and
ordinance 290 conflict of interest. 7.4
11/28/94 Prepared final draft for report on reviewed
exhibits, obtained copies of the 1992 proceedings of the
Board of Trustees of the Employees Retirement System from
conference wit WWkQn
tie-bar provisions for categories of employees and personnel
manual, TCW with , parliamentarian on
difference between resolution and ordinance; TCW with
on pension benefits regular and early retire-
ment for conference wit
; and TCW with re: Retirement
Board minutes and personnel manual.
9.8 (including word procesesor at home)
11/29/94 Review of Exhibits, further research on whether tie-bar had
to be by resolution or ordinance; further research of
ordinances on conflict of interest and requirements for
retirement and pension; conference with
d next to final draft with form of report
showing counts in boldface and elements of proof and
authorization for Ethics Committee and my role; completion
of memorandum and arrange for delivery to board members.
9.1
11/30/94 Conference wi detailed review of statistics
on early retirement, benefits standard, benefits for key
employees, analysis of key correspondence starting with
information from 1991, confidentialletter from actuary
and review of report for meeting with Board
Thursday, December 1st.
5.9
ETHICS BOARD MEETINGS
Schedule for 1995
Ethics Board regular meetings will be held on the 4th Tuesday of
every month at 5: 00 P.M.
All Board meetings will be held in the 9th floor Conference Room.
January 24, 1995
February 28, 1995
March 28, 1995
April 25, 1995
May 23 , 1995
June 27, 1995
July 25, 1995
August 22 , 1995
September 26, 1995
October 24 , 1995
November 28 , 1995
December 26, 1995
John Mertz
Chairman of the Board
Attorney at Law TOM DOWNS
230 North Washington Square/Suite 306
Lansing, Michigan 48933
(517)372-2990 FAX(517)372-3978
December 12, 1994
Mr. James Smiertka
City Attorney
City Hall
Lansing, MI 48933
Dear Mr. Smiertka:
This question is in relation to the statute of limitations relative to
violation of either the city charter or Ordinance #290 dealing with
conflicts of interest.
My research -- and I realize it may not he perfect -- is that I can find
nothing that specifically says there is a two year statute of limitation on
the violation of Lansing City Ordinances or the City Charter.
I know the hardest thing to find is negative evidence rather than
affirmative evidence.
I also understand from talking with you that you believe there is not a
two year statute of limitations, but rather there is a minimum of four
years statute of limitations for violations of Ordinance #290 of the city
charter.
Please advise me if I am incorrect in this matter.
Sincerely yours,
Tom Downs
TD:pv
L/&: Marilynn Slade
BOARD OF ETHICS
ATTENDANCE ROSTER
MEETING OF DECEMBER 20, 1994
Name Dept./Str. Address Phone #
3 71 - s 7 6
NOTICE OF CANCELLATION
THE REGULAR MEETING OF THE LANSING BOARD OF ETHICS
SCHEDULED FOR DECEMBER 27, 1994, HAS BEEN CANCELED.
JOHN MERTZ, CHAIRPERSON
BOARD OF ETHICS
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