Judge dismisses Rotta’s case against mayor, city councilors

Judge Pete Wadel

By Rob Alway. Editor-in-Chief. 

LUDINGTON — A case against former Mayor John Henderson and six city councilors was dismissed today by 79th District Court Judge Pete Wadel. The case involved allegations by resident Tom Rotta that the defendants violated the Michigan Open Meetings Act during its May 20, 2013 regular meeting.

The defendants had filed a summary of disposition, which is a tool used in sustaining a ruling in support of the moving party. This motion is only made when time allocated for discovering evidence had ended. Motion of summary disposition can also decide to dismiss the case.

City council typically meetings the second and fourth Monday of the month at 6:30 p.m. During the May 6, 2013 meeting, a motion was made and passed to change the May 20, 2013 meeting to 1:30 p.m. so it could be attended by third graders from Foster Elementary.

As required by the OMA, City Clerk Deb Luskin then posted the meeting at city hall after the change. It was then also posted on the city’s website, as required by law.

During the May 20 meeting, during public comments, Rotta told the city council that he did not see the meeting notice on the bulletin board in city hall and therefore he believed the council would be in violation of the OMA if it proceeded with any deliberation or action. Mayor Henderson’s responded that it was noted and the council proceeded with business which included deliberation and action.

Rotta then filed a motion in 79th District Court to sue Mayor Henderson and councilors Gary Castonia, Nick Tykoski, Wanda Marrison, Wally Taranko and Kaye Ferguson Holman. Councilor Dick Rathsack was not named in the suit because he was not in attendance of the meeting.

Andrew Brege of the law firm Cummings, McClorey, Davis and Acho of Grand Rapids represented the defendants. Brege argued that Clerk Luskin signed an affidavit that she did post the notice in city hall. He said she also posted the notice on the website. In addition, she sent a notice to the local newspaper. He said the change was also noted in the minutes from the May 6 meeting, which had to be available for the public prior to the next meeting. Further, he said since Rotta was at the May 20 meeting, along with members of the public and members of the meeting, it is clear that adequate notice was given.

The OMA only requires the posting in the principle office and on the city’s website, if it has one. The city charter requires a posting in the newspaper.

“I want to re-iterate that the lack of notice is not what I’m looking at,” Rotta, representing himself, told Judge Wadel. “I am looking at that the city council and mayor went ahead with the meeting after they were apprised. I think they should be penalized accordingly.

Wadel said there were three points he was looking at.

“This meeting was held on the 6th of May 2013. At that meeting a motion was made to change the time. It was approved and the next regular meeting was scheduled for 20th of May from 6:30 p.m. to 1 p.m. The change was made in a public meeting. Those in attendance were also aware. The meeting was telecast, so anyone who would have seen the meeting would have seen that change.

“The meeting minutes that are required to be available in a certain time period were made available.

“The statute requires the posting of the date, time and place of the meeting at least 18 hours before the meeting. I found that took place on the 7th of May.”

Wadel said while it is possible that the notice was not posted at the time of the meeting, the law isn’t clear if the notice needs to be there the entire time from when it is posted until the meeting.

“We’re pleased with the judge’s ruling,” City Manager John Shay said.

Brege said Rotta has the right to file an appeal.