1 From the Desk of

ERIC L. VAND USSEN

P.O. Box 692 - Beulah, MI 49617 ericlvandussenAgmail.com 231-651-9189 December 11, 2013 To: Benzie County's Board of Commissioners RE: Reply to Chris Cooke's November I I, 2013 letter

After voting unanimously to do so, the Benzie County Board of Commissioners, through their attorney Ed Roy, sent an inquiry regarding my Open Meetings Act (OMA) allegations to the Benzie Transportation Authority's attorney, Chris Cooke. Mr. Roy's November 1, 2013 letter asks Mr. Cooke to provide a detailed explanation for each allegation contained within my first amended complaint, which was filed in my lawsuit against the BTA. Instead of providing answers, Mr. Cooke spends the majority of his purported response letter whining about how he believes my agenda and motives are biased because the BTA's former executive director is someone that I have, indisputably, loved and respected for many years. What's clearly missing from Mr. Cooke's purported response letter is any resemblance of actual explanations that would contradict the OMA allegations contained in my first amended complaint. Well, I've be the first to admit that I'm completely biased on the topic of how, why and when certain members of the BTA's board and Mr. Cooke were systematically conspiring to find a way to wrangle up enough votes so they could fire Susan Miller. Regardless of my obvious biases, my chief objective here is to shine a light on the blatant violations of the OMA that were committed by certain members of the BTA's board, with the assistance of Mr. Cooke. Mr. Cooke has touted himself to be a scholar of the OMA. Yet, it seems clear that he has been secretly instigating and participating in blatant OMA violations, with certain BTA board members. The remainder of Mr. Cooke's purported response letter attempts to justify the BTA's firing of Ms. Miller and complains about how I've been publically chastising them for their repeated misbehavior.

2 As to Count 1 of my first amended complaint, Mr. Cooke's November 11 letter states: The emails to which Mr. Vandussen points as showing an alleged "conspiracy" to alter the minutes are actually efforts by those participating Board members to prepare the draft of the minutes that would be presented to the Board. Proposed corrections to misspellings, incorrect recording of who made what motion, lack of punctuation and phraseology that did not make sense, were done in an effort to make a readable draft of the minutes to present to the Board at the next meeting. Firstly, who has ever heard of multiple board members of a public body "participating" in "preparing the draft minutes..."? In what world is that conduct acceptable? When was the last time any member of the Benzie County Board of Commissioners "participated" in preparing draft minutes that were taken by one of their employees? I'd be willing to bet - never. Count 1 of my first amended complaint alleges that: 10. Defendant has been secretly and illegally making additions, deletions and corrections to Defendant's regular and committee meeting minutes before conducting Defendant's next meetings after the meetings to which the minutes refer. Mr. Cooke unbelievably states that "[p]roposed corrections to ... phraseology that did not make sense, were done in an effort to make a readable draft of the minutes to present to the Board at the next meeting." Again, what world is Mr. Cooke living in? How can he, with a straight face, argue that it is lawful or appropriate for quorums of BTA board members to direct those they have tasked with taking their minutes to correct the "phraseology" utilized in draft minutes, prior to their next scheduled meeting? That type of unwarranted micromanagement by certain BTA board members is outrageous and it clearly violates the OMA because "[t]he public body shall make any corrections in the minutes at the next meeting after the meeting to which the minutes refer." See: MCL 15.269(1).

Regarding Count 2 of my first amended complaint, Mr. Cooke's Nov. 11 letter states: The allegations of this portion of Mr. Vandussen's complaint are hard to answer. He says "on multiple occasions". I do not know what this means. There is no date alleged as to when draft minutes were not available for his inspection,.

3 If they were not available when he arrived, I would need to know when he arrived with respect to the subject meeting, who he spoke to and what proofs he has that the draft minutes were unavailable. Count 2 of my first amended complaint alleges that: 16. On multiple occasions, Plaintiff has arrived at the address designated on Defendant's posted public notices and Defendant's draft meeting minutes were not available for public inspection within 8 business days after the meeting to which the minutes refer. Mr. Cooke really did not even attempt to answer the allegations pertaining to Count 2. The BTA's acting executive director, Chad Hollenbeck, will attest to how many times, after Ms. Miller had already been fired, that I've arrived at the BTA facility and he did not provide me access to any minutes of the BTA board or its committees. Mr. Hollenbeck would have to acknowledge that he did not provide me access to BTA minutes, on multiple occasions, even after I went through the unnecessary procedure of submitting a Freedom of Information Act request asking to view their minutes. FYI: The OMA mandates, at MCL 15.269(3), that: A public body shall make proposed minutes available for public inspection within 8 business days after the meeting to which the minutes refer.

I believe Count 3 of my first amended complaint is very concerning. It alleges that: 20. On April 2, 2012, all three members of Defendant's executive committee (Mr. Johansson, Ms. Kitely and Mr. Thayer) attended an in-person meeting that was not open to the public with attorney Chris Cooke, for approximately 2.4 hours. (See: EXHIBIT 1) 21. Defendant's executive committee did not provide public notice of their April 2, 2012 meeting with attorney Chris Cooke and Defendant deliberated and made decisions regarding public business during said April 2, 2012 executive committee meeting. 22. Defendant's executive committee did not keep minutes of their April 2, 2012 meeting showing the date, time, place, members present, members absent and any decisions they made at said meeting.

4 Mr. Cooke's November 11 letter responds to my allegations in Count 3 by stating: In specific answer to his allegations regarding the April 2, 2012 entry in Mr. Cooke's legal bill to the agency, Mr. Vandussen makes a quantum leap from a discussion between counsel and the Executive Committee when he alleges "deliberated and made decisions regarding public business". He does this because, in order for there to be a violation of the act the public body or committee thereof must "deliberate towards a decision", Nicholas v Meridian Township Charter Bd, 239 Mich App 525, 609 NW2d 574 (2000). There is no proof of "deliberations towards a decision" because deliberations did not occur. There are many reasons why a Board or quorum or sub-quorum of a Board would want to consult with an attorney for legal advice that do not implicate deliberations. For instance, legal quandaries might arise for a members of a Board who are unhappy with the performance of its Executive Director. They may seek information that the Board may want before they consider various alternatives. A mere discussion of options ranging from discipline to a corrective action plan to termination and the legal ramifications of those potential actions does not implicate "deliberations towards a decision". Mr. Vandussen makes allegations here without proof. Whatever proof he has must await discovery. The proof Mr. Cooke claims we must "await" is included in his own invoice to the BTA, which reveals the following: 04/02/12 CKC Travel to Beulah for meeting with Mr. Johansson, Ms. Kitely and Mr. Thayer Attendance at conference with Executive Committee members, Mr. Johansson, Ms. Kitely and Mr. Thayer re: various issues regarding the departure of an employee and general procedural issues Return travel from Beulah after conference with Executive Committee 0.8 hrs

04/02/12

CKC

2.4 hrs

04/02/12

CKC

0.8 hrs

Mr. Cooke is brazenly admitting that he believes they did nothing wrong when he met for 2.4 hours - with the BTA's full executive committee on April 2. 2012. He's definitely upset because his own invoice memorializes a blatant Open Meetings Act violation, which he instigated and participated in. That June 26, 2012 invoice clearly shows that all three members

5 of the BTA's executive committee conducted an illegal meeting with Mr. Cooke on April 2, 2012. It's undisputable that (a) the executive committee meeting on April 2, 2012 was not properly noticed and no minutes were taken; and (b) the executive committee was deliberating public business and making decisions in secret on April 2, 2012. Unbelievably, Mr. Cooke argues in his Nov. 11 letter that a "mere discussion of options ranging from discipline to a corrective action plan to termination and the legal ramifications of those potential actions does not implicate "deliberations towards a decision"." He is readily acknowledging that the full executive committee met with him and had a "discussion of options." Does Mr. Cooke really think if his invoice only refers to their meeting as a "conference," than it makes all their illegal activities okay? Again, in what fantasy world does Mr. Cooke live? Would a quorum of any committee appointed by Benzie County's board of commissioners ever consider meeting with their attorney, in secret, to have a "discussion of options" because they are "unhappy with the performance of its Executive Director"? I think not.

Count 4 of my first amended complaint alleges that: 26. On September 27, 2012, all three members of Defendant's executive committee (Mr. Johansson, Ms. Kitely and Mr. Thayer) attended a virtual meeting that was not open to the public and Defendant's executive committee did not provide public notice for said meeting. 27. An example of the habitual manipulation of a draft BTA executive committee minutes was brazenly memorialized in emails exchanged between all three members of Defendant's then executive committee, on September 27, 2012. 28. On September 27, 2012, at 12:20 AM, BTA executive committee member Kelly Thayer sent an email to the two other members of the BTA executive committee and informed them that he had "attached my suggested edits to these Ex Comm minutes. Please help shape these minutes, which are very detailed and would benefit from a close review by each of us before they're inserted in the Board packet." (EXHIBIT 2) 29. At 8:08 AM, on September 27, 2012, BTA executive committee member Ingemar Johansson sent an email to the two other members of the BTA executive committee and informed them that he had "took your version, Kelly, and worked

6 from that one to contract the minutes. It was, in my opinion, waaaaay to detailed." (EXHIBIT 2) 30. At 8:45 AM, on September 27, 2012, BTA executive committee member Kristin Kiteley sent an email to the two other members of the BTA executive committee and informed them that "I agree that the amended minutes by Ingemar should go in the packet. I had many concerns about the first draft." (EXHIBIT 2) 31. Defendant's executive committee did not keep minutes of their September 27, 2012 meeting showing the date, time, place, members present, members absent and any decisions they made at said meeting. Mr. Cooke's Nov. 11 letter states that: ... the identified emails show a desire by the participants to assist Ms. Miller in her minute taking habits, prior to the formulation of a draft of the minutes to be presented to the Board. Well that's just amazing. Never before have I heard of an occasion where all three sitting members of a public body, such as the BTA's executive committee, had to deliberate by email about how to alter the content of their meeting minutes before a draft could even be published for theirs and the public's consideration. Their own words demonstrate that they were not, as Mr. Cooke argues, merely "assist[ing] Ms. Miller in her minute taking habits..." Also, a brief summary of the changes made to Ms. Miller's draft minutes demonstrates that the committee was in no way interested in assisting Ms. Miller. They were clearly compelling changes to the content of the draft minutes and they were not just providing minor grammar or spelling assistance. The three above cited executive committee members obviously thought that their emails would never be made public or they obviously would have chosen their words better. Mr. Thayer said to his comrades: "Please help shape these minutes, which are very detailed and would benefit from a close review by each of us before they're inserted in the Board packet." Mr. Johansson responded by opining that Ms. Miller's draft minutes were "waaaaay to detailed." Then, Ms. Kiteley really demonstrated their illegal conduct by saying: "I agree that the amended minutes by Ingemar should go in the packet. I had many concerns about the first draft." Mr. Thayer, Mr. Johansson and Ms. Kiteley not only failed to refrain from illegally correcting the draft minutes prepared by Ms. Miller, prior to their next scheduled meeting. They additionally conduced an illegal, round-robin meeting - by email - in order to secretly effectuate

7 their desired alterations to Ms. Miller's "first draft" of the minutes, which they said needed to be "shapetd1" because they were "waaaaay to detailed."

Count 5 of my first amended complaint particularizes an absolutely inexcusable violation of the OMA that was committed by certain members of the BTA board. Count 5 alleges that: 34. On November 19, 2012, all three members of Defendant's executive committee (Mr. Johansson, Ms. Kitely and Mr. Thayer) again attended a virtual meeting that was not open to the public with attorney Chris Cooke. 35. On November 19, 2012, at 9:24 AM, attorney Chris Cooke sent an email (EXHIBIT 3) to all three members of Defendant's executive committee (Mr. Johansson, Ms. Kitely and Mr. Thayer) indicating, in pertinent part, that: ... Big news for me. I have left CMDA to start my own law practice, Cooke Law, PLLC... I, of course, would very much like to continue our relationship under the same terms and conditions as with my former firm. If that is your desire as well, I would need authorization to remove the Benzie Bus files from CMDA. I have placed some cut and paste language below that should be sent to "tyoung@ernda-law.com" with a cc to "hkazim@cmda-law.com". Looking forward to a long and productive relationship with Benzie Bus. Can't wait for you to see my new digs! thanks. Chris 36. Also on November 19, 2012, at 5:58 PM, Defendant's executive committee member Kelly Thayer sent a responsive email (EXHIBIT 4) indicating, in pertinent part, that: ... Chris Cooke informed us today that he has left CDMA to start his own firm in Traverse City. I contacted Kristin and Ingemar, and we agreed to continue the BTA's legal relationship with Chris Cooke. Please see the attached message that I just emailed to CMDA authorizing the transfer of the BTA's legal files to Cooke Law PLLC. This will allow the BTA, including the Executive Committee, to continue to seek uninterrupted legal guidance from Chris Cooke "under the same terms and conditions" as with his former firm regarding development of the executive director

8 contract and any other matters, as needed. I will inform the Board at the December 12 monthly meeting of our decision. 37. All three members of Defendant's executive committee (Mr. Johansson, Ms. Kitely and Mr. Thayer) attended the virtual November 19, 2012 with attorney Chris Cooke. 38. Defendant's executive committee's November 19, 2012 virtual meeting with attorney Chris Cooke was not open to the public. 39. Defendant's executive committee did not provide public notice of their November 19, 2012 meeting with attorney Chris Cooke and Defendant deliberated and made decisions regarding public business during said November 19, 2012 executive committee meeting. 40. Defendant's executive committee did not keep minutes of their November 19, 2012 meeting showing the date, time, place, members present, members absent and any decisions they made at said meeting. Mr. Cooke's November 11 letter responds to my allegations in Count 5 by stating: Once again, Mr. Vandussen classifies email exchanges as a "virtual meeting". The purpose of the email exchanges was to notify BATA of a change in firms of the attorney they had already retained to assist the Agency. There was no change in the terms and conditions of the relationship. The communication sought permission to remove files from counsel's former office that the Board had already authorized him to work on. To the extent that the "decision" to "continue our relationship" and obtain "authorization to remove files" which occurred one year ago, is an infringement on the Open Meetings Act, these actions were later ratified by the full board on October 9th [2013]. Mr. Cooke's November 11 letter is clearly an admission to my allegation that he and the executive committee violated the OMA as indicated in Count 5 of my first amended complaint. He does, however, still try to sugar coat their misdeeds by arguing that the "purpose of the email exchanges was to notify BATA of a change in firms of the attorney they had already retained to assist the Agency." Mr. Cooke's statement is untruthful and misleading. At the time in question, the BTA had not "already retained" Mr. Cooke. BTA had, however, previously retained the law firm of CUMMINGS, McCLOREY DAVIS &" ACHO , P.L.C. Mr. Cooke solicited the BTA's

9 business for his new, solo law firm and he deliberately made the conscious choice to only email his solicitation to all three members of the executive committee. Mr. Cooke instigated and participated in the process to make an illegal decision to hire him without the BTA noticing or conducting a public meeting regarding the issue. And, they didn't keep any minutes of their meeting and the decision(s) they made during their virtual, email meeting.

Count 6 of my first amended complaint alleges that: 43. On and around September 9, 2013, a quorum of Defendant's governing board and/or a quorum of one of its committees conducted a virtual and/or actual meeting with attorney Chris Cooke. 44. On and around September 9, 2013, a quorum of Defendant's governing board or a quorum of one of its committees deliberated and made a decision to cause attorney Chris Cooke to draft and send a threatening letter (EXHIBIT 5) to Defendant's former executive director in an attempt to coerce Defendant's executive director into immediately resigning her position. 45. Defendant's deliberations and decision to cause attorney Chris Cooke to draft a threating letter to Defendant's executive director did not occur at a meeting open to the public. 46. Defendant's did not keep minutes showing the date, time, place, members present, members absent and any decisions they made at their virtual and/or actual meeting that occurred on and around September 9, 2013. 47. Defendant's executive director refused agree to the ridiculous terms contained in attorney Chris Cooke's threating letter, which was written in an attempt to force her resignation. 48. Certain members of Defendant's governing board became very agitated when their executive director refused to agree to forced resignation and gag order requirement. 49. On and around September 9, 2013, a quorum of Defendant's governing board deliberated and made the decision to terminate Defendant's executive director without their deliberations and termination decision being conducted at a meeting open to the public.

10 50. On September 10, 2013, during an open meeting, a quorum of Defendant's governing board rubberstamped their previous decision to terminate their executive director. When addressing Count 6 in his Nov. 11 letter, Mr. Cooke initially states: This attorney was asked to draft a proposed separation agreement between Ms.- Miller and the Board which, if accepted by both parties, would have offered an amicable parting. This was encapsulated in my letter of September 9th, 2013. The balance of the September 9 letter further shows the conditional nature of the joint proposal as it spells out a means for the Board to consider the proposal in detail at a special meeting, Ms. Miller's right to have the meeting open or closed and the need to return to an open session to vote. Nothing in this letter can be construed to reflect a pre-decision by the Board or a "forced resignation letter". In fact, it (the Sept. 9 letter) was an effort to give Ms. Miller a soft landing. This effort has now been turned on its head by Mr. Vandussen. Mr. Cooke consciously failed to reveal which BTA board members "asked" him to "draft a proposed separation agreement" / "joint proposal" that "was an effort to give Ms. Miller a soft landing." He also doesn't reveal how certain BTA board members made that decision to request that he draft such an agreement without the BTA ever conducting an open, public meeting regarding the issue. Wasn't the purpose of Mr. Roy sending an inquiry letter to Mr. Cooke an effort to give him an opportunity to dispel my allegation that a quorum of BTA board members deliberated and "asked" him to draft and send the September 9 resignation letter to Ms. Miller? Considering the proven track record of Mr. Cooke and certain BTA board members, it's safe to say that Mr. Cooke refused to adequately respond to the allegations contained in Count 6 because he knows that he was once again caught participating in a blatant OMA violation.

The final argument made by Mr. Cooke in his Nov. 11 letter is basically that, regardless of any OMA violations that may have been committed by the BTA, because they reenacted some of their misdeeds on a later date their improperly made decisions cannot be invalidated. He basically argues that my allegations are moot and that there is not an actual controversy in existence at this time.

11 Well, contrary to the delusion Mr. Cooke is trying to sell, I am not seeking to invalidate any past actions or prior decisions made by the BTA board. My litigation is merely attempting to cause the BTA's board and its committees to cease violating the OMA. What I'm seeking to obtain through my lawsuit is an order (a) declaring that the BTA violated the OMA and (b) enjoining the BTA from continuing their repeated practices of violating the OMA. One thing that Mr. Cooke is correct about is that a reenactment of a public body's improperly made decision does validate their previous, improperly made decision. However, any reenactments - made by the BTA or their committees - do not negate the fact that they still need to be enjoined from illegally deliberating and making decisions, as a quorum. Mr. Cooke is attempting to persuade the Benzie County Board of Commissioners to delay any decision on whether they should remove certain BTA board members for their repeated OMA violations. His Nov. 11 letter indicates that: I hope I have the ability, given the ethical constraints imposed on me, to convince the Benzie County Board to allow this matter to play out in the Circuit Court where all sides will have a full opportunity to be heard according to the rules. Mr. Cooke is well aware of the fact that the circuit court does not have the authority to remove certain members of the BTA board. That authority lies with the Benzie County Board of Commissioners. All of Mr. Cooke's efforts seem to be designed to postpone any inquiry into whether certain BTA board members should be immediately removed from their positions, due to their blatant and repeated OMA violations. Waiting to see how the circuit court rules on my OMA allegations is unnecessary because it is crystal clear that certain BTA board members have been repeatedly violating the OMA and should be removed from their positions. What I find extremely offensive is that Mr. Cooke and certain BTA board members are still, to this day, arguing that they should be allowed to continue their brazen practices of conducting illegal meetings, making illegal decisions and illegally correcting their minutes. I believe the Benzie County Board of Commissioners have a duty to follow the directive of their unanimous decision and hold a special meeting to assess my OMA allegations and determine whether certain BTA board members' appointments should be revoked.

Thank you for your time,