ATTORNEYS AND COUNSELORS AT LAW

CenterPointe Building 12935 SW Bayshore Drive Suite 370B Traverse City, Michigan 49684, www.ckcookelaw.com Phone: 231-922-7420 Fax: 231-922-7430

Christopher K. Cooke
chris@cookemail.com November 11, 2013 Mr. Edgar Roy III Kuhn, Darling, Boyd and Quandt, PLC 412 S. Union Street Traverse City, MI 49685-0987 Re: Your letter of November 1 Dear Mr. Roy: Preliminary Respectfully, I would like to address a few of these issues in a narrative fashion as I think it is easier explained and understood in that fashion. Thereafter, I will strive to answer your specific questions. I would like to begin my response by noting that Mr. Vandussen has filed a lawsuit against my client where a number of accusations of impropriety are being made. Additionally, at the Benzie County Board meeting of September 24th, after Mr. Vandussen was given a special 15 minute audience with the Board, there was discussion around the table of a possible referral to the Michigan State Police for an investigation of alleged violations of the Open Meetings Act. Over this backdrop you have asked for detailed information about the case and for specific responses to allegations made by Mr. Vandussen. I do find it highly unusual that the County Board would ask for these responses, at this time, in light of the above. We are early on in the case and I have an ethical obligation to zealously represent my client and not to betray client confidences. I also am sensitive to the interests of the Benzie Board of Commissioners and wish to accommodate. Thus, I have been placed in a rather precarious position as defense counsel, not wishing to disclose the strategy of my defense, but, also hoping to alleviate the concerns of the Benzie County Board.

As I mentioned, during my three minute speaking opportunity before the Benzie County Board on September 24th, it is easy to be swayed by a one-sided presentation without hearing a full response by the opposite side. 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. One more preliminary matter and that is a note as to bias. Mr. Vandussen did not pay attention to the workings of the Benzie Transportation Authority until it became clear that the Executive Director, Susan Miller was not meeting the expectations of the Board. He then appeared at the September 10, 2013 meeting where he video recorded the Boards vote on the motion re: Executive Directors contract. Curiously, he was not present and did not record the August 19th meeting when the Board, openly discussed concerns and shortfalls in Ms. Millers performance as Executive Director of the agency. Mr. Vandussen has described his relationship with Ms. Miller as his step mother. He is clearly acting with a vindictive animus in this lawsuit and his related actions. This has been proven out in his later actions at Board meetings where he has openly interrupted meetings, yelled out from his seat, circulated documents to Board members, talked out of turn, refused to conform his actions to the rules on public speaking and surreptitiously recorded the start of a closed session Board meeting where his lawsuit against the Board was the topic of discussion. Thereafter, he charged into the closed session meeting to demand his recorder and when the recording of the meeting would not be turned over to him, called the Sheriffs department. The Sheriff Department confiscated his recording device. Suffice it to say that his actions delayed the work before the Board for over an hour. These actions caused the Board to issue a warning letter to him (Ex A) and to file a criminal complaint for eavesdropping. These actions are highly counterproductive to the Boards obligation to oversee the functioning of the Agency and are only intended to harass and intimidate the members. Frankly, I view his lawsuit and his September 24th presentation before the Benzie County Board which lead to your inquiry as more of the same.

The Boards Relationship with Ms. Miller There was an extensive period of time (more than a year) where the Board tried to work with Ms. Miller to obtain the needed performance from her role. She was placed on a corrective action plan on May 23, 2012. Despite the efforts of the Board the needed improvement did not occur. On August 19th, 2013, the BATA Board conducted an evaluation of Ms. Millers performance in open session. Mr. Vandussen was not in attendance. The review went poorly and many members of the Board expressed a need to go in a different direction with management (Ex B, draft minutes of August 19th special Board meeting). It became clear to all in attendance that Sue Millers contract, which would expire on its own terms on December 31 if not renewed (Ex C), would likely not be extended. Additionally, the contract requires that Ms. Miller be given 90 days notice of the termination of the contract (9.b.). A vote on the Executive Directors contract was placed on the agenda for the September 10, 2013 meeting of BATA Board. The Board wanted to take action on the contract at this meeting, one way or the other, due to the notice provisions of the contract and the impending year end. Shortly before the September 10 meeting, Ms. Miller expressed to some Board members, specifically Mr. Roper, an interest in stepping away from her position if certain conditions were met. Obviously, an amicable resolution of the controversy seemed the best for all and would avoid a possibly embarrassing situation for Ms. Miller. 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 9 th, 2013 (ex D). It should be noted that the preamble states exactly that: It is my understanding that you have agreed, in principle, to step away from your role as Executive Director at Benzie Bus provided you and the Board will agree to certain terms and conditions. This letter has been characterized by Mr. Vandussen as a forced resignation letter. It is most definitely not. The letter goes on to state: I understand them (the terms and conditions) to be as follows:

1. Both parties will agree to a mutual non-disparagement clause which will bind both parties not to make disparaging remarks about the other now and into the future. (a mutual non disparagement clause which is standard in this type of setting). 2. Both parties will agree to keep any agreement for separation confidential to the extent possible considering this is a public agency. (once again, standard language that also acknowledges the Agency as a public body). 3. The Board will author a letter of recommendation for you. (a request coming directly from Ms. Miller). 4. The Corrective Action Plan currently in your employment file will be removed and held in an executive file currently in the possession of the Board Chairperson. (Ms. Miller wanted the corrective action removed from her file entirely. Placing it in an executive file would remove the document but not cause it to be destroyed.) 5. You will agree to cooperate with the Agency, if necessary, during the transition process provided all such contact with you by any current employee is authorized by the Board Chair. (Ms. Miller asked if she could participate in the transition to a new management team. The Board would likely want to oversee this interaction). 6. You and the Agency/Board will sign mutual releases, releasing each party from any and all past and future claims that could have been made arising out of your employment. (once again, standard language in this situation). 7. The Board will not oppose any application for unemployment you submit. (a request by Ms. Miller). 8. To qualify for unemployment, you understand, the Board must act on a motion to terminate your contract. If the motion is not approved, you may face difficulty collecting unemployment if you elect to resign. (This language is most important as it confirms that neither the Board nor Ms. Miller knew if this separation agreement would be approved at any Board meeting). 9. If a motion to terminate your contract is approved, you will be paid severance under the terms of your contract through the end of the calendar

year. (once again, important language as it shows the conditional nature of the proposed agreement). 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. Millers 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 was an effort to give Ms. Miller a soft landing. This effort has now been turned on its head by Mr. Vandussen. Specifics as to Questions raised by you. A. It should be noted that the First Amended Complaint is not properly filed. A party is allowed to file an amended pleading within 14 days after being served with a responsive pleading by an adverse party (MCR 2.118 (A)(1)). The answer to Mr. Vandussens original complaint was filed October 1, 2013. Mr. Vandussens First Amended Complaint was filed October 22nd. He was obligated under the rules to seek leave of the Court or obtain a stipulation (MCR 2.118 (A)(2). As to each substantive count: Count I This count is denied in its entirety. Mr. Vandussen misconstrues the meaning of MCL 15.296(1). The applicable section reads: (1) Each public body shall keep minutes of each meeting showing the date, time, place, members present, members absent, any decisions made at a meeting open to the public, and the purpose or purposes for which a closed session is held. The minutes shall include all roll call votes taken at the meeting. The public body shall make any

corrections in the minutes at the next meeting after the meeting to which the minutes refer. The public body shall make corrected minutes available at or before the next subsequent meeting after correction. The corrected minutes shall show both the original entry and the correction.
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. There were no substantive changes in the date, time, place, members present, members absent, any decisions made at a meeting open to the public, including all roll-call votes taken during the meeting, and the purpose or purposes for which a closed session is held. (which are the minimum statutory requirements for minutes ; MCL 15.269(1)) It should be remembered that Ms. Miller was the principle minute taker. Her writing abilities were a concern often raised by the Board and were mentioned as part of her review. Once the draft minutes were available for Board review, they were never changed by the Board without showing the original entry and the corrections on the face of the minutes as required by statute. It should also be noted that the Legislature appreciates that minute taking is a ministerial function that is intended to serve a historical recording purpose. A mere deficiency in the keeping of the minutes of meetings is not grounds for invalidation. Manning v City of E Tawas, 234 Mich App 244, 593 NW2d 649 (1999). Count II The allegations of this portion of Mr. Vandussens 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. 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. Once again, Ms. Miller was in charge of overseeing the turnaround of the minutes and their availability to the public until September 10th. As Mr. Vandussens attempt to amend his original complaint occurred on October 22nd, there could not have been multiple meetings where the draft minutes were unavailable, unless, in fact, he is speaking of a shortfall on Ms. Millers part to do so. In any event, this portion of his allegations is incapable of being effectively answered at this time. Count III This Count raises an interesting question that has not, as yet, been answered in

the lawsuit as Mr. Vandussen has failed to fully answer Defendants First Interrogatories and Request to Produce. In these discovery documents, he was asked to provide all FOIA requests he made to the Agency and the documents provided to him as a result of those requests. He answered: Plaintiff objects to this request at is seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible information. Subject to and without waiving this objection, BTA already has in its possession all FOIA requests that have been submitted to BTA by Plaintiff. Furthermore, because BTA already has these records in its possession, it would be an undue hardship for Plaintiff to locate all FOIA requests he has ever submitted to BTA In short, Mr. Vandussen is stalling producing documents he obtained from the Agency through a legitimate route, such as FOIA, versus documents he obtained some other, potentially, illegal way. Our review of his FOIAs do not reflect near the amount of documents he has attached to his First Amended Complaint. Certainly, counsel should have been allowed to review his legal bills for privileged information before they were unethically or illegally handed over to Mr. Vandussen. In specific answer to his allegations regarding the April 2, 2012 entry in Mr. Cookes 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.

Count IV These allegation have been addressed in Count I above. It should be noted that the actions Mr. Vandussen points to occurred over one year ago. Rather that showing a pattern of brazenly memorialized manipulations, 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.

Count V 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 counsels 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. The law is clear on reenactment, which also applies to the arguments found in Count VI. Reenactment A plain reading of the statute supports the conclusion that once the September 8, 2003, meeting was reenacted, the trial court could no longer invalidate it. The statute and case law are clear that once a decision is reenacted, it "shall not be declared invalid by reason of a deficiency in the procedure used for its initial enactment," MCL 15.270(5), and it "stands untainted by procedural deficiency," Manning v City of East Tawas,234 Mich App 244, 252; 593 NW2d 649 (1999). If a plaintiff seeks invalidation and a subsequent reenactment precludes invalidation, there is no longer any actual controversy within the context of the case. The actual controversy requirement of MCR 2.605 "requires that the Court not decide moot questions in the guise of giving declaratory relief," Dep't of Social Services v Emmanuel Baptist Preschool,434 Mich 380, 470; 455 NW2d 1 (1990) (opinion by Boyle, J.), because moot cases "present[] only abstract questions of law that do not rest upon existing facts or rights," BP 7 v Bureau of State Lottery,231 Mich App 356, 359; 586 NW2d 117 (1998). In the absence of an actual controversy, the trial court lacks subject-matter jurisdiction to enter a declaratory judgment. McGill v Automobile

Ass'n of Michigan,207 Mich App 402, 407 (1994). In this case, once the reenactment
took place and the September 8, 2003, decision was cured of any defect, the question whether there was a violation was rendered moot., Leemreis v. Sherman Township, 273

Mich App 691 (2007).

As both the actions of the Board in retaining Cooke Law as counsel and voting not to renew Ms. Millers contract were reenacted by the Board on October 9, 2013, any procedural deficiency in these actions was cured. Likewise, they were cured without being deemed to have made any admission to the contrary (MCL 15.270(5)). Count VI I believe I have addressed this fully in the preliminary comments and throughout my response. Ms. Miller proposed a means by which she could step away from the job, expunge her file, get a letter of recommendation and still collect unemployment. A summary of this proposal, with some added conditions that would protect the Agency, were summarized to her in a letter of September 9th. The letter was not threatening. It was not a forced resignation. It spoke in conditional terms referencing the need for both parties to agree to the terms in an open session of the Board. It was an effort to be civil to Ms. Miller, an effort that has now been manipulated in a vengeful and unruly fashion.

One more issue needs to be raised. The law is clear that not every violation of the Open Meetings Act is actionable. The plaintiff alleging a violation of the act must show how the violation has impaired the rights of the public. This requires more than the bare allegation found in Plaintiffs First Amended Complaint. Plaintiff must make specific factual allegations demonstrating how the rights of the public have been impaired, Knauff v Oscoda Co Drain Comm'r, 240 Mich App 485, 495 (2000). Plaintiff has not done this because he cannot. Old emails from more than a year ago bearing input on the formulation of draft minutes, does not impair the rights of the public when the draft is then submitted to the Board at the next meeting and all changes made by the Board are reflected on the face of the approved minutes. The rights of the public are not impaired when a review of the Executive Director occurs at a meeting open to the public and the Board expresses their desire to move forward in a different direction. The fact that no one chose to attend that meeting but came out in force for the next meeting where a vote was taken, does not impair the rights of the public. In fact, as was demonstrated on a portion of the video shown to

the County Board by the Plaintiff, the public actively participated in the September 10th meeting. The rights of the public are not impaired when a Board conducts a reenactment of its decisions pursuant to statute and there remains no case in controversy for the Court to decide. It is unfortunate that Mr. Vandussen elected to strike back at the BATA board for not extending his step mothers contract by filing accusatory lawsuits that have no merit. It is further unfortunate that he has taken it upon himself to be disruptive and abusive at meetings where these community volunteers are attempting to perform a valid service to the community. The BATA Board would much rather focus on moving forward on the business of the Agency than to be drawn into a lengthy and expensive fight with Mr. Vandussen. However, the Board stands by its decision and the way it was made. I hope this has answered your inquiries and the concerns of the Board in this regard. I would be happy to expound on this report or to answer additional specific inquiries provided it will not unduly reveal my defense strategy in the court system.

Respectfully,

Christopher K. Cooke (P35034) Cooke Law, PLLC