Who Authorized the City Attorney to Sue Over the Driveway?
Who authorized City Attorney Tom Yeadon to use taxpayer funds to sue Michael and Kimberly Zydeck in the name of the City of East Lansing in the well-known case of the driveway at 444 Division Street?
And has Yeadon been filing other lawsuits in the name of the City of East Lansing without apparent authorization of City Council?
In case you haven’t been following this drama, this lawsuit against the Zydecks by the City of East Lansing was filed by City Attorney Tom Yeadon on July 25, 2019, in Ingham County Circuit Court. The suit followed threats of arrest and offers of cash from the City to the Zydecks after the Zydecks’ contractor constructed a driveway that representatives of the City had approved but that the City ultimately decided was bigger than the law allows.
East Lansing’s City Council voted on January 21 to settle the lawsuit, and, after reading about what the Zydecks had been through, two ELi readers wanted to know if the City Attorney is allowed to initiate suits like this without Council’s authorization, and whether there are more such lawsuits ongoing now.
We’ve been looking into those questions. Here is what we’ve found.
There is no record of City Council authorizing the City Attorney to sue the Zydecks.
In response to previous questions from ELi about lawsuits and transparency, Adam Marshall, Knight Foundation Litigation Attorney for D.C.-based Reporters Committee for Freedom of the Press, has noted, “The public has a right to know what governmental bodies and officials are doing, including, to the maximum extent permitted by law, their involvement in any litigation. Lawsuits are frequently a costly and time-consuming affair, and the public should be informed as to how their tax dollars are being spent.”
Under Michigan State Law, City Council can discuss litigation in closed session — out of the public eye — but decisions by Council about lawsuits must occur in open (public) session.
According to the Open Meetings Act Handbook put out by the State of Michigan, closed session should be used “to consult with [the City’s] attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body.” (The italics appear in the original.)
The Handbook further explains, “A ‘consensus building process’ that equates to decision-making would fall under the act.” In other words, if Council came to a “consensus” about a lawsuit like that against the Zydecks, a consensus decision authorizing the City Attorney to take action would have had to occur in public and been recorded in minutes.
In fact, there is no record of City Council ever authorizing Yeadon to bring this lawsuit.
The City Manager told us Council authorized the suit. Then he said Council didn’t.
Through his Communications Coordinator Mikell Frey, City Manager George Lahanas (below) told ELi about this case, “When a civil suit is warranted for code enforcement purposes, Council is always kept apprised of the intended action and either explicitly or implicitly authorizes the civil action.” (Italics added.)
But wait … when and where did Council either “explicitly or implicitly authorize” the civil action against the Zydecks? At noted above, there is no record of such an authorization. Was this authorization by Council made, I asked Lahanas, behind closed doors and without any record of it, in violation of the Open Meetings Act?
“No,” he answered, “no decisions were made by Council in violation of the Open Meetings Act. The City Attorney was aware that Council wanted to pursue a correction of the code violation, but that they did not want the matter criminally prosecuted.”
But how was the City Attorney “aware” of what “Council wanted”? How did Council express such an opinion?
Asked that, Lahanas seemed to change his explanation: “The decision was not made by the City Council. The City Attorney and City Manager are authorized to initiate lawsuits for code enforcement purposes, while keeping the City Council apprised of the decisions that are being made and the actions that are being taken. In this case and in all other cases of legal matters, Council has been kept apprised.”
So, in his final response, Lahanas appeared to change his claim from originally saying that Council “implicitly or explicitly authorized” the lawsuit to saying “The decision was not made by City Council,” but was instead made by Yeadon, apparently in conjunction with Lahanas.
What else do we know?
In order to see if there were other similar cases, where the City Attorney was suing people in the name of the City without a clear authorization from Council, we used the Freedom of Information Act (FOIA) to ask for documentation of all active lawsuits brought by the City Attorney’s office without a vote by City Council.
The City’s response was that the case against the Zydecks was the only such case.
Previous FOIA responses in the driveway case show records of only one Council Member being involved in discussions of the matter of the Zydecks’ driveway. That was Erik Altmann. That doesn’t mean Altmann was the only Council Member involved in discussions of the case — it just means the records provided under FOIA show only involvement by Altmann.
Altmann (above) was on Council serving as Mayor Pro Tem when the City Attorney filed the lawsuit. Altmann lost his bid for re-election a few months later, in November. Two months later, the new City Council voted unanimously in open session to settle the suit.
Yeadon acknowledged in his memo recommending settlement that the problem with the driveway arose from “errors and miscommunications on the City’s part.”
Under the settlement, the City will pay the Zydecks $3,000 and the City will be responsible for the cost and trouble of bringing the driveway into conformation with City code. The City will also pay for Yeadon’s services throughout the matter.
Photos by Raymond Holt for ELi.
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