VanDussen letter to Benzie Co. Bd. responding to attorney Cooke letter - 12-11-13

8/13/2019 VanDussen letter to Benzie Co. Bd. responding to attorney Cooke letter - 12-11-13

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From the esk ofERIC L VAND USSENP.O. Box 692 - Beulah, MI 49617ericlvandussenAgmail.com231-651-9189

December 11, 2013To: 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 C ounty Board of C ommissioners, throughtheir attorney Ed R oy, sent an inquiry regarding my O pen M eetings Act (OMA ) allegations tothe Benzie Transportation Authority s attorney, Chris Cooke. Mr. Roy s November 1, 2013letter asks Mr. Cooke to provide a detailed explanation for each allegation contained within myfirst amended complaint, which was filed in my law suit against the BT A.

Instead of providing answers, M r. Cooke spends the majority of his purported responseletter whining about how he believes my agenda and motives are biased because the BT A sformer executive director is someone that I have, indisputably, loved and respected for manyyears. What s clearly missing from Mr. Cooke s purported response letter is any resemblance ofactual explanations that would contradict the O MA allegations contained in my first amendedcomplaint.

We ll, I ve be the first to admit that I m com pletely biased on the topic of how, why andwhen certain mem bers of the BTA s board and M r. Cooke were systematically conspiring to finda wa y to wrangle up enough votes so they could fire Susan M iller.

Regardless of my obvious biases, my chief objective here is to shine a light on the blatantviolations of the OM A that we re committed by certain members of the B TA s board, with theassistance of Mr. Cooke. Mr Cooke has touted himself to be a scholar of the OMA. Yet, itseems clear that he has been secretly instigating and pa rticipating in blatant O MA violations,with certain BTA board members.

The remainder of Mr. Cooke s purported response letter attempts to justify the BTA sfiring of M s. Miller and complains about ho w I ve been publically chastising them for theirrepeated misbehavior.


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As to Count 1 of my first amended com plaint, Mr. Coo ke's November 11 letter states:The emails to which Mr. Vandussen points as showing an alleged conspiracy toalter the minu tes are actually efforts by those participating Board m embe rs toprepare the draft of the minutes that would be presented to the B oard. Proposedcorrections to misspellings incorrect recording of who m ade what motionlack of punctuation and phraseology that did not make sense were done inan effort to mak e a readable draft of the m inutes to present to th oard atthe next m eeting.

Firstly, who has ever heard of multiple board memb ers of a public body participating inpreparing the draft minutes... ? In what world is that conduct acceptable? When was the last

time any member of the Benzie County Board of Comm issioners participated in preparingdraft minutes that were taken by one of their employees? I'd be willing to bet - never.

Coun t 1 of my first amended com plaint alleges that:10. Defend ant has been secretly and illegally making additions, deletions andcorrections to Defendant's regular and committee meeting minutes beforeconducting Defendant's next meetings after the meetings to which the minutesrefer.

Mr. Cooke unbelievably states that [p]roposed corrections to ... phraseology that did notmake sen se, were done in an effort to make a readable draft of the minutes to present to theBoard at the next meeting.

Again, what w orld is Mr. Cooke living in? How can he, with a straight face, argue that itis lawful or appropriate for quorums of BTA board members to direct those they have taskedwith taking their minutes to correct the phraseology utilized in draft minutes, prior to their nextscheduled meeting? That type of unwarranted micromanagement by certain BTA boardmem bers is outrageous and it clearly violates the OMA be cause [t]he public body shall makeany 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 . do not know what this means. There is no datealleged as to when draft minutes were not av ailable for his inspection,.


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If they were not available when he arrived, I would need to know when he arrivedwith respect to the subject meeting, who he spoke to and what proofs he has thatthe draft minutes were unavailable

Count 2 of my first amended com plaint alleges that:16. On multiple occasions, Plaintiff has arrived at the address designated onDefendant s posted public notices and Defendant s draft meeting minutes were notavailable for public inspection within 8 business days after the meeting to whichthe minutes refer.

Mr. Co oke really did not even attempt to answer the allegations pertaining to Count 2.The B TA s acting executive director, Chad Hollenbeck, will attest to how m any times, after Ms.Miller had already been fired, that I ve arrived at the BTA facility and he did not provide meaccess to any minutes of the BTA board or its committees. Mr. Hollenbeck would have toacknowledge that he did not provide me access to BTA m inutes, on multiple occasions, evenafter I went through the unnecessary procedure of submitting a Freedom of Information Actrequest asking to view their minutes.

FYI: The OM A m andates, at MC L 15.269(3), that:A public body shall make proposed minutes available for public inspectionwithin 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 D efendant s executive committee (Mr.Johansson, Ms. Kitely and M r. Thayer) attended an in-person meeting that wasnot 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 April2, 2012 m eeting with attorney Chris Cooke and Defendant deliberated and m adedecisions regarding public business during said April 2, 2012 executivecommittee meeting.22. Defendant s executive committee did not keep minutes of their April 2, 2012meeting showing the date, time, place, members present, members absent and anydecisions they made at said meeting.


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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 M r.Cooke's legal bill to the agency, Mr. V andussen makes a quantum leap from adiscussion between counsel and the Executive Committee when he allegesdeliberated 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 com mittee thereofmust deliberate towards a decision , Nicholas v Meridian Town ship Charter Bd,239 Mich App 525, 609 NW 2d 574 (2000).There is no proof of deliberations towards a decision because deliberations didnot occur. There are many reasons why a Board or quorum or sub-quorum of aBoard w ould wan t to consult with an attorney for legal advice that do notimplicate deliberations. For instance, legal quandaries might arise for a mem bersof a Board who are unhappy with the performance of its Executive Director. Theymay seek information that the Board may want before they consider variousalternatives. A m ere discussion of options ranging from d iscipline to a correctiveaction plan to termination and the legal ramifications of those potential actionsdoes not implicate deliberations towards a decision . Mr. Vandussen makesallegations here without proof. Whatever proof he h as must aw ait 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 CK C Travel to Beulah for meeting with 0.8 hrsMr. Johansson, Ms. Kitely and Mr. Thayer04/02/12 CKC Attendance at conference with Executive 2.4 hrs

Comm ittee members, M r. Johansson, Ms. Kitelyand M r. Thayer re: various issues regarding thedeparture of an employee and gen eral proceduralissues

04/02/12 CKC Return travel from Beulah after conference with 0.8 hrsExecutive Com mittee

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


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of the BTA 's executive com mittee conducted an illegal meeting w ith Mr. Cooke on A pril 2,2012. It's undisputable that (a) the executive committee meeting on April 2, 2012 was notproperly noticed and no minutes were taken; and (b) the executive committee was deliberatingpublic business and making decisions in secret on April 2, 2012.

Unbe lievably, Mr. Cook e argues in his Nov . 11 letter that a mere discussion of optionsranging from discipline to a corrective action plan to termination and the legal ram ifications ofthose potential actions does not implicate deliberations towards a decision . He is readilyacknow ledging that the full executive comm ittee met with him and had a discussion ofoptions. Does Mr. Cooke really think if his invoice only refers to their meeting as aconference, than it makes all their illegal activities okay?

Again, in what fantasy world does Mr. Cooke live? Would a quorum of any committeeappointed by Benzie County's board of commissioners ever consider meeting with their attorney,in secret, to have a discussion of options because they are unhapp y with the performan ce ofits Executive Director ? I think not.

Count 4 of my first amended complaint alleges that:

26. On September 27, 2012, all three members of D efendant's executivecommittee (Mr. Johansson, Ms. Kitely and Mr. Thayer) attended a virtual meetingthat was not open to the public and Defendant's executive committee did notprovide public notice for said meeting.27.An example of the habitual manipulation of a draft BTA executive committeeminutes was brazenly memorialized in emails exchanged between all threemembers of Defendant's then executive committee, on September 27, 2012.28. On S eptember 27, 2012, at 12:20 AM , BTA executive committee memberKelly Thayer sent an email to the two other members of the BT A executivecom mittee and informed them that he had attached my suggested edits to theseEx Comm minutes. Please help shape these minutes, which are very detailed andwould benefit from a close review by each of us before they're inserted in theBoard packet. (EXHIBIT 2)29. At 8:08 AM , on September 27, 2012, BTA executive committee memberIngemar Johansson sent an email to the two other members of the BTA executivecommittee and informed them that he had took your version, Kelly, and worked


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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 memberKristin Kiteley sent an email to the two other mem bers of the BTA executivecommittee and informed them that I agree that the amended minutes by Ingemarshould go in the packet. I had many concerns about the first draft. (EXHIB IT 2)31.Defendant's executive committee did not keep m inutes of their September 27,2012 m eeting showing the date, time, place, members present, members absentand 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 inher minute taking habits, prior to the formulation of a dr ft of the minutes to bepresented to the Board.

Well that's just amazing. Never before have I heard of an occasion where all three sittingmem bers of a public body, such as the BTA 's executive comm ittee, had to deliberate by em ailabout how to alter the content of their meeting minutes before a draft could even be published fortheirs and the public's consideration. Their own w ords demo nstrate that they w ere not, as M r.Cooke argues, merely assist[ing] Ms. Miller in her minute taking habits... Also, a briefsumm ary of the changes made to Ms. M iller's draft minutes demonstrates that the committeewas in no way interested in assisting Ms. M iller. They w ere clearly compelling changes to thecontent of the draft minutes and they were not just providing minor grammar or spellingassistance.

The three above cited executive comm ittee m embers obviously thought that their emailswould never be m ade 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 andwould benefit from a close review by each of us before they're inserted in the Board packet. Mr.Johansson responded by opining that Ms. M iller's draft minutes were waaaaay to detailed.Then, Ms. Kiteley really demonstrated their illegal conduct by saying: I agree that theamende d minutes by Ingem ar should go in the packet. I had many concerns about the firstdraft.

Mr. T hayer, Mr. Johansson and M s. Kiteley not only failed to refrain from illegallycorrecting the draft minutes prepared by Ms. M iller, prior to their next scheduled meeting. Theyadditionally conduced an illegal, round-robin meeting - by email - in order to secretly effectuate


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

Count 5 of my first amended complaint particularizes an absolutely inexcusable violationof the OMA that was committed by certain members of the BTA board. Count 5 alleges that:34.On N ovember 19, 2012, all three members of D efendant's executivecommittee (Mr. Johansson, Ms. Kitely and Mr. Thayer) again attended a virtualmeeting that was not op en to the public with attorney Chris Cooke.35. On No vember 19, 2012, at 9:24 AM, attorney Chris Cooke sent an email(EXH IBIT 3) to all three mem bers of Defendant's executive committee (Mr.Johansson, Ms. Kitely and Mr. Thayer) indicating, in pertinent part, that:

... Big news for me. I have left CM DA to start my ow n law practice,Cooke L aw, PLL C... I, of course, would very m uch like to continue ourrelationship under the same terms and conditions as with my former firm.If that is your desire as well, I would need authorization to remove theBenzie Bus files from C MD A. I have placed some cut and paste languagebelow that should be sent to "tyoung@ ernda-law.com" with a cc to"[email protected] . Looking forward to a long and productiverelationship with Benzie Bus. C an't wait for you to see m y new digs

thanks. Chris36.Also on Nov ember 19, 2012, at 5:58 PM , Defendant's executive committeemember Kelly Thayer sent a responsive email (EXHIBIT 4) indicating, inpertinent part, that:

... Chris Cooke informed us today that he has left CDM A to starthis own firm in Traverse City.I contacted Kristin and Ingemar, and we agreed to continue theBTA's legal relationship with Chris Cooke. Please see the attachedmessage that I just emailed to CMDA authorizing the transfer of theBTA 's legal files to Cooke Law PLLC . This will allow the BTA ,including the Executive Committee, to continue to seek uninterruptedlegal guidance from C hris Cooke "under the same terms and conditions"as with his former firm regarding development of the executive director


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contract and any other matters, as needed. I will inform the Boa rd at theDecember 12 monthly meeting of our decision.

37.All three mem bers of Defendant's executive committee Mr. Johansson, Ms.Kitely and M r. Thayer) attended the virtual November 19, 2012 with attorneyChris Cooke.38.Defendant's executive comm ittee's November 19, 2012 virtual meeting w ithattorney Chris Cooke was not open to the public.39.Defendant's executive committee did not provide public notice of theirNovember 19, 2012 meeting with attorney Chris Cooke and D efendantdeliberated and made decisions regarding public business during said November19, 2012 executive committee meeting.40. Defendant's executive committee did not keep minutes of their November 19,2012 m eeting showing the date, time, place, mem bers present, mem bers absentand any decisions they made at said meeting.

Mr. Cooke's N ovember 11 letter responds to m y allegations in Count 5 by stating:Once again, Mr. Vand ussen classifies email exchanges as a virtual meeting . Thepurpose of the email exchanges was to notify BATA of a change in firms of theattorney they had already retained to assist the Agency. There was no change inthe terms and conditions of the relationship. The communication soughtpermission to remove files from counsel's former office that the Board hadalready authorized him to work on.To the extent that the decision to continue our relationship and obtainauthorization to remov e files which occurred one year ago, is an infringem ent

on the Open Meetings Act, these actions were later ratified by the full board onOctober 9th [2013].

Mr. C ooke's November 11 letter is clearly an admission to m y allegation that he and theexecutive comm ittee violated the OMA as indicated in Count 5 of m y first amended complaint.He does, however, still try to sugar coat their misdeeds by arguing that the purpose of the emailexchanges was to notify BATA of a change in firms of the attorney they had already retained toassist 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 lawfirm of CUMMINGS, McCLOREY DAVIS & ACHO , P.L.C. Mr. Cooke solicited the BTA's


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business for his new, solo law firm and he deliberately made the conscious choice to only emailhis solicitation to all three members of the executive committee. Mr. Cooke instigated andparticipated in the process to make an illegal decision to hire him without the BTA noticing orconducting a public meeting regarding the issue. And, they didn t keep any minutes of theirmeeting and the d ecision(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 boardand/or a quorum of one of its committees conducted a virtual and/or actualmeeting with attorney Chris Cooke.44.On and around September 9, 2013, a quorum of Defendant s governing boardor a quorum of one of its comm ittees deliberated and made a decision to causeattorney Chris Cooke to draft and send a threatening letter (EXHIBIT 5) toDefendant s former executive director in an attempt to coerce Defendant sexecutive director into immed iately resigning her position.45.Defendant s deliberations and decision to cause attorney Chris Cooke to drafta threating letter to Defendant s executive director did not occur at a m eeting opento the public.46.Defendant s did not keep m inutes showing the date, time, place, memberspresent, members absent and any decisions they made at their virtual and/or actualmeeting that occurred on and around September 9, 2013.47. Defendant s executive director refused agree to the ridiculous terms containedin attorney Chris Cooke s threating letter, which was written in an attempt to forceher resignation.48. Certain members of Defendant s governing board becam e very agitated wh entheir executive director refused to agree to forced resignation and gag orderrequirement.49. On and around September 9, 2013, a quorum o f Defendant s governing boarddeliberated and made the decision to terminate Defendant s executive directorwithout their deliberations and termination decision being conducted at a meetingopen to the public.


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50. On September 10, 2013, during an open meeting, a quorum of D efendant'sgoverning board rubberstamped their previous decision to terminate theirexecutive director.

When addressing Count 6 in his Nov. 11 letter, Mr. Cooke initially states:This attorney was asked to draft a proposed separation agreement betweenMs.- M iller and the B oard which, if accepted by both p arties, would have offeredan 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 thjoint proposal as it spells out a means for the Board to consider the proposal indetail at a special meeting, Ms. M iller's right to have the m eeting open or closedand the need to return to an open session to vote. Nothing in this letter can beconstrued 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 landingThis effort has now been turned on its head by Mr. V andussen.

Mr. Cooke consciously failed to reveal which BTA board mem bers asked him to drafta proposed separation agreement / joint proposal that was an effort to give Ms. Miller a softlanding. He also doesn't reveal how certain BTA board members made that decision to requestthat he draft such an agreement w ithout the BTA ever conducting an open, public meetingregarding the issue.

Wasn't the purpose of Mr. Roy sending an inquiry letter to Mr. Cooke an effort to givehim an opportunity to dispel my allegation that a quorum of BTA board mem bers deliberatedand asked him to draft and send the September 9 resignation letter to Ms. Miller?

Considering the proven track record of Mr. C ooke and certain BTA board m embers, it'ssafe to say that Mr. Cooke refused to adequately respond to the allegations contained in Count 6because he knows that he was once again caught participating in a blatant OMA violation.

The final argument made by M r. Cooke in his Nov. 11 letter is basically that, regardlessof any OM A violations that may have been comm itted by the BTA , because they reenacted someof their misdeeds on a later date their improperly made decisions cannot be invalidated. Hebasically argues that my allegations are moot and that there is not an actual controversy inexistence at this time.


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W ell, contrary to the delusion M r. Cooke is trying to sell, I am no t seeking to invalidateany past actions or prior decisions made by the BTA board. My litigation is merely attemptingto 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 BTAviolated the OMA and (b) enjoining the BTA from continuing their repeated practices ofviolating the OM A.

One thing that Mr. Cooke is correct about is that a reenactment of a public body simproperly made decision does validate their previous, improperly m ade decision. However,any reenactm ents - made by the BTA or their comm ittees - do not negate the fact that they stillneed 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 delayany decision on whether they should remove certain BTA board members for their repeatedOMA violations. His Nov. 11 letter indicates that:

I hope I have the a bility, given the ethical constraints imposed on me, to conv incethe Benzie Cou nty Board to allow this matter to play out in the Circuit Courtwhere all sides will have a full opportunity to be heard acc ording to the rules.

Mr. Coo ke is well aware of the fact that the circuit court does not have the authority toremove certain members of the BTA board. That authority lies with the Benzie County Board ofCommissioners. All of Mr. Cooke s efforts seem to be designed to postpone any inquiry intowhether certain BTA board members should be immediately removed from their positions, dueto their blatant and repeated OMA violations. Waiting to see how the circuit court rules on myOMA allegations is unnecessary because it is crystal clear that certain BTA board members havebeen 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 arestill, to this day, arguing that they should be allowed to co ntinue their brazen practices ofconducting illegal meetings, mak ing illegal decisions and illegally correcting their minutes.

I believe the Benzie County Board of Commissioners have a duty to follow the directiveof their unanimous decision and hold a special meeting to assess my OMA allegations anddetermine whether certain BTA board members appointments should be revoked.

Thank you for your time,

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VanDussen letter to Benzie Co. Bd. responding to attorney Cooke letter - 12-11-13

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