By Bruce Rolfe
The Climax Village Council unanimously approved a recommendation by its attorney to reduce a Freedom of Information Act charge to a village resident after a FOIA fee appeal by the resident was given to the Village.
Village Clerk Linda Coburn said the FOIA fee appeal letter is from Samantha Sineath on behalf of Lisa Moore, who is listed, along with George W. Moore, on the BS&A website for the name of the owner of person on the property tax information, as the owner at 115 Watson Street.
Village attorney Craig Rolfe explained at the August 4 Village Council meeting there was a flaw in the process when the Village placed a lien for $2,580 on 115 Watson Street to pay for items removed from the location in a blight abatement issue that took place in 2020.
The previous law firm that was representing the Village, Bauckham, Thall, Seeber, Kaufman, & Koches PC, paid the Village $2,580 “with the stipulation we put it on the Moore’s property.”
Coburn told the Council and audience at the regular Council meeting August 18 she received a FOIA request from Samantha Sineath July 15.
After responding with a cost, Coburn said the Village received an August 6 appeal from Sineath regarding the charges.
Coburn reached out to the Village attorney about the FOIA appeal.
Rolfe then said when considering the FOIA fee appeal, section 10a of the FOIA requires the Council to do one of multiple options.
A) Waive the fee
B) Reduce the fee
C) Uphold the fee
D) Issue a notice extending for not more then 10 business days.
After Coburn read a lengthy opinion and recommendation from Rolfe, the Council unanimously approved to reduce the FOIA charge from $170.70 to $128.38 to reflect the FOIA appeal and certify the statement from legal counsel as the determination of the Council on the appeal by a 4-0 margin (Joline Chaney, Nick Ludwig, and Ben Moore were not present).
The attorney also recommended the Council consider adjusting its FOIA policy and hourly rate for FOIA gathering purposes to reflect current State of Michigan minimum hourly wage rates.
Rolfe first outlined the Village’s FOIA policy and procedures that went into effect February 20, 2007.
The FOIA Coordinator’s fee determination was $170.70. Part of the FOIA fee was based on $135 in labor costs at $20 per hour. Coburn said the labor to gather the information requested was 6.75 hours. There was a cost of $21.90 for 219 pages of documents (10 cents a copy) and $13.80 for postage. A $20 poverty discount was also applied for a total of $150.70.
The attorney’s letter notes Sineath’s appeal claims the total fee should be $15.70, calculated by waiving the labor charge in its entirety and applying a $20 discount to the remaining copy and postage fee, placing the total at $35.70, minus the $20 poverty discount for the $15.70 total Sineath’s appeal claim indicated.
Rolfe then paraphrased several of Sineath’s points on the rationale how the appeal claim was based.
• The Village can’t charge any labor costs because of prior administration “neglected and abandoned” the underlying village code enforcement case to which the requested records relate.
• If a labor charge was permissible, the village charge of $20 per hour can not be charged without “providing the required itemized break down of the Village’s lowest paid operational wage scale.”
• The Village is required to waiver $20 of any otherwise lawful total fee because a FOIA request “was submitted on behalf of a disabled senior citizen receiving social security disability.”
Rolfe went on to say in his opinion none of the Sineath claims supporting her appeal have any legal merit based on, the FOIA Coordinator calculated the labor charge specified in the Village FOIA policy and procedure documents and section 4 of the Act.
Rolfe adds the failure of the previous administration to properly attend to a code enforcement matter has zero legal relevance to the calculation of such cost as required by law.
The Village attorney adds the FOIA Coordinator calculated the labor charge based on the $20 per hour rate. He said nothing in the Act requires the Village to provide “an itemized breakdown” of that labor charge the FOIA Coordinator is required to follow when calculating the labor component of a FOIA fee.
Rolfe also referenced 5c Section 42a of the Village’s FOIA Act policy requiring a person claiming the inability to pay FOIA fees to “submit an affidavit stating that the individual was indigent”.
Village President Bill Lewis said a required waiver or consent form confirming indigency for the $20 indigency reduction was not included in the FOIA appeal packet from Sineath.
“We can’t honor it if we don’t have the form,” said Lewis.
Rolfe said in his opinion the forgoing means no part of the appeal has any legal merit and the Council could uphold the fee as determined by the FOIA Coordinator, but without the $20 indigency reduction.
However the attorney said because present village officials may not be able to explain the basis for the $20 per hour labor charge approved in 2007, that could present an issue if a council’s decision upholding the $20 hourly labor fee is further litigated in Circuit Court. He advised the Council to instead, consider reducing the fee by adjusting the labor charge component to the current statutory minimum hourly wage rate in Michigan ($13.73). He also suggested a review and updating the FOIA policy and procedures document, but otherwise upholding the fee as determined by the FOIA Coordinator, except adding back in the unsupported $20 indigency reduction.
Rolfe advised the Council to comply with the Act requirements by adopting a statement by legal counsel for the village as the determination of the council on the appeal with the wage rate reduction and certify the statement.
The reduced FOIA fee would be $92.58 labor, plus $21.90 for copies, $13.80 postage, plus $20 for the defective indigency reduction intially and improperly allowed by the FOIA Coordinator which equals $128.38.
New Pump House Motor Purchase Approved
After learning a pump house motor failed, the Village approved a motion to have Peerless Midwest replace and install a new motor at well house number three for up to $14,000.
Department of Public Works employee Lucas Piper said the motor at well house number three failed from a short. Piper said the short could have been a result of a lightning strike that required repairs at well house number one. Piper said a quote for the new motor, a year’s worth of parts, warranty and labor was $9,736. However Village Council President Bill Lewis requested some additional money be included in the motion in case there were additional costs because the motor was older.
Lewis said the older motor has been rebuilt over the years a number of times.
The expense will be turned into the insurance carrier. The Village also lost a transformer from a lightening strike recently that was also turned over to the insurance company.
Trees Scheduled to Be Removed
The Council unanimously approved a quote from W.D. Forestry to have two trees on North Church Street removed for safety reasons at a cost of $6000. Lewis said the quote to remove the tree in front of 138 North Church Street was $2500 and the quote to remove the tree in front of 140 North Church Street was $3500. The Village did receive other quotes and W.D. Forestry was the lowest bid
The Climax Village Council unanimously approved a recommendation by its attorney to reduce a Freedom of Information Act charge to a village resident after a FOIA fee appeal by the resident was given to the Village.
Village Clerk Linda Coburn said the FOIA fee appeal letter is from Samantha Sineath on behalf of Lisa Moore, who is listed, along with George W. Moore, on the BS&A website for the name of the owner of person on the property tax information, as the owner at 115 Watson Street.
Village attorney Craig Rolfe explained at the August 4 Village Council meeting there was a flaw in the process when the Village placed a lien for $2,580 on 115 Watson Street to pay for items removed from the location in a blight abatement issue that took place in 2020.
The previous law firm that was representing the Village, Bauckham, Thall, Seeber, Kaufman, & Koches PC, paid the Village $2,580 “with the stipulation we put it on the Moore’s property.”
Coburn told the Council and audience at the regular Council meeting August 18 she received a FOIA request from Samantha Sineath July 15.
After responding with a cost, Coburn said the Village received an August 6 appeal from Sineath regarding the charges.
Coburn reached out to the Village attorney about the FOIA appeal.
Rolfe then said when considering the FOIA fee appeal, section 10a of the FOIA requires the Council to do one of multiple options.
A) Waive the fee
B) Reduce the fee
C) Uphold the fee
D) Issue a notice extending for not more then 10 business days.
After Coburn read a lengthy opinion and recommendation from Rolfe, the Council unanimously approved to reduce the FOIA charge from $170.70 to $128.38 to reflect the FOIA appeal and certify the statement from legal counsel as the determination of the Council on the appeal by a 4-0 margin (Joline Chaney, Nick Ludwig, and Ben Moore were not present).
The attorney also recommended the Council consider adjusting its FOIA policy and hourly rate for FOIA gathering purposes to reflect current State of Michigan minimum hourly wage rates.
Rolfe first outlined the Village’s FOIA policy and procedures that went into effect February 20, 2007.
The FOIA Coordinator’s fee determination was $170.70. Part of the FOIA fee was based on $135 in labor costs at $20 per hour. Coburn said the labor to gather the information requested was 6.75 hours. There was a cost of $21.90 for 219 pages of documents (10 cents a copy) and $13.80 for postage. A $20 poverty discount was also applied for a total of $150.70.
The attorney’s letter notes Sineath’s appeal claims the total fee should be $15.70, calculated by waiving the labor charge in its entirety and applying a $20 discount to the remaining copy and postage fee, placing the total at $35.70, minus the $20 poverty discount for the $15.70 total Sineath’s appeal claim indicated.
Rolfe then paraphrased several of Sineath’s points on the rationale how the appeal claim was based.
• The Village can’t charge any labor costs because of prior administration “neglected and abandoned” the underlying village code enforcement case to which the requested records relate.
• If a labor charge was permissible, the village charge of $20 per hour can not be charged without “providing the required itemized break down of the Village’s lowest paid operational wage scale.”
• The Village is required to waiver $20 of any otherwise lawful total fee because a FOIA request “was submitted on behalf of a disabled senior citizen receiving social security disability.”
Rolfe went on to say in his opinion none of the Sineath claims supporting her appeal have any legal merit based on, the FOIA Coordinator calculated the labor charge specified in the Village FOIA policy and procedure documents and section 4 of the Act.
Rolfe adds the failure of the previous administration to properly attend to a code enforcement matter has zero legal relevance to the calculation of such cost as required by law.
The Village attorney adds the FOIA Coordinator calculated the labor charge based on the $20 per hour rate. He said nothing in the Act requires the Village to provide “an itemized breakdown” of that labor charge the FOIA Coordinator is required to follow when calculating the labor component of a FOIA fee.
Rolfe also referenced 5c Section 42a of the Village’s FOIA Act policy requiring a person claiming the inability to pay FOIA fees to “submit an affidavit stating that the individual was indigent”.
Village President Bill Lewis said a required waiver or consent form confirming indigency for the $20 indigency reduction was not included in the FOIA appeal packet from Sineath.
“We can’t honor it if we don’t have the form,” said Lewis.
Rolfe said in his opinion the forgoing means no part of the appeal has any legal merit and the Council could uphold the fee as determined by the FOIA Coordinator, but without the $20 indigency reduction.
However the attorney said because present village officials may not be able to explain the basis for the $20 per hour labor charge approved in 2007, that could present an issue if a council’s decision upholding the $20 hourly labor fee is further litigated in Circuit Court. He advised the Council to instead, consider reducing the fee by adjusting the labor charge component to the current statutory minimum hourly wage rate in Michigan ($13.73). He also suggested a review and updating the FOIA policy and procedures document, but otherwise upholding the fee as determined by the FOIA Coordinator, except adding back in the unsupported $20 indigency reduction.
Rolfe advised the Council to comply with the Act requirements by adopting a statement by legal counsel for the village as the determination of the council on the appeal with the wage rate reduction and certify the statement.
The reduced FOIA fee would be $92.58 labor, plus $21.90 for copies, $13.80 postage, plus $20 for the defective indigency reduction intially and improperly allowed by the FOIA Coordinator which equals $128.38.
New Pump House Motor Purchase Approved
After learning a pump house motor failed, the Village approved a motion to have Peerless Midwest replace and install a new motor at well house number three for up to $14,000.
Department of Public Works employee Lucas Piper said the motor at well house number three failed from a short. Piper said the short could have been a result of a lightning strike that required repairs at well house number one. Piper said a quote for the new motor, a year’s worth of parts, warranty and labor was $9,736. However Village Council President Bill Lewis requested some additional money be included in the motion in case there were additional costs because the motor was older.
Lewis said the older motor has been rebuilt over the years a number of times.
The expense will be turned into the insurance carrier. The Village also lost a transformer from a lightening strike recently that was also turned over to the insurance company.
Trees Scheduled to Be Removed
The Council unanimously approved a quote from W.D. Forestry to have two trees on North Church Street removed for safety reasons at a cost of $6000. Lewis said the quote to remove the tree in front of 138 North Church Street was $2500 and the quote to remove the tree in front of 140 North Church Street was $3500. The Village did receive other quotes and W.D. Forestry was the lowest bid
Lewis said the village has $6000 in other department fund balance budgets to pay for the cost to remove the trees on North Church Street.
It was also noted Consumers Energy will be removing or trimming trees in the Village soon.
Trees with a blue “X” will be removed and trees with a blue dot are identified to be trimmed.
Piper also informed the Council sidewalk replacement in the Village is expected to begin soon.
New Contract with Safebuilt Discussed
Finance/Insurance and Administration Chairperson Denise Pyle said the committee has been visiting with Safebuilt officials about a new contract. Safebuilt provides zoning, ordinance and permit services for the village.
Pyle said the committee has discussed concerns the village had with Safebuilt and wanted to be addressed in a new contract, The Committee will meet with Safebuilt again to make sure the Committee’s concerns are addressed in a new contract and once that takes place the committee will forward a new two-contract to the Village Council to consider. Pyle said another company was contacted but did not follow up with discussions.
Planning Commission Member’s Term Extended
After learning current Planning Commission member Marcia Lewis’ term expires at the end of August and not at the end of the calendar year, the council unanimously approved a motion to reappoint Lewis on the Planning Commission for three years.
In other items covered at the August 18 meeting:
Under the Public Safety/Fire/Law Enforcement and Disaster Planning report, it was noted there were 11 calls for service in the Village to the Kalamazoo County Sheriff Department, including one officer initiated call for service and 10 citizen calls for service in the month of July.
It was noted the Citizens Police Academy through the Kalamazoo County Sheriff Department is beginning September 16. The registration is open to any citizen who wants to be connected and engaged with the Kalamazoo County Sheriff Department. Contact the Kalamazoo County Sheriff Department at 383-8821 for more information.
• Ordinance/Zoning/Planning and Development Chairperson Carolyn Kelly reports there continues to be major improvements in village residents’ yards.
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