People v. Whitney
| Decision Date | 24 February 1998 |
| Docket Number | Docket Nos. 191167 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles L. WHITNEY, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James FYVIE, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Danny SURGENT, Defendant-Appellant. to 191169. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appeals, Research, and Training.
Plunkett & Cooney, P.C. by Robert G. Kamenec and Dennis J. Clark, Detroit, for Defendants-Appellants.
Before FITZGERALD, P.J., and O'CONNELL and WHITBECK, JJ.
All three defendants-appellants in this case, Charles L. Whitney, James Fyvie, and Danny Surgent (defendants), were members of the Vassar City Council in 1992. 1 They were charged with misdemeanors on the basis of allegations that they intentionally violated the Open Meetings Act (OMA), M.C.L. § 15.261 et seq.; M.S.A. § 4.1800(11) et seq., in connection with holding closed sessions of the council on November 23, 1992, and December 9, 1992. 2 Defendants Whitney and Fyvie were each convicted by a jury in the district court of one count of intentionally violating the OMA, M.C.L. § 15.272; M.S.A. § 4.1800(22), on the basis of their involvement in the holding of a closed session of the council on December 9, 1992, and one count of conspiracy to intentionally violate the OMA, M.C.L. § 750.157a; M.S.A. § 28.354(1), but were acquitted of all other charges. Defendant Surgent was convicted of one count of intentionally violating the OMA on the basis of his involvement in the holding of the December 9, 1992, closed session. 3 Defendants appealed to the circuit court, which affirmed their convictions. The defendants appealed to this Court by leave granted. The appeals were consolidated. While we find that there was sufficient evidence at trial to conclude that the closed session on December 9, 1992, violated the OMA, we reverse and remand to the district court for a new trial because its jury instructions regarding intent allowed defendants to be convicted without a finding that they intentionally violated the OMA.
At the November 1992 general election, defendants, John Miller, and Shirley Seney were elected as the five members of the council. For reasons that are not entirely clear from the record, it appears that defendants and council member Miller were displeased with the job performance and policies followed by Michael LaChance, then the city manager of the city of Vassar.
Michael Sauer, the city attorney for the city of Vassar, 4 testified that, just after the November 1992 election, Surgent telephoned him at his office and indicated that he was calling on behalf of a majority of the members of the council. According to Sauer, Surgent asked if they could have a meeting with Sauer "so that they could discuss the termination of Mr. LaChance's employment." However, Sauer wrote a letter in which he advised that it would be in the best interest of the city to have another attorney for that matter because of Sauer's close working relationship and friendship with LaChance.
James Walker, the superintendent of the city of Vassar's wastewater treatment plant, testified that, on the weekend before November 23, 1992, Whitney and Fyvie visited him at home and asked him if he would be interested in taking over as interim city manager if needed. Walker also testified that one or both of them told him that they were planning to place LaChance on administrative leave and eventually replace him because they were dissatisfied with the way that LaChance was conducting himself as the city manager.
At the November 23, 1992, meeting of the council, Whitney made a motion to go into a closed session to discuss personnel matters and Surgent seconded it. 5 In response to a question from LaChance, Whitney advised that "[t]he personnel is you [LaChance], and it has to do with considering your employment." 6 LaChance then, in essence, objected to the holding of this closed session on the ground that he had not requested a closed session. Whitney requested that LaChance provide him with a copy of the OMA. LaChance testified that he gave Whitney an item that included "a copy of the condensed Open Meetings Act ... provided by, or printed by the state legislature and passed out by various and sundry congressmen [sic] and senators in Lansing." After further discussion, the council voted to go into closed session, with defendants and Miller voting for the motion. Defendants and Miller left the room where the open council meeting was being held and apparently went to the city manager's office to meet privately. 7
After a few minutes, defendants and Miller returned to the open meeting. Whitney then said, "Let it be noted that the executive session has been determined to be illegal, was not held." Thereafter, in open session, defendants and Miller voted in favor of a successful motion to place LaChance on administrative leave, effectively suspending him with pay, from his position as city manager. Later during this open session, defendants and Miller voted to go into closed session to consider employment of a temporary replacement for the city manager. After returning from this closed session to the open session, the council appointed James Walker as "temporary city manager." The council also passed a motion to appoint the law firm of which attorney Thomas Demetriou was a member to represent the city of Vassar with regard to the city manager situation. 8
Between the council meetings held on November 23, 1992, and December 9, 1992, Demetriou and John Humphreys, an attorney representing LaChance, negotiated on behalf of their respective clients toward a possible agreement under which LaChance would resign as city manager in return for a settlement package.
At the December 9, 1992, council meeting, Whitney stated that he "would entertain a motion at this time for us to retire to executive session to discuss ongoing negotiations." Fyvie then moved "that we go into executive session for purposes of discussing the city manager's position," and Surgent seconded the motion. Seney asked, "This is for negotiations, or is this for the city manager?" Fyvie replied, Humphreys, on behalf of LaChance, objected to the council's going into closed session as being a violation of the OMA. Whitney said that the objection was "overruled" and further stated, After another observer of the council meeting pointed out that the motion made by Fyvie did not include a reference to negotiations Fyvie said, "if it would appease the people, I will amend that motion to include the city manager negotiations." Surgent said that he seconded the amended motion. The "amended motion" then passed by a 4 to 1 vote with defendants and Miller in the majority. Then, defendants and Miller went into closed session. Seney, the council member who voted against the motion, did not attend the closed session. However, Demetriou attended this closed session.
The transcript of the closed session held on December 9, 1992, reflects that, near the beginning of this closed session, Whitney said that one of the reasons for meeting in closed session was "so that he [LaChance] won't have the benefit of knowing how everybody feels as far as these negotiations." Demetriou told the council members various aspects of the negotiations that he had been pursuing with Humphreys. Demetriou also orally advised the council members regarding various options they might pursue with regard to LaChance's employment. Notably, Demetriou's advice included the following remarks:
[I]f you're going to fire him and you're going to make a decision that he can be fired for just cause, it would be our law firm's recommendation that he be taken off administrative leave, be put back on the job and then notified that thirty days after going back to work that he is going to be fired for just cause and I feel it would be only fair to the citizens of the community and to Mr. La Chance [sic] that if he is to be fired for just cause that specifics be given as to what he did that constituted mis-conduct [sic] in office.... Now, many employers when faced with this situation, take the position that even if I don't have enough now, I know down the road I want to fire him. So, lets [sic] get him back to work, put demands on him, give him restrictions, give him guidance and if he doesn't perform then he will be well advised of what he was supposed to do, he'll be award [sic] that he hasn't done it and then when he's gone he has no recourse, he can sue but he probably won't win.
In addition to providing strictly legal advice at this closed session, Demetriou advised the council regarding bargaining positions that it might take in its negotiations with LaChance. Demetriou also appeared to present his personal views regarding some aspects of the underlying controversy involving LaChance, beyond the applicable legal considerations. For example, Demetriou advised the council:
If a city manager down the road sees that you can be let go for small minded reasons, they ain't gonna come here and then you'll have to try to promote from within. Not to say you don't have qualified people here in your own home town that can do the job.
Defendants and Miller also engaged in discussion of LaChance's past job performance...
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