• Memorandum to the Citizens of Fruitport Charter Township
• A Journal of my experience with the Fruitport Superintendent issue
• Editorial – In regard to the proposed township Superintendent Agreement and Possible Criminal Implications
TO: The Citizens of Fruitport Charter Township
FROM: Attorney James L. Waters
DATE: February 16, 2016
RE: Superintendant Agreement/Conflict of Interest
A.Pertinent part of the Agreement:
Agreement: This agreement is effective April 1, 2016.
B. Duties of the Employee:
The Employee shall generally render at least 40 hours of service per week.
The Township shall pay the Employee the sum of $72,000.00. (Currently, $59,500.00)
G. Fringe Benefits:
2. Pension Benefit. The Township shall contribute 10 percent of the Employee’s compensation to a pension plan…
I. Term. The term of this Agreement shall commence on the effective date and shall continue four years, through March 31, 2020, unless terminated or extended as provided in this Agreement.
5. This Agreement shall be terminated immediately upon the decision of the Township Board, provided that the Township provide the Employee with written notice of the termination, and provided that the Township has just and reasonable cause for such termination.
6. This Agreement shall be terminated upon the decision of the Township Board, Rendered according to its pleasure. However, if the Township does not have just and reasonable cause for such termination, the Township shall pay the Employee a lump sum equal to 18 months’ wages.
B. Michigan Law Provides:
42.9 Township officers; powers and duties; additional officers, limitations.
The township clerk, township treasurer, justices of the peace, and constables in each charter township shall have and perform the duties and functions required of such officers by state law. The Township Board may, by resolution, upon the recommendation of the supervisor, or of the township superintendent if one shall be appointed, create such additional officers as may be necessary to administer the affairs of the township government, or may combine any administrative offices in any manner not inconsistent with state law, and prescribe the duties thereof. No creation of any additional administrative office or combination thereof shall abolish the offices of township clerk or township treasurer nor diminish any of the duties or responsibilities of those offices which are prescribed by state law.
42.10a Township manager; employment; service; duties.
Sec. 10a If a township has not appointed a township superintendent under section 10, a township board may employ a township manager who shall serve at the pleasure of the township board and perform such duties lawfully delegated to the manager by the township board.
15.322 Public servant; soliciting, negotiating, renegotiating, approving, or representing a party to a contract with public entity prohibited. – Sec. 2. (1) Except as provided in sections 3 and 3a, a public servant shall not be a party, directly or indirectly, to any contract between himself or herself and the public entity of which he or she is an officer or employee. – (2) Except as provided in section 3, a public servant shall not directly or indirectly solicit any contract between the public entity of which he or she is an officer or employee and any of the following: (a) Him or herself.
C. State Ethics Commission provides:
Summary of the Conflict of Interest Law for Municipal Employees – (d) Self-dealing and nepotism. Participating as a municipal employee in a matter in which you, your immediate family, your business organization, or your future employer has a financial interest is prohibited. (See Section 19) – Example of violation: A school committee member’s wife is a teacher in the town’s public schools. The school committee member votes on the budget line item for teacher’s salaries.
Ethic: (a) A set of principles of right conduct. (b) A theory or a system of moral values.
Conflict of Interest: A conflict between a person’s private interests and public obligations. The circumstance of a public officeholder, whose personal interests might benefit from his or her official actions or influence.
Political scientists Ken Kernaghan and John Langford, in their book “The Responsible Public Servant”, define self-dealing as “a situation where one takes an action in an official capacity which involves dealing with oneself in a private capacity and which confers a benefit on oneself.”
Where a fiduciary has engaged in self-dealing, this constitutes a breach of the fiduciary relationship.
More generally, conflicts of interest can be defined as any situation in which an individual is in a position to exploit a professional or official capacity in some way for their personal benefit.
Frank J. Kelley, Attorney General; Opinion No. 6005; November 2,1981; Conflict of Interest: – B. The Common Law – The common law of the state furnishes the second source of the law of conflict of interest. In People v Township Board of Overyssel, 11 Mich 222, 225-226 (1863), the court stated: – ‘All public officers are agents, and their official powers are fiduciary. They are trusted with public functions for the good of the public; to protect, advance and promote its interests, and not their own. And, a greater necessity exists than in private life for removing from them every inducement to abuse the trust reposed in them, as the temptations to which they are sometimes exposed are stronger, and the risk of detection and exposure is less. A judge cannot hear and decide his own case, or one in which he is personally interested. He may decide it conscientiously and in accordance with the law. But that is not enough. The law will not permit him to reap personal advantage from an official act performed in favor of himself.’
15.342 Public officer or employee; prohibited conduct. – Sec. 2. (3) A public officer or employee shall use personnel resources, property, and funds under the officer or employee’s official care and control judiciously and solely in accordance with prescribed constitutional, statutory, and regulatory procedures and not for personal gain or benefit.
Frank L. Kelley, Attorney General; Opinion No. 6906; June 25, 1996; Conflict of Interest: “1968 PA 317, MCL 15.321 et seq. Section 2 of 1968 PA 317 generally prohibits public servants from being interested in, soliciting, negotiating or approving contracts with the public entity they serve.”
E. Penalties for Self-Dealing/Conflict of Interest:
– 750.505 Punishment for indictable common law offenses. – Sec. 505. Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court.
750.478 Willful neglect of duty; public officer or person holding public trust or employment; penalty. – Sec. 478. When any duty is or shall be enjoined by law upon any public officer, or upon any person holding any public trust or employment, every willful neglect to perform such duty, where no special provision shall have been made for the punishment of such delinquency, constitutes a misdemeanor punishable by imprisonment for not more than 1 year of a fine of not more than $1,000.00.
Contracts of Public Servants with Public Entities – 15.327 Penalty for violation. Sec. 7. Any person violating the provisions of this act is guilty of a misdemeanor.
I am an attorney and a proud resident of Fruitport Charter Township for 36+ years. I attended the Township Board meeting on Monday February 8, 2016. Numerous angry, upset citizens in the audience requested that I render a legal opinion, regarding self-dealing, conflict of interest, and legality of the proposed agreement.
My opinion is: (1) Any agreement between the Township and a Superintendent or Manager, should clearly provide that the employee is at will and serves at the “pleasure of the board”. – (a) The proposed agreement is for the benefit of only the employee and not in the Township’s best interest and is probably illegal and unethical, at best.
(2) The Supervisor, Brian Weschem, has a clear “conflict of interest: and should not have been involved in the preparation, negotiation, discussion or vote, with respect to the proposed agreement: (a) Since his vote was illegal, the motion to table, fails, since there was a tie, 3 to 3 vote… 3 men voting to table and 3 women voting no; therefore, there is nothing legally before the Board or a Committee to consider.
(3) If the Township, in the future, hires a Superintendent… that person cannot interfere with the legal and statutory Duties of the Clerk or Treasurer.
(4) there has been an inappropriate use and waste of Township time, money, and resources. (a) The citizens obtained nothing, while the new superintendent would receive a $12,500.00 increase in salary, plus costly fringe benefits, including a guaranteed yearly increase in salary, plus a possible 18 month payment for termination (more than $100,000.00 paid by the Township; plus an additional $5,400.00 salary for a new supervisor and health insurance)… the cost to the taxpayers, would easily exceed $30,000.00 per year… with nothing in return. (b) The guilty parties should reimburse the Township for their wasted time, legal fees to the Township attorney, etc.:
In conclusion, attached are the documents outlining the statutory duties of township officials. I would suggest that a summary of this information be posted on the Township’s website…plus the Charter rules, policies, ordinances, etc.… This information would be valuable to the citizens and help to improve transparency.
I am pleased to provide this information and opinion, at no cost, for the benefit of our citizens.
A Journal of my experience with the Fruitport Superintendent issue
By Fruitport Township Treasurer, Rose Dillon
–Friday, February 5, 2016 (before Monday’s February 8 board meeting)
On Friday afternoon township supervisor. Brian called me into his office. Chuck Whitlow was in the room and they asked me to close the door (that in itself should have raised a red flag for me). They both told me of this new government plan. It is the first time I had heard anything about this plan. Brian told me that he needed job security and this new job of Twp. Superintendant would guarantee him that since he had a family. He did not want to run for Supervisor as there was a chance he could get defeated and the new Supervisor would have no idea what was going on in the township. It occurred to me as he was speaking that this new job of Superintendent was created specifically for Brian. Brian told me he had had a lot of meetings with the Grand Haven and Park Township Superintendents. Chuck and Brian told me that the township needs consistency with our continual growth and the Superintendant position would guarantee us that. I said that there could be a change in that position also, like in Roosevelt Park. Brian said the only reason they had a turnover is because they decided in December of each year if they would keep the City Manager or not, rather than give him the job security of a several year contract.
Brian and Chuck told me they would make the Supervisor a part time figurehead position. The part time Supervisor position had been offered to Trustee Dave Markgraf. He would be appointed and in November would run for office as the incumbent. Dave had told them he was not interested. The job was then offered to Trustee Ron Becklin who was getting ready to retire. They stated that he would take the job, but if Ron did not they had agreed on another person that would take the position.
They told me that as I was doing a good job in my position that I had three choices and that I should “go home and talk to Greg” about what I should do. The three choices they said I have are:
1. run for the figurehead treasurer
2. keep the treasurer full time and run for that position
3. work with them on a contract employee agreement where I would not be the treasurer, but would do the work of a treasurer. If I decided to run for the full time treasurer they would not make a change in that position until I left the township.
I was amazed to see that everything had all been planned out. I stated that I felt the department directors and the board, clerk, treasurer and supervisor were all working together as a team and that’s why we were doing so well. I stated that Brian would not have that much trouble getting reelected. I learned in that meeting that Brian was pretty much the sole reason for the success of the township and we need to hire him as Superintendent to keep the township going in this direction.
They told me the Clerk was wishy washy in trying to decide if she would retire or not. As others were doing some of her duties, the Clerk should go to a figurehead position and Carol could run for that if she wanted to. If she wished to continue as a full time Clerk she would be given additional duties that she should be responsible for anyway according to State Statute or something.
At some point in the meeting I was given a copy of the Superintendent’s contract. I left the room wondering what had just happened!
–Tuesday, February 9, 2016 (after the board met where the issue had been tabled because Becklin decided not to vote for it)
Chuck came into my office the day after the board meeting and asked if I would call Carol and have her come into my office, too.
He began to tell Carol and I that at the next board meeting work session we would be working on Brian’s contract. He would not be there as he will be on vacation. When it came time to discuss Brian’s contract, we were to vote to go into closed session as this would be some kind of employee confidence and should not be discussed in front of the public.
Chuck stated that he wanted us to be very clear that Carol’s and my jobs would not go into a figurehead position until we were ready to retire or leave the township, but upon us leaving the full time position it would go to figurehead and we could run as part time figurehead at that time.
I received a phone call from one of Chuck Whitlow’s restaurant customers and they told me they heard him telling other customers that Carol and I were confused at the meeting, but now he had talked to us and we were no longer confused and understood the entire process they have been working on.
—February 12, 2016 (after the February 8th meeting)
Trustee Marge Nash came to the township hall. She wanted to ask township Supervisor, Brian, some questions and asked me and Carol to go into his office with her. Carol said she could not go into his office because more than three was considered a township meeting, but could stand outside the office.
Margie asked Brian why she was kept off the Public Safety Committee. Brian said it was because she had done something that it would make it illegal for her to be on a Public Safety Committee (which I doubt). He also stated that Ken Doctor had demanded that she not be placed back on the committee.
In the meeting Brian talked quite nicely to Margie and did not talk down to her like he usually does. He apologized to her profusely. He said he had gotten too busy the Friday before the board meeting to talk to her about the “change in Government” plan. This was sickening to me as Brian and Chuck had both stated that Margie was worthless on the board, she did not ever participate and they would not waste their time talking to her about their plan.
At one point in the conversation Brian pointed his finger at me and said that I was the one responsible for the problem on the board on this issue. He stated that I spoke with a county commissioner and had made several phone calls and visited several people to stir up a problem. I was the reason the board room was packed for the meeting. I thanked him for giving me all the credit for filling the board room. He must have been surprised that I would say that to him and changed his tune by saying that most of the people were there to celebrate with Brian Michelli’s promotion and Ken Doctor’s retirement. I stated that I had called Trustee Ron Becklin and had visited Trustee Dave Markgraf over my concern about pushing the new plan of government and the contract we had been given on the Friday before the Monday board meeting. Brian had met with both Trustees the Thursday before the board meeting behind closed doors. He told me he had went over Brian Michelli’s contract with them and did mention that he had talked to them about the new plan of government. Ron told me when I called him that Brian told him about the new plan of government Thursday, February 4, 2016.
Brian was going on about the meeting he had Friday, February 5, 2016, first with me and then with Carol. I disagreed on several things he told Margie and told him so. Carol asked me to leave the room so she could go in. She was angry at what Brian was saying and told him he was not saying the truth. Carol and Margie were in the room with Brian. I was sick of listening to him and went back to work.
–This statement from Fruitport Township Clerk Carol Hulka, Treasurer Rose Dillon, and Trustee Margie Nash, was read at the March 28 township board meeting by Rose Dillon.
On March 14, 2016 the township board of trustees met at 6:15 p.m. for a work session.
Trustee Chuck Whitlow stated that before the session began he would like to say something. He proceeded to get out of his seat and walk around to the front and face the board. He began talking about the Superintendent position and township government reorganization and how it was simply up for discussion. He proceeded to bully each one of us starting with Margie, then myself and then Carol.
This topic is not up for discussion when the Superintendent contract had already been drawn up by the township attorney with a start date of April 1st. It is not up for discussion when it had already been determined who the figurehead Supervisor would be, that he would begin April 1st and that he would be paid $5,500. It is not up for discussion when we are told that when Brian abstains from voting on his own contract that Chuck will make sure he has to vote so they will have the four votes they need to get their plan though.
Scolding and harassing us is unacceptable behavior. There is no hierarchy on this board. No one has more authority than another. This entire board is elected by the residents of Fruitport Township. We should never have to worry about coming to a meeting to be harassed or bullied by one of our peers on this board.
Every board member at the February 22 meeting voted to be done with this issue, why was he picking on just the three of us?
NEWS & VIEWS
In regard to the proposed township Superintendent Agreement and Possible Criminal Implications
April 7, 2016
Proposed changes to our township management should be guided by what is best for the township – not what is best for any particular individuals on the township board. For Werschem and Whitlow to try to sneak it through before anyone could stop it, is especially troubling!
I can understand why Brian Werschem would like a $12,000+ raise a year, not have to run for re-election, and a contract that’s unchangeable, and that takes authority for him and away from the township board. It’s basically a Dictator’s contract.
Particularly troubling is the additions to Brian’s anticipated Superintendent’s agreement:
“In addition, the Employee shall be the Township representative on the Muskegon County Central Dispatch and Coordinating Committee. The Employee shall also be the Township’s primary contact and liaison with the Little River Band of Ottawa Indians, and the Township’s representative on the Revenue Sharing Board and the Seventh Generation Fund Board, or the functional equivalents thereof, as established by the Little River Band of Ottawa Indians.”
By putting this in the contract, Brian and Chuck would take this authority away from the township board. It would put Brian and Chuck in a position to extort favors and money. The only way the board could get this authority back and away from Brian would be to cancel the Superintendent’s contract which would be very difficult and costly to do.
I can understand why Trustee Charlie Whitlow would work hand in hand with Brian to construct a contract like that with The Little River Band of Ottawa Indians affairs locked into it so he could have a good shot at some of the Indians’ money and business. He has property and a business close to the Indians’ property and it’s easy to see that he is looking out for himself. Neither one should have been able to vote on this self-serving issue and they knew it! Knowing it, puts them at risk of being charged with a Felony.
What I can’t understand is why Trustee David Markgraf and Trustee Ron Becklin would be expected to go along with Werschem’s and Whitlow’s shenanigans. They are supposed to represent what is best for our township, not what is best for Brian and Chuck. To Ron Becklin’s credit he did decide to not vote for it after becoming more informed, and Werschem and Whitlow lost the votes needed to make it done and final.
People have voiced concerns about corruption associated with projects like the casino. Could this be the first known attempt in that direction?
Another coincidence: Normally the number 6 item on the township board meeting agenda is public comment. It comes before unfinished business and new business on the agenda. For the first part of the February 22, 2016 meeting Brian removed public comments, which is very unusual. That was the meeting after the first attempt to force the superintendent contract and changes through. It indicates that Brian was going to give it one more try and didn’t want any comment from township citizens to mess up his plan. Concern was raised from the floor and the board voted to insert it in its usual place. The public responded with numerous concerns and the board ended up voting to remove the superintendent issue permanently from further consideration.
This is another example of Brian’s disrespect of his fellow board members and the citizens of our township.
The township attorneys, Scholton & Fant, represented by Ron Bultje, billed the township a half hour for this issue. It takes that long just to read the Superintendent’s contract much less to construct it, with all the thinking, consideration and conspiring that went into it. Obviously, some costs were camouflaged or covered some other way which may create additional criminal legal problems for both Brian and Charlie and possibly Ron Bultje. By coincidence, Ron Bultje has not attended a meeting since this issue came to light and has instead sent a different attorney to the meetings.
Attorney Jim Waters in his Memorandum to the Citizens of Fruitport Charter Township offers information which suggest that Brian Werschem and Chuck Whitlow may be able to be prosecuted for their self-serving “conflict of interest”. Since Brian seems to find pleasure in persecuting other township citizens, maybe it would be fitting to give him some of his own medicine.
– Ron Cooper, Editor