BY CHRIS FAULKNOR, PUBLISHER & BENJAMIN J. GOHS, EDITOR
One police investigation into potential misconduct at the Village of Boyne Falls was closed just as another has opened regarding possible Open Meetings Act (OMA) violations.
The Charlevoix County Sheriff Office sent its findings on Boyne Falls Village Clerk Debra Taylor’s use of village gravel for her home driveway to the prosecutor’s office in recent weeks.
In the process of deciding whether to prosecute Taylor, Charlevoix County Prosecutor Allen Telgenhof sent the village a letter asking its opinion on the matter.
“My options are to charge Ms. Taylor with a crime if I believe there is a reasonable likelihood of conviction, or to decline prosecution,” Telgenhof stated in the April 2 letter to Boyne Falls Village Council President Bill Carson.
“While it is not the responsibility or duty of a victim (or alleged victim) to determine whether a crime should be prosecuted, I believe that, in this situation, the input of the village is very important,” Telgenhof stated. “Reviewing the reports in the case as well as the applicable law leads me to the conclusion that Ms. Taylor was not properly authorized to purchase the Afton Stone from the village. Putting aside the question of whether the village could legally contract to sell the stone to a village official, there was no village resolution authorizing the sale. Therefore, the sale was inappropriate.”
He further stated, “This, however, does not end the inquiry with respect to criminal prosecution. To convict Ms. Taylor with embezzlement, a jury would have to find, beyond a reasonable doubt, that she received the stone ‘without the consent of (the village)’ and did so with the intent to defraud or embezzle. The evidence I have shows that, at the time she received the stone or shortly thereafter, Ms. Taylor created an invoice, in essence billing herself on behalf of the village for the stone. This would appear to mitigate against any intent to defraud or embezzle.”
The Village of Boyne Falls Council went into closed session to discuss the letter at its regular monthly Tuesday April 10 meeting, calling it a “personnel matter”—this is where alleged activities occurred which spawned the latest police investigation into potential misconduct.
Closed sessions by public bodies are allowed for a few specific reasons and have strict rules governing their implementation. A public body must schedule and post notice of an impending closed session in a conspicuous area.
Not only was the closed session not on the village’s agenda, but some of the council members didn’t even know it was happening until the village president decided to go into closed session.
Carson announced the closed session saying, “I have business with Debbie and … I’m gonna go into a closed session because it’s a personnel matter and everybody has to leave.”
Someone asked if the council was going to come back into regular session after the closed session.
Carson said, “No. We’re gonna discuss what we’re discussing and then the meeting’s basically done.”
Carson was going to let a sheriff deputy in the audience stay but when Faulknor asked if he, too, could sit in on the closed session, Carson said, “Alright, go-go, because we’ve got Mr. Know-it-all (referring to Faulknor) that knows everything about the law, so you probably got to go, too.”
In the meeting
According to Village of Boyne Falls Council Trustee Mike Kondrat—who attended the closed session—a vote was taken “not to press charges” against Taylor for her admitted wrongdoing; Kondrat also said other matters were discussed during the closed session, one of which was the discovery that Taylor has been giving herself an extra month of pay annually. (More on this at the end of the story.)
Taylor was allowed to sit in on the closed session as well.
Boyne City Gazette Publisher Chris Faulknor, who attended the meeting, and could see the closed session through a window, witnessed the council members raising their hands at one point—presumably during the vote Kondrat mentioned.
Kondrat said he was the only one to vote for pursuing pursuing legal recourse against Taylor.
Finally, when boards come out of closed session, they must alert the public in attendance that the regular meeting is back in session, vote to come back into regular session, and, if no other business need be conducted, the body must vote to end the regular meeting.
The Village of Boyne Falls Council tried to go straight from its closed session to leaving the building, but an astute audience member admonished the group and convinced it to follow proper procedure.
That audience member later filed a complaint with the Charlevoix County Sheriff Office, which is now investigating potential Open Meetings Act violations.
Decision not to prosecute
The Boyne City Gazette had asked for a copy of the Telgenhof letter during the meeting but was denied. However, a Freedom of Information request to the Charlevoix County Prosecutor’s Office immediately yielded the April 2 letter along with a statement from Telgenhof regarding his decision of whether to prosecute Taylor.
“I spoke over the telephone with William Carson, village president, this morning regarding last night’s village council meeting,” Telgenhof stated in an April 11 email to the Boyne City Gazette. “That was the final piece of information I was waiting for and, this morning, I declined to authorize charges against Debra Taylor.”
The legal view
Attorney Robin Luce-Herrmann of the law firm Butzel Long, who works with members of the Michigan Press Association—like the Boyne City Gazette—said a closed session regarding a personnel issue can only be held if requested by the employee in question, and they must only discuss that one issue.
“They can never-ever vote in a closed session,” she said. “A closed session is only for deliberations.”
Luce-Herrmann added, “In my view … they have violated the Open Meetings Act.”
She added that any vote or decision made in the closed session could be challenged and invalidated.
“Also, someone can bring a lawsuit if there’s a pattern of OMA violations from the court ordering them to comply,” she said. “And, if there are intentional violations—doing things they know they’re not supposed to do, especially if they’ve been warned about them—then fines can be imposed.”
During the regular meeting, Carson asked if anyone had anything under “future business.” That’s when Village of Boyne Falls Council Trustee Gladys “Joann” Bell shared her concern with Taylor’s apparent extra salary.
“I do not think it’s right that the clerk gets 13 months pay for 12 months work,” she said. “I was a clerk for years and years in the village. I got $150 a month. Out of that 12 months, one month out of that year I was supposed to be paid two-thirds of my $150 and put it on the water fund, and the other third onto the street fund, and that took care of the clerk’s work for the year.”
Bell added, “I would like to know where it got started that the clerk gets $1,000 for just doing the water bills. To me, that is part of the clerk’s salary.”
Bell said things cannot go on as they have.
“We can’t keep paying somebody 13 months pay for 12 months work…. Unless you can show me in the minutes or in the ordinance or someplace that says somebody gets extra money for doing the water bills,” Bell said.
Carson said he thought Bell was the one who said one month of the clerk’s salary should come from the water fund.
Bell said she meant that one of the 12 months pay should come from the water fund—not that Taylor should get an extra month of pay.
Bell and Kondrat both said Taylor should either not get paid for a month to recoup the money back to the village or she should repay the $1,000—the exact amount is $997.00. Bell also expressed concerns about certain village workers getting raises without official village council approval.
Bell made a motion to end the extra month of pay and to require the water bill preparation to be part of the clerk’s duties.
The motion was approved.
Kondrat said he wants the village attorney to come to the next council meeting to answer some questions which have arisen regarding various village official practices.
Kondrat also said he wants a forensic audit of the villages finances. Carson asked Kondrat if he was going to pay for it.
Village of Boyne Falls Trustee Greg Fosler was absent from the meeting.