Bamboozled and Hoodwinked

Today we explore the tenets of the Kilpatrick defense and their vigorous opposition to the releasing of secret court documents pertaining to the whistleblower trial. From the Detroit Free Press today these are excerpts from da’ Mayor himself…

WASHINGTON -- Detroit Mayor Kwame Kilpatrick defended on Wednesday his efforts to prevent the public from seeing the secret documents that prompted his $8.4-million settlement with three former cops who sued him.

"We want the public to have all the information the public wants to have," Kilpatrick told the Free Press after addressing a congressional committee.

"We also want to make sure that we understand what the FOIA is all about -- that it's about private issues that go on in a lawsuit," he said, referring to the state Freedom of Information Act.

On Tuesday, Wayne County Circuit Judge Robert Colombo Jr. granted a Free Press request to release secret settlement documents under the Freedom of Information Act. City officials initially claimed no such records existed, and now argue they should remain private.

Kilpatrick, who was in Washington, D.C., to testify about casino issues, said he supports an appeal.

"I think that the most erroneous things that have been mentioned through this entire period have come from the newspapers," the mayor, a lawyer, said Wednesday.

"You all need to know that the judge's ruling yesterday talked about a confidentiality agreement. It had no mention of anything else, no mention, no ruling on anything about anything else. And the confidentiality agreement is about process more than anything else. ...

"If you've been involved in a lawsuit ... whether it's health or banking or finance and all these different things, there's some sharing of that without being in the public eye. So unfortunately the court decided it needs to go to the appellate division to be decided."

Essentially what the Mayor is stating is that settlements agreed upon by parties, even when administered in a public governmental setting when certain documents are considered private are not subject to FOIA. He attempts to compare this case, erroneously I may add, to non public entities such as the health, banking or the finance sector.

However, the Mayor and counsel – Sharon McPhail – who we will discuss a little later in this blog, once again make the gross assumption that the general public doesn’t have the faintest idea of what the state Freedom of Information Act contains or how it is enforced. They prey on the publics ignorance of the act using these statements to predicate the defense of “Us (read: black folks) against Them (read: the media).

And they also assume that you Black folks are stupid, incompetent and even if you could read it wouldn’t be able to discern the legalities of said document because most Detroiters have an average of a fifth grade education anyway.

Well, I happen to be one of those educated Negroes who do know how to ascertain the facts and I’m their worst nightmare.

So with that said let’s welcome (drum roll please)……

The…..(more drum roll) FREEDOM OF INFORMATION ACT!!!!!!!!!!!

This information is culled direct from the State of Michigan Attorney Generals website:

SUMMARY OF MICHIGAN’S FREEDOM OF INFORMATION ACT (FOIA)
The following is an updated summary of the basic provisions of the Freedom of Information Act (FOIA) as amended by 1996 PA 553. The actual text of the statute follows in Section II.
Basic Intent:The Freedom of Information Act regulates and sets requirements for the disclosure of public records by all “public bodies” in the state.

Key Definitions:“Public body” means a state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof. It also includes:

an agency, board, commission, or council in the legislative branch of the state government;
a county, city, township, village, inter county, inter city, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council or agency thereof; or any other body which is created by state or local authority or which is primarily funded by or through state or local authority. It does not include private non-profit corporations.

“Public record” means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.

Hmmm….. Doesn’t say anything about the exclusion of private records and as a matter of fact specifically states in the last paragraph the broad parameters that the act governs. Let’s continue…

Public Records Open to Disclosure:In general, all records except those specifically cited as exceptions are covered by the Freedom of Information Act. The records covered include minutes of open meetings, officials’ voting records, staff manuals, final orders or decisions in contested cases and the records on which they were made, and promulgated rules. Other written statements which implement or interpret laws, rules or policies, including, but not limited to, guidelines, manuals and forms with instructions, adopted or used by the agency in the discharge of its functions, are also covered.

It does not matter what form the record is in. The act applies to any handwriting, typewriting, printing, photostating, photographing, photocopying and every other means of recording. It includes letters, words, pictures, sounds or symbols, or combinations thereof, as well as papers, maps, magnetic or punched cards, discs, drums, or other means of recording or retaining meaningful content. It does not include computer software.

Wow! Covers a significant amount of documentation. Virtually any and everything that a Public Entity has in its possession is subject to review. But wait! The matter of exemptions to the FOIA was mentioned. Perhaps this is where the Mayor can stake his claim and be exonerated from his multitude of transgressions. Perhaps I was wrong! Let’s take a look at those “exemptions”….

Public Records Exempt From Disclosure:A public body may (but is not required to) withhold from public disclosure certain categories of public records under the Freedom of Information Act. The following public records are exempt from disclosure under this act:
--Specific personal information about an individual if the release would constitute a clearly unwarranted invasion of that individual's privacy.
--Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record would do any of the following:
interfere with law enforcement proceedings;
deprive a person of the right to a fair trial or impartial administrative adjudication;
constitute an unwarranted invasion of personal privacy;
disclose the identity of a confidential source or, if the record is compiled by a criminal law enforcement agency in the course of a criminal investigation, disclose confidential information furnished only by a confidential source;
disclose law enforcement investigative techniques or procedures; or
endanger the life or physical safety of law enforcement personnel.
--Public records which if disclosed would prejudice a public body’s ability to maintain the physical security of custodial or penal institutions occupied by persons arrested or convicted of a crime or admitted because of a mental disability, unless the public interest in disclosure under this act outweighs the public interest in nondisclosure.
--Records which if disclosed would violate the Family Educational Rights and Privacy Act of 1974 (primarily student records).
--Records specifically exempted from disclosure by another statute.
--A public record or information which is furnished by the public body originally compiling, preparing, or receiving the record or information to a public officer or public body in connection with the performance of the duties of that public officer or public body, if the consideration originally giving rise to the exempt nature of the public record remains applicable.
--Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy.
--Information subject to attorney-client privilege.
--Information subject to other privileges such as counselor-client and those recognized by statute or court rule.
--Pending public bids to enter into contracts.
--Appraisals of real property to be acquired by a public body.
--Test questions and answers, scoring keys and other examination instruments.
--Medical, counseling or psychological facts which would reveal an individual’s identity.
--Communications and notes between and within public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption shall not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure.
--Law enforcement communication codes and employment plans unless the public interest in disclosure outweighs the public interest in nondisclosure.
--Information which would reveal the location of archeological sites.
--Product testing data developed by agencies buying products where only one bidder meets the agency’s specifications.
--A student’s college academic transcript where the student is delinquent on university loans.
--Records of any campaign committee including any committee that receives moneys from a state campaign fund. (These records are open to the public under Public Act 388 of 1976).
--Public records of a police or sheriff's agency where disclosure would identify an informer, or undercover agent, or reveal the home address, telephone number of an officer or agent, or disclose personnel records of law enforcement agencies.
--Records pertaining to an investigation of a health care professional conducted by the Department of Consumer and Industry Services pursuant to the Public Health Code before a complaint is issued.
--Records of a public body's security measures.
--Records relating to a civil action in which the requesting person and the public body are parties.
--Records that would disclose the social security number of an individual.
--Applications, including letters of recommendation and references, for president of an institution of higher learning if the records could be used to identify the candidate. However, records pertaining to persons identified as finalists, except letters of recommendation and references, are not exempt.

Nope! Nothing in the exemptions applies to the Mayors contention that the secret agreement should be kept private. This was confirmed by Judge Columbo. Here are his comments:

In fact, Colombo hoped his ruling would end the standoff. He urged city officials not to appeal.
"The best course of action is to turn these documents over," the judge said in his opinion. "And I would urge them to consider that course of action."

Furthermore, the presiding Judge for the initial trial offered these statements (credit the Detroit News for these comments):

Callahan said he wishes he had stopped the trial until he received the text messages exchanged in 2002 and 2003 between Kilpatrick and his former Chief of Staff Christine Beatty, which became public in January.

Then, "all of this would have been out sooner," Callahan said of a burgeoning scandal that could result in perjury charges against Kilpatrick and Beatty, and professional discipline or other sanctions for lawyers involved in the case. "What we know about the text messages would have made them admissible.

"I had ruled that the mayor's involvement with women was relevant."

The cities appeal has no merit other than a stall tactic. They have already stated that they will take the matter to the State Supreme Court if the Appeals court confirms the ruling.
I guess they will be making a caravan to the state capitol. Fuel up Kwame’s Navigator.
So let’s do a quick summary. Here’s my take on the current situation:

As much as what’s come out on this conspiracy the documents that the city are feverishly trying to hide MUST be considerably more damaging than what we know. It could be information causing the Mayor to immediately resign. Why else would they fight so hard to keep the documents hidden? Case in point:

City attorney Valerie Colbert-Osamuede may have given false testimony in a records lawsuit brought by The Detroit News and the Detroit Free Press. She signed off on a document that was the framework for the confidential settlement, Wayne Circuit Judge Robert Colombo Jr. said Tuesday in ordering that document and others made public.

Questioned by Colombo on Jan. 25, she denied knowledge of a secret deal and said she was "unaware of any extra documents" among the lawyers involved in the case. "The city of Detroit did not participate in any such documents," she said.

The Mayor and city attorneys so far have committed perjury, obstruction of justice, violation of the FOIA, conspiracy and deception.

The Mayor and city KNOW that the records are going to come out and they have no case. I surmise that they figure why not use up every legal remedy before the cover is blown.

A story came out on Sharon McPhail today that stirred my interest. In Detroit to understand politics you “Connect the dots” and follow the money. For those who didn’t follow the last Mayoral election let me give you a brief history. Kwame was in serious danger of not being reelected with candidate Freeman Hendrix gaining momentum and even beating him in the primary. Sharon McPhail in her quest to become Mayor was dead last in third place and at the time hated the mayor even accusing him of rigging her chair to electrocute her. She was perhaps the staunchest opponent of the mayor but things abruptly changed.

Not only did McPhail step out of the race but she in turn supported Kilpatrick launching an attack on Hendrix. Kwame won and the deal with McPhail was finally revealed. Kwame made her general counsel to the mayor with a salary conservatively estimated at $140,000/yr. Buried in the News article today was this passage:

Mayoral spokesman James Canning also said when McPhail speaks it is in her role as counsel to the mayor and his office, and not for the law department and the city as a whole.
John E. Johnson, whom Kilpatrick appointed as corporation counsel to head the law department, which handles all legal matters for the city, including City Council, did not return calls asking how he views McPhail's role.

McPhail's biography on the city's Web site says the law department is part of her portfolio, but it's unclear what authority McPhail has over the city's legal division as general counsel. No specific provision in the city charter provides for a general counsel.

The charter allows the mayor to appoint officials to oversee departments, except where such roles are already spelled out in the charter. The charter says the law department is run by the corporation counsel, also a mayoral appointee.

The mayor named McPhail to the post in January 2006 after McPhail switched her support to Kilpatrick in the election campaign the previous summer. Kilpatrick was trounced by Freman Hendrix in the mayoral primary, but a few weeks later McPhail, who had also ran and called Kilpatrick "a thug," was at Kilpatrick's side and pledged her support in the general election.

So what the city is paying for – even though the Mayor already has a legal division is an in-house personal attorney for Mayor Kilpatrick – free to do as she pleases. What a sweetheart deal! In addition to that the Mayor uses outside council in defense of virtually all his allegations of impropriety.

So let me get this straight. McPhail is his counsel but not astute enough to defend him in court during trial proceedings nor speaks for the city law department. This was simply a payoff to McPhail for helping him retain office and nothing else.

But it does expose the limitations – or lack thereof – of checks and balances that exist in Detroit City Government. All city attorneys are appointed by the Mayors office thus eliminating any non bias when city council asks for legal advice. This was apparent when City Attorney Valerie Colbert-Osamuede lied in court about the secret documents and those documents weren’t submitted to the council when they approved the nine million dollar settlement. Purposely done to circumvent the fraud and deception that would have been uncovered through proper analysis of the secret agreement.

Bamboozled and hoodwinked to the nth degree.

I’m curious to hear your comments. We get a lot of visitors to the blog (more if I had put up the counter when I first started – duh!) but let’s talk. Please submit your analysis and questions so we can have discussion.

See you next time.