ATTORNEYS AND COUNSELORS AT LAW

CenterPointe Building 12935 SW Bayshore Drive Suite 350 Traverse City, Michigan 49684, www.ckcookelaw.com Phone: 231-922-7420 Fax: 231-922-7430

Christopher K. Cooke
chris@cookemail.com

February 13, 2014 Mr. Edgar Roy III Kuhn, Darling, Boyd and Quandt, PLC 412 S. Union Street Traverse City, MI 49685-0987 Re: Benzie County Board meeting February 18 Dear Mr. Roy, As I am not entirely certain what the Board intentions are for the February 18 meeting, it is difficult to submit additional information beyond what I submitted to you on November 11, 2013. I would ask that you forward a copy of that analysis to the Board. In addition, as to the resolution of the case specifically, the order that was entered was an attempt to settle the litigation without further cost and expense to the Agency. As you know, there is no insurance coverage through MMRMA for a lawsuit that seeks only injunctive relief rather than monetary damages. As such, all the costs and fees of the suit were being borne by the Benzie Transportation Authority. These fees were already significant and would continue to climb. The order specifically reflects that no admission of responsibility was being made by the BTA Board as to any allegations of the complaint. The balance of the order was simply an affirmation that the Board will follow the requirements of the Open Meetings Act. The order does not expand the duties of the Board beyond those specifically enumerated in the statute.

I viewed this as a favorable resolution of the lawsuit. To continue to defend the allegations of the complaint would be very costly for the Board. We were confident that we could defend the allegations successfully but this settlement advanced the best interests of the Agency in spending public monies as efficiently and wisely as possible. I know that Mr. Vandussen has pushed for some further investigation by the County Board and suggested possible removal of some of the Board members. If this is to be considered by the County Board, I would suggest that such action is not called for and would be a dangerous precedent. First, there is not factual basis or support for any allegations of extreme or repetitive violations of the Open Meetings Act that would justify such action. This is set forth in more detail in my letter of November 11th. Second, what is the authority of the County Board to take such action and under what qualifications or conditions? The bylaws in this regard are exceedingly vague and set forth no notice or procedural guidelines. The BTA bylaws contain language that states only that “Board members may be removed in the same manner as they are appointed”. This language does neither sets forth any protocol for removing a member nor for what reason or under what conditions. I believe that new members are appointed to the BTA Board based on staggered terms of existing members and there is an application and review process. What then would be the removal process if it is to mirror the appointment process? It truly appears that this provision in the bylaws should be reworked if the County Board truly wants to retain authority to remove other Authority Board members prior to the expiration of their terms. Further, as the language seems to suggest unbridled discretion to remove, at any time for any reason, the County Board is essentially acting as a surrogate to the BTA Board and may be exposing itself to allegations of failure to supervise or other vicarious liability type arguments should the BTA be sued for any reason. Finally, this would be dangerous precedent. If an individual with unequal political influence desires to disrupt the functioning of another Board, that individual could conceivably convince County Commissioners to act to remove certain of the other Board members and thereby undermine the appointment process. This type of action may also serve to paralyze the other Board members for fear of running afoul of the County Board who have been improperly influenced by one individual. This would certainly distort the system and potentially cause the other Board to make decisions, not based on the good of the Agency, but on what might be seen as politically neutral or even

favorable to one influential individual. In short, if there is to be a removal process, the process should be studied in light of what is desired by the County Board. Some guidelines should be spelled out notifying all Board members as to what specific actions taken by the members might lead to removal (ie: violations of the criminal law, embezzlement, etc.). Some notice requirements should implemented so the scrutinized Board members know what they are called upon to defend and some basic procedural due process rights (notice, hearing, proof requirements, etc.) should also be spelled out. As you know, these basic requirements have a correlation with due process rights to which all citizens of the United States are entitled. I will be prepared to answer any specific questions from the County Board on February 18th. Please let me know if I can be of additional assistance.

Respectfully,

Christopher K. Cooke (P35034) Cooke Law, PLLC Cc: Beverly Holbrook