"This is a G****** dictatorship," exclaimed Lake Township John McCallum. "I hope you all go to Hell."
The Lake Township Board voted 3 to 2 to remove Planning Commission Chairman Louis J. Colletta and Planning Commission Member Tim Lalley from the local planning commission.
The board's reasoning to remove Colletta from the planning commission was for nonfeasance, which is the failure to perform an act that is either an official duty or a legal requirement.
The charges
Lake Township Supervisor Robert T. Smith presented charges against Colletta following the board's Aug. 17 meeting. They stated Colletta had failed to hold a biannual election of planning commission officers, which is something required by law. As a result, the charges state Smith is removing Colletta from the board with cause, because Colletta failed to perform an act that is either an official duty or legal requirement.
During Tuesday's public hearing, which was held at the request of Colletta and Lalley, Colletta noted there had been no biannual elections held in the past. Also, he said the law requires the planning commission as a whole, not individual members or the chairman, to hold biannual elections. Therefore, it's unfair to remove him for what the board as a whole failed to do.
And, Colletta noted, the planning commission met Aug. 26 and held elections, so that duty has been performed.
The board's reason for removing Lalley from the planning commission was for misfeasance, which is "the performance of a lawful action in an illegal - slanderous - or improper manner - defamatory," according to charges Smith gave Lalley following the township board's Aug. 17 meeting.
The charges state Lalley made slanderous statements during a July 20 meeting the Lake Township Board and Lake Township Planning Commission held with DTE Energy representatives.
"You stated that you see working with the board as fruitless and you stated the board was unethical," Smith's charges state.
During that July 20 meeting, Lalley asked DTE Energy representatives if, given how the company prides itself on public perception, DTE Energy is comfortable working with a board that refused to sign a principals of governance pledge sent from the Michigan Township Association.
"Basically what it says is, to insist on a high standards of ethical conduct," Lalley told DTE Energy representatives during the July 20 meeting. " ... I'm just wondering if you're comfortable working with a board who does not pledge to be ethical in their dealings. I'm just wondering how this is going to reflect on you as a company, and if that bothers you at all."
Later during that meeting, Lalley stated, "The only reason I bring this up is we are entering into what appears to be some group discussions and hopefully come up with an ordinance that's going to be best for the township. I am somewhat skeptical that with all this work that we're going to go through, and all the work that this planning board has put in the past almost two years now, I'm very, very skeptical, that this board - in light of this refusal to sign this pledge of governance ... it's almost fruitless what we're trying to accomplish here."
"As a company, I would be very, very careful about working with a board that basically publicly pledges not to be honest. That's the bottom line. I would be very concerned about that," Lalley also stated during the July 20 meeting.
The defense
As part of his defense, Lalley passed out copies of the pledge of governance and played a recording of that portion of the July 20 meeting.
He noted he never once stated, "this board is unethical," and everything he said was fact.
"The truth cannot be slanderous," Lalley added.
Gary W. Howell, an attorney representing Lalley and Colletta, said there is no legal basis for the removals. He said in order for a planning commission member to be removed, it has to be proved the member committed nonfeasance, misfeasance or malfeasance, which has been defined by appellate courts in other jurisdictions as a wrongful act which the actor has no legal right to do; any wrongful conduct which affects, interrupts or interferes with the performance of official duty.
The only other way to remove a planning commission member from office is to wait till the three-year term expires, then appoint someone else to serve, Howell said. He noted the law is crafted that way in order to protect planning commission members from serving at the political whims of whomever is serving on the township board.
In Colletta's case, Howell argued if Colletta is at fault for not holding biannual elections, then the rest of the board members are at fault too.
"If anyone's in error, everyone's in error," he said.
Also, he noted there is no statute of limitations for offices on the planning commission, meaning a member can serve as chairman for as long as the planning board chooses. And, Howell added, when the board did hold elections Aug. 26, Colletta was re-elected chairman.
Lastly, Howell said, if there was an issue of the planning board not holding elections, the township board should have contacted the planning board with its concerns.
Regarding Lalley's charges, Howell argued the statements Lalley made were not slanderous. Rather, he was giving a careful explanation of his concerns regarding the board's refusal to sign the pledge of governance. He said freedom of speech is a right guaranteed by both state and federal law.
He said the board's reasoning for removing Lalley from the planning commission "isn't nonfeasance, misfeasance or malfeasance - it's politics."
Howell added both charges are baseless, and cautioned the board against voting to remove Lalley and Colletta from the planning board.
"You don't want to drag your taxpayers into further fights," he said.
The public comment
During public comment, numerous individuals expressed support for keeping Lalley and Colletta on the planning commission. Reasons expressed were that there was no cause for their removal, and that both men are good volunteers who work hard, putting what's best for the township first.
"Don't do it to these volunteers, they'll suspect you'll do it to other volunteers," said Lake Township Resident Paul Miller.
Also, it was argued that this was being done because of the township's on-going effort to create a wind turbine ordinance, as Lalley and Colletta have been extremely protective of the township from wind turbine development.
Jeannie Henry, who serves on the Lake Township Zoning Board of Appeals, said she's concerned about her future on that board because she too has expressed ideas that haven't sat well with members of the Lake Township Board.
"I really am concerned in Mr. Lalley's case, there has been some very, very harsh judgment," she said.
Clay Kelterborn, former Lake Township supervisor, was concerned that the board would be acting outside the scope of the law if members voted to remove Lalley and Colletta from the planning commission. He added a decision to remove them from the planning board will "drive a wedge further into the community."
Others were concerned the board's decision to remove the two planning commission members would result in a lawsuit.
"As a taxpayer, I don't want the liability of it if you vote the wrong way and this comes back," said Lake Township resident Charlie Henry.
The decision
Township Attorney Walter Salens said the board isn't supposed to consider the financial ramifications of a lawsuit in its decision to act. He said at any time, anyone can sue anyone else for just about anything, as there are frivolous lawsuits constantly filed in circuit court.
The decision, he said, simply should be made based on the allegations: Whether an unlawful act occurred, or an act that should have been performed was not.
When asked by several residents in the audience whether it would be lawful for the board to remove Lalley and Colletta based on the charges presented, Salens said he could not make that determination.
"I can't tell them how to decide," Salens said, noting he gave them the definitions of what constitutes as malfeasance, misfeasance and nonfeasance, and it's up to the board to determine if the definitions fit the allegations against Lalley and Colletta.
After the public comment period was finished and the board voted to remove the two from the planning commission, many in attendance at the packed Lake Township Hall voiced anger with the decision, some calling for a recall of the township board members who voted for the removals.
The aftermath
Following the meeting's adjournment, Lalley and Colletta said it was too soon to comment as to whether they will choose to fight this decision. As to whether a lawsuit is on the horizon, Howell, who represents 25 townships in Tuscola, Sanilac and Lapeer counties, said he has to consult with Lalley and Colletta.
"What happened tonight is a violation of the United States Constitution," Howell said. " ... This is the most outrageous mockery of a public hearing that I have ever seen in 35 years as a township attorney."
In interviews held following Tuesday's public hearing and on Wednesday morning, Lalley said he still is upset the township board refused to sign the principles of governance pledge.
"It's a reaffirmation, as an elected official, so people can see that you're reaffirming your commitment to them," he told the Tribune, in response to the argument that board members already have pledged to conduct themselves in the manner that's described in the pledge when they were sworn into office.
He said it's no different from reciting the Pledge of Allegiance before every board meeting.
"And what is the difference between going into church and reciting a prayer you've said every Sunday that you've said for years and years? It's a reaffirmation about your beliefs," he said. " ... That's why this whole thing about not taking this pledge of governance, to me, is absurd."
" ... The appearance of not doing does far more damage than doing it," Lalley added.
Following Tuesday's meeting, Smith said he did anticipate some opposition to the board's decision to remove the two planning board members. He added he the current unrest from the board's action on Tuesday is unlikely to go away in the near future.
"I hope it does, but I know it won't," Smith said.
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