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An Apex Clean Energy official is accusing Sidney Township officials of collusion after the township denied the majority of a Freedom Of Information Act (FOIA) request from the wind developer.
The Sidney Township Board met for a special meeting Tuesday afternoon to approve creating a FOIA policy – which it didn’t previously have on file – after a multi-part FOIA request from Apex.
Apex Senior Development Manager Albert Jongewaard and this reporter were the only two people in attendance at Tuesday’s meeting along with Supervisor Terry Peterman, Clerk Carrie Wills, Treasurer Corinda Stover and trustees Ray Leyrer and Jed Welder.
Wills presented a FOIA policy resolution for the board’s consideration, noting that the township recently received a FOIA request from Apex, which was granted in part and denied in part (see a summary of Apex’s FOIA request below).
“(Our attorney said) by state law we are supposed to have a FOIA policy in place,” Wills said. “We’ve got a FOIA request from Apex and we also got one from Robert Scott (of Grand Rapids and Sidney Township). I just sent him (Scott) whatever I could find. He wanted to know about communication between board members and Apex.”
“Nobody from Apex has called me or talked to me, only to get on the agenda,” Peterman said.
After the board voted 5-0 to approve the FOIA policy, Welder questioned why the township was using the Foster Swift law firm.
“What’s the reason that we’re using them specifically?” Welder asked.
“We’ve been working with them for the (wind ordinance),” Wills noted.
“What’s the reason we’re working with them on the ordinance specifically?” Welder clarified.
“I don’t know for sure,” Wills admitted.
Welder turned to Leyrer who was seated next to him. Leyrer is the township board’s liaison on the Planning Commission.
“Ray, do you have a comment on why specifically we’re using them?” Welder asked.
“No,” Leyrer said.
“So you weren’t coached in any way to use them? No one specifically recommended them to you, Ray?” Welder pressed.
“What’s your point?” Leyrer asked.
“Did anyone recommend this attorney group to you?” Welder repeated.
“As far as the wind turbines?” Leyrer asked.
“Yes,” Welder said.
“Well, you shouldn’t even be asking a question about wind turbines,” Leyrer said (referring to the fact that Welder has signed a property lease with Apex).
“I can ask about any question I want because we’re not voting on anything for the ordinance,” Welder noted. “I’ve checked with MTA. Is there a reason we’re specially using this attorney and were you coached by any outside group to use this attorney?”
“Coached?” Leyrer asked.
This was followed by a long silence.
“Nobody coached me,” Leyrer finally said. “Does that answer your question?”
“Absolutely, if that’s your answer,” Welder responded
“Nobody coached me, because I’ve got the right to say yes or no,” Leyrer repeated.
Wills asked if it was a joint recommendation by the Planning Commission to use Foster Swift, but Leyrer said he didn’t know and would have to refer to the meeting minutes. Wills noted that she has not received the most recent set of meeting minutes or meeting dates from the Planning Commission.
“We haven’t approved them yet,” Leyrer said. “We’ll approve the minutes on June 2.”
Tuesday afternoon’s brief meeting then adjourned.
“I guess if they don’t like that one, then it goes to court, right?” Wills asked, referring to the township’s denial of Apex’s FOIA request.
The Daily News asked Jongewaard what his next step was regarding the township’s denial of his FOIA request. Jongewaard noted he hasn’t read through the township’s new FOIA policy yet so he isn’t sure at this point.
APEX FOIA REQUEST
Apex submitted a FOIA request to Sidney Township on March 8 which the township on March 30 granted in part and denied in part, as follows:
Apex requested “any meeting notice, public hearing notice, notice to any landowner, agenda, meeting packet/materials and meeting minutes, as well as all communications regarding any meeting, ordinance or township action (including but not limited to text messages and emails) where any draft of, or the topic of a wind ordinance was discussed.”
The township granted Apex’s request for meeting voices, public hearing notices, notices to landowners, agendas/meeting packets and open session meeting minutes.
The township denied in part Apex’s request for all communications “because the records are exempt from disclosure under Section 13(1)(m) of the FOIA because the documents are of an advisory nature, cover other than purely factual materials and are preliminary to a final agency determination of policy or action. Due to the need for frank advice and consultation, the public interest in encouraging frank communication clearly outweighs the public interest in disclosure in this case.”
The township also denied in part Apex’s request for all communications “because certain documents you requested were subject to attorney-client privilege; therefore, that privileged information is exempt from disclosure under Section 13(1)(g) of the FOIA.”
• 2. Apex requested “copies of all drafts of any wind ordinance drafted or discussed by the township.”
The township granted this request in part based on documents available on the township’s website, but denied it in part “to the extent that the drafts are exempt from disclosure under Section 13(1)(m) of the FOIA because the documents are of an advisory nature, cover other than purely factual materials and are preliminary to a final agency determination of policy or action.”
• 3. Apex requested “all communications by, including or among any township employees or officials, elected and appointed, regarding a wind ordinance; including communication between members of the Planning Commission and all communication (Planning Commission Chairwoman) Michelle Damascus (actually Damaska), (Planning Commission Secretary) Jeffrey Lodholtz and (Planning Commission member and township board trustee) Ray Leyrer may have initiated, received or been witness to pertaining to wind energy involving, among others, Kevon Martis, (attorney) Joshua “Josh” Nolan, Michael Homier, (Montcalm County Citizens United Facebook page founders) Erik and Chantelle Benko, Norman “Norm” Stephens, Robert Scott and/or any other individual.”
The township granted some of these communications, but denied the request in part “to the extent the communications are exempt from disclosure under Section 13(1)(m) of the FOIA because the documents are of an advisory nature, cover other than purely factual materials and are preliminary to a final agency determination of policy or action.”
The township also denied the request in part citing attorney-client privilege.
• 4. Apex requested “all communications to, from or by members of the public regarding a wind ordinance.” The township granted this request and said those materials are available on the township’s website.
• 5. Apex requested “the names of all the attorneys who reviewed the drafted ordinance on behalf of the township and township Planning Commission.” The township denied this request “because the township does not have or maintain your requested document. Further, the township is not required to create a new public record or a compilation, summary or reporter of information in order to respond to a request.”
• 6. Apex requested a copy of the Zoom meeting from February’s and March’s township board meetings. The township denied this request “because the township does not have or maintain a Zoom recording of either meeting.”
• 7. Finally, Apex requested a copy of the Zoom meeting from the March Planning Commission. The township denied this request “because the township does not have or maintain a Zoom recording of either meeting.”
By law, Apex had the right to appeal the township’s denial of portions of its FOIA request, which Jongewaard did on April 25, writing that the township response was “deficient and was in violation of the FOIA in numerous respects.”
“The defects set forth below, and the township’s efforts to hide public records from disclosure are particularly troubling in light of the comments made by Jeff Lodholtz at a public meeting of the Sidney Township Planning Commission to the effect that he and others had developed an ordinance – which is restrictive and effectively seeks to impose unrealistic conditions so as to prevent development of wind energy – by communicating with those opposed to wind energy, but that he had intentionally not communicated with or allowed input from Apex,” Jongewaard wrote. “In addition to the type of bias that should not be exhibited by public officials, this suggests several legal violations, including a denial of due process rights of Apex, violation of equal protection of the law and potential violations of the Open Meetings Act. These violations are compounded by the township’s violation of the FOIA.”
In his April 25 letter, Jongewaard said the township violated FOIA due to the following:
• 1. A township is required to establish procedures and guidelines to implement FOIA and create a written summary of the same, including specific procedures regarding avenues for challenge and appeal. These procedures and guidelines were not provided to Apex in the township’s response to Apex’s FOIA request, meaning Ape’s rights to seek appeal were hindered, according to Jongewaard.
Jongewaard said a township official emailed him on April 7, stating, “I hate to admit it, but we don’t have a FOIA policy in place.”
• 2. Jongewaard said the township’s denial in part of Apex’s FOIA request both misstate/misapply FOIA exemptions and also “blatantly seek to cover up the efforts, actions and communications of Jeff Lodholtz and others, by which an ordinance was discussed and developed in secret with certain interests opposed to wind and then essentially rubber-stamped at the Planning Commission meeting.”
“How can it possibly be said that developing laws in secret with the input of certain special interests, and then bragging at a public meeting that the ordinance had been developed in cooperation with the anti-wind energy group, and without allowing input from Apex, could possibly be considered fair or open to the public?” Jongewaard asked in his letter. “This is very troubling and is in direction contravention of the spirit of the Open Meetings Act and the intent of FOIA, which is designed to prevent secret activities of public officials.”
• 3. Jongewaard said the township misused attorney-client privilege to withhold documents.
“You previously informed Apex that you withheld every document from any attorney which stated at the bottom that it may be privileged as being from an attorney,” Jongewaard wrote. “As you may know, nearly every attorney or law firm places that disclaimer at the bottom of communications, even when communicating with opposing parties. That does not make a communication privileged. There is no privilege when the communication involves/copies individuals other than the attorney and his client. Also, the attorney-client privilege only applies to privileged information between an attorney who actually represents a client.”
Jongewaard concluded his letter by noting that it is a violation to destroy records in an effort to avoid production. He asked the township to send a notice to all township personnel, including but not limited to Lodholtz, asking that they preserve all information – including any on their personal phones, laptops and personal electronic devices – and that they certify in writing to the township that they have received the notice and complied, so as to obviate a spoliation issue and a further FOIA violation.
“Apex has attempted to communicate in an open good faith manner with the township and with those residents of the township who may wish to exercise their property rights in a manner consistent with renewable energy,” Jongewaard wrote. “To undermine those rights with secretive communications and activity, and then brag about colluding with a select special interest group who opposes renewable energy, is very troubling. We hope and trust that the township board will recognize the impression that is created when public officials act secretly to undermine property rights by secretly developing an ordinance We ask that the township board rectify the issues set forth above and produce the requested information.”
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