Conflicts of interest and FOIA requests

Korhorn provided township officials with correspondence from Nolan stating that township officials who have signed a lease with Apex Clean Energy have a conflict of interest and should recuse themselves from all wind ordinance discussions moving forward. Korhorn specifically requested that Supervisor Phyllis Larson and Planning Commissioners Chris Rader, Ben Gordon and Dale Ulrich all recuse themselves. Korhorn also requested that the township adopt bylaws for the Planning Commission that properly define conflict of interest, including language stating that conflict would include a township official’s immediate family member or business being involved with the topic at hand.

The Daily News covered a Winfield Township Planning Commission meeting in December 2020, where attorney Bill Fahey of Okemos-based law firm Fahey Schultz Burzych Rhodes addressed the topic of conflict of interest.

Fahey said in situations where multiple people on a Planning Commission may have a conflict of interest, “the rule of necessity” comes into play – meaning that if more than a majority of Planning Commission members have a conflict of interest related to a specific topic, they must declare that interest on the record during a public meeting, and they are then allowed to vote on the topic.

The Winfield Township Planning Commission is supposed to have nine members and Fahey said as long as five members don’t have a conflict of interest on a project, they can consider and vote on conditional use or special use projects; however, if five members have a conflict of interest, then they must declare such on the record and then vote.

Fahey said a conflict of interest should be disclosed several different times – the first time being prior to an initial meeting where the Planning Commission will consider a project application.

“So it can be done after an ordinance is adopted? It can be done just for a special land use request?” Planning Commissioner Ken Fisk questioned at that meeting in December 2020.

Fahey said this question is “a matter for general legislation within the township.”

“When the Planning Commission does vote on the ordinance, you are not required to disclose yourself because those are general regulations that do not relate to a particular project or piece of property,” Fahey said. “When we have an application for a particular project, that’s going to be different. We’re going to say ‘does this Planning Commission member have property that’s signed to be included in the project or within 300 feet of the project?’ In those cases, you would need to disclose your conflict of interest.”

“So self-interest is not an issue in adopting an ordinance?” Fisk asked.

“That’s correct because adopting an ordinance does not relate to a specific person or piece of property,” Fahey responded. “It’s simply legislation that affects everyone in the township.”

At last Thursday’s meeting, Korhorn asked the township to cease from using the Fahey Schultz Burzych Rhodes law firm, noting that the township’s Planning Commission meeting minutes from December 2020 referred to Fahey as an “Apex attorney.”

Korhorn also pointed out that Anthony Warren, an attorney with the same law firm, presided over a Winfield Township solar ordinance public hearing on July 17, at which a woman who was apparently Warren’s wife stood up and spoke in support of wind turbines during public comment.

“It’s a little obvious that the firm of Fahey may not have our best interests in dealing with the township after the attorney’s wife got up and obviously was pro-wind and made comments,” Korhorn said.

FOIA REQUEST

Korhorn and Winfield Township True submitted a Freedom of Information Act (FOIA) request to the township in July (see infobox below). The township charged the nonprofit $758.20 for 50 hours of time and 197 pages of paper.

Winfield Township True appealed on Aug. 9 what Korhorn calls the “excess fee” and “lack of response to a request for the identity of each township official … as well as the identity of any immediate relative of a Winfield Township official … who has a signed lease with Apex. This request also includes the identity of any business in which any of the persons identified within this numbered request (official or official’s relative) own an interest that has a lease with Apex.”

Larson was absent from Thursday’s meeting due to a medical issue, so Trustee John Black, who is also a member of the Planning Commission, chaired Thursday’s meeting.

Black said in the next two weeks he plans to spend a day in Isabella County where Apex Clean Energy has constructed wind turbines. Black said he plans on observing the turbines there and talking with as many people as he can find, “Just to try to get a feel for the community, the likes, the dislikes, a good sense of the what the project is like.”

Julie Potratz, who serves with Black on the Planning Commission, asked again – as she has in previous meetings – whether the township has received a response from an attorney regarding a wind moratorium, but Black didn’t know. Potratz also asked whether there’s been any attorney response regarding the issue of conflict of interest. Black again said he didn’t know.

Potratz also requested that Larson consider appointing someone from Winfield Lake to the Planning Commission as she said they currently don’t have any representatives from that lake.

The Planning Commission currently has two vacancies – one due to the July 12 death of Carolyn Kelsey, and a second due to the resignation of Travis Carr (which the Daily News confirmed with Carr last week).

The Planning Commission is next scheduled to meet at 7 p.m. on Aug. 23 to continue discussing creating a wind ordinance. The meeting will take place at Crossroads Worship Center at M-46 and Federal Road (old 131) just north of Howard City in order to accommodate a large audience.

Black said the Planning Commission is still waiting to hear back from their attorney regarding amendments to the solar energy ordinance which they need to vote on before sending it to the Montcalm County Planning Commission for review.

A closer look at the FOIA request from Winfield Township True/Tricia Korhorn

The recently formed non-profit organization Winfield Township True through Tricia Korhorn submitted a Freedom of Information Act (FOIA) request to Winfield Township in July requesting the following information:

• Bylaws and any other controlling legal document(s) of the Winfield Township Board of Trustees. Korhorn said the township provided a copy of the cover sheet for the MTA Authorities & Responsibilities of Michigan Township Officials and Commissions handbook by John H. Bauckham.

• Bylaws and any other controlling legal document(s) of the Winfield Township Planning Commission. Korhorn said the township provided copies of Ordinance No. 6-09 effective Aug. 20, 2009, and Zoning and Planning Commission Bylaws And Rules of Procedure adopted April 26, 1999.

• Identity of each Winfield Township Board trustee, including any alternate(s), and their Montcalm County township of residence. Korhorn said the township provided the names of (Supervisor) Phyllis Larson, (Clerk) Colleen Stebbins, (Treasurer) Kathy Killinger, (Trustee) John Black and (Trustee) Steve Cole, all of Winfield Township.

• Identity of each Planning Commission member, including any alternate(s), and their Montcalm County township of residence. Korhorn said the township provided the names and townships of John Black (Winfield), Ken Fisk (Winfield), Ben Gordon (Cato), Chris Rader (Winfield), Carolyn Kelsey (Cato), Dale Ulrich (Winfield), Julia Potratz (Winfield), Travis Carr (Winfield) and Ken Kool (Winfield).

• Identity of each township zoning official, including but not limited to the zoning administrator and the members of the Zoning Board of Appeals and any alternate(s), and their township of residence. Korhorn said the township provided the names and townships of Zoning Administrator Dave Kelsey (Cato Township) and ZBA members Dale Ulrich, Steve Cole, Charlene Kohl and alternate Dan Kanouse, all of Winfield Township.

• Identity of all legal counsel that has advised Winfield Township or its officials in their township capacity in the last three years, including the topic and/or area of legal advice provided. Korhorn said the township provided the law firm names of Bloom Sluggett P.C. and Fahey Schultz Burzych Rhodes, but no identification of topic or area of legal advice.

• Copy of all minutes of the Winfield Township Board of Trustees, Planning Commission and Zoning Board of Appeals from January 2020 to the present. Korhorn said the township provided board minutes for each month from January 2020 through July, 2021, Planning Commission minutes from June, July, August and December 2020 and March, April and June 2021, and Zoning Board of Appeals Minutes from Sept. 29, 2020, Dec. 22, 2020 and Feb. 9, 2021.

• Roll call of each Winfield Township Board of Trustees meeting, each Planning Commission meeting and each Zoning Board meeting or hearing beginning January 2020 to present. Korhorn said the township provided a listing of roll calls, but she said they should have told her that this was already included in all meeting minutes.

• Any additions or revisions to the Winfield Township Zoning Ordinance that are not a part of the posted Zoning Ordinance on the township’s website. Korhorn said she did not receive a response to this.

• A copy of the two Special Use Permits granted to Albert Jongewaard at the Zoning Board of Appeals hearing on April 20, 2021 for MET towers. Korhorn said the township provided two letters to Jongewaard dated April 24, 2021 regarding the Rader property and the Roush property.

• Identity of each township official, including but not limited to the Board of Trustees, Planning Commission and Zoning Board, as well as the identity of any immediate relative of a Winfield Township official (as defined by the Michigan Department of Treasury as the person or person’s mother, father, brother, sister, son, daughter, adopted son, adopted daughter, grandson or granddaughter), who has a signed lease with Apex Clean Energy. This request also includes the identity of any business in which any of the persons identified within this numbered request (official or official’s relative) own an interest that has a lease with Apex. Korhorn said the township responded, “Can’t give Apex records that I don’t have.”

• A copy of the most current draft solar ordinance prepared by attorney William Fahey, Fahey Schultz Burzych Rhodes, or any other legal counsel, for Winfield Township. Korhorn said the township provided this, but she said they should have told her that it was also posted on the township’s website.

• A copy of the most current draft wind ordinance prepared by attorney William Fahey, Fahey Schultz Burzych Rhodes, or any other legal counsel, for Winfield Township. Korhorn said the township provided a 10-page draft which was prepared in 2020.

• A copy of any legal opinion provided to Winfield Township by legal counsel regarding conflict of interest. Korhorn said the township responded, “I do not have the attorney’s opinion on conflict of interest yet.”

• A copy of the Winfield Township Hall Rental Agreement as posted at the Township Hall window on June 22, 2021, as well as any other rental agreement form(s) currently in use. Korhorn said the township provided this.

• A copy of Apex’s rental agreement for the Winfield Township Hall on June 22, 2021, as well as a copy of any paid rental fee documentation (check or bank entry). Korhorn said the township provided a copy of the June 22 rental agreement for “Apex open house” agreed to by “Mel by phone June 4, 2021” and written “$50.00 “$75.00” and “($25.00 deposit + $235.00 rent)” and “paid with cash 6/22/21.”

• A copy of the ordinance passed at the Board of Trustees meeting on April 8, 2021, as well as any other ordinance passed by Winfield Township beginning January 2020 to present. Korhorn said the township provided copies of Ordinance No. 1-9-2020 regarding short term rentals and related uses and Ordinance No. 4-8-21 Ordinance confirming establishment of Planning Commission (with note, “Rescinded May 13, 2021 because we already had one”), but Korhorn said the township should have told her these documents were available online.

• A copy of any Winfield Township Notice of Hearing beginning, January 2020 to present. Korhorn said the township provided notices for a Zoning Board of Appeals public hearing on Sept. 29, 2020; a Board of Appeals public hearing on Nov. 24, 2020; a Board of Appeals public hearing on Feb. 9, 2021; and two Zoning Board of Appeals public hearings on April 20, 2021.

• A copy of the procedure used by Winfield Township in posting Notices of Hearing, and conducting hearings on ordinances. Korhorn said the township provided a 50-page copy of the Michigan Zoning Enabling Act of 2006, but should have provided her a website link instead.

• A copy of the recent moratorium passed by the Winfield Township Board of Trustees regarding solar. Korhorn said the township provide this dated June 10, 2021.

Winfield Township charged Korhorn a total of $758.20 for 50 hours of work ($330 for 30 hours by Clerk Colleen Stebbins and $220 for 20 hours of work by Supervisor Phyllis Larson) for 197 pages at $1 per page, plus $11.20 in mileage, but Korhorn says the total shouldn’t have cost more than her $150 deposit.

The Daily News contacted Michigan Press Association legal counsel for feedback regarding Korhorn’s concerns.

If requested public information is already online, a public body should not charge for it, according to MCL 15.234(5): “If the public body directly or indirectly administers or maintains an official internet presence, any public records available to the general public on that internet site at the time the request is made are exempt from any charges under subsection (1)(b). If the FOIA coordinator knows or has reason to know that all or a portion of the requested information is available on its website, the public body shall notify the requestor in its written response that all or a portion of the requested information is available on its website. The written response, to the degree practicable in the specific instance, must include a specific webpage address where the requested information is available. On the detailed itemization described in subsection (4), the public body shall separate the requested public records that are available on its website from those that are not available on the website and shall inform the requestor of the additional charge to receive copies of the public records that are available on its website.”

Regarding cost, the fee should not exceed 10 cents per page, according to MCL 15.234(1)(d): “For paper copies of public records provided to the requestor, the actual total incremental cost of necessary duplication or publication, not including labor. The cost of paper copies shall be calculated as a total cost per sheet of paper and shall be itemized and noted in a manner that expresses both the cost per sheet and the number of sheets provided. The fee must not exceed 10 cents per sheet of paper for copies of public records made on 8-1/2- by 11-inch paper or 8-1/2- by 14-inch paper. A public body shall utilize the most economical means available for making copies of public records, including using double-sided printing, if cost saving and available.”