If it’s deemed privileged police investigation is next
By Barb Pert Templeton
When documents previously considered not for public consumption are posted on social media does it mean they are no longer privileged? That’s the question members of the Marine City Commission want answered and they’ve hired an outside law firm to look into the matter.
An Aug. 17 meeting had a majority of the commission approving the hiring of attorneys from the Southfield based firm of Collins Einhorn Farell PC, to review and issue a legal opinion on the privilege status of a report. Taking the step was recommended by the city’s Human Resources Attorney Courtney Nichols.
Commissioner Jacob Bryson made the motion and then added a second part to it stating that if it’s found that the documents are still considered privileged officials investigate how the report was released and by whom. Commissioner Michael Hilferink voted against the plan.
Marine City Commissioner Michael Hilferink left his seat at the commission table to speak as just an average citizen during the public comments portion of a commission meeting on Aug. 17, 2023.
Pages of the report, from November of 2021, first appeared earlier this month on the Facebook page, Marine City – Citizen Complaints and Grievances for Better Transparency, posted by an Anonymous Participant. Over the next 10 days the same poster continued to release documents taken from the 50 plus page report which was gathered over a nearly two-month period at a cost of thousands of dollars in attorney fees back in 2021.
Hilferink created the Facebook page the documents have been appearing on and is its moderator. A portion of the description on the page reads: Shining a light into the shadows of the dark promotion of forced silence and censorship through harassment, bullying, and just plain breaking the law is the only way to achieve TRUE transparency.
The documents were created following an investigation into the hiring of former City Manager Holly Tatman and how a background check prior to her employment with the city was not conducted at the level the commission had sought. It also reveals some issues with the unauthorized signing of several city checks.
Marine City Commissioner Jacob Bryson said the release of privileged documents on social media needs to stop right now.
Hilferink speaks out as a resident
Prior to the item coming up on the agenda, Hilferink left his seat at the commission table to speak as a private citizen during the public comments portion of the Aug. 17 meeting. He said he wanted to talk about the city investigative report that’s making the rounds on Facebook and he had three points to make about the report.
City Attorney Robert Davis interjected that he wanted to caution Hilferink about speaking about the report and said he could go ahead as he’s a private citizen but he wanted it on the record that he warned him about talking about it.
“Alright, so, I get an extra 15 seconds now?” Hilferink replied, referring to the five-minute limit all public speakers are allotted during public comments.
Hilferink then said his first point was that two city employees – a former city clerk and the former DPW manager, Mike Itrich -went over the commission’s head and reduced the background check for the former city manager.
As point two, the former city clerk in cooperation with Itrich kept the decision of doing a lesser background check from the city commission. Although they said it wasn’t intentional their attempts to cover it up calls their intentions into question, Hilferink said.
The third issue is that the report concludes that the former DPW head redacted the letter that was issued to order a more intense background check. Hilferink called the cover ups by city employees “despicable.”
The overall summary of the report was that anyone that tried to call for transparency or accountability was quickly discredited Hilferink said while adding that he’s being met with similar lies and mistruths related to him now.
“These are our tax dollars being wasted on these investigations due to what is in my opinion unethical actions by city staff, there so much in this report that should have gotten many people fired,” Hilferink said. “What was the result of this report, nothing. No accountability at all,”
Commission weighs in
When hiring an outside firm to look into the release of the confidential report came up later in the meeting at the board table Hilferink voiced his opposition again.
“I’m a little concerned that engaging another attorney on this could be a big waste of taxpayers money,” Hilferink said, referring to information from the American Bar Association who issued opinions on similar matters in 2018.
After sharing details of the rulings of the ABA and handing out copies of his findings to the commission Hilferink pointed out that the opinion states items already released on social media and widely so, are considered ‘generally known’ and aren’t going to be considered privileged.
Commissioner William Klaassen said he recalls officials made sure the report was not released to the public, it shouldn’t have been and he’d like to find out who did release it even if it means spending more money for attorneys.
Hilferink asked Mayor Pro Tem Lisa Hendrick how much the previous investigation cost taxpayers and she said she thought it was about $34,000.
City Attorney Robert Davis said despite allegations that the report is no longer privileged because it’s been released on social media, he doesn’t believe that will be true from a legal standpoint. So now, he said, they are going to the state’s leading expert Brian Einhorn on whether the document is privileged or if the privilege was waived once it was released into the public domain.
Davis said if in fact the issue moves into an investigation stage because the document is found to legally still be considered privileged the Michigan State Police will conduct interviews to find out who posted the report on social media.
“So, it’s your opinion that this attorney’s opinion will override the rules and procedure of the American Bar Association?” Hilferink asked. “And if this information is already out there, why are we wasting money to get another opinion when all these rules are already out there.?”
“It’s interesting reading but it’s not the law,” Davis said.
Commissioner Brian Ross said he was all about hiring the additional law firm for the issue because it was made absolutely clear that the report was not to be released.
“And it was made absolutely clear that if it were the city could be in serious legal trouble so if you want to talk about spending some money that could get us in some serious trouble,” Ross said.
During the commissioner privilege portion of the meeting that evening. Bryson has strong words for whomever posted the report on Facebook.
“I will say that these releases of attorney client privilege documents need to stop, they need to stop right now and if they are out there, they need to be removed this will do immeasurable harm to the city and whosevers doing it will do immeasurable harm to themselves,” Bryson said. “Take them down, stop, do whatever you need to do mitigate the damage.”
