From a real case heard today before Judge Sandra Cicirelli on October 24, 2013. She held that dispatch operators are earning $88,000.00 a year. Westland police officers working road patrol are making $130,000.00. The police lieutenants are supposedly earning a whopping $180,000.00! Prosecutor Michael M. McNamara refused to present live testimony, and Judge Cicirelli held that the fees assessed against my client today were reasonable because Mr. McNamara had argued in his brief that his road patrol officers earn more than $68.00 an hour. Really? Read on...
STATE OF MICHIGAN
IN THE DISTRICT COURT FOR THE 18th DISTRICT COURT
CITY OF WESTLAND
Case No. 13WE58141A
Maze Legal Group, PC
William J. Maze (P56406)
Attorneys for Defendant
38777 Six Mile Road, Ste 110
Livonia, Michigan 48152
Tel: (734) 591-0100
Cell: (734) 740-1900
Fax: (734) 591-0101
Michael M. McNamara—P48055
Fausone Bohn LLP
Attorneys for Plaintiff
41700 West 6 Mile Rd Ste 101
Northville, MI 48168
Phone: (248) 380-0000
Fax: (248) 380-3434
SUPPLEMENTAL MEMORANDUM REGARDING RESTITUTION
NOW COMES the Defendant, ROBERT ■■■■■■, by and through counsel, the MAZE LEGAL GROUP, PC, by William J. Maze, and hereby submits the following supplemental memorandum regarding costs ordered in the amount of $325.00 to be paid to the Westland Police Department:
Following a rich history of absurd claims and widespread abuses of its ability to charge the public for various fees, the prosecutor responds to Defendant’s motion challenging its $325.00 “drunk driving reimbursement fees” by making more outrageous claims. In the immediate case, an officer stopped Mr. ■■■■■■ for drunk driving. He appeared for a few court hearings after the police refused to release materials under the Michigan Freedom of Information Act (FOIA), which they were legally required to do, and he quickly pled guilty after he was able to obtain responses to his public records request. On the night of the arrest, the officer spent a couple of hours working on the case but also worked on other matters during his shift. Despite this, the City of Westland seeks $325.00 to reimburse the officer(s) (or, more appropriately, the City) for the officer’s time involved in the case. The City of Westland includes all sorts of nonsense, including a blanket fee and money for meals that are all changeable under separate statutes for jail/incarceration fees that many people are forced to pay every day in the amount of $20 or $30 dollars. In Westland, the incarceration fee is $37.00 according to the prosecutor’s brief. Magically, however, this translates into $151.80 for a PSA working 13.2 hours at $11.50 an hour under Westland’s brief because they claim that Mr. ■■■■■■ is responsible for paying for the entire jail staff. They also tack on additional fees for dispatch, claiming the dispatcher worked on this matter for 15 minutes, which in itself seems ludicrous, and Westland claims to pay its radio dispatch $42.56 an hour, which translates to an incredible annual salary of $88,524.80. Never mind the fact that radio dispatcher are shared with other municipalities through a joint dispatch program.
Fees for reimbursement, approved by Michigan lawmakers to reimburse taxpayers for the time spent by officer’s processing convicted drunk drivers, are being massively abused by the City of Westland, which has decided to tack on an unlawful tax for drunk drivers. Far from being a cost-recovery tool, the City of Westland is violating the Headlee Amendment by imposing an unlawful tax.
In a recent civil case challenging FOIA fees, Lahaine vs. City of Westland, it was alleged that, “[a]ccording to the City Clerk for the City of Westland, the hourly wage and pro-rata benefits for the person assigned to copy police documents is $45.61 charged in 15 minute intervals.” But according to that lawsuit, in which the plaintiff prevailed against the City of Westland, “[t]he ‘lowest paid public body employee capable of retrieving the information necessary to comply with a request under this act’ is not actually making $93,600.00 per year.” In Mr. Lahaine’s case, Westland charged him $197.00 for a packet of information that costs $17.00 in the neighboring Dearborn Heights’s police department. This was for “for two videos, one radio recording, and nine pages of paper documents,” and according to the deposition transcript, the information took “minutes” to compile as opposed to hours. And, as in the immediate case, the City of Westland attempted to justify its fees that were 12 times higher than a comparable neighboring police department by citing a nonexistent policy.
In the immediate case, the Westland prosecutor has repeatedly stated that a law, ordinance, or locally approved and voted upon agenda by the City of Westland had set the sum of $325.00 in each drunk driving case as a fixed fee. The prosecutor does not provide a copy of that fixed fee policy in his brief. This does not seem very unlike the case of Westland vs. Rod XXXXX, where the prosecutor promised that a “policy” existed that allowed intentional destruction of videos after a discovery demand was made in writing under the US Supreme Court’s decision in Youngblood. This Court, in that case, held that destruction was performed pursuant to a written policy, even though it was later established that the policy required preservation.
The prosecutor appears to retreat from his earlier position--without providing any evidence of an elusive policy--now claiming that a “Westland Police Department study” determined that an average drunk driving arrest takes four hours of time. This study is also mysteriously absent from the prosecutor’s brief. By way of this brief, and pursuant to MCL 15.231 et seq., counsel demands a copy of this elusive law along with the elusive study.
Even more recently than the Lahaine case, which has been reported statewide as well as in the Detroit News last week, the Mackinac Center for Public Policy sued the City of Westland for overcharging on FOIA materials. That lawsuit has garnered even more media attention. In connection with that lawsuit, the Mackinac Center released a press release that stated in relevant part that:
[T]he [City of Westland] believes the lowest-paid person who can supply the records earns about $95,000 per year in total compensation. Westland city clerk Eileen DeHart told Mackinac Center investigative reporter Anne Schieber that the bill is ‘part of our fee schedule.’”
The Mackinac Center also observes that the median household income in Michigan is only $48,669; hence, the FOIA clerk is making nearly twice that to “copy, collate, and stuff [materials] into an envelope.”
Curiouser and curiouser, it seems that the City of Westland is an extremely generous employer amongst a sea of municipal governments that are being forced to “smart source” contract work or declare bankruptcy. At least, it appears that the City of Westland is very generous, especially when it imposes a fee schedule upon the public. The problem is that the City of Westland is cooking the books.
It turns out that the lowest-paid person who supplies records in response to FOIA requests for the police department is making approximately $11 an hour. The lieutenant / commanding officer in charge of the entire division is making less than the cited $45.61 assessed by the City of Westland, admitting under oath that he makes approximately $40.00 an hour. See Deposition Transcript at page 17.
As with the FOIA litigation, the City of Westland’s lawyers make even more outlandish claims. According to the prosecutor’s brief, the road patrol officer is making $63.85 an hour, which translates to a whopping $132,808.00 a year. But according to Salary.com, the median income for a Westland police officer is only $51,314. The prosecutor is shy by about $82,000.00 with his inflated numbers. See Exhibit A.
The prosecutor further states that the shift lieutenant makes $86.66 an hour. There are seven lieutenants in the Westland Police Department, whereas there are 23 sergeants and 44 road patrol officers. The seven lieutenants serve under 2 deputy chiefs and 1 chief of police. It appears that Lt. Brian XXXXX is working very hard to make far less than every other officer in Westland based upon his deposition testimony, since he is earing $46.66 less per hour than his fellow lieutenants. He should probably take a demotion and go back on road patrol to obtain a raise of $23.85 more per hour. Apparently, Lt. XXXXX would take a slight pay raise even if he took a job as a radio dispatcher.
The prosecutor also states that the sergeants earn $74.23 per hour.
All of this information is very fascinating, and it really drives home the point about how our government spends $436 on a hammer and buys $640 toilet seats, but the raw numbers do not lie: Scrutinizing the City of Westland’s budget, attached as Exhibit B, reveals that the lieutenants, sergeants, and road patrol officers blow past the entire budget for all wages, salaries, and fringe benefits by a few million dollars. And these calculations do not include any wages and fringe benefits for the Chief of Police, deputy chiefs, clerical workers, and PSAs.
Further scrutiny reveals that Westland police officers reach a pay ceiling at around $65,000.00 under the collective bargaining agreement. See the attached Exhibit C. But the figures set forth by the prosecutor in an attempt to justify its fees in this case are still more than twice that amount. Curiouser and curiouser.
The prosecutor’s attempt to justify its fees in this case are outrageous. The City of Westland lawyers are clearly attempting to bilk the public, and whenever they are called to task, they cite elusive policies that do not exist. Once the veil of non-existent policies is cast aside, they engage in overt fraud and misrepresentation, doubling and tripling figures to justify unreasonable fees. It is time that the City of Westland and their lawyers be held accountable.
Incidentally, from a review of the City of Westland’s budget, it appears that the City of Westland failed to report $147,875 in revenue generated as a result of the “reimbursement” scam last year, and approximately $91,000 from FOIA fees generated in drunk driving cases. Further review of the budget reveals that the lawyers in this case are allocated $800,000.00 annually. Romulus is a fraction of that sum at $321,200.00, while Dearborn Heights is $160,200.00, and the City of Wayne is $116,175.00. Combined, these three comparable jurisdictions pay $300,000.00 less than the City of Westland.
Based upon the brief filed by the prosecutor in this matter, Defendant moves for sanctions under MCR 2.114.
WHEREFORE, Defendant ROBERT ■■■■■■ requests that this Court strike the order compelling him to pay the sum of $325.00 on behalf of the Westland Police Department, ordering that all similarly situated defendants be given notice and opportunity to be heard for these illegal assessments.
William J. Maze
Attorneys for Defendant
38777 Six Mile Road, Ste 110
Livonia, MI 48152
Dated: October 24, 2013