Hambley hearing delayed as attorneys battle over who might testify

MUSKEGON — A judge has delayed a hearing that was to consider if the Ottawa County Board of Commissioners and its health officer reached a $4 million settlement on Nov. 6 for her to resign.

On Monday, Nov. 27, Muskegon County 14th Circuit Court Judge Jenny McNeill said she received several last-minute briefs from the county's corporation counsel and Adeline Hambley's attorney, Sarah Riley-Howard, and that time would be needed to pore over the documents. McNeill set the hearing to resume at 9 a.m. Monday, Dec. 4.

More: A judge will soon decide if Ottawa County must honor settlement agreement

More: Ottawa County tries to back out of $4M settlement. Hambley heads to court.

The flurry of affidavits to the judge spiked this morning after Howard issued subpoenas for county Clerk Justin Roebuck as well as Commissioners Joe Moss, Jacob Bonnema, Doug Zylstra and Roger Bergman. Corporate counsel David Kallman, of Kallman Legal Group, filed a motion to quash — meaning to reject or void — the subpoenas to prevent Roebuck and the commissioners from testifying.

Ottawa County seemingly voted to accept the agreement Nov. 6, which included paying Hambley a total of $4 million to step down 10 months after the board tried to demote her without cause — the largest settlement in the county's history and nearly the exact amount the board cut from the public health department's budget this year. The agreement would also involve the resignation of Deputy Health Officer Marcia Mansaray.

The quest to push Hambley out began Jan. 3 when the new Ottawa Impact majority on the board, led by Moss, took office. Ottawa Impact is a far-right fundamentalist group Moss and Vice Chair Sylvia Rhodea created after they unsuccessfully challenged the previous board and county health officer over COVID-19 mitigation mandates in 2020 and 2021.

The commissioners were expected to formalize the Nov. 6 settlement agreement Tuesday, Nov. 14, but no such vote occurred; instead, the board recessed until Tuesday, Nov. 28.

Howard wrote in a filing Thursday, Nov. 16, that "the parties agreed to settle this matter on Nov. 6, 2023. Now, defendants have remorse and want out of the deal."

In his response, Kallman said the board "never agree to a final settlement in this matter on Nov. 6, 2023, or any other date. As such, there was never a deal to back out of."

More: District Six Commissioner Kyle Terpstra resigns from Ottawa County Board of Commissioners

The delay essentially will break down the next proceedings into two parts. On Dec. 4, McNeill will hear several arguments over legal issues in dispute, such as the subpoenaed witnesses and whether or not the minutes taken while the board was in closed session can be examined as a part of the proceedings. If McNeill decides that the testimony Howard requested would be beneficial for the court to hear, she would schedule an evidentiary hearing at the end of the Dec. 4 proceedings.

Kallman told reporters after Monday's recess of the hearing that minutes during a closed session could not be divulged. Howard, however, said the judge has the right to review the minutes taken by the clerk without making the minutes publicly available.

Howard also said there are no rules barring Roebuck from testifying about the events that occurred in closed session, as the official minutes keeper of the proceedings.

In the board's response to the settlement enforcement request, Kallman spoke at length about when the board came out of closed session and the exact times emails were sent between the attorneys as negotiations continued through Nov. 6.

Howard told reporters on Monday the email times aren't the point, and that what does matter is what the board did that evening with its vote.

Moss made a motion at around 5:30 p.m. Nov. 6 to “accept Counsel’s recommendation regarding litigation and settlement activities in the case of Hambley v. Ottawa County as addressed during closed session.”

The motion was approved 7-3, with Bonnema, Zylstra and Bergman voting against the measure.

Kallman said the board merely voted to continue negotiations. Howard said it was to accept the terms of the agreement and for the paperwork to be drawn up.

"I've no idea why three commissioners would have voted against continuing negotiations," she told reporters Monday. "I think those three commissioners thought they were voting against agreeing to force my client out for $4 million."

Although he did not testify Monday, Moss filed an affidavit with the court asserting that "Ottawa County Corporate Counsel have never, at any time, recommended a settlement in this case to the Ottawa County Board of Commissioners, nor have they ever recommended any settlement involving a payment of $4 Million Dollars to Plaintiff."

Moss also said: "The Ottawa County Board of Commissioners has never authorized Corporate Counsel to execute a final settlement in this matter."

Howard said what she found interesting about Moss' statement is what's "missing" from it.

"I think it's really interesting what isn't noted in there. Affidavits get crafted with attorneys with an eye toward what might make a good legal argument," Howard said. "And there's a lot of things missing, which if he's up on the stand up he'll have to answer under oath."

Moss has never responded to The Sentinel's requests for comment.

The lack of resolution could affect the resumption of a special hearing that began Oct. 24 to potentially fire Hambley, after Moss leveled charges of incompetence and misconduct against Hambley. The special hearing is set to resume for a sixth session Tuesday afternoon, Nov. 28.

Moss filed notice Sept. 27 that a removal hearing was planned over allegations of “incompetence, misconduct and neglect of duty.” Moss’ allegations revolved largely around health department budget negotiations.

The board could vote to recess again to allow the legal proceedings with the court to play out, or commissioners could vote to fire or not fire Hambley. There also is the possibility of adjourning the proceedings with no outcome.

"I suspect they'll go back into closed session," Howard said. "And we'll try to continue some type of negotiations with this issue hanging out there. And we're at least willing to talk to the other side and see if we can get some other kind of agreement going, but I don't know what's going to happen tomorrow."

Hambley sued the board in February, claiming an attempt to demote her in January was unlawful and alleging the OI majority has repeatedly interfered with her state-authorized health duties.

In April, McNeill granted Hambley a preliminary injunction that allowed her to remain in her role until a trial could take place later this year. However, the Michigan Court of Appeals partially vacated the injunction, saying the board has the legal right to fire Hambley if state law is followed.

On Wednesday, Nov. 22, Kallman appealed the COA ruling to the Michigan Supreme Court, challenging the finding that Hambley was the lawfully appointed health officer by the former board in December 2022. Kallman told reporters Monday that the appeal was to "preserve my clients' rights" as the legal proceedings continue.

Hambley and Mansaray remain in their positions for now.

More changes coming

The board also has a regular meeting that is scheduled to begin at 6:30 p.m. Tuesday, Nov. 28.

In the agenda packet released on Friday, the board indicated it was consolidating its power as well as that of Administrator John Gibbs.

The county board is expected to review several policies during the meeting that could, if approved, change the way disciplinary actions are handled. The “Employee Behavior and Discipline” policy in Tuesday’s packet changes language to remove a level of oversight held by the human resources department.

Currently, the policy states that no employee will receive a disciplinary suspension or be terminated without a “thorough review” by the human resources director and approval of the county administrator. The version in Tuesday’s packet removes the language regarding a review by the human resources director, leaving suspensions and terminations to the administrator.

Two sentences were added to the procedure portion of the policy: “As stated above, termination or disciplinary action may be taken immediately and without further action. The County Administrator may begin discipline of any employee at any time.”

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Potential updates to the county’s Employee Selection Policy include adding provisions allowing the board or the county administrator to “directly hire any applicant into any open position,” and in the board’s case any new position, “without further process or approvals.” Board hires would be by a majority vote, while the administrator could make hires “at his or her discretion.”

The policies are listed for "first reading" during Tuesday's meeting. The suggested motion for each policy is to approve and advance the policies for a second reading before the full board at a future meeting.

The controversial change comes after a lawsuit was filed Oct. 24, by a finalist for an executive aide position to Gibbs. Ryan Kimball sued in Ottawa County's 20th Circuit Court alleging age discrimination by Gibbs when he hired a younger candidate with fewer qualifications than the county required in its job posting.

The case has been assigned to Kent County Circuit Court.

— Sarah Leach is the executive editor of The Holland Sentinel. Contact her at sarahleach@hollandsentinel.com. Find her on Twitter @SentinelLeach.

This article originally appeared on The Holland Sentinel: Hambley hearing delayed as attorneys battle over who might testify