Judge will review closed session minutes to determine if $4M settlement was reached

MUSKEGON — A circuit court judge will privately review closed session minutes to determine whether a $4 million settlement was, in fact, reached Nov. 6 between the Ottawa County Board of Commissioners and Health Officer Adeline Hambley.

On Monday, Dec. 4, 14th Circuit Court Judge Jenny McNeill announced she'll review minutes taken during the board's closed session Nov. 6, when commissioners took part in settlement negotiations with Hambley and her attorney, Sarah Riley-Howard. The case is being heard in Muskegon because all Ottawa County judges recused themselves.

McNeill also ruled Howard and her client are entitled to an evidentiary hearing, so the court can hear from witnesses what transpired during the session.

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

More: Hambley hearing delayed as attorneys battle over who might testify

Ottawa County seemingly voted to accept the agreement that day, 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 also called for the resignation of Deputy Health Officer Marcia Mansaray.

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

Hambley sued 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, allowing her to remain in her role until a trial could take place. However, the Michigan Court of Appeals partially vacated the injunction, saying the board has the legal right to fire Hambley, as long as state law is followed.

Moss filed notice Sept. 27 of a removal hearing planned over allegations of “incompetence, misconduct and neglect of duty.” Those allegations revolved largely around health department budget negotiations. The special meeting to consider Hambley's removal began Oct. 24, but has never formally concluded, despite six separate sessions spanning more than a month.

The commissioners were expected to formalize the Nov. 6 settlement on Tuesday, Nov. 14, but after news of the settlement terms broke, no such vote took place. Instead, the board recessed until Nov. 28. At that meeting, Moss announced the board would seek the services of a mediator, despite the backdrop of ongoing court proceedings.

At issue is whether or not commissioners voted to accept the agreement on Nov. 6. In a 7-3 vote, commissioners voted to “accept counsel’s recommendation regarding litigation and settlement activities in the case of Hambley v. Ottawa County as addressed during closed session.”

Howard says that vote was the board approving the deal; but county attorney David Kallman says commissioners were voting to continue to negotiate.

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."

Last week, Howard issued subpoenas for County Clerk Justin Roebuck as well as Commissioners Moss, Jacob Bonnema, Doug Zylstra and Roger Bergman. 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.

On Monday, McNeill acknowledged that, regardless of the eventual ruling she issues, the outcome is likely to be appealed. She added she'll review the closed session minutes "in camera," or "in private," and allow Howard to subpoena the witnesses.

Closed session minutes for public bodies are kept for one year — curated by the body's clerk — and then destroyed. They are not made public, allowing the body to review items that are potentially legally sensitive.

"In the interest of justice, I think we should have a complete record for the Court of Appeals," McNeill said in her ruling. "Therefore, I am ordering (providing the minutes) is not a violation of OMA. I will review the minutes in camera, therefore they need to be turned over immediately."

An attorney representing Roebuck submitted the minutes to McNeill and said they were "in a sealed envelope inside another sealed envelope."

McNeill asked Kallman what, specifically, the board voted on, if not to accept a settlement.

"What does that mean? 'Accept counsel's recommendation?'" she asked.

"There was no recommendation from corporate counsel for a $4 million settlement," Kallman replied.

"What was your recommendation?" she asked.

"I can't say specifically because it was in closed session," he said.

"But if the intent was to continue negotiations, why weren't those words used? That's not what this language says," she told Kallman.

"I don't have to prove what it is, judge. They have to prove what it is," he replied.

The hearing is scheduled for 9 a.m. Friday, Jan. 19.

Meanwhile, the move by the board to bring in a mediator could be in jeopardy. Kallman filed notice with the court Nov. 29, apprising the judge of the development, saying "this demonstrates defendants’ good-faith efforts to attempt to resolve this matter amicably."

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But in court on Monday, he told McNeill mediation "will be fruitless." Kallman clarified the comment to reporters after the hearing, saying if Howard and Hambley plan to fixate on the position there was a $4 million deal in place, he's not optimistic mediation will work.

On the point of mediation, Howard told McNeill: "We're willing to try it, but there's not a lot of trust there right now."

Both attorneys said a mediator has not yet been selected and the process will likely push into January or February.

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

This article originally appeared on The Holland Sentinel: Judge will review closed session minutes in $4M settlement dispute