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

OTTAWA COUNTY — The fate of Ottawa County Health Officer Adeline Hambley will head back to court Monday, Nov. 27 — this time as a circuit court judge decides whether a $4 million settlement deal between the board of commissioners and Hambley is legally binding.

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 trying 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.

Commissioners were expected to formalize the agreement Tuesday, Nov. 14, but no such vote occurred. Instead, the board recessed until Tuesday, Nov. 28.

Hambley's attorney, Sarah Riley-Howard, wrote in a filing Thursday, Nov. 16: "The parties agreed to settle this matter on Nov. 6, 2023. Now, defendants have remorse and want out of the deal."

Board leadership, however, says that's not what happened.

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

Despite voting at the end of closed session on 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,” Board Chair Joe Moss and Vice Chair Sylvia Rhodea now say the board "has never voted publicly to enter into a settlement agreement with Ms. Hambley," according to a Nov. 17 joint statement posted on the website for Ottawa Impact.

The pair created the far-right fundamentalist group after they unsuccessfully challenged the previous board and county health officer over COVID-19 mitigation mandates in 2020 and 2021.

Moss and Rhodea have never responded to The Sentinel's requests for comment.

"The motion was clear; it was to continue the litigation and settlement activities to resolve this matter," the statement read. "This is also evidenced by the fact that the board voted to recess the meeting until Nov. 14, 2023. If the board had actually reached an alleged final settlement on Nov. 6, 2023, there would be no reason to recess until Nov. 14, 2023. Moreover, no final settlement documents have ever been signed by anyone."

Howard said, after the board agreed to the settlement and its terms — which included the resignation of Deputy Health Officer Marcia Mansaray — in closed session, the board's OI majority voted to "accept counsel's recommendation," while three non-OI commissioners — Doug Zylstra, Roger Bergman and Jacob Bonnema — voted no. Commissioner Kyle Terpstra left before the vote and later resigned.

More: Instead of firing her, Ottawa Impact plans to give Hambley millions to resign

More: Ottawa County walks back settlement agreement with Hambley

Howard said emails between the attorneys memorialized the agreement after the board voted. Documents in her Nov. 14 filing show the attorneys confirming what the county's attorney called "the tentative settlement agreement to have a global settlement of all issues."

There was also a draft of the agreement drawn up as the attorneys continued to discuss details and edits in the days following the vote.

Howard said it wasn't until The Sentinel reported details of the settlement on Nov. 8 that "there was significant public outcry opposed to the agreement." The following day, she said, lead county corporation counsel David Kallman sent an email to her giving a "first indication that defendants might attempt to back out of the agreement."

The email read, in part: "As you know, until the board votes on terms of a final settlement agreement, there is no final resolution." Howard responded: "I disagree that there is no final resolution. We have agreed to all major terms, which were confirmed in writing before the board took its vote to accept counsel’s recommendation and accept the settlement terms.

"That is a binding agreement between our clients," Howard wrote to Kallman on Nov. 13. "The writing is a mere memorialization of the agreement."

At least one commissioner involved in the Nov. 6 closed session has indicated there was an agreement reached, and said the vote was to "ratify" the settlement.

"Under Michigan’s Open Meetings Act, the actions of a board or council must take place in public. When boards emerge from closed session, the chair explains what was decided to the public (transparency), and then holds the vote," District 4 Commissioner Jacob Bonnema wrote on Facebook on Nov. 11.

"Instead, Chairman Moss explained nothing and moved ... without explaining to the public what we were voting on. The law does not allow us (to) make decisions in darkness."

Moss and Rhodea called news reports of the $4 million settlement "erroneous" and alleged they cited "potential illegal leaks from a closed session," although they didn't elaborate on what that meant.

Under Michigan's Freedom of Information Act, a "closed session" is a meeting or part of a meeting of a public body that's closed to the public from viewing or participating for specific reasons, such as discussing litigation. The statute does not specifically prohibit attendees from later discussing what happened in closed session, although there are restrictions on attorneys who represent municipalities — unless a majority of the body waves attorney-client privilege.

Kallman said there was never any deal.

“She’s claiming I went into a closed session and recommended to the board they pay $4 million,” Kallman told MLive in a story published Nov. 18. “We have never made any recommendation to the board to accept any settlement. How do you back out of a non-existent deal?”

Moss and Rhodea agreed.

"The board has not voted on, nor approved, a settlement amount of $4 million or any other amount," they wrote. "Again, a settlement vote can only occur in the presence of the public."

Bonnema, in his social media post, said a continued "lack of transparency" further underscored why he left Ottawa Impact — which helped him get elected in November 2022 — after several controversial decisions by the board led to a slew of lawsuits, including Hambley's case.

"The question remains: Why didn’t Commissioner Moss give the details of the settlement we were being asked to ratify? Why hide the nature and substance of our vote from the public — the very people who elected us? We are required to disclose the details of what we are voting on to our constituents. They are entitled to know what we’re doing in their name.

"The fact that (Rhodea) and Commissioner Moss tried to hide certain details of our vote from public view is concerning. It’s also another example of the lack of transparency — the hiding and the secrecy — that led me to leave Ottawa Impact."

If a resolution isn't reached, the board may return to its special meeting and finally take a vote on whether to terminate Hambley for cause based on charges Moss leveled against her. The settlement was meant to be the culmination of a termination hearing that began for Hambley on Oct. 24. It's now had five separate sessions over the past month, with no conclusion in sight.

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.

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In April, a judge 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.

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.

Hambley and Mansaray remain in their positions for now.

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