Judge's temporary order blocks Ottawa Impact from firing health officer Hambley

MUSKEGON — A judge has granted Ottawa County's health officer a temporary restraining order, temporarily preventing the Ottawa Impact county commissioners from removing her from her position.

On Thursday, March 2, Adeline Hambley was granted the temporary restraining order, or TRO, from Muskegon Circuit Court Judge Jenny McNeill, who is presiding over the lawsuit Hambley filed in February against seven of the eight Ottawa Impact commissioners who now control the county's 11-member board.

The order comes just days after the OI commissioners made a "correction" to a resolution that the former board approved on Dec. 13 that appointed Hambley to the role after outgoing officer Lisa Stefanovsky announced in August that she planned to retire in spring.

More:Ottawa Impact forces through 'correction' on Hambley hire 6-5

More:Health officer's lawyer: Ottawa Impact trying to 'rewrite history' by undoing vote

Hambley's attorney, Sarah Riley Howard, warned Ottawa County's corporate counsel Jack Jordan in an email Tuesday — hours before the vote took place — that changing the Dec. 13 resolution would violate the state's Open Meetings Act.

"The action request ... claims that the resolution that the prior Board passed 'did not accurately reflect the motion and vote that actually took place.' That is false," Howard wrote. "The prior Board voted to, and did, appoint Ms. Hambley contingent upon standard approvals which occurred, rendering the appointment automatically effective. The prior Board did not intend to require a second vote of appointment after the occurrence of the contingencies, which is clear from the record.

"In any event, the original resolution that the prior Board voted to pass controls. Plus, under the Open Meetings Act, the time has passed for any allegedly appropriate corrections to the minutes or other official record, including the text of written resolutions."

It is unclear if the action Tuesday is a violation of Michigan's Open Meetings Act. According to OMA, a board must approve minutes of a meeting — a log of the official actions a public body made — at the body's next meeting. The Dec. 13 minutes were on the agenda to approve at the new board's inaugural meeting Jan. 3, but delayed the vote until Jan. 10, where the minutes were approved without incident.

The Michigan Attorney General's Office did not respond to a request for comment as of publication time.

At Tuesday evening's meeting, Ottawa Impact co-founders Joe Moss and Slyvia Rhodea and corporation counsel Jack Jordan said the move was simply to align the wording of the resolution, the minutes and the video. When asked directly if there would be additional action, Jordan said that is up to the board and Moss did not directly answer the question.

In her application for the ex parte TRO Thursday, Howard said Tuesday's maneuver was to invalidate Hambley's hire.

On Wednesday, March 1, the commissioners' counsel sent a letter to Howard saying the "revisionist resolution" that the board approved 6-5 Tuesday "has the legal effect of rendering (Hambley)'s appointment as health officer invalid and threatening a motion for sanctions if (Hambley) does not dismiss her complaint by March 7."

The order Thursday prevents the board of commissioners from taking any actions to remove Hambley from her position until a hearing March 13. At that time, the order could be extended or dropped, depending on the hearing's outcome.

The State Court Administrative Office appointed McNeill to preside over the case after all Ottawa County judges recused themselves.

How we got here

Hambley sued the seven commissioners who belong to the far-right group Ottawa Impact on Feb. 10, claiming they repeatedly have interfered with her ability to do her job and have overreached their authority by attempting to limit her state-authorized health duties.

From dictating to her that Ottawa County will not issue any health orders that "overstep parental rights" to erroneously claiming the county's health department sponsored Grand Valley State University’s recent Sex Ed Week to claims of "promoting radicalized sexual content" to refusing to approve federal grant-funded mental health positions, the OI commissioners have been laser focused on the health department since taking office at the beginning to the year.

Most recently, Hambley, on Feb. 21, appeared before the board urging them to approve an agreement for the Community Health Needs Assessment, a collaborative effort by the health department, local hospitals and several other entities to identify and define local health issues, concerns and needs. It's a statutory requirement for nonprofit hospitals and helps the health department identify and address needs.

The memorandum of understanding, outlining commitments by various organizations, was approved in a committee meeting — but held up on full board approval by Vice Chair Sylvia Rhodea, a co-founder of Ottawa Impact, who said she wanted to review the questions used in the survey.

Hambley told the commissioners the survey isn’t theirs to approve.

More:Health officer chastises Ottawa County board for failing to approve health assessment

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“The Healthy Ottawa Coalition determines the questions based on the acceptable methods and prescribed standards,” she said. “It's not a purview of this board to review or approve the survey questions, just as it’s not under your purview to dictate water sampling methods, how to complete dental cleaning or how to complete cause of death investigations.”

Hambley said questions relating to sexual orientation and gender identity, which she believed to be sources of concern for commissioners, are necessary for hospitals to understand healthcare needs and health disparities for those populations.

“Providers who are informed are better able to provide care that is relevant, specific and compassionate,” Hambley said. “It's data that our hospital partners need.”

Hambley sued the commissioners, claiming they are preventing her from doing her job and “constructively terminated” her by voting to demote her during the board’s inaugural meeting.

After being sworn in on Jan. 3, the new OI commissioners made several sweeping changes, including:

• Firing county administrator John Shay and replacing him with former GOP congressional candidate John Gibbs without conducting a public interview.

• Eliminating the county’s Diversity, Equity and Inclusion Office.

• Choosing a new health officer to replace Adeline Hambley, the appointed successor to outgoing officer Lisa Stefanovsky, naming her "interim" health officer, instead.

• Firing county corporate counsel Doug Van Essen, and hiring Lansing-based Kallman Legal Group.

• Changing the county’s motto from “Where You Belong” to “Where Freedom Rings."

Hambley filed her lawsuit Feb. 10 in Ottawa County’s 20th Circuit Court, naming seven of the eight Ottawa Impact commissioners as defendants: Board Chair Moss, Vice Chair Rhodea, and Commissioners Lucy Ebel, Gretchen Cosby, Roger Belknap, Allison Miedema and Rebekah Curran.

The remaining Ottawa Impact commissioner, Jacob Bonnema, wasn't present at the Jan. 3 meeting and is not named as a defendant.

The question over who ultimately has the authority to control public health orders has been challenged in Ottawa County multiple times since the onset of the COVID-19 pandemic. In October 2020, the Ottawa County Department of Public Health issued numerous warnings to Hudsonville-based private Christian school Libertas over its failure to comply with the state’s health orders.

More:County attorney pleaded with Ottawa Impact not to fire Shay. 'You will send shock waves.'

More:Court of Appeals upholds Ottawa County health officer's right to issue mask mandate

The school, where Moss’ children attend, was briefly closed by the county, which prompted an unsuccessful lawsuit from parents.

A second lawsuit, filed by Moss and other parents in September 2021, claimed Stefanovsky overstepped her authority and should have sought approval from the county board before issuing a countywide mask order for pre-K-6 students. That suit was also unsuccessful, and the district court’s findings were upheld on appeal.

By April 2022, Moss had announced his bid for county commissioner, forming Ottawa Impact and recruiting others to join him. The group made no secret on the campaign trail that it intended to prevent any future mask mandates and that OCDPH would face intense scrutiny over the distribution of sexual health materials and related information.

Eight of nine OI candidates defeated the board’s Republican incumbents in the August primary, and now sit on the board.

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After the commissioners were sworn into office, Miedema made a motion to demote Hambley to "interim" health officer, "in favor of the hiring of Nathaniel Kelly as Health Officer,” the lawsuit states.

“Upon information and belief, this motion was part of an overall political strategy the Individual Defendant Commissioners orchestrated prior to taking office. The motion to demote Plaintiff was not on the public agenda posted prior to the meeting. The Individual Defendant Commissioners voted to approve the motion.”

The actions taken Jan. 3 were added to the agenda after incoming commissioners changed the rules to make it easier to add items without prior notice.

Nessel’s Office announced Jan. 4 it was reviewing the board’s first meeting for numerous potential violations of the state's Open Meetings Act. On Feb. 16, Nessel said, despite the conduct of the Ottawa Impact commissioners being a “blatant violation of the public’s trust and the tenets of government transparency,” it didn't technically violate state law.

More:AG: Ottawa Impact violated spirit of OMA, stronger transparency laws needed

Hambley says the demotion to “interim” health officer was “a constructive termination,” and that an actual termination is looming.

“By their public statements, Defendants have made clear that Plaintiff’s actual termination as the Health Officer, and possible complete termination from her county employment, is imminent,” the lawsuit says.

Replacing Hambley with Kelly would achieve the OI commissioners’ goal of having a health officer who aligns with their beliefs and values.

“Defendants’ reasons for demoting Plaintiff and announcing the hiring of Mr. Kelly … were philosophical and political, because Defendants oppose the exercise of many of the Health Officer’s statutory powers under state law to initiate orders and other actions for protection of the public health,” the lawsuit states.

Kelly has been vocal about his anti-mask and anti-vaccine stances. Kelly, the health and safety manager at a Grand Rapids-area HVAC company, has no previous work history in public health and said he would recommend kits for individuals infected by COVID-19 with vitamins, ivermectin and neti pots, but not masking or social distancing.

“No social distancing would be suggested since it has no basis in any proven science,” Kelly said during an event in 2022. “No mass testing for asymptomatic individuals; asymptomatic individuals do not transmit disease.”

Kelly, a self-described “autodidact,” has defended his credentials, arguing his experience with the Occupational Safety and Health Administration during his military career inspired him to continue his education through the online for-profit college Columbia Southern University. Kelly has two degrees from the college, including a master of public health in 2020 and a master in occupational health in 2018.

Hambley has worked in OCDPH for nearly 19 years, serving as environmental health manager since 2011. In that role, she oversaw the food inspection program, sustainability centers and well and septic programs. She holds a bachelor's degree in biology and a master's in business administration, both from Grand Valley State University.

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In her lawsuit, Hambley says the OI commissioners failed to follow county hiring procedures and still haven’t submitted Kelly’s credentials to the state for approval, which is required under state law. As of Monday, Feb. 27, the MDHHS said it still has not received any information regarding the appointment of Kelly.

“Defendants never posted the position of Health Officer after they assumed office … nor did they observe any standard and customary county hiring practices, like taking applications or holding interviews with candidates … that were open to the public,” the lawsuit says.

“Instead, the Individual Defendant Commissioners selected Mr. Kelly as their favored choice for the Health Officer in secret meetings not open to the public, and without any public process for vetting him as a candidate.”

OI Commissioner Cosby, who previously worked as a registered nurse, admitted Jan. 31 that she vetted Kelly's resume through Ottawa Impact prior to being sworn in as a commissioner — and that she couldn't recall reviewing any other applications.

The lawsuit claims Ottawa Impact is attempting to justify demoting Hambley, so it can install Kelly and possibly have Hambley continue to perform most of the health officer duties in a demoted capacity.

“If Defendants continue to employ Plaintiff, it will be in a demoted, mostly ministerial and clerical, position so that the Ottawa County Health Department falsely appears to function with Mr. Kelly at the helm with some semblance of competence and statutory compliance, even though Mr. Kelly lacks relevant and necessary professional experience to perform the Health Officer role,” the lawsuit states.

Hambley says the OI defendants are attempting to “manufacture alleged cause to criticize Plaintiff’s performance of her duties and/or to manufacture political controversy.”

The lawsuit came on the heels of allegations from Moss the OCDPH appeared to “sponsor” Grand Valley State University’s Sex Ed Week, which concluded Friday, Feb. 10.

More: Sex Ed Week at GVSU has Ottawa Impact digging into county's health department

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After an anonymous blog post accused OCDPH of sponsoring what it characterized as a “raunchy” event, Moss went on far-right West Michigan radio personality Justin Barclay’s Feb. 9 broadcast, saying “there needs to be accountability where it needs to be, and critical thought when making decisions on what kind of events people decide to participate in or sponsor and support."

The publicity the allegations drew resulted in local media inquiries to OCDPH, which responded through its communications officer, Alison Clark, who said OCDPH was not a sponsor of the event, and coincidentally was conducting its monthly sexually transmitted infections clinic at GVSU in Allendale, a practice that's been ongoing for three years.

The health department requested GVSU remove the department’s logo from its website “because it gave the appearance that the department is a sponsor of this event, and it is not. OCDPH did not contribute any funding for this event," Clark said in the statement.

“A conservative internet blog and Defendant Moss made public statements inferring that the student event was an example of something unseemly that the Health Department was sponsoring,” Hambley’s lawsuit stated. “As is a common part of the Health Officer’s duties, Plaintiff clarified when asked by local news media that the Health Department was not sponsoring the event.”

After providing the statement to MLive, Clark asked her words be retracted. When asked why, she told MLive it was at the request of Ottawa County Administrator John Gibbs.

Hambley says in her lawsuit that Gibbs emailed and ordered her to have the statement retracted because he didn't approve of its release.

On Feb. 10, “Mr. Gibbs spoke to Plaintiff and was very upset, reprimanded her for not obtaining prior approval from him to release a statement, said the statement was not truthful, and that there ‘would be consequences,’” the lawsuit states. “Plaintiff respectfully advised Mr. Gibbs that she disagreed with retracting the statement and stated why she believed her statement was true and appropriate.”

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Hambley said Gibbs then accused an OCDPH employee of being involved with the GVSU event and wanted an investigation conducted.

“When Plaintiff responded that she believed that the employee that Mr. Gibbs was accusing participated (if at all) on her own personal time, Mr. Gibbs’ response was: ‘I don’t give a f*** if it was done in a personal capacity or not.’ Plaintiff believes that Mr. Gibbs’ insistence on an ‘investigation’ could be an attempt to fire this employee for potentially volunteering for the event on his/her personal time.”

Hambley said the GVSU incident is the latest example of being asked by Gibbs and the OI commissioners to “name names” in an attempt to “micromanage Plaintiff in the performance of the Health Officer duties, even though state law provides the Health Officer with duties and powers specifically free of this type of interference for particular policy reasons.”

The lawsuit seeks declaratory, injunctive and punitive relief.

Hambley is asking the court to declare her the health officer for Ottawa County, without any “interim” designation or demotion, and to find that the commissioners may not appoint Kelly. She also is seeking monetary damages for lost wages and mental anguish.

Hambley also wants the judge to affirm the commissioners may not remove her from the position, unless:

• They have “just cause,” or can prove misconduct

• They provide notice of all allegations constituting any such misconduct

• They provide the opportunity for a public hearing

Both former corporate counsel Van Essen, in 2020, and former state attorney general Mike Cox, in a parallel legal opinion in 2021, said the board could only remove the health officer if she was “incompetent to execute properly the duties of the office” or if she was “guilty of official misconduct or habitual or willful neglect of duty,” but said the board could only pursue the latter two reasons after a hearing in which the health officer and her legal counsel could be heard.

“Plaintiff reasonably fears that she will be unable to carry out the duties required of the Health Officer under state law, even in an 'Interim' designation, and that this state of affairs is a danger to the public health,” the lawsuit states. “In the event of a public health crisis requiring swift action, it is unlikely that Plaintiff would be able to obtain a legal remedy from this Court in time to respond and exercise her duties under Michigan law.”

— Sarah Leach is executive editor of The Holland Sentinel. Contact her at sarah.leach@hollandsentinel.com. Follow her on Twitter @SentinelLeach.

This article originally appeared on The Holland Sentinel: Judge temporarily blocks Ottawa Impact from firing health officer