Lawsuit: Ottawa County health officer claims commissioners violated OMA in new court filing

OTTAWA COUNTY — Embattled Ottawa County Health Officer Adeline Hambley is now seeking to add two new claims in her lawsuit against the county's board of commissioners.

Hambley, through her attorney Sarah Riley-Howard, made new filings Wednesday, Nov. 29, asking the circuit court judge overseeing the case to allow the complaint to be amended with a pair of claims that the board violated Michigan's Open Meetings Act.

Howard wrote in the most recent filing that when board Chair Joe Moss called for a recess at the Oct. 10 meeting, it was essentially to have a discussion "outside of the public view to deliberate and decide on whether to postpone (Hambley’s) termination hearing" and whether to renew the termination hearing charges Moss filed Sept. 27 that did not meet the requirements under state law.

Moss filed notice Sept. 27 that a removal hearing was planned for Oct. 19 over allegations of "incompetence, misconduct and neglect of duty." Moss' allegations revolve largely around health department budget negotiations, which culminated in $4 million in board-orchestrated cuts and half a dozen layoffs for the fiscal year that began Oct. 1.

More: Meeting descends into legal confusion over timing of Hambley termination hearing

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Commissioner Doug Zylstra, the board's lone Democrat, asked at the beginning of the board's regularly scheduled meeting on Oct. 10 for a separate vote on scheduling a termination hearing for Hambley.

Zylstra, citing Michigan law, said a board of commissioners can only call a special meeting by a request of at least one-third of the board, in this case four commissioners of the 11-member board. Zylstra said the Oct. 19 meeting was requested only by Moss, which led to Moss saying the board was going to be in a "short recess," which lasted for 94 minutes.

After the meeting resumed, the county's corporate counsel Jack Jordan said he appreciated Zylstra’s “input and diligence” — and indicated there were potential legal concerns with how the termination meeting was scheduled.

Jordan indicated a decision had been made during the recess, though it was unclear what conversations took place because they didn't happen in public view.

“What we're doing, we’re going to accept your motion," Jordan said. "I think Commissioner Moss is going to do that, and amend the meeting date in the notice, in compliance with MCL 46.10. We’re going to follow that to the letter.”

Howard said the board "deliberated in a de facto quorum by using a round-robin style of communication between subquorum groups to attempt to evade the requirements of the Open Meetings Act."

OMA requires public bodies to make decisions in public, with some limited exceptions for closed sessions. A "quorum" is the minimum number of members within a public body required to hold a successful vote — typically one more than one-half of the body.

"Defendants did not vote to enter a closed session as permitted by the Open Meetings Act, and Defendants had no grounds to do so," Howard said.

After the board came out of the recess at the Oct. 10 meeting, District 10 Commissioner Roger Bergman said he believed there was a quorum of commissioners meeting outside the board room during the recess, which Moss said was “incorrect." Moss said he spoke to legal counsel and the county clerk during the break.

In the new filing, Howard also said there was an OMA violation when the board voted to go into closed session on Nov. 6 to “consult with corporate counsel regarding litigation in connection with Hambley v. Ottawa County because an open meeting would have a detrimental financial effect on the litigation or settlement position of the County.”

Public bodies may only go into closed session for specific reasons listed in the OMA statute, which must be stated in open session to the public and approved by a majority vote before the closed session starts.

Howard said when the board came out of closed session on Nov. 6, commissioners took a vote “to accept Counsel’s recommendation regarding litigation and settlement activities in the case of Hambley v. Ottawa County as addressed during closed session.”

Howard said offers between the two sides were exchanged and an agreement was reached and that the county's attorneys led Howard to "believe that the Defendant Board of Commission would return to open session to vote to approve the terms of the $4 million settlement."

"By failing to advise the public about the particulars of the decision they were making after they left closed session on Nov. 6, 2023, instead reflecting only acceptance of recommendation of unidentified legal advice, Defendants violated" the Open Meetings Act, Howard wrote in the amended complaint.

More: Ottawa County votes to accept settlement in Hambley case

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

Howard is asking 14th Circuit Court Jenny McNeill to "compel (the commission) to produce the minutes of the closed session on Nov. 6, 2023, for the Court’s in camera inspection, necessary to show that (the commissioners) did not comply with Open Meetings Act" when they didn't "advise the public of the substance of their decision and what they were voting to approve."

"In camera" is a Latin term that literally translates to "in chambers," but carries the meaning "in private." Portions of a case held in camera are held in private before a judge, where the press and the public are not allowed to take part.

Howard also is asking that McNeill declare that any "non-public discussions that resulted in a decision to schedule a special meeting and to authorize charges for termination hearing" against Hambley on Oct. 10 violated the Open Meetings Act.

The new filing came one day after the commissioners voted to seek a mediator to help resolve the ongoing dispute with Hambley, who sued commissioners in February, claiming the board's Ottawa Impact majority attempted to unlawfully demote her and repeatedly interfered with her state-authorized health duties.

Moss is the founder of Ottawa Impact, a far-right fundamentalist group he created with now Vice Chair Sylvia Rhodea after they unsuccessfully challenged the previous board and county health officer over COVID-19 mitigation mandates in 2020 and 2021. OI now controls six seats on the 11-member board.

The group has been trying to remove Hambley from her position since Jan. 3, when the majority voted without warning to demote Hambley to "interim" health officer.

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On Nov. 28, the board reconvened the special meeting that originally began on Oct. 24 after Moss charged Hambley with incompetence, misconduct and neglect of duties in order to have "just cause" in removing her from her position.

The special meeting has now had six separate sessions over 35 days without resolution. Moss called for a vote Tuesday to recess the special meeting without a next session planned to "allow the mediation process to continue." The motion passed unanimously.

Meanwhile, the lawsuit next has a hearing scheduled for 9 a.m. Monday, Dec. 4, to consider Hambley's request that a judge enforce the $4 million settlement agreement she claims was reached on Nov. 6 with the board.

Howard issued subpoenas for county Clerk Justin Roebuck as well as Commissioners 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.

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

This article originally appeared on The Holland Sentinel: Hambley claims county board violated OMA in new court filing