Sentinel asks judge to unseal testimony, transcript from Hambley evidentiary hearing

OTTAWA COUNTY — The Sentinel has filed a motion to have a controversial court transcript in the suit between Health Officer Adeline Hambley and the Ottawa County Board of Commissioners released.

More: Lawyers battle over what judge actually said in closed Hambley hearing

Joseph Richotte, attorney for The Sentinel, wrote in a filing Wednesday, Feb. 7, that 14th Circuit Court Judge Jenny McNeill erred when she closed the courtroom.

"Courtroom[s] cannot be closed and records cannot be sealed except on a written motion showing that a party’s protectable interest outweighs the public’s right of access," Richotte wrote.

McNeill closed the courtroom Jan. 19 after county attorney David Kallman sought to keep testimony by Clerk Justin Roebuck and Commissioners Joe Moss, Jacob Bonnema, Roger Bergman and Doug Zylstra private, arguing it was inappropriate for the public and media to be privy to discussions that took place during a closed session Nov. 6.

Sarah Riley-Howard, who represents Hambley, subpoenaed the testimony from the officials, claiming the board reached an agreement with her client when commissioners voted on a motion after the more-than-eight-hour closed session. Details of the agreement included paying Hambley a total of $4 million to step down, plus the resignation of Deputy Health Officer Marcia Mansaray.

Richotte argued closed sessions are designed for public officials to speak candidly with their attorneys, not to have negotiations.

"The closed session was not to consult with counsel regarding settlement strategy as permitted by statute, but rather a cover to make offers, counteroffers, and the like, with counsel shuttling back and forth to convey them," Richotte wrote.

"Not only would that be an improper use of a closed session under the plain language of the Open Meetings Act, but it would also pose a second problem: offers and counteroffers are decisions."

According to OMA: "All decisions of a public body must be made at a meeting open to the public.”

"The court should therefore have held an evidentiary hearing to determine if the requirements for a valid closed session had been met," Richotte said. "If they were not met, then (commissioners) did not state a valid protectable interest."

Richotte said, even if the closed session was found to be conducted properly, McNeill should have evaluated the scope of the need for protection.

"OMA affords protection to the minutes of a closed session ... providing that minutes may be released only if required by a civil action. (The commissioners) argue this protection extends to testimony regarding the closed session. The OMA does not so state, and appellate decisions implicitly approve of public testimony about what occurs during closed sessions," Richotte said.

The lawsuit from Hambley was originally filed in February 2023. Hambley claimed an attempt to demote her was unlawful and alleged the Ottawa Impact majority on the board has repeatedly interfered with her state-authorized health duties. The far-right fundamentalist group assumed a controlling majority of the board in 2023 and has been highly critical of the health department after state-mandated COVID-19 mitigation efforts.

McNeill began the Jan. 19 hearing — after closing the courtroom — then halted proceedings after Roebuck testified, concluding the settlement agreement wasn't legally enforceable because the motion Moss made to approve the deal was too vague.

More: Judge says vote on $4M settlement wasn't 'clear enough'

Howard and Kallman have offered differing interpretations of the verbal ruling and have filed opposing briefs with McNeill as to what the final written order should include.

Howard filed a seven-day order, in which, after a judge gives a verbal ruling — often referred to as "from the bench" — a party may serve a copy of a proposed judgment to other involved parties. If there are no objections to accuracy or completeness, the document is submitted to the court for signing.

Howard's proposed order says the board "made offers and counteroffers on Nov. 6 to (Hambley) through the lawyers for the attorneys, and a majority of board members approved of the terms of an agreement which were as plaintiff described ... and directed legal counsel to write up a written agreement with those terms."

Kallman's version has no details on the settlement agreement, other than to label it as "alleged."

The final order is necessary for both sides to evaluate if they want to appeal to a higher court challenging any of McNeill's decisions, which Howard previously said she plans to do.

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In its own filing, The Sentinel is requesting "access to any video recording and the sealed record of the closed proceeding held on Jan. 19" at the expense of the county.

Howard separately filed a motion for McNeill to reconsider her decision to close the hearing to the public and has requested the judge release the transcript of her ruling.

The court has set a hearing date of Feb. 14 to settle what the proposed order will say and the various other motions filed with the court — including The Sentinel's.

— 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: Sentinel asks judge to unseal records from Hambley evidentiary hearing