Shelby TownshipOctober 9, 2012
Second towing provider files suit against Shelby Township
By Brad D. Bates
C & G Staff Writer
SHELBY TOWNSHIP — In a lawsuit received by the Macomb County Clerk’s office Sept. 28, Utica Van Dyke Service LLC added its name to what is now a list of towing contractors suing Shelby Township.
Like Nightingale Service Inc., which filed suit against the township in federal court June 18, among the charges Utica Van Dyke Service is leveling against the township is breach of contract and due process laws.
“It’s unrelated to the Nightingale lawsuit, because the alleged activities that they are suing about occurred at different times,” Township Attorney Rob Huth said.
“The difference between the two seems to be Utica (Van Dyke Service) is saying (they) should have been awarded the contract in the first place, and Nightingale (Service) is saying, months later, (they) never should have been terminated from the contract.”
“It’s remarkable that there have been so many vendor contracts and very little litigation, but it is both towing and I don’t really know the reason why,” Huth added.
According to the lawsuit filed in Macomb County Circuit Court, Utica Van Dyke Service was initially awarded the contract for police towing services in Shelby Township Aug. 31, 2009, but that contract was dissolved at a Board of Trustees meeting Oct. 6, 2009.
The lawsuit contends that Utica Van Dyke Service was scheduled to be formally appointed as the towing contractor for the Shelby Township Police Department at the Oct. 6, 2009, Board of Trustees meeting.
Instead, it was announced by Township Supervisor Richard Stathakis that Utica Van Dyke Service did not have the contract’s requisite heavy-duty wrecker — a 30-ton truck.
“One of the owners of (Utica Van Dyke Service) specifically told me he didn’t have the proper equipment and asked the township to make a motion to award the contract anyway,” Huth said, noting that he did not want to comment on the specific person who told him about the equipment shortfall.
After the Oct. 6, 2009, board meeting, Utica Van Dyke Service owner Dino Juncevic said he was very disappointed in the board’s decision but did not dispute the equipment issue.
“You really can’t tell the difference between a 25 ton and 30 ton,” Juncevic said Oct. 6, 2009, noting Utica Van Dyke Service had helped out the township for years towing heavy vehicles, including fire trucks.
“We were just discussing the contract and (Huth) asked about the big truck and I told him, just like I told you, it was never an issue before and shouldn’t be an issue now,” Juncevic added.
Utica Van Dyke Service contends in its lawsuit that the township dissolved its contract with the company, not because of an equipment shortfall, but because of political pressure from Nightingale Service, which was awarded the police towing contract after Utica Van Dyke Service’s dismissal.
The lawsuit cites the recall effort in which John Nightingale, owner of Nightingale Service, and Nick Nightingale, operations manager of Nightingale Service, took part to pressure the board to return the towing duties to Nightingale Service.
“Prior to the meeting of October 6, 2009, the political pressure from Nightingale on the Township Board members intensified, including the filing of recall petitions, all designed to coerce the township into taking away the contract from (Utica Van Dyke Service) and giving it to Nightingale,” the lawsuit states.
Along with breach of contract and due process rights, Utica Van Dyke Service contends its unjust removal as the contractor posed a “deprivation of rights to equal protection of the law.”
The latter charge stems from a belief that the townships’ actions “show reckless disregard and callous indifference for (Utica Van Dyke Service’s) federally protected rights.”
The suit cites the 14th amendment of the U.S. Constitution, which guarantees “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
“I think that it will ultimately be decided this case is without merit based on the fact the township followed protocol with respect to the equipment,” Huth said.
Calls to attorneys representing Utica Van Dyke Service were not returned at press time.
The breach of contract and due process charges from Nightingale Service are because of the Board of Trustees’ 5-2 vote Dec. 20, 2011, to dissolve its three–year contract with Nightingale Service with more than two years remaining.
The board cited reasons stemming from maintenance of the Nightingale Service building at 23 Mile Road and Van Dyke Avenue to more than $9,000 in overcharges to revoke the contract.
“The reason we terminated the contract is they did not live up to the terms of the contract,” Stathakis said at the Dec. 20 meeting.
The board further outlined reasons to revoke the contract, such as a failure to complete site improvements as described during the bid process before the township contract was awarded; a failure to prominently display a list of towing charges, a list of storage charges and hours of operation; a failure to appropriately charge for services pursuant to the terms of the township contract; and a failure to adequately screen all employees so as to minimize risk to the public receiving services.
The Nightingale Service lawsuit contends the contract was revoked because of the recall campaign against Stathakis, Treasurer Paul Viar and Trustee Michael Flynn that John and Nick Nightingale took part in, which placed the township in violation of the U.S. Constitution’s first amendment.
“(John and Nick Nightingale’s) aforementioned participation in a township recall effort was constitutionally protected activity touching on matters of public concern,” the lawsuit states.
Calls to Nick Nightingale and attorneys representing Nightingale Service were not returned at press time.
Along with Shelby Township, Nightingale Service’s suit also names Stathakis, Viar, Flynn and Trustees Paula Filar and Doug Wozniak, who voted to dissolve its contract last December.
It also names the Shelby Township Board of Trustees, which could be complicated by the presence of Nick Nightingale on the Nov. 6 ballot as one of four Republican nominees for four trustee positions.
“I cannot comment on lawsuits,” Stathakis said. “However, if Nick Nightingale is elected as a trustee, then we will have to potentially deal with a board member, Nick Nightingale, suing the board, board members and the Shelby Township residents.”