Judge denies motion for injunction related to township lawsuit

By: Alex Szwarc | Macomb Township Chronicle | Published August 10, 2020

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MACOMB TOWNSHIP — A couple of weeks after a lawsuit was filed, a county judge ruled against a trustee’s motion.

On July 27, Macomb County Circuit Court Judge Joseph Toia denied the motion for injunction in the case of Macomb Township Trustee Tim Bussineau v. Macomb Township Board of Trustees.

In June, the board determined it wasn’t necessary to perform an audit which would’ve examined how and why certain software was installed on Clerk Kristi Pozzi’s workstation. That prompted Bussineau to file the lawsuit.

Pozzi expected that the temporary restraining order and injunction order would be denied by Toia.

Bussineau said the relief he is asking for is an audit revote or for the court to order an IT audit.

“The injunction was for immediate relief,” he said. “I don’t know what is going to be found, but if it had anything to do with election data, we wanted that to be addressed before Aug. 4. The judge ruled there is merit for the case to go forward, but he had nothing in front of him to show that voter information was transmitted.”  

Pozzi said in the attorney’s response to the court he indicates, “as previously stated, plaintiff filed a five count complaint and is not likely to succeed on the merits of any count. Each count relies on the premise that township data is being compromised and there is no evidence whatsoever that any data was ever compromised, in fact, there is evidence that two years ago, in 2018, an audit was conducted that showed no data was in fact breached.’”

Macomb Township’s response to Bussineau’s motion for a preliminary injunction was prepared by Mark Koerner, an attorney with Foster, Swift, Collins & Smith, P.C.

On July 22, Bussineau’s motion for a temporary restraining order was denied.

“We were asking that evidence not be tampered with,” he said. “A meeting agenda appeared that they wanted to replace the servers, but that was taken off the agenda.”

The lawsuit states that Pozzi did not have authority from the board to contract with or procure service from any IT firm, nor had board authority to authorize the installation of any monitoring software on Macomb Township systems.

In the response, Koerner argues that Bussineau has not met the burden of establishing all of the factors for issuance of a preliminary injunction.

“Neither plaintiff’s complaint nor the plaintiff’s three-page motion establish the four Thermatool factors, as a result, plaintiff is not entitled to the extraordinary relief he seeks,” Koerner writes.

He goes on to say that Bussineau cannot establish any injury as proper procedure was followed in denying the request for an independent audit.

Koerner concludes that Bussineau’s arguments in favor of a preliminary injunction fail because “he will not suffer irreparable harm without the injunction, he is unlikely to succeed on the merits of its case, and public policy weighs against the essential requirements for preliminary injunctive relief.”

Pozzi previously said since the township’s IT contract had been renewed without a competitive bid, she was doing what she could to determine if the computers were under maintenance contract.

“I did not enter into a formal contract, rather, I received IT guidance from an IT services firm,” she said.

Pozzi explains that the firm, Auvik, collects stats, and cannot see any traffic content sent through a network.

Bussineau said the best-case scenario if an audit is done is that it comes back concluding that no resident information was compromised.