A motion unanimously passed Oct. 23 for Macomb Township to release all documents related to a legal bill and waive attorney-client privilege.

A motion unanimously passed Oct. 23 for Macomb Township to release all documents related to a legal bill and waive attorney-client privilege.

File photo by Sarah Purlee

Macomb Township Board of Trustees votes to waive attorney-client privilege

By: Alex Szwarc | Macomb Township Chronicle | Published November 5, 2019


MACOMB TOWNSHIP — The Freedom of Information Act, or FOIA, process sometimes can be tricky to navigate, as demonstrated at a recent township meeting.

During trustees’ comments at the Oct. 23 Board of Trustees meeting, Trustee Kathy Smith sought clarification on the township’s FOIA request process after a FOIA appeal was denied.

On Sept. 18, resident Kathy Western submitted a FOIA request to review fees and costs on a bill for legal service to the township from the law office of Kirk, Huth, Lange & Badalamenti. On Sept. 20, the FOIA request was denied. Two days after that, an appeal was filed. On Sept. 25, the board voted the bill shouldn’t be considered attorney-client privileged.

“On October 9, I was surprised the appeal was still on the agenda and that it was denied,” Smith said. “I guess I don’t understand the process, if there was a motion for reconsideration. I don’t know why there were two votes on it.”   

Denial of the FOIA appeal was upheld Oct. 9.

Township General Counsel and Human Resources Director Tom Esordi said there was discussion on what the motion was at that time, and whether or not there was a vote to waive attorney-client privilege.

Clerk Kristi Pozzi said the motion was to keep the invoice attorney-client privilege, it had support and failed.

Esordi said there was no affirmative vote to waive the privilege that he repeatedly suggested.

“I talked to Mr. Lange and he determined that his bill and the information was subject to attorney-client privilege,” Esordi said. “I didn’t feel it was my role to question that.”

Trustee Tim Bussineau asked if voting to keep attorney-client privilege is different than voting to waive it.

“This almost sounds like 20 years ago with, ‘It depends on what the definition of is, is,’” he said.     

Pozzi, who is also the township’s FOIA coordinator, recapped how the request played out, in regard to providing a detailed invoice. She read an email from Esordi to Deputy Clerk Roger Cardamone.

“Based on his opinion regarding the nature of the information contained in his invoicing, disclosure of the invoice provided by the finance director is appropriate,” Pozzi read. “All other documentation would be exempt from disclosure, as it contains information subject to attorney-client privilege.”

On Sept. 27, the Clerk’s Office sent an email to Esordi asking for the status of attorney Frank Cusumano’s appeal of the denial on behalf of Western, and if the board needed to take action or if the failed motion at the Sept. 25 meeting was sufficient to release the billing details.

Esordi at that time responded that he wasn’t aware of a motion to waive the privilege.

“We voted not to keep the bill attorney-client privilege, then there was no basis to deny the FOIA appeal,” Bussineau said. “I’m not sure we really understood the vote we took that night. Now, we’re saying that’s not what we did.”

Trustee Roger Krzeminski made a motion to release the client-township bill for Craig Lange, the lawyer who conducted an independent investigation for the township.

The motion unanimously passed to release all documents and waive attorney-client privilege.

Trustee Nancy Nevers seconded the motion, adding the board release all documents for the details of the bill and Lange’s findings.