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Mayor pro tem questioned over involvement in flood lawsuit

By: Andy Kozlowski | Madison - Park News | Published February 14, 2020


MADISON HEIGHTS — At its meeting Feb. 10, a divided Madison Heights City Council voted to release a confidential legal report to the public that details a possible conflict of interest involving the mayor pro tem, Roslyn Grafstein.

The report came in the wake of the previous council meeting, Jan. 27, where it was revealed by Grafstein that she and her spouse are listed as “potential claimants” in a class action lawsuit — currently awaiting certification — against the city over the flood of 2014. Her basement had been damaged during the water event.  

Making the report public required a waiver of attorney-client privilege, which otherwise prevents its release under the Freedom of Information Act. Grafstein herself had not seen the report, so she abstained from voting. The decision was left to her six peers on the council.

Mayor Brian Hartwell, along with council members Robert Corbett, David Soltis and Mark Bliss voted to make the report public, while council members Emily Rohrbach and Kymm Clark voted to keep it private. Rohrbach said she voted “no” because she was unsure of the precedent set by waiving attorney-client privilege.

The report, authored by City Attorney Larry Sherman, is minimally redacted and spans about 24 pages. It includes the city attorney’s investigation into what Grafstein knew and when, and whether her actions posed a conflict of interest.     

It also prescribes a way for Grafstein to resolve any conflict of interest, by agreeing to opt out of the lawsuit once it becomes certified, and by signing an affidavit where she would agree to surrender any money that she or her spouse receives from it, giving it back to the city. The report notes that to date, Grafstein has not committed to this.

Immediately following the Feb. 10 meeting, the Madison-Park News asked Grafstein if she would sign the affidavit, returning any money she may receive to the city. She replied, “No comment.” She also said she does not wish to speculate on hypothetical situations or what she will do in the future.

Her original comments during the end of the meeting Jan. 27 attempted to establish a timeline regarding her involvement in the lawsuit.

“On Thursday, Jan. 23, I found out that five years ago — without my knowledge or consent — my name and address were put on a list of potential claimants for the potential lawsuit,” she said during closing comments.

Grafstein explained that in 2014, she made a claim for damages with the city that was denied. She then received a letter regarding the class action lawsuit. She said she did not wish to sue the city, so she did not respond. She said that she was still added to the list, but because she did not reply, she did not receive updates, and so she did not know it was ongoing or that she was involved.

“I found out about this on Thursday (Jan. 23). Today is Monday (Jan. 27). And this is when I’m disclosing it,” Grafstein said.

Grafstein also told the Madison-Park News in an email exchange Feb. 2: “I have never been part of any lawsuit filed against the city, nor have I authorized any attorney to file any action against the city on my behalf.”

However, in the report that was declassified, the city attorney notes that in November 2019 — months before the Jan. 27 meeting, and two years into her council term that started in 2017 — Grafstein acknowledged being part of the lawsuit in a verbal discussion with Madison Heights City Manager Melissa Marsh. The city manager then confirmed that the Grafsteins’ home address is on the class claimant list.

This was followed by a Dec. 5 email, from Grafstein to the city manager and city attorneys, included in the report, where Grafstein simply wrote: “I would like to recuse myself from the litigation. My house is in the lawsuit.”

The attorney concludes that in his opinion, while Grafstein “failed to notify council of her potential class claimant status in a timely manner,” it does not prejudice the city’s ability to exclude her from any settlement or judgement, and it does not rise to the level of misconduct in office that merits removal according to charter or state statutes, which prohibit elected officials from knowingly making financial gain from city “contracts” exceeding $100.

Sherman wrote that “…had the city reached a settlement agreement in the rain event litigation, the settlement agreement would come within the charter section 5.13 definition of a contract. Therefore, if the city had agreed to a settlement and a council member had received a payment, the council member who had received the payment could be found guilty of misconduct in office. However, as council is well aware, a settlement agreement has not been reached, and the Grafsteins have not received any money from a settlement agreement to date.”  

At press time, the option was still available for Grafstein to sign the affidavit. If she decides to sign it, she would commit to give the city any money she or her spouse receives from the lawsuit, and to keep confidential any privileged information she may have received regarding the litigation. Grafstein would then be able to once again participate in closed sessions regarding this issue, and she would no longer have to recuse herself.

In addition to city staff having asked Grafstein to sign the affidavit, fellow Council member Bliss also asked the same of her during his closing comments Feb. 10. Bliss said that he appreciates her contributions to the council and he wishes for the council to put this behind it, but he also feels she should sign the affidavit to resolve the matter.

Following the meeting, the mayor also spoke about the affidavit.

“Until she signs an affidavit, there is nothing that the city can do to resolve this lawsuit because it poses a conflict where the city would potentially be paying one of its own council members,” Hartwell said.      

During her turn to speak, Clark praised Grafstein as the “greatest (mayor) pro tem the city has ever seen,” and said that she takes issue with the way she perceives Grafstein was treated.

“I have zero regrets or remorse for coming to the defense of Roslyn Grafstein,” Clark said. “For at least a week or more, Roslyn Grafstein had (council members causing her) fear and intimidation to try to get her to resign her spot as mayor pro tem. And I thought it was absolutely disgusting, and I thought it was absolutely inappropriate for … four members of our city to make her feel that way.

“It takes a lot to get someone who is normally conducted so well, to get them to a point where they scream in a public forum,” Clark said, referring to a moment Jan. 27 where Grafstein was calmly explaining the situation and suddenly began screaming. “That’s not something you do because you had a bad day. That’s something that you do when you’re brought to an emotional breaking point.”

Clark’s claim that Grafstein was being bullied echoed remarks that Clark made during the meeting Jan. 27, where she said, “It seems like a very fragile, masculine thing to do to bring a woman to this (point of tears) on City Council.”

Cindy Holder, a former member of the City Council, said during public comment that she took issue with Clark’s comments.

“The sexism statement — I was dumbfounded. I was angry,” Holder told the council. “I have known these men for a long, long time. I don’t always agree with them, but never, ever would I use words like that with any of them sitting here. And you can’t un-hear that. As women, we need to be very careful when we throw those kinds of accusations out.”

Holder said she wants complete transparency about the situation with Grafstein. Soltis shared her concern during his comments just prior to the vote to release the report to the public.

“To me, this vote is about facts and transparency,” Soltis said. “The issues on this document are to me the most critical in the time I’ve been on council — six years. These facts need to come out, and let the people decide for themselves. … We owe this to our residents. We are public servants. We serve the people.”