TRAVERSE CITY — Taking government officials to task for decisions that garner excessive legal fees, may seem like a peculiar stand for Frederik Stig-Nielsen to take — he’s an attorney, after all, in private practice.
But ask his opinion on the amount some officials in northern Michigan are actually spending on lawyers, and be prepared for an earful.
“It happens at a state level, it happens at a federal level and it happens at a municipal level,” Stig-Nielsen said. “It’s not their money, so there’s no incentive for the people we elect or appoint, to limit the spending.”
Attorneys are going to do the job they’re hired for, Stig-Nielsen said, and except in extreme circumstances, don’t deserve criticism for billing a municipal board for work assigned by elected officials.
Big voices and strong opinions may be a campaign asset, he added; but those same qualities can exacerbate disputes and prove expensive for taxpayers once that candidate is in office.
A spokesperson for the Michigan Association of Townships acknowledged that, too, and said while most, perhaps all, municipalities in the state carry some form of liability insurance, that does not mean all lawsuits are covered.
“If they (a governing board) are going to be the aggressor, that’s not anything they’re going to use insurance for,” Mike Selden, MAT director of member information services, said. “It’s not a hard and fast rule, but typically if they’re going after somebody, they’re paying the legal expenses.”
Recent and past actions by a variety of area governing boards bear this out.
Homestead Township Board, Benzie County: Homestead Township, population 2,500, spent more than $50,000 defending a controversial noise ordinance in court in 2019 and 2020, invoices show.
Stig-Nielsen represents St. Ambrose Cellars owner Kirk Jones, who is fighting a $125 noise ordinance violation ticket he received in 2019, while hosting a wedding at his Beulah winery that included live music.
“Some people have strong opinions that become a filter for writing ordinances that are poorly thought out,” Jones said. “We need ordinances that serve the community and reflect what most people desire.”
Jones said he feels harassed, in particular by Clerk Karen Mallon, who lives near the Pioneer Road winery and he said has championed the ordinance since before she became an elected official.
Mallon did not return a call or email seeking comment, though has previously said she and the board are not targeting Jones or his business, but rather enforcing the ordinance.
Former Benzie County Commissioner Sherry Taylor, who applied for an open seat on Homestead Township’s Zoning Board of Appeals, said the dispute arose because of improper permitting.
A hearing is scheduled for March, though Stig-Nielsen said it’s possible further court action won’t be necessary.
“I’m hoping, and I know my client is hoping, everyone can come to the table and resolve this before March,” Stig-Nielsen said. “It’s time to work together on a solution.”
The township’s new supervisor, Tia Kurina-Cooley, said she is open to such a plan. Actions by other officials may indicate less enthusiasm to settle out of court. In December, Kurina-Cooley asked the board to approve $800 for postage, to mail township residents a survey asking what terms they favor in a noise ordinance. The current ordinance prohibits annoying sounds between 8 p.m. and 8 a.m. The motion narrowly passed, with Mallon voting no and another board member, Christina Corey, voting no response.
The board is scheduled to discuss settlement options with their attorneys in closed session at their Feb. 1 meeting, Kurina-Cooley said.
Elk Rapids District Library Board, Antrim County: The Elk Rapids District Library Board in 2020 spent nearly $15,000 on their legal fees, largely for repeated consultations on personnel and transparency issues, invoices show.
The board held a special meeting in December to discuss whether to pay about $10,000 in invoices dated from late August to early December, from Foster Swift Collins & Smith PC. The board ultimately agreed to do so, after a flurry of conflicting motions, two of which narrowly passed.
The board had previously incurred approximately $2,500 in legal bills in 2020, invoices show, and has since received additional invoices from the Grand Rapids firm for another $2,500.
The total spent on lawyers is $3,000 more than what the library spent on new books last year, said Library Director Nannette Miller.
Some board members say a good portion of these fees were for consultations that never should have happened.
“For a little library, for us to spend all this money on legal fees, doesn’t that put up a red flag that we’re not, that some of us are not, doing things properly?” Liz Atkinson asked fellow board members in December.
Board member Karen Simpson, interim chair of a capital campaign to fund a planned expansion project, had said an anonymous donor stepped forward to pay a portion of the legal fees.
The announcement stretched the credulity of several board members, and was either rescinded or otherwise canceled without explanation, board minutes show.
Arcadia Township, Manistee County: Beginning in 2017, Arcadia Township, population 639, reportedly spent as much as $20,000 a month for several months on its legal fees, following a lengthy dispute between two elected officials — the treasurer and the clerk. A friendship between the two dissolved over accusations of mishandling of public funds and ignoring proper procedures, resulting in a forensic audit and an investigation by the Michigan State Police.
No charges were filed and the audit found no fraud, board minutes show.
Stig-Nielsen represented then-treasurer Debbra Eckhout, and while he declined to comment on the specific case, acknowledged personality conflicts rising to court action is a trend emblematic of eroding public discourse.
So is a misunderstanding of what insurance will cover, he said.
“When you sue a municipality, their attorney fees are covered by insurance and I think that breeds this kind of attitude, that makes people careless about the cost of litigation when it’s the board that’s being sued,” he said.
Solutions to preclude high legal fees: In 2016 and 2017, the Benzie County Building Authority spent nearly $200,000 for legal services related to construction issues at The Maples, and a resulting civil suit filed against the project’s architects.
Eric VanDussen, who works as an investigator for attorney Jesse Willams, was made chair of the authority in 2018 and immediately instituted a legal services policy.
“You need a policy that prevents unilateral authority for board members to approve the use of attorneys,” VanDussen said, “and you need to prevent an attorney from tasking themselves with things the board was never apprised of.”
The Elk Rapids District Library Board approved a similar policy in December; Homestead Township has no such policy, though Kurina-Cooley said she sees value in discussing it.
“Now isn’t the best time since we’re in the midst of the suit, though I would hope we could discuss adopting a policy like this at some point,” she said.
One idea? Treat legal like snowplowing, fuel supplies and other contracted services and put it out to bid.
Taylor, the former Benzie County Commissioner whose district included Homestead Township, said in 2020, Benzie County — for the first time — released an RFP, or request for proposals.
“I know it saved thousands,” Taylor said. “Not in lawsuits, but in general legal related to the retirement fund. Going in to each individual fund to make the changes was covered.”
Stig-Nielsen advised officials to use in-house legal council whenever possible.
For those municipalities that do not employ an attorney, he said officials should identify who on the board has authority to seek legal advice, limit attorneys to specific tasks and word agreements carefully in order to forestall expensive tangents.
“If you think you can just send emails over and over again to people who bill hourly, that’s probably not a good way to go,” he said.