Critical public comments draw a fierce defense from City Manager Brad Kaye
MIDLAND, Mich. — During the public comment portion of Monday night’s City Council meeting, a citizen rose to propose a fix to Midland’s flooding woes as well as publicly chastise a city official.
John Elsen, who lives on Sturgeon Creek Parkway, said the two biggest problems in Midland is infrastructure and overland flooding.
“I still haven’t seen action in these parts, I’ve seen talk. I’ve seen we’re gonna do something about sanitary systems, I’ve seen very little about overland flooding in this area,” Mr. Elsen said.
Mr. Elsen said he has lived in Midland since he was in the eighth grade.
“We used to go down Wackerly Road when it was a gravel road. There was no U.S. 10 back in those days, I mean, so I’ve seen the whole town. I’ve seen how it’s developed over time. And yet the same sewer systems that were built then, have gone into the old sewer systems and storm drains as they are now, there hasn’t been a whole lot of improvement for 50 years, yeah?”
He said when he got out of college he worked in an oil field in Michigan and then went to Texas and then Oklahoma, and then “overseas” for about 20 years. Mr. Elsen described places such as the Congo and the Philippines.
“The thing about the oil field, that I learned, is about planning, you know?” Mr. Elsen said.
He described in detail the costs and planning of an oil well, and said that the operational maintenance on the well is most important. Mr. Elsen said that it could cost as much as $1 million per day for operational maintenance and that every day is valuable, because if you miss a day, you’re out $1 million.
“So planning for me is really important, and I haven’t seen any really good planning, at all, when it comes to the sewer system, or overland flooding. This is a situation that’s been going on for a long time. I know ’86 is when it really got serious, and there’s been a number of occasions since then.
Mr. Elsen then proposed an idea to the council: a three person commission that “anytime you develop anything,” would examine overland flooding issues.
“Say you have a ten acre development, I would look at that, do a study on it, how much of that ten acres should be put aside to hold drainage?”
Mr. Elsen proposed having a civil engineer and two assistants for his plan, but then levied a personal attack on a member of the city’s staff.
“I would not have them answer to our planning guy, because I don’t think he knows anything about planning,” he said.
Mr. Elsen instead proposed that his three person commission answer to the City Manager and the City Council directly.
“Bypass this guy right here, who’s more interested in social development than he is about infrastructure. Now, that’s my opinion, and I can say what I want, yeah?”
“Well you know what, but please be civil,” Midland Mayor Maureen Donker (Ward 2), who was presiding over meeting, said.
“I am civil,” Mr. Elsen bluntly replied.
“Yeah, OK,” Ms. Donker responded.
Mr. Elsen then addressed the Midland Business Alliance’s recent involvement with city flood solutions.
“They’re interested in development, that’s their priority. That’s what they want to have done. They want to develop places to build more things. They’re not as concerned about all the citizens of Midland, they’re concerned about their money projects.”
The “planning guy” is Grant Murschel, the City of Midland’s Director of Planning and Community Development. Mr. Murschel has a Bachelor of Science degree in planning from Montana State University-Bozeman. He has been with the city since 2013.
Mr. Murschel declined to respond to Mr. Elsen’s comments.
A man by the same name — John Elsen — and from the same Ward, was one of the 8 applicants for the latest vacancy on the Midland Planning Commission. Mr. Murschel declined to confirm whether or not the same person was Mr. Elsen. The spot ended up going to Dow engineer and Live Oak Coffeehouse owner Aaron Deckrow.
In his application, Mr. Elsen, who said he was a local retiree from Ward 3, provided one-sentence answers to the application’s two main questions.
“I have plenty of experience in planning and the planning process,” Mr. Elsen curtly wrote when answering the question “Why do you feel you are qualified to serve on the Planning Commission?”
At the end of the City Council meeting, City Manager C. Bradley Kaye asked for a rare moment to be recognized by Ms. Donker, and he publicly responded to Mr. Elsen’s comments.
“[Mr. Murschel] was personally attacked this evening, whether Mr. Elsen believes that or not. Those were personal attacks, they were not about the work that’s being done, they were about the person, and I think that’s wholly inappropriate,” Mr. Kaye said. “Mr. Murschel puts his heart and his soul into the work that he does for the City of Midland. I don’t think those types of attacks have any place in this council. We, as a council, have been very careful not to do that. And again, for Mr. Murschel’s sake, I think it would be unfair to not recognize that, and not to make an apology for those types of comments against him. He certainly did not deserve it.”
“I appreciate those comments, and wholeheartedly agree with that.” Ms. Donker said.
Courts have generally protected citizen speakers during the public comment portion of meetings when various local governments have tried to prevent personal attacks.
Just last month, the United States Court of Appeals for the Sixth Circuit, the federal circuit in which Michigan lies, struck down an Ohio’s school board’s public comment rule that prohibited offensive and antagonizing words or harsh criticism of board members as a violation of the First Amendment, overturning a district judge who ruled for the school board.
“…Interpreting ‘harassing’ to ‘exclude speech merely because it criticizes school officials,’ would constitute viewpoint discrimination … The restrictions on ‘antagonistic,’ ‘abusive’ and ‘personally directed’ speech prohibit speech because it opposes, or offends, the Board or members of the public, in violation of the First Amendment,” Judge Deborah L. Cook wrote for the unanimous, three-judge panel. Ms. Cook was appointed to the bench by President George W. Bush in 2003.
“Having already found the ‘abusive’ and ‘personally directed’ restrictions facially unconstitutional, their application to … comments also constitutes impermissible viewpoint discrimination. Accordingly, the Policy’s restrictions on abusive, personally directed, and antagonistic speech, facially and as-applied, violate the First Amendment,” the court ruled.
“Mr. Elsen, we welcome you to make comments again, and please, we ask that you think about the words that you say,” Ms. Donker said to close the meeting.
“Yes ma’am,” Mr. Elsen replied from the gallery.
