VanDussen v Benzie Transportation Authority Settlement Negotiation letters and emails

Relevant portion of a November 18, 2013 letter from Christopher K. Cooke to Eric L. VanDussen: Mr. Eric L Vandussen P.O. Box 692 Beulah, MI 49617 Re: Vandussen v. BTA, Benzie Circuit Court no: 13-9810-CZ Dear Mr. Vandussen: * * * Finally, after you have reviewed my Answer to your First Amended Complaint and the Affirmative Defenses, I ask that you voluntarily dismiss your Complaint against my client. There is no legal basis for your complaint as there is no "case in controversy To further this process, I have enclosed an Offer to Stipulate to the Entry of Judgment in the amount of $250. I do this now without the authorization of the Board as I am interested in putting this matter to an immediate end without further costs to the Board. This litigation has been, and will continue to be, expensive for my client As my client is a public agency, agency funds would be better served going to the members of the public that the Agency is committed to serve rather than to pay attorney fees and costs. I intend on seeking ratification from the Board at the next meeting, but even if the funds are not authorized by the Board, I intend on honoring the offer from my own pocket. As you probably realize, if you do not accept the Offer to Stipulate to the Entry of Judgment and we do, in fact, prevail on our planned motion for summary disposition, I will be asking the Court to charge you for my actual attorney fees and costs necessitated by the continued defense of this action. I ask that you take this offer seriously based on the allegations of your First Amended Complaint, our Answer and Affirmative Defenses and the law set forth above. It may be wise to take this matter to an attorney and seek legal advice about your options. I fully intend to enforce this remedy if the opportunity presents itself. If, though, your intentions are to seek retribution from certain Board members for the actions of the Board in not extending your foster mother's contract, I can somewhat empathize with your emotional response, but I cannot agree with your methodology or the legal course you have charted. In that case, this will be a costly and protracted affair which will not result in a reconsideration of the decision of the Board as to the subject contract. Please contact me by return correspondence if you have any questions in this regard. Respectfully, Christopher K. Cooke (P35034) Cooke Law, PLLC

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Eric VanDussen <ericlvandussen@gmail.com> "Christopher K. CookeP35034" <chris@cookemail.com> Tue, Dec 10, 2013 at 8:02 AM Counter-Offer re: your Offer to Stipulate to the Entry of Judgment in the amount of $250.

Mr. Cooke, I am hereby rejecting your $250.00 settlement offer made in your November 18 letter. As you know, my first amended complaint does not even seek reimbursement of my court costs or any potential attorney fees I may incur. Money is not, and has never been, the issue. Curtailing blatant OMA violations committed by certain members of the BTA board is the issue at hand. Therefore, in an effort to avoid costly and lengthy litigation for everyone involved, I am submitting the following counter-proposal: 1. Stipulate that all BTA board members are not making any admissions that they committed any OMA violations or wrongdoing, as alleged in my complaint(s). 2. Stipulate that the BTA board and any of its committees will not micromanage the drafting of draft minutes that are taken by their employees. 3. Stipulate that any corrections made to the BTA board and its committees minutes will be made at the next meeting after the meeting to which the minutes refer. 4. Stipulate that all approved BTA board and committees minutes shall show both the original entries and the corrections. 5. Stipulate that all BTA board and committees draft minutes shall be available for public inspection within 8 business days after the meeting to which the minutes refer. 6. Stipulate that all decisions of the BTA and its committees shall be made at meetings open to the public. 7. Stipulate that all deliberations of the BTA and its committees, when constituting a quorum, shall take place at a meeting open to the public. 8. Stipulate that there is no costs or fees awarded to either party. Please let me know, at your earliest convenience, whether these terms would be acceptable. Thanks, Eric L. VanDussen

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Chris Cooke <chris@cookemail.com> Eric VanDussen <ericlvandussen@gmail.com> Tue, Dec 10, 2013 at 9:05 AM Re: Counter-Offer re: your Offer to Stipulate to the Entry of Judgment in the amount of $250.

Thank you for your response. Let me talk with my client. I will attempt to get back to you by the end of the week.

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Christopher Cooke <ckcookelaw@hotmail.com> Eric VanDussen <ericlvandussen@gmail.com> Wed, Dec 18, 2013 at 2:17 PM RE: Counter-Offer re: your Offer to Stipulate to the Entry of Judgment in the amount of $250.

Would this be acceptable as an amended settlement proposal : A stipulated order will enter in this matter as follows:

1.

No admissions of liability that the Board or any member of the Board violated the Open Meetings Act.

2. The Benzie Transportation Authority Board will comply with all conditions of the Open Meetings Act, including but not limited to, the following: a. draft minutes of the Board and all standing committees will be available for public inspection 8 days after the meeting. b. all corrections made to the Board and committee minutes will be made at the next public meeting to which the minutes refer and will show the original entry and the corrected entry. c. All decisions of the Board and its standing committees will be made at a meeting open to the public. d. All deliberation to a decision of a quorum of the Board or its standing committees will take place in a meeting open to the public. 3. The lawsuit will be dismissed with prejudice and without costs to either party. Let me know as soon as you can so we can discuss this with the Board tomorrow night. Thank you.

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Eric VanDussen <ericlvandussen@gmail.com> Christopher Cooke <ckcookelaw@hotmail.com> Thu, Dec 19, 2013 at 9:58 AM Re: Counter-Offer re: your Offer to Stipulate to the Entry of Judgment in the amount of $250.

Chris, Your latest proposed language for the stipulated order is acceptable. I think the only other condition that needs to be added is some type of language indicating that it resolves all matters and closes the case. I'd request that you prepare the stipulated order and email me the completed version. I will print it, sign it and mail it to you for your signature so you can file it with the court. Thanks, Eric

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chris@cookemail.com ericlvandussen@gmail.com Fri, Dec 27, 2013 at 2:52 PM Possible settlement of BTA lawsuit

This is a confidential message pursuant to MRE 408 Dear Mr. Vandussen I have been attempting to make contact by phone to discuss a possible resolution of this lawsuit. I think we are in basic agreement as to the terms of the resolution, however, there is concern among my clients that you will continue your efforts to cast them in a negative light, including your webpage specifically focused on "overthrowing" the BTA board and your efforts to have the Benzie Board of Commissioners pursue some independant investigation. If we cannot package all of your concerns in one resolution that would encompass all of your attacks as to my client it may be difficult to resolve the litigation. I guess the question becomes: do you want a Court order that addresses what you perceive to be concerns with the alleged Open Meetings Act violations or do you seek retribution for the failure of the Board to extend a contract offer to Ms. Miller? If it is the former, then we can probably resolve this matter. If it is the latter, an early resolution may be more problematic. I would like to know your position as soon as reasonably possible as I need to prepare answers to your motion and file motions of my own. Please call me with your thoughts in this regard.

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Eric VanDussen <ericlvandussen@gmail.com> "Christopher K. CookeP35034" <chris@cookemail.com> Fri, Dec 27, 2013 at 3:19 PM Re: Possible settlement of BTA lawsuit

Mr. Cooke, I've been pretty much ignoring my phone while I'm on vacation this week. From what I gather, it appears your clients want to propose additional conditions to our initial settlement draft. It you want to email your proposed additions, I will look at them over the weekend and get back with you by Monday. Thanks, Eric L. VanDussen

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chris@cookemail.com ericlvandussen@gmail.com Sat, Dec 28, 2013 at 8:24 AM Re: Possible settlement of BTA lawsuit

Ok Sorry to interrupt the holidays. It can wait till you are back.

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Eric VanDussen <ericlvandussen@gmail.com> "Christopher K. CookeP35034" <chris@cookemail.com> Mon, Dec 30, 2013 at 10:39 AM Re: Possible settlement of BTA lawsuit

Are you preparing language for the additional, proposed conditions that the BTA board desires? Eric

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Chris Cooke <chris@cookemail.com> Eric VanDussen <ericlvandussen@gmail.com> Mon, Dec 30, 2013 at 3:39 PM Re: Possible settlement of BTA lawsuit

CONFIDENTIAL COMMUNICATION PURSUANT TO MRE 408 Well, the Board is interested in getting the whole affair behind it and is wondering what your intentions are with moving forward with your Facebook page and the possible independent investigation of the BTA Board by the Benzie Board of Commissioners. My proposed additional language would therefore include something to the effect: "Plaintiff further agrees that the Facebook account https://www.facebook.com/OverthrowBenzieBusBoard will be taken down and that the Plaintiff will notify the Benzie Board of Commissioners that he is satisfied with the resolution of his concerns as a result of the stipulated order entered herein." I am not tied to this language but what I am attempting to do is find a resolution that satisfies your concerns but also protects my clients from additional harassment over these issues. As I have stated earlier, I am attempting to save Agency dollars for the business of Benzie Bus rather than legal fees and costs that would be incurred through protracted litigation. However, the Board is reluctant to resolve the lawsuit if the battle will go on but only in a different forum.

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Eric VanDussen <ericlvandussen@gmail.com> Chris Cooke <chris@cookemail.com> Tue, Dec 31, 2013 at 7:48 AM Re: Possible settlement of BTA lawsuit

I'm actually pretty shocked by your proposal that in order to settle my Open Meetings Act (OMA) lawsuit against the Benzie Transportation Authority (BTA), I will have to stipulate to the following additional condition: "Plaintiff further agrees that the Facebook account https://www.facebook.com/OverthrowBenzieBusBoard will be taken down and that the Plaintiff will notify the Benzie Board of Commissioners that he is satisfied with the resolution of his concerns as a result of the stipulated order entered herein." Firstly, there is absolutely no possibility that I will acquiesce to yours and the BTA's desire to muzzle me and abridge my First Amendment rights. Freedom of speech and of the press are essential to my existence. The previous version of our proposed settlement agreement was acceptable but, to be clear: I will not agree to any settlement that includes any restrictions on my right to provide indisputable facts and my opinions, to the masses, regarding the blatant OMA violations committed by certain members of the BTA. Secondly, I'm wondering on what basis you are claiming that your last two emails are "CONFIDENTIAL COMMUNICATION[S] PURSUANT TO MRE 408"? The word "confidential" is not even contained within MRE 408. Are you citing the wrong Michigan Rule of Evidence (MRE), or are you just misinterpreting MRE 408? Although this is the first time I've read MRE 408, it's clear that it simply makes our settlement communications inadmissible in court, under most circumstances. I really don't see how MRE 408 magically makes your settlement negotiation emails into "CONFIDENTIAL COMMUNICATION[S]..." As I'm certain you already know, the protections afforded to ordinary settlement discussions contrast greatly with the confidentiality provisions governing statements made during formal mediation. In retrospect, it would have been prudent for you to have previously raised this issue with me and requested that I stipulate to a written confidentiality agreement at the outset of our dialogue on settlement. Regardless, I never would have agreed to any confidentiality related to our settlement discussions. I welcome you to cite any rule of evidence, court rule/opinion, or statute that mandates I refrain from publishing your settlement negotiation emails? I am hereby notifying you that I fully intend to promptly publish your settlement negotiation emails unless I, before 5 p.m. today, receive a credible explanation describing why you believe said emails should be suppressed and considered "CONFIDENTIAL COMMUNICATION[S]..." Thanks,

Eric L. VanDussen

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Chris Cooke <chris@cookemail.com> Eric VanDussen <ericlvandussen@gmail.com> Tue, Dec 31, 2013 at 9:52 AM Re: Possible settlement of BTA lawsuit

It's clear that we have very little basis to have a realistic dialogue about your allegations involving my client. It is customary that advocates can have a confidential dialogue about resolution of a contested matter without concern that one party or the other will turn around and publish the discussion "to the masses". You continue to broadcast that the Board committed "blatant OMA violations" but you have not proven anything yet. Most settlement agreements contain non disparagement agreements as a condition of any settlement. If there is any real interest in preserving public funds for the job they were intended to accomplish and not spend them on needless litigation, you would have no problem agreeing to let the Board continue to do its work without being concerned about you continuing your allegations after the lawsuit is settled. Since you read the rule I have cited, let me restate it: MRE 408 Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. If you want to turn around and broadcast, what I considered to be, confidential discussions about possible settlement, no one can stop you. However, it will be further evidence of your willingness to use information that is not evidence to try to disparage people who are attempting to fulfill their obligations to a public Agency to the best of their ability in, essentially, a volunteer capacity. I need not remind you that you started this settlement discussion and the first plank of your proposal was: "1. Stipulate that all BTA board members are not making any admissions that they committed any OMA violations or wrongdoing, as alleged in my complaint(s). " That statement is what opened the door to this dialogue. Further, if you were an attorney, you would be bound by the Rules of Professional Responsibility, particularly, MRPC 3.6 which prohibits an attorney from making extrajudicial statements that would have a substantial likelihood of prejudicing an adjudicative proceeding. Certainly disseminating what, I perceived to be, confidential settlement discussions that are not evidence, on the internet, in the paper, or to the public at large in any fashion, would, if you were bound by these rules, subject you to discipline. I suppose your response to this information will determine your level of professionalism, and the trust you are to be shown, in this matter. Chris,

from: Eric VanDussen <ericlvandussen@gmail.com> to: Chris Cooke <chris@cookemail.com> date: Mon, Jan 6, 2014 at 2:37 PM subject: Re: Possible settlement of BTA lawsuit Chris, Your recent emails contain several falsehoods, which make me question your level of professionalism, and the trust you are to be shown, in this matter. On more than one occasion, you clearly were attempting to misconstrue the facts when you stated, at the beginning of your emails, that they were "CONFIDENTIAL COMMUNICATION[S] PURSUANT TO MRE 408." You knew that MRE 408 does not relate to any type of confidentiality requirement, yet you asserted that it did. Just because a communication may not be admissible in court, it doesn't mean that it is "confidential." Now, your story has changed and you maintain that it "is customary that advocates can have a confidential dialogue about resolution of a contested matter..." Is that an unwritten custom? Who is bound to follow that custom? Do you have any published law journal articles you could point me to regarding this alleged custom? Your last email said that "I need not remind you that you started this settlement discussion and the ... statement is what opened the door to this dialogue." I need not remind you, Mr. Cooke, that you were the one that started these settlement discussions when you offered to pay me a paltry $250 to settle my Open Meeting Act lawsuit. I was never seeking a monetary settlement so I rejected your ridiculous $250. I then provided you with a counter-offer. As you noted, I am not an attorney. Therefore, I am clearly not prohibited from making "extrajudicial statements that would have a substantial likelihood of prejudicing an adjudicative proceeding." However, I still don't understand how it would be possible for me to prejudice an adjudicative proceeding by revealing to the public that the BTA wants any settlement of my lawsuit to require that "the Facebook account https://www.facebook.com/OverthrowBenzieBusBoard will be taken down and that the Plaintiff will notify the Benzie Board of Commissioners that he is satisfied with the resolution of his concerns as a result of the stipulated order entered herein." That condition is preposterous and completely unacceptable. At this point, my initial counter-offer is still on the table. Honestly, I really would rather complete discovery, hold depositions and also see how Judge Batzer rules on my motion to disqualify you and conduct your deposition, which is scheduled for January 14, at 2:00. (I'm assuming you are preparing a response to said motion and answers to my requests for production of documents) Let me know what you had the BTA decide to do. Eric

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Chris Cooke chris@cookemail.com Eric VanDussen <ericlvandussen@gmail.com> Fri, Jan 10, 2014 at 2:33 PM Resolution of litigation

Mr. Vandussen, The Board voted last night to resolve the case along the lines we discussed without conditions associated with your website or the Benzie County Board actions (if any). We would want to make sure that all allegations that could have been made up to the date of the settlement are resolved by the agreement. Please let me know today as I have put the preparation of my answer to your motion on hold while we await your response. Thank you. -Christopher K.Cooke, esq

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Eric VanDussen ericlvandussen@gmail.com Chris Cooke <chris@cookemail.com> Fri, Jan 10, 2014 at 2:58 PM Re: Resolution of litigation

I am still willing to settle the case in the manner we previously discussed. If you prepare the stipulated order and email it to me, I will review it and either endorse it and send it back to you or just give you permission to sign on my behalf - whichever you prefer. Thanks, Eric

from: Eric VanDussen ericlvandussen@gmail.com to: Chris Cooke <chris@cookemail.com> date: Mon, Jan 13, 2014 at 9:07 AM subject: Re: Proposed Judgment BTA matter Chris, I'm not sure why you had to add the words "covered by the Open Meetings Act" to all those stipulations. We never agreed to that language and it seems as though you're trying to assert that there are certain times or situations where the BTA or some of its committees are not "covered by the Open Meetings Act." I'd like that language removed before I endorse the agreement. Secondly, the beginning of paragraphs 2 through 6 need to also include the words "It is hereby stipulated and agreed between the parties that" ... Thanks, Eric

from: Chris Cooke chris@cookemail.com to: Eric VanDussen <ericlvandussen@gmail.com> date: Mon, Jan 13, 2014 at 9:28 AM subject: Re: Proposed Judgment BTA matter Eric In order for the Open Meetings Act to cover any Public Body there must be "deliberations to a decision". This is where we have differed from the start. Adding the words "covered by the Open Meetings Act" simply reaffirms that the Board is agreeing to comply with the Act and not create new and additional duties beyond the OMA. I will remove the language if we can also include the language at the bottom of the order that states: "This judgment does not increase any rights, duties or responsibilities beyond the language of the Open Meetings Act." The proposed Judgment is an order from the Court, so we are agreeing by stipulation that the Court can enter the order. That is set forth at the beginning of the Judgment and in its caption. That is why I have made the order speak as an order of the Court. This makes the language "it is stipulated and agreed" before each paragraph out of context. Can I assume that you are not moving forward with tomorrow's motion while we hammer out this language? I am trying to avoid any more preparation time billed to the Board.

from: Eric VanDussen ericlvandussen@gmail.com to: Chris Cooke <chris@cookemail.com> date: Mon, Jan 13, 2014 at 11:14 AM subject: Re: Proposed Judgment BTA matter Chris, I really would like to know where are you getting that "deliberations to a decision" language? With that logic, public bodies could deliberate public business, as quorums, without conducting public meetings if they just say they never intended to make any decisions after conducting their secret deliberations. That type of activity is one of the main grievances in my lawsuit. I would be agreeable if you take out the "covered by the Open Meetings Act" and add: "This judgment does not increase any rights, duties or responsibilities beyond the language of the Open Meetings Act." I will call the court and inform them that they can take tomorrow's hearing off the docket because we have reached a settlement. Eric

from: Chris Cooke chris@cookemail.com to: Eric VanDussen <ericlvandussen@gmail.com> date: Mon, Jan 13, 2014 at 12:54 PM subject: Re: Proposed Judgment BTA matter Deliberating towards a decision in a quorum is what is prohibited. In any event, I will take out the subject language and add the agreed language. Thank you