By Greg Horner, Senior Editor.
A steadfast defender of free speech or a vengeful lawyer costing Delta College thousands? Bay City Attorney Kim Higgs, a former Delta trustee himself, has repeatedly filed lawsuits against Delta’s Board of Trustees. In the past, some board members have called his suits frivolous, but Higgs believes the Board has violated provisions of the Open Meetings Act, and he wants to hold them accountable.
“From the day that I was there, the day I raised these issues, they’ve continually violated the act, some part of it, and it drives me crazy,” says Higgs. “Being a lawyer, we take an oath that we’ll comply with laws of the state. In my opinion, they didn’t do it then, they’re not doing it now and, to me, that’s unacceptable.”
Higgs, 69, served as a board member from 2006 to 2012. During that time, and after, he has been involved in several cases against the Board for violations of the OMA and the First Amendment.
These cases include:
| Kim Higgs v. Delta College Board of Trustees | 2007 | Settled — Delta paid $1,500 in costs to Higgs and agreed to changes in procedure. |
| Kim Higgs v. Board of Trustees and Leslie Myles-Sanders | 2009 | Case dismissed in favor of the defendant — Delta College. |
| Harlan Vermilya, Higgs, and others v. Board of Trustees and President’s Compensation Committee | 2009 – 2016 | Case dismissed in favor of the defendant — Delta College. Higgs plans to appeal. |
| Kim Higgs v. Kimberly Houston Philpot and Delta Board of Trustees | 2010 | Case dismissed in favor of the defendant — Delta College. |
| Ann Anklam v. Delta College Board of Trustees | 2012-2014 | College settled for $22,500. |
| Harlan Vermilya and Ann Anklam v. Delta College Board of Trustees | 2016 | Ongoing |
The college is also dealing with another OMA case, this time in Midland, involving Saginaw Attorney Roland Jersevic and his client Tim Ader. In Ader v. Delta College Board of Trustees, Jersevic and Ader accuse the Board of failing to divulge information about previous settlements that involved Higgs. Jersevic is friends with Higgs, and was involved with another case between Ader and Delta in 2008.
According to Jersevic, the Board is violating the law and costing taxpayers money. “Just be overly-open. Don’t try to hide stuff. The more you hide, the more people suspect government. Open it up, so what? You’re going into closed session to discuss the Anklam case, the Ader case, the Vermilya case. What’s the big deal?”
I GET BY WITH A LITTLE HELP FROM MY FRIENDS…
Higgs admits that he’s recruited personal acquaintances for his crusade against the Board. Harlan Vermilya, of Bay County, was approached by his friend Higgs to act as a plaintiff on two cases involving the OMA. These cases had to be tried in either Bay, Saginaw or Midland County because OMA violations can be tried only in a jurisdiction that the college serves.
Ann Anklam is a resident of Kent County, and a friend of Higgs. Her suit involved the Freedom of Information Act, which can be tried in any county in the state.
The Vermilya case has been ongoing since 2009, when Higgs was still a trustee. Higgs accuses the Board of having failed to properly post its regular meeting schedule, and believes they have violated the law since. After the Board accused Higgs of having a conflict of interest, in suing a board that he was a member of, he eventually stepped down six months before his term ended.
“Ultimately, I just quit because it was more important for me to try to change their behavior,” says Higgs. “I could not get them to voluntarily change, and so the only way to get them to change is to sue them.”
Higgs says the Vermilya suit is one of the longest circuit court cases in Bay County history. On Feb. 10, Judge Joseph K. Sheeran granted Delta’s motion for summary disposition, effectively throwing out the case.
From court records dated Feb. 23, “It is hereby ordered that the motion of plaintiff, Kim Higgs, for summary disposition be denied. It is further ordered that the motion of defendant, Delta College Board of Trustees, is granted for summary disposition. The order resolves the last pending claim and closes the case.”
Higgs has appealed the decision.
PUTTING THE TRUST IN TRUSTEE…
“The sad part about it is, this has been so time consuming and expensive, and if they haven’t spent $300,000 on this case I’ll be amazed,” says Higgs. “For what? Because they don’t want to comply with what seems to be the obvious requirements of the law?”
Board Chair Mike Rowley says that he is unable to discuss matters regarding ongoing litigation, but pointed to public comments he made at a Sept. 2012 meeting, prior to his service on the Board.
According to the agenda minutes from the meeting, “Mr. Rowley noted that he respects the decisions that the Board has made in regards to any legal case. He has never seen a case that was so baseless and unfounded. Mr. Rowley commended Delta College for following the law and for their service to the community.”
From a court brief in December 2015, Delta’s attorney Anne McClorey McLaughlin, of Johnson, Rosati, Schultz & Joppich, P.C., continued to deny the allegations made since 2009 and says that Higgs’ arguments are based on opinion and hearsay.
Responding to Higgs’ request for declaratory relief, essentially the judge declaring Higgs correct and that Delta did violate the OMA, McLaughlin argues, “…Mr. Higgs does not need a declaratory judgement of this court to guide his future conduct. He is no longer a member of the Board, so his interest here is simply to have the Court tell him he was right. He wants a declaratory judgement from this Court to be able to parade it to the media and anyone who will listen so he can claim that he was right. Courts and the remedies they are empowered to issue are for upholding legal rights, not for vindicating those like Mr. Higgs with personal axes to grind.”
McLaughlin also argues that Delta does not have to provide injunctive relief, essentially a penalty fee, to Higgs, because the OMA only contemplates it when the alleged violations are ongoing. “Although defendant denies that it violated the OMA, even if it had, plaintiffs have alleged a single, past, isolated incident pertaining to the posting of the regular schedule of meetings for 2009…There is no compliance with the law that can be compelled now. The Board cannot go back and post the 2009 meeting schedule, and it has complied with the posting requirement since that time.”
Finally from the brief, McLaughlin states, “Delta College has been the subject of five lawsuits under the Open Meetings Act, filed not by a local watchdog group, the local press or the news media, but filed (or encouraged) by one of its own: then-Trustee Kim Higgs…Rather than bring matters of legal import to the attention of the general counsel, the College President or the Chair of the Board of Trustees to resolve them and to avoid future litigation, Mr. Higgs has instead filed litigation at every turn…Mr. Higgs’ hands aren’t just “unclean”: they are infested with his own bad faith.”
Higgs says that many of his cases are simply efforts at getting a judge to clarify sections of the OMA, but believes there’s an attitude that he has no merit. “They would like everybody to think that every case I’ve ever filed was frivolous—well, no.”
Higgs points to his case Anklam V. Delta College and Delta College Board of Trustees, in which he claimed that the college had violated Freedom of Information Act procedure. The college initially won in the circuit court, but an appellate court overturned their decision, and ordered a reversal.
According to information provided by Jersevic, the college eventually settled with Anklam for $22,500.
SETTLEMENTS AND GETTING SERVED…
Rowley did not serve with Higgs and says they have no personal history. “I can’t think of a case that Mr. Higgs has won against Delta College,” Rowley says. “It sounds like he’s trying to paint certain pictures, and I can’t comment on any settlement offers he may or may not have made.”
As recently as Jan. 12, the Board of Trustees went into closed session to consider, and ultimately, declined another offer.
In response, Higgs filed another suit, once again on behalf of Harlan Vermilya, but this time in Saginaw County.
Higgs accuses the board of failing to follow proper procedure when going into closed session.
The new case cites OMA article MCL 15.267 which says, “Each public body shall keep minutes of each meeting showing the date, time, place, members present, members absent, any decisions made at a meeting open to the public, and the purpose or purposes for which a closed session is held…”
When the Board has to discuss legal matters, they will often make the motion, “to go into closed session for the purpose of discussing specific pending litigation with legal counsel.”
Higgs believes the Board is required to specifically name the parties involved, while the college has asserted that specific pending litigation is enough information to cover the requirement.
McLaughlin admits that the law is unclear about going into closed session to discuss litigation, but that the college has followed the example set by other institutions. “Maybe it would be a good idea, in the future, to state the name of the case to assure best practice.”
Higgs also accuses the Board of making a decision to deny his settlement offer behind closed doors.
The case cites OMA article MCL 15.263(2) which says, “All decisions of a public body shall be made at a meeting open to the public.”
According to Higgs, “What they should’ve done is after the closed session was over, they should’ve come out to open session and [said], “we’ve discussed with our attorney the settlement proposal made by Higgs and we reject it.’”
THE TRIAL CONTINUES…
Higgs doesn’t deny that his time serving on the board was contentious, but that he holds no vendetta against the college and he isn’t filing suit for a financial benefit. “They’re forcing me to do this, so here we are and it will cost them more tens of thousands of dollars to get involved in this new case.”
Higgs says that he would drop the cases and never file suit again if the Board would simply adopt stricter rules and follow regulations. “They have just been obstinate, arrogant and unwilling to consider anything. They don’t want to admit that they have ever made a mistake… They don’t want to admit that they’re wrong.”
McLaughlin says that Higgs tenure on the Board was fraught with animosity and that he has Delta College in his crosshairs. “You catch more flies with honey than vinegar, and I don’t think Mr. Higgs has any honey in his repertoire.”
Rowley was not willing to speculate on the motivation for Higgs’ persistent litigation. “All I can tell you is that, as an attorney, he can represent whoever he wants, and the person who is filing the lawsuit…hopefully it’s something they believe in.”
Rowley stressed that he is unable to discuss ongoing litigation, but added, “I’m impressed with the administration of Delta College and I personally find it to be a very open, forthright, institution. Delta College is making all of its decisions in open meetings, as it should.”
After consulting with the college’s attorney, President Jean Goodnow declined to comment on the issue at this time.
McLaughlin says, “The Board of Trustees and the President have done everything in their power to do what’s best for the college. They’re not perfect, nobody is, but they would never intentionally violate any provision in the Open Meetings Act.”
Delta is still dealing with the Ader case in Midland. Higgs has appealed the Bay County Vermilya case decision, and the Saginaw County Vermilya/Anklam case is ongoing.