At the September 28, 2023, Grand Haven Board of Light and Power (BLP) meeting, board directors once again found themselves dealing with the consequences of the actions of one of their fellow board members. This time it could cost the BLP thousands of dollars in legal fees. It seems BLP Board Director and Grand Haven Mayoral Candidate Andrea Hendrick doesn’t like to follow the rules.
On August 16, 2023, the BLP Freedom of Information Act (FOIA) coordinator received a FOIA request for the email and text correspondence of BLP Board Member Andrea Hendrick, including correspondence from both her personal and GHBLP email addresses. The FOIA request was approved on September 6, 2023, but would be delayed as it would take time for Hendrick to find and provide the records to the BLP, and then be reviewed by legal counsel.
It is likely Andrea Hendrick has been using her personal email accounts and personal devices to perform her duties as a BLP board member since she was elected in November 2021. An email showing Hendrick as a party to “dissolving the entire” BLP board and making it a “true city department” is but one example.
An email exchange between Andrea Hendrick and former Administrative Service Manager (page 130), Renee Molyneux, from February 2022, indicates Hendrick also used personal communication devices to correspond with outsiders regarding board business during a board meeting. After observing Hendrick using her personal devices to communicate during the February 17, 2022 board meeting, Molyneux requested Hendrick provide copies of all texts and emails she received and responded to during the meeting, so the communications could be included in the board packet as required by the Open Meetings Act.
Hendrick refused to comply with the request and instead accused Molyneux of singling her out because she is the only female board member.
Hendrick’s response to Molyneux came only a few days after attending the Best Practices in Public Power Governance Training provided to BLP board members.
Ironically, an official claim of gender discrimination was filed by Elizabeth Pell, girlfriend of City Council Member Kevin McLaughlin, six months later, on Hendrick’s behalf, against the BLP board and executive staff. In an even bigger twist, the investigation revealed Hendrick was the one responsible for both gender and age discrimination.
Americans are guaranteed some expectation of privacy when it comes to their communications and personal accounts. However, government officials and elected leaders must make sure to keep their business endeavors off personal accounts and devices, otherwise their personal accounts and devices can become public records. The U.S. Federal Courts and the Michigan Supreme Court have been very clear on what constitutes a public record, and which records are subjected to FOIA requests, regardless of where they are stored.
In Bisio v. The City of The Village of Clarkson Docket No. 158240, Decided July 24, 2020, the Michigan Supreme Court opined:
What ultimately determines whether a writing is a public record under FOIA is whether a public body prepared, owned, used, possessed, or retained it in the performance of an official function.
In Competitive Enterprise Institute v. Office of Science and Technology Police 827 F.3d 145 (D.C. Cir. 2016), the U.S. Court of Appeals for the District of Columbia opined:
[A]n agency always acts through its employees and officials. If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them takes them out the door or because he is the head of the agency.
The Court further commented:
If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his department emails on an account in another domain, that purpose is hardly served … It would make as much sense to say that the department head could deprive requesters of hard-copy documents by leaving them in a file at his daughter’s house and then claiming they are under her control.
In other words, every writing that was prepared, owned, used, in the possession of, or retained by Hendrick in the performance of her official function as a BLP board member, including emails, text messages, social media posts, and voice mails are subject to FOIA requests; even those records she has stored within her personal accounts on her personal devices.
Even though the law is clear, Hendrick did not readily provide the documents. Citing the large number of records in her personal accounts, she claimed it would be a difficult task to separate the public records from her personal records. More time would be needed than allowed by the FOIA process.
What the BLP would soon find out was that Hendrick’s failure of following communication protocols would cost them a lot of money. The task of weeding through thousands of Hendrick’s records was given to Grand Haven City Attorney Ron Butje. In addition, her personal attorney Sarah Howard, requested that she also have time to review the email records before including them in the FOIA request.
As of September 29, 2023, some of the records from Hendrick’s attorney had been released, but several more records remain to be reviewed by the city attorney Ron Bultje and Hendrick’s personal attorney Sarah Howard. Bultje estimated that his fee to review the remaining records would be $5,000. Although the BLP has not typically charged citizens for FOIA, it would be possible to pass on $606 of the $5,000 according to FOIA regulations. The BLP could choose not to pay the remaining fee, in which case Hendrick’s attorney stated the records would not be turned over to the BLP. If that were to occur, the BLP would be in violation of the Freedom of Information Act resulting in statutory fines and potentially more legal fees.
Andrea Hendrick’s decision to do things her way, intentional or not, has caused harm to the BLP. After being asked to provide the external digital communications that she exchanged in during a BLP meeting, she retaliated with a baseless gender discrimination accusation that backfired. Her actions have not been in the best interests of the BLP employees or BLP customers. And now she wants to be the mayor of Grand Haven.