Story summary

• On March 8, Kent County’s 17th Circuit Court Judge Scott Noto signed an order that plaintiff Dan Zimmer filed dismissing the claims related to challenging the legality of a $563,000 contract intended to address phosphorus and algae problems in Crockery Lake.
• Zimmer’s lawsuit will proceed in challenging the legality of severance agreements with former interim administrator Ben Wetmore and former administrative aide Jordan Epperson.
• A hearing is scheduled for 10:30 a.m. in Grand Rapids, however, it could be canceled to allow the county to respond to the amended complaint, which claims "re-enactments" and amendments of the severance agreements didn't resolve violations of the state's Open Meetings Act.

OTTAWA COUNTY — A lawsuit disputing a trio of controversial decisions approved by the Ottawa County Board of Commissioners last year has dropped one key claim challenging a contract to remediate an inland county lake.

On March 8, Kent County’s 17th Circuit Court Judge Scott Noto signed an order that plaintiff Dan Zimmer filed dismissing the claims related to challenging the legality of a $563,000 contract intended to address phosphorus and algae problems in Crockery Lake.

How we got here

The previous board, controlled in 2023 and 2024 by far-right fundamentalist group Ottawa Impact, approved the contract on Dec. 10.

Zimmer, a Port Sheldon Township resident, filed suit Dec. 16, claiming the board exceeded its legal authority in paying the township the entire amount — despite being a five-year remediation plan — allegedly so that the former OI majority on the board could complete the deal before losing power.

Six traditional Republicans now hold the board majority, with the OI faction holding a four-seat minority. The board also has one Democrat.

Just weeks after the contract was approved, internal emails showed that it was crafted in less than two months, with only select officials involved in the process, most of them aligned with Ottawa Impact. The goal, according to emails from the former interim county administrator, was to ensure that new commissioners — who were set to be sworn in at the beginning of 2025 — would not be able to stop the project.

Read More: Emails: Crockery Lake contract was 'rushed,' intended to prevent new board from dismantling deal

“We want to make sure that once the funds are transferred on this project, that there's not the ability for the project to easily terminate or cease,” former interim county administrator Ben Wetmore wrote in a Dec. 3 email. “We intend to be bound to this agreement.”

Wetmore left at the end of the year after procuring a controversial $175,000 severance that also has been legally challenged in the Zimmer lawsuit, along with a similar $100,000 severance agreement for his former aide, Jordan Epperson.

Zimmer’s attorney, Sarah Riley-Howard, filed to dismiss the claim against the Crockery Lake contract after the new board voted 7-3 on Feb. 26 to ask the court to review the legality of the contract. That decision came after the current board reviewed a legal opinion from attorney Mike Bogren of Plunkett Cooney that said the contract was legally unenforceable; Bogren currently represents the county in the Zimmer lawsuit.

“It is our opinion the Dec. 10, 2024, agreement with Chester Township is invalid because the (board of commissioners) lacked the authority to enter into the agreement for two distinct reasons,” Bogren wrote in the opinion.

Read More: County to ask court to review Crockery Lake contract as board infighting continues

He said the prior board inappropriately “ceded authority to make improvements to county parks to the Parks Commission” and that the board exceeded the amount it can contribute to a lake improvement project under state law, which is 25%.”

Board Chair John Teeples said that approving the suggested motion would allow the board to ask a judge to rule on the legality of the agreement.

In his explanation of the resolution, Teeples called the residents of Crockery Lake "victims."

"They are not responsible for this legal quagmire," he said.

Likewise, he said the prior OI-led board was "just trying to help," but that "sometimes, there are legal limitations that prevent the desire of help."

Teeples, an attorney, pointed to multiple issues he had with the contract, including that the contract dictates that the county assumes all of the liability and costs if something goes wrong.

"I've never seen where a non-liable party, such as Ottawa County here, voluntarily agrees to assume an environmental cleanup it did not cause," he said. "Ottawa County has arguably agreed to assume an unprecedented liability and risk that might well exceed $563,000 and might well bind the county to future obligations.

"With this so-called negotiated agreement, we are opening a Pandora's Box of potential liability for Ottawa County. I see no reciprocating benefit from Chester Township to Ottawa County. I see it flowing only one way — from Ottawa County to Chester Township."

Teeples questioned former advisors who helped broker the deal.

"When I saw the draft agreement before it was approved, I thought it had to be a mistake," he said. "I thought there was no way that the county intended to incur the risk of non-performance cleanup, pay the fees ... but after reading through the email communications around this agreement, I realize there was no mistake.

"Clearly, we must ask: Was there anyone representing Ottawa County? Why was the public not made aware? Why were these concerns about the agreement earnestly discussed? Why were they so flippantly dismissed?"

He also noted that if a judge ruled the contract unenforceable, it could help resolve a portion of the lawsuit challenging the contract's validity (the litigation also challenges the Wetmore and Epperson severance agreements, which are not connected to the Crockery Lake plan).

"We could use a mechanism there to file a motion for summary disposition," Teeples said, referring to when one party asks a judge to dismiss a claim.

Howard said, that because the county has taken action to have the Crockery Lake contract reviewed, it was no longer necessary to pursue that part of the complaint.

“Our side was thankful to see the county itself looking at the legality of the Crockery Lake contract; that is a development we welcome,” Howard told ONN in a Wednesday statement. “We have felt all along that the Crockery Lake contract is illegal and very problematic. Once the county commission decided to seek court involvement on that topic, there was no longer a good reason for our side to stay involved in that fight.”

Severance agreements still at issue

Meanwhile, Zimmer’s lawsuit will proceed in challenging the severance agreements with Wetmore and Epperson.

“Strategically, it just makes more sense to now concentrate our efforts on the challenge to the unlawful severance agreements with Epperson and Wetmore,” Howard said.

Those agreements are at issue because the former OI-led board — also at the Dec. 10 meeting — approved the severance agreements after going into separate closed sessions for each employee “to consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, employee, staff member, or individual agent.”

However, the respective resolutions didn’t specify the terms of the agreements, which the state’s Open Meetings Act requires.

Howard said both the process and ultimate vote are problematic.

In order to go into closed sessions, public bodies must cite specific exceptions to the state’s Open Meetings Act that exempt the discussion from taking place in public view.

Howard claims the board didn’t have any legally allowable reason to go into closed session to discuss the severance agreements. 

“On Dec. 10, the Commission was not considering the dismissal, suspension, or discipline of either Epperson or Wetmore, and there were no pending complaints or charges against either of them,” Howard wrote in an amended complaint filed March 7. “Furthermore, it was not the time for their periodic personnel evaluations, nor had such an evaluation been completed for any reason.”

After the lawsuit was filed Dec. 16, the board “re-enacted” then revised both agreements in order to reconcile the Open Meetings Act violations.

At the Dec. 19 meeting, Moss presented a re-approval of the severance agreements “out of an abundance of caution” and denied that there were any legal flaws to the initial approvals on Dec. 10.

On Dec. 19, Moss said the closed sessions on Dec. 10 were to discuss the “dismissal” of each man, but that was disputed by non-OI commissioners.

“In closed session, we discussed Mr. Epperson's desire to leave. We did not discuss his dismissal,” said Commissioner Doug Zylstra, the board’s lone Democrat.

“I didn't come up with it. It was a request. We had discussions in closed session. Then we exited closed session and voted 9-2,” Moss said. “That decision was challenged by Sarah Howard and out of an abundance of caution, we are re-voting today. The decision is still valid because it was a board action.”

Commissioner Jacob Bonnema, a traditional Republican, disputed that account of events.

“The recommendation to pay this money out is based on things you said in closed session, so I think we need to discuss why that is,” he said Dec. 19.

The non-OI commissioners later said they were presented in closed session with claims from Moss that Epperson and Wetmore had potential grounds to sue the county if they didn’t receive severance agreements, and that they felt misled and pressured to approve the agreements despite never seeing evidence of the potential legal claims.

The move to amend the agreements came after the county’s human resources staff said Wetmore violated the first signed agreement, which barred him from accessing confidential county information when he continued to work on the hiring process of a new human resources director.

“Wetmore was not permitted access to that information, which was confidential, under the terms of his severance agreement, which he had already signed at that point,” Howard wrote. “An HR employee emailed corporation counsel seeking advice, and Chairperson Moss responded that he would ask the Commission to amend the agreements to resolve the issue.”

When Bonnema attempted on Dec. 19 to discuss his frustrations about how the Dec. 10 closed session meetings occurred, Moss and other OI commissioners admonished him, Howard said, indicating that those discussions are critical to review because three commissioners changed their vote at the second meeting.

“Upon information and belief, those statements were central to the decision of some members of the Commission to vote in favor of the severance agreements,” she wrote in the amended complaint.

Howard said the “re-enactment” doesn’t resolve the Open Meetings Act violations because the deliberations occurred in closed session in the first meeting and open session in the second — without disclosing what happened in the first.

“MCL 15.270(5) requires a public body to re-enact a disputed decision in conformity with the OMA,” Howard wrote. “The Commission only meaningfully deliberated the severance agreements in closed session on Dec. 10, rather than in an open session on Dec. 19, as required by the OMA. 

“The Commission has not released the minutes of the closed session from Dec. 10. Thus, the Dec. 19 decision to approve the severance agreements without deliberations in open session or release of the closed session minutes was not made in conformity with the OMA,” she wrote.

Howard said the amendments to the severance agreements also aren’t valid because of the OMA issues between the closed and open sessions in the two meetings.

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Meanwhile, Wetmore filed a motion to intervene in the lawsuit along with Jennifer L. Jermalowicz-Jones, the contractor poised to perform the work on Crockery Lake.

Both Howard and the county have filed responses asking the judge to deny Jones’ request to join the lawsuit because the dismissal of that claim in the lawsuit renders her application moot. Howard didn’t take a position on Wetmore joining the lawsuit, but asked that Noto not grant his request to dismiss the lawsuit.

Noto has not yet ruled on the requests to intervene. 

A hearing is scheduled for 10:30 a.m. in Grand Rapids, however, Howard said in light of the new filings, it is likely that the hearing will be canceled to allow the county its allowable 21-day window to respond to the amended complaint.

— Sarah Leach is the executive editor of the Ottawa News Network. Contact her at sleach@ottawanewsnetwork.org. Follow her on Twitter @ONNLeach.