Ray Basham believes in open government.
Basham, a Democratic state senator from Taylor, says civic transparency allowed him to get records about a company’s plans to dispose up to 50 million gallons of hazardous waste in Romulus, which is within his legislative district.
Birmingham-based Environmental Disposal Systems (EDS) has constructed two 4,700-foot-deep wells in Romulus near I-94. They are the first for-profit hazardous waste wells in Michigan.
But the 10-year-old project isn’t open for business yet. Basham wants to keep it that way. He and others fear that the wells will contaminate drinking water and cause other problems.
Basham says the community never could have mounted a defense against the wells without access to records maintained by its key financial backer, the Detroit Policeman and Fireman Retirement Systems.
For several years, the Retirement System turned over well documents.
“Some of the information was shocking that they shared,” says Basham, citing a document revealing that the wells were to be used for hazardous waste; the company’s permit application indicated that the wells would be used for non-hazardous waste.
When the community forwarded that information to the press — and opposition to the project grew — the Retirement System stopped releasing records that it had once deemed public.
But that has not prevented Basham from trying to get more documents. Basham sued the Retirement System’s board of trustees in Wayne County Circuit Court in 2001 after it denied his Freedom of Information Act request; the Retirement System said it was withholding the documents because it is not a “public body.”
Judge Cynthia Stephens ruled last year that the Retirement System is a public body and must turn over the records. However, Basham never received the judge’s ruling. Consequently, the senator has never seen another shred of paper from the Retirement System.
The judge concedes that her verbal ruling was not provided to Basham or the pension board.
“What I’m sure happened is the case got lost,” says Stephens. “Neither party did anything wrong. I didn’t intentionally do anything wrong.”
“Her response is weak at best,” says Basham. He suggests that the delay may have been orchestrated since Retirement Board trustee Roger Short also serves as Judge Stephens’ campaign treasurer.
Stephens would not comment about Short.
Short did not return Metro Times’ calls.
Basham says Stephens should have recused herself from the case.
Last week, Stephens provided “an unofficial transcript” of her 2002 oral ruling to both parties. A status conference is scheduled for this week, she says.
The question now is whether the 11-member Retirement System board will comply with Stephens’ ruling or appeal it. Mayor Kwame Kilpatrick appoints three board members. Detroit City Council member Alberta Tinsley-Talabi is a voting member. Neither returned calls seeking comment.
The board determines how the system’s assets are invested; last year those assets amounted to $3.6 billion.
The Retirement System had loaned EDS $12 million as of last year, at a 17 percent annual interest rate. A 1999 agreement says the interest rate goes up 1 percent for every additional $1 million borrowed.
Basham believes the Retirement System has invested more money in the project, but he cannot be sure since the board won’t turn over its records.
“We want to know how much they are investing,” says Basham.
The Retirement System stopped complying with Basham’s records requests in February 2001, suddenly deciding that it is not subject to the Michigan Freedom of Information Act (MFOIA).
Basham asked then-state Attorney General Jennifer Granholm to review the matter. She issued a written opinion in August 2001, saying that the Retirement System is a public body subject to the MFOIA.
Basham renewed his records request, citing Granholm’s opinion. The pension board still refused to turn over records.
In December 2001, Basham sued. A hearing was scheduled for June 2002 before Stephens. Basham says a court clerk called to say that the hearing had been canceled because Stephens had decided to rule in Basham’s favor.
But Basham never received the ruling. He says his attorney repeatedly called and wrote asking for the judge’s written opinion, but was told that it was not available.
About two months ago, Basham says, a court clerk said that he must pay $50 for a transcript of the judge’s ruling.
“I have never heard of such a thing,” says Basham, miffed about the fee for what is, ironically, a public record.
But he did as instructed. More than a month passed and he still had not received the transcript, he says.
In fact, Basham says court personnel recently informed him erroneously that his case had been dismissed in July 2002.
Stephens says that the case was never dismissed, but that the court computer automatically closes cases when they are inactive.
The judge says nobody should have been charged for the transcript.
“I regret the severe inconvenience which this caused and will personally refund the fee erroneously charged,” says Stephens in an e-mail to Metro Times.
Basham is suspicious of Stephens’ relationship with Short.
“It is a clear conflict of interest or at least an appearance of a conflict of interest,” says Basham.
As Stephens’ campaign treasurer, Short did not manage much money. The judge agreed to raise no more than $1,000 in an election, according to her most recent campaign reports.
University of Detroit Mercy law school professor Larry Dubin sees no serious conflict for Stephens.
“To me, that seems, on its face, a rather indirect relationship with the litigants,” says Dubin. “He (Short) is one of a number of board members. I would question whether that would compel disqualification in and of itself.”
In any case, Stephens ruled in Basham’s favor.
“My ruling was that I ordered release of documents with a few exceptions,” says Stephens.
Now it is up to the Retirement System board to decide if it will appeal.
Lawyers for the Retirement System did not return calls seeking comment.
Attorney Dawn Phillips Hertz, general counsel to the Michigan Press Association, says that if the pension board appeals Stephens’ ruling, it won’t have much luck. Last year, in a similar case involving the Retirement System, the appellate court ruled that it is a public body and is subject to the Freedom of Information Act.
“The court found they were a public body, and that’s the end of it,” Phillips Hertz says.Ann Mullen is a Metro Times staff writer. E-mail email@example.com