Outside Legal Counsel PLC

Appeals Court Reverses Case Dismissal and Orders Trial On Cottrellville Township Supervisor Actions

For Immediate Release | Aug 27, 2015

Cottrellville Township - The Michigan Court of Appeals today reversed the dismissal of a legal action filed by a former township trustee and two residents who were improperly silenced by a township supervisor at a public meeting.

The matter stems from a now revived lawsuit against the township and its supervisor, Kelly Fiscelli (formerly Lisco) for failing to adhere to government transparency laws, namely the Open Meetings Act. St. Clair County Circuit Court Judge Michael West previously found the township in violation multiple ways stemming from a May 2013 board meeting.

The unanimous decision of the three reviewing appeal-judges found that the St. Clair County Circuit Court committed legal error by dismissing a portion of the lawsuit attempting to hold Fiscelli personally liable for violations of the Open Meetings Act. According to the decision, the "[c]ontext suggests that it is also possible [Fiscelli] was more concerned with silencing the personal attack than making certain she was following the rules." The case has been remanded to the original trial court in Port Huron for trial.

In addition, the same decision also held that Supervisor Fiscelli may also be holding her office illegally. In 2014, the St. Clair County Circuit Court refused to hear arguments about how Fiscelli had moved from the township for approximately six months and had, by law, vacated her public office. Under Michigan law, a township official must be an "inhabitant" of the township within which the duties of one's office are required to be discharged. The trial court in Port Huron refused to allow former trustee Michael Zoran to pursue a writ of quo warranto, a legal procedure used to investigate the authority by which a public official holds office. The Court of Appeals ruled that legal error occurred when the St. Clair County Circuit Court refused to permit the writ request to go forward.

During a plea hearing on May 22, 2013, Fiscelli pled guilty to providing false information related to her residence. Using Fiscelli's own admissions offered during the plea hearing, the Court of Appeals found Fiscelli did not actually reside within Cottrellville Township. Failing to reside within the township results in the automatic removal from public office.

The decision was hailed as victory for the citizens of Cottrellville Township.

"The Court of Appeals' decision today has finally required the court to question the legality of certain unlawful actions of Supervisor Fiscelli," states Philip L. Ellison, an attorney from Outside Legal Counsel in Hemlock representing the appealing parties. "The Court of Appeals' decision mandates that Fiscelli to fully explain her actions."

While this case was pending, Fiscelli was unexpectedly arrested and later pled guilty to drunken driving charges after being pulled over several hours following a township board meeting. Fiscelli was arrested and later booked by a neighboring Clay Township police officer. Fiscelli served her sentence over various weeks in jail but still refused to resign from her public office. The plea hearing for the most recent case showed that Fiscelli was still residing outside the township.

Fiscelli still remains in office, but is now the subject of a recall challenge.

A hearing date before the St. Clair County Circuit Court has not yet been set.