February 15, 2024

Sent via E-Mail (jmoss@miottawa.org)

Joe Moss,
Chairperson
Ottawa County Board of Commissioners
12220 Fillmore Street
West Olive, Michigan 49460

RE: John Gibbs Employment

Confidential pursuant MRE 408 and FRE 408

Dear Mr. Moss:

I represent Ottawa County Administrator John Gibbs in connection with his employment
with Ottawa County (“the County”). As you are already aware through communication with my
client’s prelitigation counsel, the County stands to assume significant liability should it proceed
with continuing to harass, defame and belittle my client following his constitutional expression of
free speech under the First Amendment rightfully criticizing the performance of the County’s
Corporation Counsel in furtherance of the public interest. Mr. Gibbs has already been subjected
to adverse employment actions, including demands that he resign, threats of termination, and
disparagement in the public eye. Such retaliation violates 42 U.S.C. §1983 and Michigan’s
Whistleblower Protection Act (“WPA”). Accordingly, the purpose of this letter is to convey that
Mr. Gibbs is amenable to resigning his position in consideration for a lump sum payment of the
entire amount owed to Mr. Gibbs pursuant to his employment agreement, i.e., $630,000.00. Mr.
Gibbs is not demanding a king’s ransom like some of his contemporaries. Rather, the demand
reflects the County’s contractual obligations to my client and represents a substantial discount
from the damages, costs, and attorney fees that arise from litigation. Let me be clear, however,
that Mr. Gibbs is not voluntarily relinquishing his employment or terminating his employment
agreement. On the contrary, Mr. Gibbs has admirably met this job responsibilities and the County
has not legal basis to terminate him “for cause.”

I. Factual Background

Mr. Gibbs was hired by the County as Ottawa County Administrator on January 3, 2023,
upon which he executed the “Employment Agreement for Ottawa County, Michigan
Administrator” (the “Employment Agreement”). The Employment Agreement establishes that
Mr. Gibbs’ employment term runs from January 3, 2023, until January 2, 2026. Section 9 of the
Employment Agreement governs separation. Specifically, the Employment Agreement can only

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 be terminated for cause in the event of intentional fraud, dishonesty, gross misconduct, or willful
malfeasance in connection with the performance of Mr. Gibbs’ job duties. As evident from Mr.
Gibbs’ consistently positive performance record, none of these requisite circumstances are present.
Meaning, the County cannot lawfully terminate Mr. Gibbs “for cause.” And in the event the
County attempts to terminate Mr. Gibbs with a majority vote by the Board of Commissioners (“the
Board”), section 9(a) provides that such action requires the County to pay Mr. Gibbs an additional
nine months’ salary, together with paid health insurance for nine months.

The County engages Kallman Legal Group as its Corporation Counsel. From the beginning
of Mr. Gibbs’ employment, he observed that Corporation Counsel was deficient in its performance
to the detriment of the County. Mr. Gibbs communicated his concerns about the Corporation
Counsel’s performance in an email to Attorney David Kallman and members of the Board on
March 10, 2023. In that email, Mr. Gibbs explained three specific issues with the Corporation
Counsel’s performance, namely (1) the insufficient availability of legal counsel with the effect that
the County was often left without legal advice; (2) the complete lack of any system with which to
track legal deliverables, with the effect that requests for legal service were left outstanding for long
periods of time; and (3) the competency of the Corporation Counsel to give appropriate legal
advice. Mr. Gibbs’ email was not simply limited to complaints, but rather he provided actionable
and reasonable solutions to each problem asserted. However, none of his complaints were acted
upon and no solutions were adopted.

After several months of continued poor performance on the Corporation Counsel’s part,
Mr. Gibbs sent a letter to you and Vice Chair Rhodea on July 18, 2023, detailing the extensive
deficiencies he had uncovered in relation to the Corporation Counsel’s performance (the “Counsel
Deficiency Letter”). Many of the issues described in the Counsel Deficiency Letter were addressed
in Mr. Gibbs’ March 10, 2023 email, which went unheard. The Counsel Deficiency Letter
addresses a litany of shortcomings in the Corporation Counsel’s performance, including inter alia
the provision of incorrect legal advice, significant privacy violations, delays of weeks or months
in the provision of routine advice, continued insufficient availability of counsel, a continued lack
of organization or deliverables tracking systems, and unprofessional conduct on the part of the
Corporation Counsel. Each of these complaints constitutes a legitimate concern with the operation
of the Corporation Counsel in its service to the County. That is, the Counsel Deficiency Letter is
directed specifically to complaints about the Corporation Counsel’s competency to perform public
government functions.

There are two important statements within the Counsel Deficiency Letter that should be
understood. First, Mr. Gibbs stated that “the Office of Corporation Counsel in its current state is
not able to effectively perform the above functions and is thus ill-positioned to serve you or the
County.” In so stating, Mr. Gibbs directly criticized the ability of the Corporation Counsel to
perform its duties towards the County, a matter clearly of public concern. Second, Mr. Gibbs

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 stated that the Corporation Counsel “is properly and correctly handling matters of litigation” and
that “[i]t is important to note that [Mr. Gibbs’] analysis does not reflect upon the individual
character of the persons or firm that currently comprise the Office of Corporation Counsel. Nor
does it reflect upon any problem with any said individuals on a personal level. Rather, this analysis
is strictly professional in nature, focusing narrowly on the functioning of the Office of Corporation
Counsel.” Clearly, Mr. Gibbs’ criticism of the Corporation Counsel is narrowly directed to the
performance of the Corporation Counsel in its advisory position and is not directed to any private
concerns whatsoever. Indeed, clearly Mr. Gibbs did not address a private or personal concern
because he specifically suggested that the Corporation Counsel be retained for litigation matters.

In response to the Counsel Deficiency Letter, members of the Board and Mr. Kallman met
with Mr. Gibbs. During this meeting, Mr. Gibbs’ concerns regarding the Corporation Counsel
were not addressed. Rather, Mr. Kallman insulted Mr. Gibbs’ professionalism and stated that the
true motivation behind Mr. Gibbs’ complaint was an attempt to seize power within the County.
The Board conducted no investigation into Mr. Gibbs’ complaints, and instead began to plan Mr.
Gibbs’ expulsion. In the time since Mr. Gibbs expressed his concerns about the Corporation
Counsel, the Board has become increasingly hostile towards him and some members aligned with
the Corporation Counsel have openly expressed their lack of confidence in Mr. Gibbs, despite his
consistently positive performance record.

On October 24, 2023, a court complaint was filed against the County alleging, inter alia,
that Mr. Gibbs had unlawfully discriminated against an applicant for employment with the County
(the “Kimball matter”). As the Board is no doubt aware, this is entirely baseless and is not borne
out on the true facts of the matter. However, the Kimball matter quickly became the vehicle for
the County’s attempt to fire Mr. Gibbs. After its own failure to secure a settlement in the Kimball
matter, the Corporation Counsel seized an opportunity to exact its revenge on Mr. Gibbs by
offering his termination as part of a settlement offer in that matter. Accordingly, Mr. Gibbs was
approached by the Board on January 9, 2024, to request that he tender his resignation. The Board
was clear that, should Mr. Gibbs not tender his resignation, he would be terminated with cause.
This threat was renewed again on February 12, 2024, when you called Mr. Gibbs to again ask for
his resignation and inform him that the Board wanted to take action to effect his ouster as soon as
possible. Again, Mr. Gibbs’ performance has been beyond reproach throughout his employment,
and his Employment Agreement remains in effect until January 2, 2026. In the absence of any
alternative explanation, it is clear that the Corporation Counsel has collaborated with the Board to
expel Mr. Gibbs in retaliation for his criticism of the Corporation Counsel’s performance.

Most recently, the County has intensified its attack on Mr. Gibbs, creating a full blown
hostile work environment. In January 2024, the Board created a Board of Commissioners Strategic
Planning subcommittee to micromanage a responsibility that has traditionally belonged to the
County Administrator. All eleven commissioners were placed on that subcommittee, which is

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 unheard of. On January 23, 2024, Mr. Gibbs was cut out of the loop on a critical meeting between
the Corporation Counsel and Human Resources to determine significant policy changes that Mr.
Gibbs himself had proposed. This too is unprecedented and clearly retaliatory. On February 6,
2024, Mr. Gibbs was then completely divested of his responsibility for the County Strategic Plan.
My client has similarly been stripped of his hiring authority after the Board voted to bar him from
hiring or transferring employees under his purview. It was thus no surprise that Mr. Gibbs was
confronted by Board Chair Joe Moss earlier this week (February 12) and threatened with
termination if he did not voluntarily resign. In doing so, Mr. Moss, incriminated the County for
violations of the Whistleblower Protection Act, telling my client that “board members want you
gone, especially after the letter Butzel sent.”

The facts being what they are, the County has seemingly only three options with regard to
Mr. Gibbs. The County can either (a) honor its obligations under the Employment Contract until
January 2, 2026; (b) proceed with unlawfully terminating Mr. Gibbs; or (c) negotiate an amicable
resolution. Please be advised that termination will not only invoke the separation payments
discussed above, but will in addition give rise to causes of action described below.

II. Violation of the First Amendment.

To prevail on a First Amendment retaliation claim, Mr. Gibbs will prove that (1) he was
engaged in a constitutionally protected activity; (2) the County’s adverse action caused him to
suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in
that activity; and (3) the adverse action was motivated at least in part as a response to the exercise
of his constitutional rights. Alliance For Children, Inc v City of Detroit Pub Sch, 475 F Supp 2d
655, 667 (ED Mich 2007) (quoting Leary v Daeschner, 228 F3d 729, 737 (6th Cir. 2000)). The
Supreme Court has recognized that public employers can be afforded greater leeway to control
their employees’ speech under certain circumstances. United States v. Nat’l Treasury Employees
Union, 513 U.S. 454, 475 (1995). Accordingly, the Supreme Court established a tripartite test
when considering whether a public employer violated an employee's First Amendment rights: (1)
determine whether the relevant speech addressed a matter of public concern, (2) if yes, then
balance the interests of the employee as a citizen commenting on matters of public concern, with
the interests of the public employer in promoting the efficiency of the public services it provides,
and (3) if employee’s interests are greater, decide whether the employee’s speech was a substantial
or motivating factor in the employer’s decision to take adverse employment action against the
employee. Rodgers v Banks, 344 F3d 587, 596 (6th Cir 2003) (citing Pickering v Board of Ed,
391 US 563, 568 (1968).

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 Mr. Gibbs’ Speech Addressed a Matter of Public Concern.

Speech is constitutionally protected if it addresses a matter of public concern. Rodgers v

Banks, 344 F3d 587, 596 (6th Cir 2003). “Speech involves matters of public concern when it can
be fairly considered as relating to [1] any matter of political, social, or other concern to the
community, or [2] when it is a subject of legitimate news interest; that is, subject of general interest
and value of concern to the public.” Lane v. Franks, 573 U.S. 228, 241 (2014). An employee’s
speech is protected “as long as some portion of the speech” addresses a matter of public concern.
Rodgers v. Banks, 344 F.3d 587, 597 (6th Cir. 2003), and relevantly, calling attention to the
ineptitude of public employees or officials constitutes speech on a matter of public concern.
Connick v Myers, 461 US 138, 148 (1983); Rodgers, 344 F3d at 596. Indeed, “[p]ublic interest is
near its zenith when ensuring that public organizations are being operated in accordance with the
law.” Marohnic v. Walker, 800 F.2d 613, 616 (6th Cir. 1986). The Counsel Deficiency Letter
relates in great detail the various deficiencies in the Corporation Counsel’s performance in its
public duties. Mr. Gibbs’ complaints within that letter implicate the propriety of public conduct,
including alluding to complaints about the Corporation Counsel from other public stakeholders,
which therefore renders his speech of gravity sufficient to warrant First Amendment protection.
Marohnic 800 F.3d 613 at 616.

A public employee must be speaking as a citizen, rather than an employee, for their speech
to enliven First Amendment protection. Connick, 461 U.S. at 146-147. Accordingly, the County
may wish to argue that Mr. Gibbs spoke as an employee in the course of his duties, or that the
Counsel Deficiency Letter constitutes an “internal personnel dispute or complaint about an
employer’s performance” which does not touch upon a matter of public concern. Brandenburg v.
Hou. Auth. of Irvine, 253 F.3d 891, 898 (6th Cir. 2001). Such an argument would fail for the
following reasons. Where an employee’s complaint constitutes an extraordinary, rather than
everyday communication, that complaint will fall outside the scope of the employee’s duties and
therefore within the scope of the First Amendment protections. Pucci v. Nineteenth Dist. Court,
628 F.3d 752, 768 (6th Cir. 2010). Here, the Counsel Deficiency Letter is plainly not an everyday
communication, but rather constitutes an extraordinary communication necessitated by
extraordinary circumstances. Indeed, Mr. Gibbs writes in the Counsel Deficiency Letter that
“…after much deliberation, [he was] duty-bound to inform you of a significant issue which hinders
[his] ability to carry out the responsibility you have entrusted to [him]….” Accordingly, the
Counsel Deficiency Letter falls outside the scope of Mr. Gibbs’ employment and his speech
pursuant to which was undertaken as a private citizen.

Moreover, “even if a public employee were acting out of a private motive with no intent to
air [his] speech publicly . . . so long as the speech relates to matters of ‘political, social, or other
concern to the community,’ as opposed to matters ‘only of personal interest,’ it shall be considered
as touching upon matters of public concern.” Alliance For Children, 475 F3d at 667-68 (quoting

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 Cockrel v Shelby Cnty Sch Dist, 270 F3d 1036, 1052 (6th Cir 2002)). As above, the Counsel
Deficiency Letter communicates a significant number of concerns regarding the Corporation
Counsel’s execution of its public duties, and the County’s expenditure of public monies in such
execution. The purpose of the Counsel Deficiency Letter was not to advance any personal interest
of Mr. Gibbs, but to address and remediate impropriety that directly affected the County’s ability
to discharge its public functions. Furthermore, the mere fact that the Counsel Deficiency Letter
related to Mr. Gibbs’ employment does not strip his speech from First Amendment protection.
Bohler v. City of Fairview, Tennessee, 429 F. Supp. 3d 477, 487 (M.D. Tenn. 2019) (quoting Lane,
573 U.S. at 240). In fact, the Supreme Court in Lane explained that “speech made by public
employees on subject matter related to their employment holds special value precisely because
those employees gain knowledge of matters of public concern through their employment.” Lane,
573 U.S. at 240.

Mr. Gibbs’ Interest in Speaking Outweighs the County’s Interest in Silencing Him.

After determining that Mr. Gibbs’s speech is protected because it addressed matters of
public concern, the court will weigh his interest in speaking with the County’s interest “as an
employer, in promoting the efficiency of the public services it performs through its employees.”
Rankin v McPherson, 483 US 378, 388 (1987) (quoting Pickering, 391 US at 568). In weighing
these interests, the court will consider “whether an employee’s comments meaningfully interfere
with the performance of [his] duties, undermine a legitimate goal or mission of the employer,
create disharmony among co-workers, impair discipline by superiors, or destroy the relationship
of loyalty and trust required of confidential employees.” Williams v. Kentucky, 24 F.3d 1526, 1536
(6th Cir. 1994). Here, Mr. Gibbs’ speech presents no such interference. On the contrary, the
Counsel Deficiency Letter seeks to further the goals of the County by ensuring that its Corporation
Counsel functions appropriately and efficiently.

For the County’s part, “a stronger showing [of government interests] may be necessary if
the employee’s speech more substantially involve[s] matters of public concern. Connick, 461 U.S.,
at 152. As above, Mr. Gibbs’ speech does substantially involve matters of public concern, however
the County will fail to show that it seeks to protect a government interest by stifling his First
Amendment rights. Here, as in Lane, the “employer’s side of the Pickering scale is entirely empty”
Lane, 573 U.S. at 242. In that case, the employer did not assert and could not demonstrate that
any government interest that would justify the interference with the petitioner’s freedom of speech
was present. Here too, the County has proffered no explanation of any government interest that
would be protected by terminating Mr. Gibbs. Indeed, the only interest that would be furthered by
his termination would be the private interests of the Corporation Counsel to retain its employment,
and the private interests of the County Board to settle the Kimball litigation in a manner less
embarrassing to it than its resolution to litigation with Public Health Officer Adeline Hambley.

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 There Exists a Causal Connection between Mr. Gibbs’ Speech and the County’s Threats.

Pursuant to Rogers, the final consideration is whether Mr. Gibbs’ protected speech was a
substantial or motivating factor in the County’s decision to take adverse employment action against
him. The determination of consideration is best addressed by first considering (1) whether the
adverse action was proximately caused by a defendant’s acts; and (2) whether the defendant was
motivated by a desire to punish the plaintiff for the exercise of a constitutional right. Paterek v.
Vill. of Amada, Mich., 801 F.3d 630, 646 (6th Cir. 2015). In the event that the County proceeds
with termination, Mr. Gibbs will readily establish causation by presenting evidence that the
County’s decision was motivated by Mr. Gibbs’ criticism of the Corporation Counsel. This can
be readily seen from the County’s immense hostility towards Mr. Gibbs only after he submitted
the Counsel Deficiency Letter, and the fact that the Corporation Counsel offered up Mr. Gibbs’
termination as part of the settlement discussions in the Kimball matter.

“[A]lthough at-will Government employees may be fired with or without reason, they may
not be fired for exercising their constitutional rights.” Dambrot v Cent Michigan Univ, 839 F Supp
477, 485 (ED Mich 1993) (quoting McMullen v Carson, 754 F2d 936, 938 (6th Cir 1985)). “If the
employee can make this showing, the burden shifts to the employer to prove, by a preponderance,
that ‘it would have taken the same action even in the absence of the protected conduct.’” Phillips
v Ingham Co, 371 F Supp 2d 918, 928 (WD Mich 2005) (quoting Jackson v Leighton, 168 F3d
903, 909 (6th Cir 1999)). Here, the County will be unable to make such a showing given that Mr.
Gibbs has excelled in the performance of his role, and the fact that his Employment Agreement
extends to January 2, 2026. It is simply not the case that the County would have demanded that
Mr. Gibbs resign had he not engaged in constitutionally protected conduct by criticizing the
Corporation Counsel.

III. Violation of 42 U.S.C. § 1983.

Pursuant to 42 U.S.C. § 1983, Mr. Gibbs is entitled to seek remedies against the County
Board and Corporation Counsel for their violations of his constitutional rights, performed “under
color of state law”. In other words, “to prevail on a § 1983 claim, a plaintiff must establish that a
person acting under color of state law deprived the plaintiff of a right secured by the Constitution
or laws of the United States.” Waters v City of Morristown, 242 F3d 353, 358–59 (6th Cir 2001).
Here, both the County and the Corporation Counsel acted under color of state law. “The traditional
definition of acting under color of state law requires that the defendant ... exercised power
possessed by virtue of state law and made possible only because the wrongdoer is clothed with the
authority of state law.” West v. Atkins, 487 U.S. 42, 49 (1988). Effectively, a defendant in an
action under § 1983 must have intended to act in an official capacity or to exercise official

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 responsibilities pursuant to state law. Id. Inarguably, the County Board would act in an official
capacity should it proceed to terminate Mr. Gibbs in connection with his criticism of the
Corporation Counsel. Indeed, it would only be empowered to terminate Mr. Gibbs because of its
exercise of state law.

Similarly, the Corporation Counsel, in offering up Mr. Gibbs’ termination in settlement

negotiations in the Kimball matter, acted under color of state law. During these negotiations the
Corporation Counsel stood in the shoes of the County as a public body and exercised authority
under state law to make a settlement offer. “A private actor acts under color of state law when its
conduct is ‘fairly attributable to the state.”’ See Romanski v Detroit Entm't, LLC, 428 F3d 629,
636 (6th Cir 2005). The Corporation Counsel may seek to rely on the proposition that “[a] plaintiff
may not proceed under § 1983 against a private party ‘no matter how discriminatory or wrongful’
the party's conduct.” Tahfs v Proctor, 316 F3d 84, 590 (6th Cir 2003). However, this argument
will necessarily fail. Relevantly, “[i]f a private party has conspired with state officials to violate
constitutional rights, then that party qualifies as a state actor and may be held liable pursuant to §
1983.” Cooper v Parrish, 203 F3d 937, 952 n 2 (6th Cir 2000). Here, the Corporation Counsel’s
advice to terminate Mr. Gibbs is integral to the County’s threats of termination, and any attempt
for the County to act on such a threat. In effect, the Corporation Counsel and County have
conspired together to terminate Mr. Gibbs in retaliation for his exercise of his constitutional rights.
Accordingly, both the County and the Corporation Counsel will be held liable to Mr. Gibbs
pursuant to § 1983 in the event of his termination.

IV. Violation of Michigan’s Whistleblower Protection Act.

In the event of his termination, Mr. Gibbs will establish a prima facie case under the WPA
by showing that (1) he engaged in protected activity as defined by the act, (2) the County took an
adverse employment action against him, and (3) a causal connection exists between the protected
activity and the adverse employment action. M.C.L. 15.362; Debano-Griffin v. Lake Cnty., 493
Mich. 167, 175, 828 N.W.2d 634, 638 (2013).

“Protected activity under the WPA consists of (1) reporting to a public body a violation of
a law, regulation, or rule; (2) being about to report such a violation to a public body; or (3) being
asked by a public body to participate in an investigation.” McNeil-Marks v. Midmichigan Med.
Ctr-Gratiot, 316 Mich. App. 1, 16-17, 891 N.W.2d 528 (2016). Accordingly, there can be no
dispute that Mr. Gibbs’ complaints regarding the Corporation Counsel, made to the County as a
public body, constitute protected activity within the meaning of the WPA. Furthermore, his
termination would constitute an adverse employment action. Indeed, M.C.L. 15.362 expands the
scope of adverse employment actions to include threats. By threatening Mr. Gibbs with
termination, the County has already subjected him to an adverse employment action and

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 accordingly, irrespective of whether it proceeds with his termination, it has already violated the
WPA. As outlined above, there is a clear causal connection between Mr. Gibbs’ protected activity
and the adverse employment action. But for Mr. Gibbs’ complaints about the Corporation
Counsel’s performance, he would not have been threatened with termination.

V. Litigation Hold

Finally, this letter requests that you email me a copy of Mr. Gibbs’ personnel file pursuant
to the Bullard-Plawecki Employee Right to Know Act and the Freedom of Information Act of
1976 (“FOIA”). In addition, you should immediately take all necessary steps to preserve all
documents, tangible things, and electronically stored information (“ESI”) relating to his
employment and suspend any routine document destruction and any automatic delete functions for
any ESI on systems and data storage locations likely to contain documents, data, or information
related to his employment.

Regards,
Noah S. Hurwitz
Noah S. Hurwitz
Principal Attorney
Noah@HurwitzLaw.com
Office: (844)-HURWITZ
Cell: (734) 645-5263

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