Lawyer: Royal Oak commissioner will sue after censure vote

James David Dickson
The Detroit News

Royal Oak — A Royal Oak city commissioner who was censured and asked to resign Monday night, after attending the "Operation Gridlock" protest on April 15 in Lansing, will sue the commission and those who voted yes on the censure, her attorney said.

Royal Oak commissioner Kim Gibbs

The censure, which asked City Commissioner Kim Gibbs to resign from office, passed with a 5-2 vote. Gibbs and Randy LeVasseur were the only no votes.

More:Whitmer to protesters: Rally will 'come at cost to people's health'

"We, the members of the Royal Oak City Commission, do hereby censure Commissioner Kim Gibbs for her violation of her oath of office, her violation of executive orders issued under the Michigan Constitution and state laws, and in violation of her duty to protect the public health and safety," reads the last paragraph of the censure. "We respectfully request that Commissioner Gibbs immediately resign her office as city commissioner."

Richard Thompson, president and chief of the Ann Arbor-based Thomas More Law Center, represents Gibbs in the matter. He spoke to The News but advised his client not to comment.

Thompson said a planned federal lawsuit will allege the censure violated Gibbs' First Amendment rights of free speech and peaceable assembly, and her 14th Amendment rights to due process, and will seek a declaratory judgment the censure was invalid. The lawsuit could be filed in weeks.

"We knew, going in, that this was going to be a kangaroo court," Thompson said of Monday's vote. "There was no inquiry. They just threw (together) some photographs. There was no factual or legal basis for the censure."

Pat Paruch, formerly the mayor of Royal Oak, cited "widespread outrage" in the community toward Gibbs after she was spotted at the protest "in the middle of a crowd, without respecting the governor's social distancing order or ... wearing a mask or some kind of face covering."  

"The community outrage was something that I hadn't experienced, pretty much in my entire career," Paruch said. Her service on the board dates back to 1979.

"Everybody just kind of went, 'Oh, my gosh, how could you possibly do that?'" Paruch said.

Paruch said the board has no mechanism to remove Gibbs. 

That Gibbs and other protesters have a constitutional right to protest is not in question, Paruch said. In an email, Commissioner Kyle DuBuc said "Commissioner Gibbs was absolutely NOT censured for 'participating in operation gridlock.'"

"You don't lose your constitutional rights when you become a public official," Paruch said. "But she could have done it safely, with the safe distancing ... and she didn't. And that was the problem."

And, Paruch asserted, that would have happened if she failed to wear a mask elsewhere, such as in a grocery store.

"Social distancing is appropriate no matter where you are," Paruch said.

Commissioner Sharlan Douglas, who voted for the censure, said she was "swayed most by the outpouring of public comment" in favor of it.

"I'm listening to the people here," Douglas said.

Douglas said that of the 98 people who participated in public comment, only five did not mention the censure resolution in their remarks. Of those who did, 80% favored it and 20% opposed it, she said. Another 70 or so emails had come in on the issue. Participants, for the most part, were "Royal Oak voters, not outsiders," she said.

"Those are mind-bending numbers," Douglas said. "She's an elected official. She's held to a higher standard in a lot of ways."

But Commissioner Randy LeVasseur, who voted no along with Gibbs, said the public outrage against Gibbs "wasn't a grassroots-type response — it was astroturf."

LeVasseur received multiple emails on the issue, and found that several were repeats sent from different names and accounts. He said he doesn't doubt there are some genuine critics, but said all of the outcry was not organic.

"That kind of response was orchestrated," LeVasseur said. "It was engineered to happen. This was just a convenient way to go after a commissioner who for years has been a thorn in their side."

He believes fellow commissioners targeted Gibbs because of the views she expressed, not because of any alleged danger she posed by not keeping distance.

"This is a situation where, as soon as she was seen participating in Operation Gridlock, some of the political types here locally started contacting people via email, social media, whatever, to rally the troops and take her down," LeVasseur said. "The mayor and the commissioners were not just taking it all in, they were actively participating."

LeVasseur also doubted the danger of Gibbs' actions.

"There's a lot more dangerous things people encounter," LeVasseur said. "Going to the grocery store is exponentially more dangerous than choosing to peaceably assemble."

Thompson said the lawsuit would be filed in federal court because "the United States Constitution trumps the Michigan Constitution and whatever rules they have on the Royal Oak commission."

"Neither the Royal Oak commission, nor Gov. Whitmer has the right to suspend the (U.S.) Constitution, especially when it comes to free speech," Thompson said.

Thompson noted that the wearing of masks was not required in Michigan at the time, and that even under Whitmer's new order, they're not required outdoors, as Gibbs was. He argued that it can't be proved that Gibbs violated social distancing, and that even if she did, that standard only applies "when feasible."

"We try to keep social distancing at the office, but sometimes you'll be at a door and three feet away from someone," Thompson said. "It happens."

The law center, a nonprofit that, according to its website, "defends and promotes America’s Judeo-Christian heritage and moral values" took the case because "no one was defending her," Thompson said.

The center is taking the case pro bono, as it does all cases.

Royal Oak Mayor Michael Fournier, a Democrat, had called for Gibbs to resign after she was spotted at the protest, saying she acted with a "complete lack of judgment."

More:Royal Oak mayor calls on commissioner who attended Lansing protest to resign

Royal Oak Mayor Michael Fournier is up for reelection on Nov. 2. He faces a challenge from Tom Roth, a software engineer who has been critical of the mayor and other city incumbents. Fournier is touting Royal Oak's good standing in the bond markets, solid property values and safe neighborhoods.

"I have significant concerns about her ability to represent our city," Fournier told The News days after the protest. "Moving forward, it shows a complete lack of judgment and empathy for all of those who have succumbed to this disease, their families and especially those on the front line working their tails off to keep us safe and healthy."

Gibbs told The News previously that she attended the protest in support of small businesses and employees affected by the Gov. Gretchen Whitmer's stay-at-home order.

“The governor’s lockdown is arbitrary and capricious,” Gibbs said previously.

The censure says that "by failing to obey the safe-distancing order in the middle of a large public gathering and without a protective mask, Commissioner Gibbs violated her oath of office to support the Constitution of the State of Michigan..."

Gibbs denied putting anyone at risk, said she knew she didn't have the virus and said she kept her distance from other protesters.

“I’ve been checked for COVID-19 and am not carrying the virus; thus, I was no threat to anyone,” Gibbs said. “I maintained CDC social distancing guidelines at the rally.”

Gibbs has said she's received threats after participating in the rally and has been granted police protection.

Whitmer said at the time that the demonstration would "come at a cost to people's health," and claimed that the gridlock blocked the path of ambulances.

Police and hospital officials rebutted the claim that the protest blocked ambulances.