River Report Remanded, Art Rate Reduced

Ann Arbor City Council meeting (Dec. 7, 2009) Part I: Based on dialog at the city council’s budget retreat on Saturday, and the absence of any action at Monday’s council meeting to prevent it, layoff notices to 14 firefighters will be sent sometime this week.

Mayor John Hieftje also gave some additional detail on a proposal he’d mentioned at the council’s budget retreat on Saturday: an across-the-board wage cut of 3% for all city employees, which would include councilmembers.

Though the topics of firefighters and wage cuts were mentioned during the council’s communications section of the meeting, what pushed the meeting to nearly midnight were deliberations on two resolutions: (i) a three-year reduction of the Percent for Art program to effectively a “Half-Percent for Art” program, and (ii) acceptance of the Huron River and Impoundment Management Plan (HRIMP).

Both resolutions passed, though the HRIMP resolution was heavily amended. The material effect of the amendment was that it was not technically “accepted” by the council, but rather remanded to the city’s park advisory commission and the environmental commission.

In a similar parliamentary move, but with no discussion, the council also returned the area, height and placement (AHP) project to the planning commission.

The council postponed its appointment of new council committees, as well as a resolution to purchase parking meters to be installed on Wall Street. That was the second time the parking meter resolution had been postponed.

In other business, the council approved a move to new accounting software, two greenbelt acquisitions, and funds for remodeling the city’s 911 dispatch center so that it can accommodate co-location with the county’s dispatch center.

Council also authorized a change order to the Buhr ice rink project that illustrated the crunch currently being experienced by the city’s planning and development staff.

Two resolutions were passed in support of affordable housing: one to exempt eligible nonprofit housing providers from property taxes for up to two years, and another expressing support for the efforts of the Inter-Cooperative Council to secure federal funding.

The council also authorized the city attorney to take the action he’d recommended in a closed session held to discuss the pending lawsuit the city faces over the underground parking garage that is starting construction at the Library Lot.

Balanced against some of the bleaker and contentious items on the agenda was a mayoral proclamation honoring Pioneer track coach Don Sleeman, who has some interesting connections to personalities at the city of Ann Arbor.

In Part I of this council report, we handle the HRIMP resolution, the Percent for Art resolution, and budget issues (a possible 3% across-the-board wage cut and firefighter layoffs.)

HRIMP Resolution

In the course of council deliberations on the HRIMP resolution, much of the history of the HRIMP committee’s work and its context emerged, which we present here in summary form.

The HRIMP committee was established by the city’s environmental commission in March of 2006 to develop a plan for protecting and maintaining the portion of the Huron River that flows through the city of Ann Arbor. Beginning in early 2009, a series of public engagements were held as the committee entered the final stages of its work. [Chronicle coverage: "Not So Gently Down the Stream"]

The Huron River and Impoundment Management Plan produced by the committee contains 30 recommendations labeled “consensus recommendations,” with two others on which there was no consensus. The two non-consensus resolutions contradicted each other, with one calling for the removal of Argo Dam and the other calling for its preservation. Much of the public engagement focused exclusively on the dam-in/dam-out question. Part of the context for that question was a problem with toe drains, identified by the Michigan Department of Environmental Quality, in the earthen embankment adjacent to the concrete and steel dam, which separates the headrace.

In May of 2009 the city’s environmental commission voted in support of dam removal, while the city’s park advisory commission voted for its preservation. [Chronicle coverage: "City Council To Weigh Mixed Advice on Dam"]

The city council held a work session in July at which they received the Huron River and Impoundment Management Plan.

In October, the council considered, but ultimately tabled, a resolution that called for the city to repair the toe drains in the earthen embankment adjoining the dam. [Chronicle coverage: "Still No Dam Decision"]

Repairing the toe drains would have addressed the dispute between the city and the MDEQ over the drains. A temporary understanding between the city and the MDEQ was reached in late October, which resulted in the closure of the headrace next to the dam. [Chronicle coverage: "City, MDEQ Agree: Argo Headrace Shut"]

At the Nov. 5 city council meeting, the council approved $38,000 in attorney fees to support the contested case the city was pursuing against the MDEQ.

The resolution to accept the committee’s plan was first considered at the council’s Nov. 16 meeting, but postponed until Dec. 7. At the council’s Sunday caucus on Dec. 6, the focus of discussion was on the difference between “approving” the plan and “accepting” it, with the option of “receiving” it also thrown into the mix. [Chronicle coverage: "Huron River Plan, Percent for Art Program also Discussed"]

During council’s Dec. 7 meeting, the resolution would be amended by Carsten Hohnke (Ward 5), who’d co-sponsored the resolution with Margie Teall (Ward 4). The original “Resolved” clauses were as follows:

RESOLVED, That the Ann Arbor City Council accepts the Huron River and Impoundment Management Plan and the 30 consensus recommendations in the Plan;

RESOLVED, The Ann Arbor City Council supports the establishment of a River Stewardship Committee (RSC) to provide oversight to the implementation of the Plan;

RESOLVED, That the RSC should be created with representatives from the Environmental Commission, Energy Commission, and Park Advisory Commission and others appointed by City Council with expertise in river science (e.g., ecology, hydrology) and river recreation (e.g., canoeing, rowing, angling, and other user groups);

RESOLVED, That the RSC is to be supported by staff from Systems Planning, Natural Area Preservation, Field Operations, and Parks and Recreation Services;

RESOLVED, That the Ann Arbor City Council shall appoint the members of the RSC, including one Council representative, within the next 60 days;

RESOLVED, The Ann Arbor City Council directs the RSC to provide an implementation plan with funding needs and proposed funding strategies, including language for a river millage, within 6 months;

RESOLVED, The Ann Arbor City Council recommends that operation and maintenance of the recreational dams (Argo and Geddes) not be funded from the Drinking Water Enterprise Fund; and

RESOLVED, The Ann Arbor City Council recommends that funds currently used for the operation and maintenance of the recreational dams from the Drinking Water Enterprise Fund be reallocated to implement the Source Water Protection Plan to protect Ann Arbor’s Drinking Water.

In the course of the meeting, when Hohnke’s amendment removed mention of the funding shift, mayor John Hieftje stressed that the intent to shift dam maintenance funding out of the water fund to parks and recreation was part of the budgeting plan for FY 2011. The reasons why it’s a potential legal problem to fund dam maintenance out of the drinking water fund were explored to some extent at the council’s caucus the night before.

Several speakers during public commentary reserved time at the start of the meeting commented on the resolution.

Public Commentary on HRIMP

A common theme among those who spoke against the resolution was that the consensus recommendations did not actually reflect a consensus of the 18-member HRIMP committee.

A member of the HRIMP committee, Michael Taft, told the council he had represented the “rowing community” on the committee, which was not, he stressed, a single entity. He reported that he felt like the outcome of the committee’s work was “predetermined” and that not all information was allowed to be used. Based on some of the scientific data that had emerged subsequent to the completion of the committee’s report, he believed that today there would not be consensus on all of the 30 “consensus” recommendations.

Another member of the HRIMP committee, David Barrett, contended there was not a consensus on the committee for a shift in the dam maintenance funding source from the drinking water fund to user groups. That was a something that had been put through by the committee’s chair, David Stead, at the very last meeting of the committee in April, Barrett said.

Jeff DeBoer, who actually led off public commentary on the HRIMP resolution, also focused on the possible funding shift to rowers as a user group. He is president of the Pioneer Rowing Club. It was the suggestion of David Stead, the chair of the HRIMP committee at the last meeting of the committee, who had made the suggestion, he said. He offered the council a videotape he’d made of the meeting. At an annual cost of $60,000 for dam maintenance, he said, that amounted to a per capita cost of around $0.50 a year, which was reasonable.

It was an email from the Huron River Watershed Council advocating for shifting dam maintenance costs – from the drinking water fund to user groups – that Tony Iannone said prompted him to come speak. He questioned how that related to the HRWC’s mission of protecting the river and suggested that the city’s $10,000 contribution to the HRWC be cut. He asked why the embankment had not been properly maintained, and contended it was unfair to target user groups with fees.

Some speakers were more supportive of accepting the HRIMP report. Elizabeth Riggs noted that the recommendations had been accepted by the city’s park advisory commission. She asked the council to accept the plan, which would direct the protection of the river. It would allow the next steps of the implementation to begin. She also posed some questions. Given that the drinking water fund was not an appropriate source of funds for maintenance on a recreational dam, she asked: Who should pay? She asked how and when the dam-in/dam-out question would be answered. She also questioned why the city was spending $38,000 on legal fees to contest the MDEQ order.

Justin Heslinga, who introduced himself as an ecologist for the Huron-Clinton Metroparks, said that he lived a two-minute walk away from Argo Dam and was a strong advocate for dam removal. He pointed to the gains in parkland that would result, as well as the cooling effect that would result, which would improve the habitat of smallmouth bass.

John Rubin identified himself as a rower, but argued that the Argo Dam should be removed. He said that dams were inherently bad for rivers, and that the removal of Argo Dam specifically was supported by six different environmental groups. He also contended that in the longer run of 5-15 years, it would be $2-3 million cheaper to remove the dam. He pointed to the 28 acres of additional parkland that would be gained. He said that according to a Michigan Rowing Association study from 1983, Argo Pond was only seventh best out of nine locations.

Council Deliberations on HRIMP

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Meta-Discourse on HRIMP

The council’s deliberations reflected some of the same themes as the public commentary. In particular, Stephen Kunselman (Ward 3) picked up on the point that there had been perhaps less consensus on the HRIMP committee than the phrasing “consensus recommendations” reflected.

He also suggested that the chair of the HRIMP committee, David Stead, may have had some bias  – Stead serves on the city’s environmental commission, and introduced the resolution passed by that body recommending removal of the dam. Kunselman questioned how the person who was supposed to be leading the effort to build consensus on the HRIMP committee could then propose a resolution to remove Argo Dam.

In separate speaking turns, Christopher Taylor (Ward 3) took up the issue of the “consensus” nomenclature and the overall tenor of discourse – both of which, he allowed, were meta-issues that did not necessarily speak to the substance of the resolution.

On the use of “consensus,” Taylor urged that it be seen more as a “label” in the report that might not necessarily have its full meaning attached to it, so that it was not an obstacle to the council’s acting on the report in some way.

As for the suggestion of bias on the part of the HRIMP committee chair, Taylor declared that he felt like some folks’ integrity had been impugned based on very little evidence. To contend “bias,” he said suggested duplicity and conniving, but he’d seen no evidence of that. To bring a resolution as an environmental commissioner, he said was “entirely right for our commissioners to do.”

Earlier in the deliberations, Carsten Hohnke (Ward 5) had said it was “absolutely inappropriate to suggest the chair [of the HRIMP committee] had a bias.” And he cautioned that councilmembers should be careful about impugning members of the community who have put time and effort into service for the city.

Taylor lamented the fact that over the course of long community discussion, both sides had accused the other of being driven by a special interest and that this did not advance the conversation.

Sabra Briere (Ward 1) echoed Taylor’s sentiments, saying that the dam-in/dam-out question did not need to be answered quickly, but it did need to be answered civilly.

Mayor John Hieftje followed up Taylor’s remarks by saying that the Huron River Watershed Council was responsible for delivering the cleanest urban river in Michigan, and that speaking ill of the HRWC doesn’t advance a speaker’s cause. He added that he would vote to keep the dam, if the vote were to be taken that night. [This was a hypothetical – the dam-in/dam-out question was not on the agenda.]

Parliamentary Issues with HRIMP

Similar to the Sunday night caucus discussion, council deliberations were dominated by what it meant to “accept” the plan. On Monday, Kunselman said he was content to “receive” the plan, but not to “accept” it. Stephen Rapundalo (Ward 2) also indicated that what he’d been prepared to do was to acknowledge the receipt of the plan. Briere pointed out that the council had already received the plan – they had it in their “hot little hands,” she said.

Among their options was “adopting” it, Briere said, which was not what they wanted to do, because that implied implementation, together with the costs of that implementation. They also had the option of simply “rejecting” it, she said, which was also not what they wanted to do.

In addition to “accepting” the plan, the original set of resolved clauses essentially asked the park advisory commission and the environmental commission to proceed on a specific set of the recommendations in the plan – which Hohnke stressed did not speak to user fees nor to the dam-in/dam-out question.

However, there was concern that the “acceptance” of the plan, together with the specific direction to PAC and EC to engage in specific activities, implied a willingness to invest money – which was not available, given the current budget crisis.

From the floor, then, Hohnke proposed an amendment to the resolution that wiped out all the original resolved clauses, replacing it with a single clause giving the two commissions a more general task, and inserted a whereas clause to make clear that the “receipt” of the plan had already happened.

So what was left was a general remanding to the two commissions, with no “acceptance” of the report.

That amendment would be subjected to further alteration, so we present the version of the amendment that eventually was incorporated into the resolution that passed:

Whereas, On July 6, 2009, the Ann Arbor City Council received from the Environmental Commission the Huron River and Impoundment Management Plan and the 30 consensus recommendation contained therein; and

RESOLVED, That the Ann Arbor City Council directs the Park Advisory Commission and Environmental Commission to evaluate the 30 consensus recommendations, and to present options for implementation to City Council for those that can be acted upon at little or no cost; and

RESOLVED, That the Park Advisory Commission and the Environmental Commission complete their recommendations and report back to Council within one year.

Merits of Remanding: How the Amendment Was Altered

Hohnke’s initial amendment, which had a date certain for completion of the two commissions’ work of March 31, 2010, was first altered through a “friendly” amendment from Briere to have no reference to a date at all.

That had been prompted by concern expressed by Mike Anglin (Ward 5) and Stephen Rapundalo (Ward 2) about the workload of the park advisory commission. One aspect of that workload is their budgetary responsibility – given the tough budget year, Rapundalo and Anglin wanted the PAC focused on that issue in the coming months. The PAC is also currently revising the Parks, Recreation and Open Space (PROS) plan, which Rapundalo said he knew was a time-intensive project, having chaired the endeavor back in 1998.

The resolution without its date certain, however, lost the support of mayor John Hieftje, who said that the Huron River was too important to leave out there “in the ether.” It also failed to win the support of Anglin or Rapundalo. Kunselman was the fourth vote against the amendment. He criticized the vagueness of the term “little or no cost” and called into question why the HRWC’s stewardship was not adequate to address the need for a river plan – Hohnke had compared the importance of a river plan to a non-motorized plan, or a downtown plan or a parks plan. Kunselman pointed out that the city paid dues to the HRWC for that purpose.

Kunselman also questioned whether sending it back to those commissions had a reasonable chance of building consensus, when they had not been able to achieve that consensus thus far.

With four votes against it, that left six votes in favor, which meant that the amendment passed.

Hieftje then asked that an additional resolved clause be added to provide a one-year time frame. That request was  accommodated by a unanimous vote. The resolution as amended was then voted and approved.

Outcome: The city council voted unanimously to remand the 30 consensus recommendations to the park advisory commission and the environmental commission, asking those groups to develop options for implementation.

Percent for Art

The city of Ann Arbor has a Percent for Art program, which reserves 1% of the cost of any capital improvement project for public art up to a maximum of $250,000 per project.

Much of the council deliberations focused on how the program actually worked and what constraints existed on it. Deliberations also led to some insight into how the city attorney sees his duties vis-a-vis the city charter.

In the context of looming budget cuts because of a down economy, Sandi Smith (Ward 1), who co-sponsored the resolution on the Percent for Art program with mayor John Hieftje, said that everything had to be looked at. “These are extraordinary times,” she said.

The text of the resolution read:

… provided that for the period January 1, 2010, through December 31, 2012, the percentage shall be reduced to and be one half percent (½%). Where a capital improvement project is only partly funded by the city, the amount of funds allocated for public art shall be one percent (1%) of that portion of the project that is city-funded, up to a maximum of $250,000 per project; provided that for the period January 1, 2010, through December 31, 2012, the percentage shall be reduced to and be one half percent (½%).

In making the case for the resolution, Smith pointed out that the program would continue, which she wanted. It would also resume at its full 1% level after three years, with no council action required.

This isn’t the first time a reduction in the percentage in the program has been floated. In February 2009, at a Sunday night caucus, Marcia Higgins (Ward 4) had mooted the idea of modifying the Percent for Art ordinance. From Chronicle coverage of that caucus ["Discontent Emerges at Caucus"]:

One Percent for Art? Really??

Higgins also called into question the need for construction projects to allocate a full 1% for public art, noting that around $1 million had already accumulated in the fund in the year since the program was adopted. She wondered if perhaps a half percent would be a more appropriate level.

Councilmember Christopher Taylor noted light-heartedly that “A Half-Percent For Art!” just doesn’t have quite the same ring. But on a more serious note he suggested that monies are being accumulated faster than they’re being allocated because a mechanism for distribution is still getting up and running.

In deliberations, every councilmember who spoke acknowledged the importance of art in the culture and economy of the Ann Arbor community.

Tony Derezinski (Ward 2) said that this was the first of many tough issues the council would face: “If you won’t vote for a cut, which ones will you vote for?” he asked. This one was not one he wanted to vote for – not at this time. He also said he felt like three years was a long time.

Margie Teall (Ward 4) said she appreciated that the resolution did not demolish the whole program.

Christopher Taylor (Ward 3) said that so long as the city’s revenue fails to meet its full aspirations, they’ll face difficult choices.  He said that based on the cross section of the community he’d heard from on the issue, it was apparent that the community values art but acknowledges that these are difficult times. The resolution, he said, was consistent with the cry for the balance of those ideas.

Sabra Briere (Ward 1) pointed out that the amount that the city would save was an intangible amount – the council had discussed at their budget retreat the idea of delaying certain capital improvements. If the capital improvements didn’t happen, then no money would be allocated to the Percent for Art program. Stephen Rapundalo (Ward 2) also focused on the uncertain nature of the dollar amount to be saved, saying that he preferred to focus budget savings efforts on amounts that were fixed.

In response to the “uncertainty of amount” argument, Smith offered as a reference point that in the FY 2011 capital improvements plan (CIP), there were $519,000 eligible – so that the savings were around $260,000.

Hieftje asked for clarification from Sue McCormick, the public services area administrator, about how much money the general fund had contributed to the public art program. She clarified that the $12,500 figure she’d given at an earlier meeting had been the result of erroneous inclusion of some Act 51 funds for a non-motorized capital project. So over the first three years of the Percent for Art program, no money from the general fund had gone towards the program, she reported.

Hieftje had wanted to dispel the myth that money spent on art could instead be spent on salaries in the fire department.

Following up on Hieftje’s question about the general fund, Carsten Hohnke (Ward 5) asked if there were any funds that can’t contribute to the art program. McCormick distinguished between two types of restrictions: those built into the Percent for Art ordinance about the kinds of capital improvement projects, and those stemming from the source of funds. For example, the ordinance itself, she said, rules out “projects” that consist of a property purchase. And a project that uses Act 51 funds as a source are not eligible – the act provides money for operations and maintenance of streets.

Stephen Kunselman (Ward 3) asked McCormick who on staff determined the legality of a capital improvement project’s contribution to the art program. Her answer: the city attorney’s office. She explained that in crafting the ordinance, the city attorney had been asked for an opinion. Kunselman followed up by asking, “Why wouldn’t the public know the attorney’s opinion?” [The Ann Arbor city charter has a provision that requires the city attorney to file any opinions with the city clerk's office.]

McCormick referred Kunselman’s question to Stephen Postema, the city attorney. He contended that what he’d sent to council was an “advice memo.” Kunselman pressed the issue by noting that McCormick, as a department head, could request advice that would need to be filed as an opinion.

The city charter reads in relevant part [emphasis added]:

The Attorney shall:
(1) Advise the heads of administrative units in matters relating to their official duties, when so requested, and shall file with the Clerk a copy of all the Attorney’s written opinions;

Based on the charter provision, “an advice memo” could be analyzed as synonymous with “an opinion.”

Also related to funding sources was an amendment to the resolution proposed by Briere that would have stipulated that “projects shall not be restricted by funding source in determining the type or subject matter of the art.” The need for art from the street reconstruction millage to involve projects like pressed pavement, she said, had led her to propose the amendment.

The amendment garnered only Briere’s vote, and failed.

Rapundalo laid out a case for art as a key factor in economic development – attracting and retaining talent. In support of that, he cited his professional work –  as president of  MichBio ["Mission: Drive biosciences industry growth in Michigan"].

Mike Anglin asked for an example of a project that had been completed with Percent for Art funds. McCormick explained that none had been completed yet. The first one is associated with the new municipal center under construction. [The expected Dec. 7 council vote on that project was again delayed – until Dec. 21. Chronicle coverage: "City Council Vote on Dreiseitl Delayed"]

Outcome: The council approved the resolution on its first reading to reduce public art funding from the 1% reservation of capital improvement projects to 0.5% for a three-year period, from 2010-2012. Dissent came from Rapundalo and Derezinski. The resolution must be approved on its second reading before council as well, and will include a public hearing.

Budget

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A 3% Across-the-Board Wage Cut?

The initial public mention of a possible across-the-board wage cut had come from mayor John Hieftje at the council’s budget retreat conducted on Saturday, Dec. 5.

At Monday’s meeting, councilmembers and the city administrator alike expressed satisfaction with the format of the retreat. Stephen Rapundalo (Ward 2) said that it was “the best one we’ve had – because of the council discussion amongst itself.” He noted that it serves as the beginning of the budget season.

Hieftje then put Ann Arbor’s budget difficulties in the context of other cities in the state. Grand Rapids faces 150 layoffs, he reported. Lansing is laying off 14 police officers. And in Troy, he said, one-third of the work force could be laid off if a special millage does not pass.

He introduced again the 3% across-the-board wage cut that he’d mentioned at the budget retreat and also discussed the previous evening at caucus. The idea, he said was for all city councilmembers to accept a 3% pay cut and for all city workers to do the same. For workers whose salaries are paid out of the general fund, he said, that would save $850,000 per year. If all workers citywide were added in, it would amount to a savings of $1.5 million.

The 3% corresponds to concessions made this year by unions representing most of Washtenaw County government employees, but in that case it reflected forgoing a contracted 3% wage increase, not making a cut. [Chronicle coverage: "AFSCME union concessions help, but other issues remain"] In the case of the city’s unions, it would mean a cut.

[Otherwise put, in the case of the county, a worker making $100,000 – with a scheduled raise to $103,000 – was left at the $100,000 level. That's a different proposal from asking a worker making $100,000 to accept $97,000 instead.]

Hieftje said he wanted to take the proposal to the unions. He noted that 48% of the general fund is accounted for by safety services – police and fire.

Firefighter Layoffs

At the budget retreat, city administrator Roger Fraser indicated to councilmembers that unless they directed him otherwise, layoff notices to 14 firefighters – part of mid-year cuts necessary to achieve a balanced FY 2010 budget – would be sent this week.

Fraser was asked to address an issue that had been raised by a city resident at the Sunday caucus: How does the three-person truck crew figure into the safety protocol that requires four people on scene before someone can enter a burning structure?

Fraser began by saying that there are any number of variables that go into any response to a fire call. But national standards, he said, require at least two firefighters to enter the building together, with two remaining outside – a total of four. Fraser said that with layoffs, there could be longer times to get four people to the scene. He said that greater detail would be forthcoming about how the deployment would work.

Hieftje said he was particularly interested in hearing how the extra person – in addition to the three on a truck crew – would get to the scene.

Council took no action on the firefighter layoffs.

Present: Stephen Rapundalo, Mike Anglin, Margie Teall, Sabra Briere, Sandi Smith, Tony Derezinski, Stephen Kunselman, John Hieftje, Christopher Taylor, Carsten Hohnke.

Absent: Marcia Higgins

Next council meeting: Monday, Dec. 21, 2009 at 7 p.m. in council chambers, 2nd floor of the Guy C. Larcom, Jr. Municipal Building, 100 N. Fifth Ave. [confirm date]