Recently the committee charged with reviewing the responses to the city’s RFP for development of the Library Lot met to discuss two days’ worth of public interviews with proposers. The “news” out of that meeting was that the committee set aside three of the five proposals, leaving just two – both of which are concepts for a hotel/conference center.
Nearly escaping notice at that meeting was an exchange between Stephen Rapundalo, who chairs the committee, and senior assistant city attorney Kevin McDonald. The brief interaction came towards the end of the meeting’s work, as the next set of tasks for specific committee members was formulated. Rapundalo asked that McDonald provide a legal opinion. McDonald replied politely, but pointedly, that he’d provide advice, not an opinion.
Why does McDonald care about the difference between providing advice versus an opinion?
McDonald’s concern is based on a fundamental misunderstanding on the part of the city attorney’s office, led by Stephen Postema, about what Ann Arbor’s city charter requires of its city attorney.
Charter Requirements on Opinions
In listing out the duties of the city attorney, Ann Arbor’s city charter states [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;
But since Postema took over the city attorney’s office in 2003, no written opinions have been filed with the city clerk’s office – an act which would effectively make them public records.
The view of the attorney’s office, as reflected in Kevin McDonald’s conversational reply to Rapundalo, is that calling written opinions “advice” allows the public servants who work in the city attorney’s office to assert attorney-client or attorney work-product privilege with respect to any and all of their work, and that this adequately shields them from the charter requirement.
The city attorney is wrong about that.
Opinion on Percent for Art
The issue could now be coming to a head in the wake of a request made of the attorney’s office by councilmember Stephen Kunselman (Ward 3) for an opinion on the legal foundations of the city’s Percent for Art program. That program specifies that 1% of the cost of capital improvement projects be allocated for public art and that the public art commission make recommendations for the expenditure of those funds.
The art program appears to fly in the face of a precedent set in a legal case, Bolt v. Lansing, but we leave aside for current purposes an analysis of that as it relates to the city’s art program.
What Kunselman wanted to know was this: What’s the legal foundation of the art program?
It is, of course, a question that Kunselman might have posed in a more timely fashion – back in November 2007, when he served on the city council and he voted with the rest of his council colleagues to authorize the art program. Kunselman had to take a year hiatus from the city council, after losing the 2008 Democratic primary to Christopher Taylor, but he regained a seat after defeating Leigh Greden in the 2009 primary.
Timing issues aside, Kunselman made the request for the opinion about the Percent for Art program opinion by attaching it to the agenda of the council’s Nov. 16, 2009 meeting.
Kunselman, along with the rest of his council colleagues, received a reply to his publicly made request. But the reply was marked as follows:
Privileged and Confidential Attorney-Client Communication Exempt from Disclosure under the Michigan Freedom of Information Act and Basis for Closed Session under the Michigan Open Meetings Act
So that reply has not been filed with the city clerk’s office. Kunselman followed up the matter at the next council meeting on Dec. 7, 2009, expressing his discontent that no opinion had been made public. At that meeting, he successfully elicited from Sue McCormick, public services area administrator, that she had asked the city attorney’s office for an opinion when the ordinance was being developed.
The small “victory” for Kunselman was that McCormick is clearly an administrative head, which should have triggered the charter requirement that an opinion be filed. But when McCormick deferred the question to Postema at the Dec. 7 meeting, he offered that he’d sent an advice memo to council.
Given that Kunselman now has the response from the city attorney’s office, why doesn’t he just make it public himself? That likely is rooted in the Standards Of Conduct For Public Officers And Employees (Excerpt), Act 196 of 1973, which states:
15.342 Public officer or employee; prohibited conduct.
Sec. 2. (1) A public officer or employee shall not divulge to an unauthorized person, confidential information acquired in the course of employment in advance of the time prescribed for its authorized release to the public.
The Chronicle thus requested under the Freedom of Information Act (FOIA) the opinion given by the city attorney’s office to Kunselman, on the argument that it was required by the city charter to be a public document.
The city produced the memo sent by the city attorney’s office to Kunselman and the rest of his council colleagues, but redacted the parts related to Kunselman’s request for a legal opinion [emphasis added]:
The remainder of the response is redacted because it consists of privileged attorney-client communications that are exempt from release under MCL 15.243(1)(g).
An advice memorandum from the City Attorney’s Office in response to the request of a single Councilmember is not an opinion that is required by the City Charter to be filed with the City Clerk’s Office.
One option available under the FOIA is to request an appeal from the city administrator, which The Chronicle undertook as follows:
We note first that the city’s rejection of our charter obligation argument is based on the idea that the request from Kunselman was from a single councilmember, thus not subject to the charter requirement to file the written opinion with the city clerk.
On the other hand, the city asserts attorney-client privilege that it contends may only be waived by a majority of the city council. We argue that the city attorney takes direction not from individual councilmembers, but rather from the council as a body. The fact that the city attorney provided a response to Kunselman’s request per se supports our contention that the city attorney understood Kunselman’s request to be made on behalf of the council, not just on Kunselman’s own behalf.
The fact that the response from the city attorney was sent to all members of the council further supports our contention that Kunselman’s request was understood by the city attorney to be the direction of the council as a body.
Finally, the city’s own claim that the asserted attorney-client privilege can be waived only by majority of the council supports our contention that the city attorney agrees that the request for a legal opinion came from council as a body, even if communicated via Kunselman. The city council as a body includes the mayor, who is the chief executive officer of the city, thus the head of an administrative unit. The request for a legal opinion communicated via Kunselman thus satisfies the charter criterion for filing with the city clerk’s office.
Note that this argument does not entail in general that the city attorney file a written opinion with the clerk in response to any request from a single councilmember. On such request, the city attorney may clarify with the council as a group whether it is their direction to undertake the analysis requested. If a majority of the council do not agree that this is their direction, then no opinion need be written. In the case at hand, the city attorney did not seek to clarify, but rather took Kunselman’s request to be the direction of the council as a body.
The appeal was denied by city administrator Roger Fraser, who simply re-asserted the attorney-client privilege as the basis of denial, and introduced the additional concept – not originally cited in the city’s denial – of attorney work-product privilege. He further explicitly denied any obligation to respond to our argument based on the requirements of the city charter:
The information that was withheld consisted of confidential communications between the City Attorney’s Office and City staff and/or Council members. This information is clearly subject to the attorney-client privilege and/or work product privilege. MCL 15.243(1)(g)
Based on the foregoing, I deny your appeal of December 22, 2009. Because the privileged nature of the communications in question resolves this appeal, it is not necessary for me to address further the statements in your appeal letter.
Why The Chronicle Will Persist
The Chronicle is not content to let the matter rest there. Here’s why not.
The Matter of Law
First, the city charter defines what the job obligations are for the city attorney. And the city charter is not a set of loose guidelines, but rather our city’s basic law. So a document that is required to be public under the law cannot be subject to attorney-client privilege or attorney work-product privilege. It’s as simple as that. Asserting such privilege about a document required to be public under the law is improper.
In the past few years, the working majority on the city council has been led by members who are also attorneys. And there seems to have been a tacit understanding between the city attorney and the city council that the council would not expect the city attorney’s office to file written opinions with the clerk.
As the body to which the city attorney directly reports, the council might, for example, say something like: “Look, we do your performance evaluation and set your pay, and we don’t care if you file those opinions or not.”
But even if the city council were to express that sentiment in the form of a unanimously approved resolution, the city attorney would still be required by the charter to file his opinions. That is, the city council cannot waive a charter requirement. And any citizen has legal standing to file suit on a charter violation to demand relief.
On a similar charter requirement issue, the city is making progress in bringing a different operational practice into conformity with the city charter – after apparently having lapsed for a time, with the city council’s apparent indifference. That similar circumstance is related to a charter requirement that the city’s controller provide the city council with monthly reports on the city’s finances:
SECTION 5.6. The Controller shall be the chief accounting officer of the City. The Controller shall:
(6) Submit to the Council, through the City Administrator, by the tenth working day of each month, a statement showing the balances at the close of the preceding month, in all funds and budget items, the amount of the City’s known liabilities and budget items to which the same are to be charged, and all other information necessary to show the City’s financial condition;
[See Chronicle coverage: "Ann Arbor’s Budget Data to Go Online"]
The Matter of Semantics
Instead of looking to the city charter as a law to be followed, Ann Arbor’s city attorney seems to take the document as a starting point for making sure that day-to-day operational vocabulary is chosen to shield him and his office staff from the force of the law. Calling written opinions “advice” is one example. Calling some meetings of the city council “workshops” or “work sessions” is another. The city charter requires the city attorney to attend the meetings of the council. If they’re called “work sessions,” however, the attorney apparently thinks that these are not “meetings” and therefore he’s not required to attend them under the charter.
The city, in fact, does not treat “work sessions” as meetings under the Open Meeting Act (OMA) – evidence of this is the city’s failure to allow anyone to address the council as a body at “work sessions.” Meetings of a body under the OMA are required to allow anyone to address the body under its rules of address.
The city attorney seems to think that receiving informational presentations and asking questions does not count as a “deliberation” under the OMA. By calling these events mere “informational exchanges” he apparently believes he could argue that these events are not meetings and not subject to the requirement under the OMA that the public be allowed to address the body at a meeting of the council. But work sessions, workshops, information sessions – it doesn’t matter what you call them: They’re meetings.
As I have written in an earlier column, the Open Meetings Act and the Freedom of Information Act should not be seen as lists of exceptions – tools to keep the workings of government shielded from public view – but rather as lists of requirements, with the over-arching principle being this: Government should be open.
Similarly, the city charter should not be seen as a vocabulary list – with words on the list to be avoided lest some charter requirement be triggered.
The Practical Matter
If an attorney has no prior experience in the practice of public sector law, it might strike him as surprising and counter-intuitive that one’s legal opinions are required to be public. What purpose does that serve? Is that even the intent of the city charter – that legal opinions be made public? For god’s sake, isn’t that just stupid from a practical point of view?
In the case at hand, for example, perhaps the city attorney’s opinion would provide a roadmap for filing a successful lawsuit against the city of Ann Arbor over the Percent for Art program. Why on earth would an attorney provide a potential adverse party to his client an advantage like that?
One reason is straightforward: That’s what public service in the city attorney’s office requires. But here’s why it’s a good idea: If the city attorney’s opinion actually does provide a roadmap for a successful lawsuit against the city, then why did the city council enact the ordinance enabling it? Are we really going to gamble that no one else in the city of Ann Arbor is going to figure out that roadmap to a successful lawsuit?
Rather than keep the city attorney’s opinion shielded from view, the city council should bring it out in the open, and act appropriately. Maybe that will entail no action at all. Maybe it will entail repeal of the Percent for Art program. It depends on what that opinion is.
In any case, there are currently two paths the city council could take: (i) Hope that their city attorney can stave off a potential legal fight over the general issue of the charter requirement; (ii) Pass a resolution that would make public the city attorney’s opinion on the legal basis for the Percent for Art program.
There are five councilmembers plus the mayor, all Democrats, who need to stand for re-election in 2010 if they wish to continue to serve on the council: Sandi Smith (Ward 1), Tony Derezinski (Ward 2), Christopher Taylor (Ward 3), Margie Teall (Ward 4), Carsten Hohnke (Ward 5), and John Hieftje (mayor).
Will any of the six demonstrate leadership by getting a city council resolution introduced that would make public the city attorney’s opinion on the legal basis of the Percent for Art program? It’s a harder kind of leadership to demonstrate than writing a symbolic check. But I think at least one of them might pull it off.
And I think that could lead to the development of a healthy habit for the city attorney – filing opinions with the city clerk, without trying to shield them from public view by calling them “advice.”
Because the charter is the law, not just good advice.
Dave Askins is the editor of The Ann Arbor Chronicle.