On Tuesday, a capacity crowd packed a local Ann Arbor venue to watch a five-person team do its work. Part of the color commentary included talk of game-changing players, and speculation about who had the best center of all the conferences. Everyone knew that whichever team prevailed on Tuesday would not win the whole tournament – it would just advance to the next round.
Here’s a highlight reel of how events unfolded on Tuesday. Play opened with a disputed call, and one of the fans nearly got tossed out of the venue. There was a guy with a red sweater, reminiscent of those favored by Bob Knight when he coached the Indiana University squad, even though he was not the guy in danger of getting tossed. He was actually prepared to do the tossing.
Early on, the coach told the team about the “four corners” – which some older sports fans might recognize as a stalling style of basketball made popular by legendary University of North Carolina coach Dean Smith. And the team managed to hold the ball for one final shot, which it made. The cheerleaders cheered. The victors were valiant … hail, hail, etcetera.
The venue? It was the fourth floor meeting room of city hall. And the five-person team was the committee charged with evaluating proposals for use of the city-owned Library Lot. That’s the parcel atop the Fifth Avenue parking structure currently under construction.
Who says local civic affairs isn’t at least as interesting as NCAA basketball? Well, actually, most readers would say that, I’m guessing.
But here’s something I think we can all agree on: Fans at basketball games get to cheer or boo as loud as they like … within certain parameters. The parallel principle for public meetings, like the one on Tuesday, is that members of the public should be allowed to address the group during its meeting.
The city of Ann Arbor’s stated written policy on this is actually quite clear: Even entities that are not public bodies under the Open Meetings Act should, to the best of their abilities, conform with the spirit of the OMA – which includes a provision for public participation at meetings.
The Dispute with the Ref
The “fan” who risked getting tossed from the meeting room was local attorney Tom Wieder. [A "telestrator-annotated" version of the opening paragraphs is appended at the conclusion of this column. For regular news coverage of the meeting, see "Work Session Called on Conference Center"] When committee chair Stephen Rapundalo started the meeting on Tuesday, Wieder indicated he wanted to address the committee, saying that the city’s policy allows it.
Rapundalo replied that the RFP review committee was an “advisory committee” and it would not be entertaining public commentary. However, the committee did welcome public input, Rapundalo stressed, and he encouraged people to communicate in writing to the committee, or to city councilmembers, or the city administrator.
Wieder challenged Rapundalo to demonstrate that the committee had actually chosen not to entertain public commentary. When Rapundalo said the committee had been using rules that did not include a provision for public commentary, Wieder wanted to know if there was a written copy of the rules and whether the committee had voted on using those rules. Rapundalo finally said, “Mr. Wieder, I’m trying to run a meeting.” City administrator Roger Fraser admonished Wieder, saying that if he wanted to be disruptive, the committee could ask him to leave.
When Wieder said he was simply asking to be able to address the committee, committee member Margie Teall – who represents Ward 4 on the city council – told Wieder that he was not asking, but rather was insisting. Wieder allowed that, well, okay, he had been insisting. When Fraser pointed out that Rapundalo had made clear that no opportunity for public commentary would be given, Wieder replied: “I did hear what he said,” to which Fraser shot back, “You didn’t act as if you did.”
Wieder could lay claim to the last word in the exchange by replying, “No, I just didn’t accept it.” From that point on, Wieder sat back and listened.
What Play Are We Running?
In one sense, it was fine theater – Wieder appears comfortable in the role of the rabble-rouser. For all we know, he wanted to get tossed out of the meeting – for the same reason a basketball player or coach will sometimes deliberately bait the referee into calling a technical foul. It sometimes serves to fire up your team and to shift the momentum of a game.
But what exactly was Wieder talking about? Does Ann Arbor really have a policy on whether someone can address a meeting like one held by the Library Lot RFP review committee? Yes. The playbook Wieder was working from – as an email he sent to Rapundalo following the meeting makes clear – is a resolution passed by the city council in 1991:
R-642-11-91 RESOLUTION REGARDING OPEN MEETINGS FOR CITY COMMITTEES, COMMISSIONS, BOARDS AND TASK FORCES
Whereas, The City Council desires that all meetings of City boards, task forces, commissions and committees conform to the spirit of the Open Meetings Act;
RESOLVED, That all City boards, task forces, commissions, committees and their subcommittees hold their meetings open to the public to the best of their abilities in the spirit of Section 3 of the Open Meetings Act; and
RESOLVED, That closed meetings of such bodies be held only under situations where a closed meeting would be authorized in the spirit of the Open Meetings Act.
The idea of the resolution is this: Even entities to which the OMA would not technically apply are still expected to conform to the spirit of Section 3 of the OMA – to the best ability of that entity’s members. Section 3 includes a provision that allows a person to address a meeting of a public body.
It’s a council resolution The Chronicle has written about previously – in connection with the council’s apparent game plan of calling its ad hoc committees “work groups” in order to shield their work from the 1991 resolution. From an April 2010 Chronicle article:
On Friday, April 16,  at 3 p.m. members of the DDA’s committee met with some city councilmembers in Roger Fraser’s office to discuss the deal. In barring The Chronicle from the Friday meeting, which we attempted to attend, Fraser rejected the applicability of the council resolution that requires the meetings of city sub-committees to comply with the Open Meetings Act, contending it was a “working group,” not a sub-committee.
That incident involved a committee charged with negotiating with the Ann Arbor Downtown Development Authority on a new contract for managing the city’s public parking system. In addition, currently the city council is also picking and rolling with a “work group” that it has put together to study the question of a city income tax – instead of simply referring the matter to its budget committee.
From The Chronicle’s report of a recent budget retreat:
At the Jan. 8, 2011 retreat, there was some back-and-forth about whether the work group looking at the income tax question – as well as the possibility of a Headlee override – should be called a “committee” or a “work group.” Implicit context for the distinction is that council committees are supposed to do their best to conduct their meetings openly in accordance with the Michigan Open Meetings Act – based on a two-decades-old city council resolution. Work groups are not considered to have the same obligation.
View from the Head of Officials
In a dispute over rules, policy and legal matters, the view of the city attorney carries some weight. Does Ann Arbor’s city attorney acknowledge the current applicability of a two-decades-old city council resolution? Yes. Last year, Tony Derezinski (Ward 2) asked city attorney Stephen Postema during a council meeting whether a committee of the council could violate the Open Meetings Act.
In asking the question, Derezinski was in some sense running the alley-oop play – where one player lobs a ball above the basket to a teammate who can throw down an easy dunk. Derezinski served in the state legislature when the Open Meetings Act and Freedom of Information Act were passed, and is a retired attorney specializing in municipal law, so he likely knew the answer to the technical OMA question.
But Postema couldn’t deliver the simple answer that Derezinski seemed to expect, because of the city council’s 1991 resolution. From The Chronicle’s report of that May 17, 2010 meeting:
Tony Derezinski (Ward 2) asked the city’s attorney, Stephen Postema, if a council committee could be subject to the Open Meetings Act (OMA). Postema indicated to Derezinski that it was not the OMA, but rather a council resolution [from 1991] that was the “operative document.” [It requires city committees to adhere to the OMA to the best of their abilities.]
But what about “advisory committees”? In explaining to Wieder why he wouldn’t be allowed to address the meeting, Rapundalo stressed that the RFP review committee was an “advisory committee.” Did Postema say anything about advisory committees last May?
For that, we need to go to the tape. It’s at roughly the 1:51:00 mark where Postema states [emphasis added]: “… if it’s truly an advisory committee … under the attorney general’s opinion and others, an advisory committee would not be covered under the Open Meetings Act, but it would still be covered under the council resolution.”
It’s difficult to see how simply encouraging people to contact the committee, or their councilmembers, or the city administrator outside of the committee meeting could be analyzed as serving the spirit of the Open Meetings Act requirement that a person be allowed to address a meeting.
If civic affairs in this city had a challenge flag that could be thrown, the booth review would have shown that Wieder was right and should have been allowed to address the meeting. Ah, but challenge flags and video review are for football. And this, apparently, is basketball we’re talking about.
Independent of the fact that the decision to refuse Wieder the opportunity to speak was inconsistent with the city’s policy on committee meetings, it just wasn’t smart.
Regardless of what you might think about the value of public participation in the abstract, there is a real practical benefit to not just allowing, but actually insisting that the public come and address meetings, particularly on controversial issues.
Thinking along purely adversarial lines, for proponents of the conference center proposal, Rapundalo squandered an opportunity to watch the other side scrimmage.
Thinking more cooperatively, refusing someone the opportunity to address a meeting leaves skill and expertise that exists in the community lying on the table. Certainly that skill and expertise – in the form of, say, critiques of the letter of intent – might eventually be brought to bear on the issue. Written communication after the fact could be used to improve whatever letter gets signed – or influence a decision not to sign the letter at all.
But there is, I think, greater value to injecting that skill and expertise in a more timely fashion, by including it in the public meetings that lead up to the “big game.”
Telestrated Version of Opening Paragraphs
Here are the X’s and O’s of this column’s opening paragraphs.
On Tuesday a capacity crowd packed a local Ann Arbor venue to watch a five-person team do its work. [The Library Lot RFP review committee consists of five members: Margie Teall, Stephen Rapundalo, John Splitt, Eric Mahler, and Sam Offen.] Part of the color commentary included talk of game-changing players [the conference center proposed by Valiant has been described as having the potential to be a "game changer"] and speculation about who had the best center of all the conferences [Valiant's proposal is for a conference center]. Everyone knew that whichever team prevailed on Tuesday would not win the whole tournament – it would just advance to the next round. [The recommendation to sign a letter of intent will ultimately require city council action.]
Here’s a highlight reel of how events unfolded on Tuesday. Play opened with a disputed call, and one of the fans nearly got tossed out of the venue. [Tom Wieder repeatedly asked to address the committee and was told by city administrator that he might be asked to leave.] There was a guy with a red sweater, reminiscent of those favored by Bob Knight when he coached the Indiana University squad, even though he was not the guy in danger of getting tossed – he was actually prepared to do the tossing. [Roger Fraser sported a red sweater vest.] Early on, the coach told the team about the “four corners” – which some older sports fans might recognize as a stalling style of basketball made popular by legendary University of North Carolina coach Dean Smith. [David Di Rita of The Roxbury Group called the what, where, when and how of the project the "four corners."] And the team managed to hold the ball for a one final shot, which it made. [The committee voted 5-0 to recommend that the city council approve a letter of intent.] The cheerleaders cheered. [Margie Teall offered that she thought it was a great idea.] The victors were valiant … hail, hail, etcetera. [The name of the development team is Valiant, which is an allusion to the University of Michigan fight song. The song's chorus begins with the line, "Hail to the victors, valiant ..."]
About the writer: Dave Askins is editor and co-founder of The Ann Arbor Chronicle.