The Ann Arbor city council voted last Thursday to reject placing a question on the Nov. 6 ballot concerning the city’s contractual powers with respect to city parkland. The charter already requires that the sale of city parkland be subjected to a citywide referendum. That requirement stems from a 2008 voter-approved charter amendment.
The ballot question rejected by councilmembers last week would have asked voters if they wanted certain kinds of long-term leases on city parkland to require the same voter approval. Much of the debate this time around centered on what voters meant when they approved the charter amendment in 2008.
Next week, at its Aug. 20 meeting, the council will weigh whether to place a different question on the Nov. 6 ballot – asking voters if they’d like to tax themselves an average of around $10 a year to pay for public art. [For details, including the ballot language and charter amendment, see: "Ballot Questions: Parks, Public Art Funding"]
If the council pursues this specific proposal for a public art millage, then we will face another challenge in discerning voter intent – a challenge even greater than the one posed by the parks charter amendment. But it’s a challenge that can be easily met – by asking voters to vote on two separate questions, instead of just one.
The city already has a Percent for Art program, established by a 2007 ordinance, that requires 1% of all capital project budgets be set aside for public art – up to a limit of $250,00o per project. The program has generated a fair amount of controversy, partly because it’s not clear that it has a solid legal foundation. The city council also has considered but ultimately rejected a reduction in the percentage on three separate occasions since 2007.
The extraordinarily short time frame for consideration of the current public art millage proposal has led to considerable confusion about the legal effects of different millage vote outcomes. The short time frame is due to the fact that councilmember Christopher Taylor (Ward 3) unveiled the proposal for the first time at the council’s Aug. 9 meeting. It was not a proposal that had come through the city’s public art commission, though commissioners subsequently called a special meeting for Aug. 15 to consider it.
Here’s the ballot question that Taylor proposed:
Shall the Charter be amended to limit sources of funding for public art and to authorize a new tax of up to one-tenth (0.10) of a mill for 2013 through 2016 to fund public art, which 0.10 mill will raise in the first year of levy the estimated revenue of $459,273?
The corresponding charter language would be [emphasis added]:
Funds for Public Art
SECTION 8.24. In addition to any other amount which the City is authorized to raise by general tax upon the real and personal property by this Charter or any other provision of law, the City shall, in 2013 through 2016, annually levy a tax of up to one-tenth (0.10) of a mill on all taxable real and personal property situated within the City for the purpose of providing funds for public art, including but not limited to the permanent and temporary acquisition, maintenance and repair of works of art for display in or on public structures or sites and/or as part of or adjacent to public streets and sidewalks, and performance art on City streets, sidewalks or sites. Except for funds previously raised, set aside, allocated or otherwise designated to be used for public art, including such funds in the July 1, 2012 to June 30, 2013 fiscal year budget, and except for funds that are received by grant, gift, bequest or other donation to the City for public art, for the duration of this millage, the City shall not raise, set aside or designate funds for public art in any other manner. This millage also shall not preclude the grant, gift, bequest or other donation to the City of works of art.
If approved by voters, the proposal would, for a four-year period, suspend the Percent for Art ordinance requirement of the current set-aside for public art. If the millage were to fail, the ballot language would not eliminate or reduce the Percent for Art program. Indeed, if the millage were to fail, the ballot language would have no legal impact on the existing Percent for Art program.
The amounts of money per year that the two approaches would generate are roughly comparable – but at around $450,000 a year, the millage would generate somewhat more than the Percent for Art program has historically yielded, on average.
A key difference between the two approaches – Percent for Art versus a millage – is the way the funds can be used. Casually speaking, the Percent for Art funds – which are tied to capital projects – can be spent only on permanent, “monumental” types of art. Funds generated from a millage could be spent on nearly anything that someone could plausibly claim is art – including temporary works, or performance pieces.
So what would it mean if someone votes no on the proposed single ballot question?
A no vote could mean: “I do not support public spending on art.” That’s too bad, because a no vote implicitly supports leaving the Percent for Art program in place.
A no vote could also mean: “I support public spending on art – but only through the Percent for Art program.” That’s too bad, because some elected officials are prepared to analyze a failure of the millage as a lack of support for public spending on art and are willing, on that basis, to eliminate the Percent for Art program.
What would it mean if someone votes yes on the single ballot question for the public art millage?
A yes vote could mean: “I support public spending on art – even though I don’t think a millage is the best way to fund it. I’m voting yes because I don’t want my no vote to be misconstrued as a lack of support for public spending on art.” That’s too bad, because there’s no guarantee that a no vote would be interpreted by the city council as a lack of support for public art.
A yes vote could mean: “I do not support public spending on art – but if we’re going to spend public money on art, then it should be in a way that offers reasonable flexibility.” That’s too bad, because you’re agreeing to let the hand of local government reach into your pocket and take $10 a year out of it to pay for art.
What I think we might have learned from the park sale/lease charter amendment debate is this: What voters mean is something we’re going to argue about – no matter how simple and straightforward it might seem at first glance.
But even at first glance the public art millage ballot question does not seem simple and straightforward. We’ve been told that the state attorney general has approved the language as to its form. But it’s not clear (to me, anyway) that it meets the statutory standard requiring that the question is confined to a single proposition. Two propositions appear to be included in the single question: (a) Shall we enact a public art millage? and (b) Shall this millage be the only source of public art funding for the duration of the millage?
Even if the single question meets the attorney general’s review standard, I think it’s still a bad idea to place that in front of voters. Instead, it would be possible to ask voters clearly, in two separate questions, what they’d like to do. This approach would not require exploring the contents of the electorate’s collective mind to discern what voters meant. The two questions could be these: (1) Shall we enact a public art millage? and (2) Shall we continue to set aside funds for public art under the city’s Percent for Art ordinance?
If you don’t like the idea of public money being spent on art, then vote no on both questions. If you’d like both forms of funding (i.e., to increase current levels of funding), then vote yes on both questions. If you like one but not the other form of using public money to pay for art, then vote for one but not the other.
That’s the kind of choice it makes sense for the city council to give us on the ballot. If it takes a bit longer to work out the details of giving voters that kind of choice, then it will be worth the extra time. If the question doesn’t go on the Nov. 6 ballot then it can just as easily be placed on the ballot at a future election.
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