I’ve read the Washington Court of Appeals decision in the Okeson v. Seattle case and there were probably a dozen different specific matters addressed in regard to art funded by revenues skimmed from City Power and Light, the City’s electric utility. The decision touched on permanent vs. temporary installations, installations that are allegedly for educational purposes, installations only placed to make an ugly substation more attractive to the public, or installations within the work spaces of CPL employees. Funding sources were also addressed. It was a mixed decision, with the court finding for both sides on various items, but in the end, the City ended up having to reimburse a large amount of art money back to the fund from which it had been taken. The result was a program with a lot of new restrictions–ones similar to Ann Arbor’s current ordinance.

That was Washington, and this is Michigan, where Ann Arbor is the first city to try this Percent approach. Here there are Michigan cases, and a constitutional amendment that might further impinge on what the City can or cannot do with revenues collected from millages and fees.

I actually agree with Council Member Kunselman, that this opinion really ought to come from the State attorney general. The city attorney is beholden to his city council clients and is unlikely to issue an opinion that is contrary to the existing ordinance, which he apparently green-lighted when it first passed. As much as I dislike the current attorney general, at least he will be above local politics. The question is, which State senator or legislator will make the request for an AG opinion on behalf of Ann Arbor citizens and Ann Arbor utility customers? Will city council support this open air, fact-finding approach, or discourage it? Will they keep trying to massage an unpopular program using secret legal advice or will they scrap it and start with something fresh, above-board and beyond reproach?

The Chronicle covered the issue of written City Attorney opinions in a January 2010 article. [link]

My point was, why ask for a written opinion (especially if it won’t be available to the public) if you can adopt a policy that accomplishes the protection of the restricted funds without legal advice? On the other hand, asking for a legal opinion might provide this Council an opportunity to insist on public release under section 5.2 of the Charter.

I gather from many accounts that the assignment of certain art to certain facilities is meant to counter the Bolt decision by saying that, for example, it is ok to use water utilities fees for the Dreiseitl sculpture because it features stormwater. But I think this could be challenged as an actual benefit to ratepayers. The use of parks millage monies to create art in parks may be more defensible.

I certainly agree that Council should reach beyond the mere question of legality, which is why I stated that we need a discussion of whether the program is not only legal, but a proper disposition of the public investment.

One specific element I would like to see addressed is the re-appropriating of fee revenues from providing the water or sewer services they were collected to cover, to art–especially fees collected from non-residents who did not even have the opportunity to vote for or against the council members who created this program.

Council can always decide to act in a manner that is more ethical than is minimally required. Let’s hope they aim high in this instance.

Who needs that?

Be careful what you wish for.

Even if it is not illegal according to a tight reading of the law, is it proper? There needs to be an adequate public discussion of that question too. The defeat of the millage with its mixed message is difficult to interpret, but it clearly showed a great deal of public unhappiness. I hope that the council committee will engage the public directly on these issues.

AAPAC was given the green light to move ahead with pretty much any project that has ever been mentioned at an AAPAC meeting–totaling over $600,000. Also, from what I’ve been told by a council member, there are no capital projects scheduled between now and April that would have 1% of their budget reallocated to Percent for Art. So, there was no money scheduled to come in, and they are free to keep spending. I ask again, what is being suspended here? If anything, there will be a rush to get all these “pipeline” projects started before April 1, which can’t be a good thing.

Will there be a city attorney or attorney general opinion issued on the legality of re-appropriating millage and fee revenues from water, sewer and road funds to art, prior to the newly-appointed committee coming to any conclusions? How else will they know how to move forward legally?