Comments on: Ann Arbor Public Art Funding Suspended it's like being there Tue, 16 Sep 2014 04:56:38 +0000 hourly 1 By: Tom Whitaker Tom Whitaker Wed, 05 Dec 2012 16:43:38 +0000 I don’t know whether it would be eloquent and reason-filled or not, but based on the odd provisions in the current ordinance, it appears there was at least some previous recognition within the confines of City Hall that this wasn’t simply yea or nay matter.

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?

By: Jack Eaton Jack Eaton Wed, 05 Dec 2012 14:06:34 +0000 Tom and Vivienne, you may be right that our City Attorney produces the finest of legal reasoning in long eloquent written opinions. We cannot know for sure. While Section 5.2 of the City Charter requires the City Attorney to file copies of his written opinions with the City Clerk for all to access, our City Attorney has never done so.

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.

By: Vivienne Armentrout Vivienne Armentrout Tue, 04 Dec 2012 20:01:34 +0000 I would hope that the City Attorney’s opinion goes beyond simply “it is legal”. He would have to advance his reasoning. I hate to contradict two lawyers on this, but my understanding of how the law operates is that it is a case of presenting arguments and showing precedents. If those could be clearly laid out for public scrutiny, it offers the public (including lawyers) a chance to rebut the reasoning.

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.

By: Tom Whitaker Tom Whitaker Tue, 04 Dec 2012 19:32:22 +0000 I don’t think the opinion would be as cut and dry as, “it’s legal” or, “it’s not legal.” I think it would have a number of nuances that could guide the shaping of any ordinance revisions, or the creation of a new ordinance.

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.

By: Jack Eaton Jack Eaton Tue, 04 Dec 2012 19:27:02 +0000 I agree with David Cahill. The City Attorney is likely to find the diversion of restricted funds to art that is “related” to its funding source is legal. Rather than accept an opinion that the practice is arguably legal, Council should establish a policy to protect restricted fund accounts from such diversions. Council can decide to protect those accounts without seeking a “legal” opinion.

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.

By: Dave Cahill Dave Cahill Tue, 04 Dec 2012 19:13:04 +0000 I am sure the City Attorney thinks the diversion of funds into the 1% for art program is legal. I think he is right. If he is somehow forced to issue a written opinion, that is what it will say. I can see the headline now: “City Attorney Rules Art Program Legal.”

Who needs that?

Be careful what you wish for.

By: Vivienne Armentrout Vivienne Armentrout Tue, 04 Dec 2012 18:25:57 +0000 Yes, Tom makes a good point. Many of us have repeatedly said that we believe the Percent for Art program to be illegal. This is based on two Michigan cases and there is also at least one case elsewhere. We have also heard that the city attorney says it is not illegal. The committee could do a great service by exposing the arguments and counterarguments on its legality to public scrutiny.

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.

By: Tom Whitaker Tom Whitaker Tue, 04 Dec 2012 18:10:46 +0000 What exactly is being suspended here?

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?