Comments on: City Council Sets Up for 413 E. Huron it's like being there Tue, 16 Sep 2014 04:56:38 +0000 hourly 1 By: Edward Vielmetti Edward Vielmetti Wed, 29 May 2013 22:18:43 +0000 I figured it was a no-lose appeal (27), but I was wrong; the city denied my right to appeal, stating that they had provided me with a full response to my request and that under FOIA I had no right to appeal.

The exact wording:

“Only denials of requests for public records may be appealed under FOIA. Your FOIA request 13-161 was originally partly denied, however the City then provided supplementary records fully granting your request. As there is no denial, and as your request for an appeal based on the content of the records is not provided for under FOIA, the City cannot process your request as a FOIA appeal. Your concerns regarding the content of the records have been relayed to the City Administrator.”

I think I may still have some rights under OMA, but given #28, I’m not sure how that plays out except in court.

By: Dave Askins Dave Askins Wed, 22 May 2013 01:13:10 +0000 Re: [32] “… provision that members remain as such until their term is renewed …”

The Legistar description for DACAC doesn’t indicate a provision for that. But there are two general provisions in the city charter and in the city code on boards and commissions, which could allow for the continuation of service beyond the expiration of an appointment term. I don’t think the condition is met for either the charter or the code.

Ann Arbor City Charter provision [not satisfied because there's been no consent of the Council given]:

With the consent of the Council, an [appointive] officer may continue provisionally, in office, after the expiration of the term of office, until a successor has been elected or appointed and has qualified for and assumed the duties of the office.

Chapter 8 City Code Provision [not applicable because the downtown citizens advisory commission not included in Chapter 8; also because it's been more than 60 days and the council hasn't extended the terms]:

Tenure of office. No member of any board or commission shall be allowed to hold over for more than 60 days beyond the term of office fixed by ordinance whether or not a successor has been appointed except that council may extend the term for periods of 90 days upon the recommendation of the mayor and vote of at least 6 members of council.

By: Steve Bean Steve Bean Wed, 22 May 2013 00:31:14 +0000 My recollection is that at least some city commissions have within their establishing ordinances/resolutions a provision that members remain as such until their term is renewed or replaced even after term expiration, perhaps even in the case of term limits. I don’t know if that is the case for the CAC.

I think that would be worth investigating before continued speculation.

By: Edward Vielmetti Edward Vielmetti Tue, 21 May 2013 23:18:17 +0000 #28, #29, #30 – well perhaps not a “no-lose appeal”, but pretty close. Appeals are free.

Worst case would be “we don’t have these records, and we don’t have to have them, and we don’t intend to provide them in the future”. I don’t think that’s good public policy, but at least it elevates the question from negligence to policy.

Better case is “we don’t have these records, and we will do a good faith effort to provide them in the future because they are required by city ordinance (even if not by state law)”, which is better policy.

The current state of affairs is that of lack of “wherewithal” to keep appointments current, so the minimum test is to bring this all into the public eye and correct the minor technical flaws in the current system. There’s a broader question as to whether the CAC is representative of citizens of downtown, but it’s hard to know who actually shows up at meetings to see if that’s a real issue.

By: Dave Askins Dave Askins Tue, 21 May 2013 22:46:26 +0000 Re: [29] “The enforcement provisions in section 13 of the OMA require an action to enforce the act to commence within 180 days of the OMA violation.”

That’s the timeframe provision for prosecution of intentional violation. In order to have the specific intent of violating the OMA, you have have a mental state something like, “Even though I know that I am required to do X under the OMA, I shall now decide consciously not to do X and to thereby violate the OMA.” I find it difficult to reconcile the idea of knowing the exact requirements of the OMA and then consciously violating the act, with the idea of not having the wherewithal to keep appointments to the body current. So I don’t think the idea of intentional violation is very plausible.

As far as litigating to invalidate a decision made by a public body that’s subject to the OMA, it’s only select portions of the OMA that can be the basis of such an invalidation. Failure to produce adequate minutes isn’t one of them. And on top of that, the downtown citizens advisory council is not capable of, I don’t think, making “decisions” in the relevant sense under the OMA – that is of effectuating a public policy.

And it’s still worth pointing out that it’s not obvious that the downtown citizens advisory council is a public body under the OMA, given the AG opinion to which I’ve linked above.

By: Jack Eaton Jack Eaton Tue, 21 May 2013 21:07:03 +0000 Re (27) & (28) Another question is whether the DACAC could actually meet in its official capacity after all of its members’ appointments expired in October 2012. Under either the OMA or the DDA act, if the committee has no members, can anyone be held responsible for failing to keep minutes or otherwise comply with the applicable statute?

The enforcement provisions in section 13 of the OMA require an action to enforce the act to commence within 180 days of the OMA violation. So any violation at the October 2012 meeting would need to be challenged by the Attorney General or a member of the public by the end of April (if my count is correct). With no members after October, there would be no “public officials” on the DACAC to hold accountable under the OMA (if that is the applicable law).

I did not look at the DDA act to see if it had an enforcement process or penalties for violations of the act.

By: Dave Askins Dave Askins Tue, 21 May 2013 19:40:07 +0000 Re: [27] “I figure it’s a no-lose appeal …”

The first step in arguing an OMA violation is to establish that the body in question is a public body that falls under the OMA statute. It would be worth reading through this 1977 opinion from the attorney general, with particular attention to the specifics of “advisory bodies” and then weighing what the arguments are that the downtown citizens advisory commission is or isn’t a public body falling under Michigan’s OMA: [link]

But even if the downtown citizens advisory commission is not a public body under the OMA, the existence of the commission is enabled by the DDA Act, and that statute itself sets forth requirements that its meetings must be open to the public, be properly noticed, with a record kept of its meetings and information presented at those meetings. But the language of the DDA statute is more vague and general than the OMA’s Sec. 9 about what must be included in that “record” of the downtown citizens advisory commission’s meetings.

By long-standing city policy enacted through a council resolution in the early 1990s, all boards and commissions of the city, whether they’re subject to the OMA or not, are supposed to conform with the Sec. 3 (basically on the openness of the meetings, but not including the section on minutes, which is Sec. 9) of the OMA to “the best of their abilities.”

By: Edward Vielmetti Edward Vielmetti Tue, 21 May 2013 18:58:54 +0000 #22 – I’ve received a full set of CAC minutes from 2012 and 2013. Not surprisingly, they all fail to fulfill the minimal requirements for minutes as set out by the Open Meetings Act. I’ve filed an appeal with the City Administrator, and hope to at least get a roll call of who has in fact been in attendance at these meetings if that is indeed available.

I figure it’s a no-lose appeal; either the minutes get brought up to par with what’s minimally required by the Open Meetings Act, or the city admits that it’s been violating the OMA if I get denied.

By: Mark Koroi Mark Koroi Mon, 13 May 2013 18:47:33 +0000 Wow!!

Steve Bean wants to pursue “Option #2″!!

By: Steve Bean Steve Bean Mon, 13 May 2013 15:39:28 +0000 Another interesting aspect of the DDA/TIF amendments discussion (that may or may not qualify as dysfunctional at the council rather than the individual level) is the apparent belief that council members are not acknowledged as having the rightful power to propose legislative changes without some effort at “collaboration”.

This isn’t very different from my initial observation of practice in #24, but the implications are different. I won’t comment on how this appears to have played out to this point on this matter, but it’s a misguided attitude that doesn’t make for good government. There are better ways of functioning.

I think our best hope in the very near term is that newest members Sumi, Sally, and Chuck have a fresher perspective and might see such confused thinking for what it is and might have the ability to constructively influence their colleagues.