Column: What Do We Pay Ann Arbor’s Mayor?

Ann Arbor mayor John Hieftje announced on Oct. 11, 2013 that he would not seek re-election to an eighth two-year term. That prompted Ann Arbor residents to begin speculating about who might seek election to that position in 2014. It’s a position that I think might just as well be called “chief pothole filler.” More on that in a bit.

One of the questions surely weighed by any potential candidate for Ann Arbor mayor is purely practical: What does the Ann Arbor mayor get paid? The $42,436 mayoral salary would, for some of us, represent a significant increase in annual income. For others, it would reflect a dramatic pay cut. A councilmember’s salary, at $15,913, is considerably less than the mayor’s.

My point in writing today is not to explore the policy question of mayoral or councilmember salaries. That’s a question ultimately determined by a public body called the local officers compensation commission (LOCC). The seven-member LOCC is supposed to meet every odd-numbered year and make a salary determination for the next two years. That determination takes effect unless rejected by the city council. If it’s rejected, then the salaries remain the same as they were.

A check of the calendar shows that this year is odd-numbered. And it turns out that as far as the LOCC is concerned, it is also an odd year. One odd thing is that the LOCC has not yet convened a meeting, with just about two weeks left in 2013. However, a notice came through from the city clerk’s office this week that a meeting of the LOCC is now scheduled for Dec. 16, 2013 at 2:30 p.m. in the third floor conference room of the Ann Arbor city hall – located at 301 E. Huron St. in downtown Ann Arbor.

The other odd thing is that if you attend that meeting, you will not see a seven-member public body convened around a conference room table deliberating toward a salary determination. Instead you’ll likely see just two commissioners – Eunice Burns and Roger Hewitt. The city’s online Legistar system shows them as the only members of the LOCC who have current appointments. Burns is a former city councilmember and a former member of the Ann Arbor Downtown Development Authority (DDA) board. Hewitt currently serves on the DDA board. The DDA connection is coincidental.

So my point in writing is to reflect on this question: Why does anyone think it’s reasonable, let alone legal, that the seven-member body responsible for determining mayor and council salaries could convene a meeting – with only two members who are appointed and serving? 

What Is a Quorum?

Ann Arbor’s local ordinance establishing a local officers compensation commission is based on the state’s enabling legislation. The state statute allowed cities to establish an LOCC and override salary provisions in city charters – without amending the city charter. That’s why Ann Arbor city councilmembers are able to receive an annual salary of almost $16,000, even though the city charter clearly states: “Each member of the Council, except the Mayor, shall serve without pay.”

The state enabling statute, and the local ordinance on which it is based, both clearly establish that Ann Arbor’s LOCC is supposed to have seven members. From the city ordinance:

The commission shall consist of 7 members who are registered electors of the city, appointed by the Mayor, subject to confirmation by a majority of the members elected and serving in the City Council.

The size of Ann Arbor’s seven-member LOCC follows from its population of roughly 114,000 and the state statute:

The commission shall consist of 5 members in a city of 20,000 population or less and 7 members in a city of over 20,000 population. The members shall be registered electors of the city, appointed by the mayor subject to confirmation by a majority of the members elected and serving in the legislative body.

So, what constitutes a quorum for this commission? That is: What’s the minimum number of commission members needed to convene a meeting at which business can be conducted?

Both the state statute and the city ordinance have identical language:

A majority of the members of the commission constitute a quorum for conducting the business of the commission. The commission shall take no action or make determinations without a concurrence of a majority of the members appointed and serving on the commission.

Here’s the same passage with added bolding and letters in parens to help identify phrases in the discussion below:

A (a) majority of the members of the commission constitute a quorum for conducting the business of the commission. The commission shall take no action or make determinations without a concurrence of a (b) majority of the members appointed and serving on the commission.

To arrive at an actual number of people necessary for a quorum, we must interpret (a).

1. Does (a) mean a majority of the prescribed number of commissioners? If it does, then (a) means the majority of seven (i.e., at least four commissioners).
2. Or does (a) mean a majority of those commissioners who have current appointments? If that’s what it means, then it translates into a majority of two (i.e., at least two commissioners).

A basic principle of statutory construction is that the law should be interpreted so as to avoid rendering superfluous any statutory language. I’m relying on a Congressional Research Service report from 2008 for support of that principle.  So by including “appointed and serving” in (b), the legislature should be assumed to have meant something that’s not merely superfluous through its inclusion.

But if the phrase “majority of the members” alone meant the same thing as “majority of the members appointed and serving,” then the inclusion of “appointed and serving” would be made superfluous. Thus, assigning an interpretation of (a) that is the same as the interpretation of (b) would disregard that basic principle of statutory construction.

Therefore, the definition of a quorum in (a) is not correctly interpreted as (b). So the definition of a quorum is not the “majority of members appointed and serving on the commission.” In terms of the numbering above, the interpretation in (2) is ruled out.

The only other reasonable candidate for the set of people to whom (a) refers is the majority of the prescribed number of members – i.e, at least four of seven. So the correct interpretation must be (1) above.

A simpler argument is based on a different principle of statutory construction: Avoid interpretations that lead to an absurd result. The interpretation (2) above leads to the absurd result that even a commission consisting of one appointed and serving member would be sufficient for a quorum to “meet” and determine mayoral and councilmember salaries.

I think it’s reasonable to ask: If legislators meant four, why didn’t they just say “four”? I think this is best explained by the fact that this boilerplate language works equally well for a body of any particular size.  And that explanation finds support in the language of the statute itself. The state statute contemplates LOCCs of two different sizes – one size (five members) for cities less than 20,000 in population and another size (seven members) for cities more than 20,000 in population. So rather than lay out twice the definition of a quorum – once for five-member LOCCs and again for seven-member LOCCs – the statute is crafted in a way that works equally well for both sizes of LOCC.

While reasonable minds can differ, I don’t think this is one of those gray areas where it can be reasonably argued that the two currently appointed and serving members of Ann Arbor’s LOCC could possibly achieve a quorum to conduct business.

Who Can Serve?

Of the two members of Ann Arbor’s LOCC with a current appointment, only one appears to be eligible – Eunice Burns.

Because he’s a current member of the Ann Arbor Downtown Development Authority board, I don’t think Roger Hewitt is eligible to serve on the LOCC. That’s because Ann Arbor’s LOCC ordinance reads in pertinent part:

No member or employee of the legislative, judicial or executive branch of any level of government or members of the immediate family of such member or employee shall be eligible to be a member of the commission.

One way a question like this can be settled is by obtaining an opinion from the Michigan’s attorney general. Elected state officials can request such an opinion, although the AG is not required to write one.

A couple of years ago, The Chronicle asked Alma Wheeler Smith, who was a state representative at the time, to request a formal opinion from the state attorney general answering the question: Can a member of a downtown development authority board serve on a local officers compensation commission? She agreed, and the AG indicated at that time that an opinion would be written. But before any opinion on the matter was issued, Wheeler Smith left office. And when we contacted the AG’s office later to check on the status of that opinion, the AG’s office had no record of the matter.

So we renewed the effort this year, with state representative Jeff Irwin. Irwin agreed to request the opinion, but this time the AG’s office explicitly declined to write one. However, I think there are three reasonable arguments that the Ann Arbor DDA functions as part of a branch of Ann Arbor’s local government.

First, in connection with the debate about the calculation of DDA TIF (tax increment finance) capture that has unfolded over the last two years, the city attorney’s office has contended that the DDA is the entity that’s responsible for the interpretation and application of Chapter 7 of the city code. From that it follows that the DDA is part of the city’s executive branch of government.

Second, the DDA is characterized in the city’s annual formal audit as a “component unit” of the city. That again points to the DDA’s status as a part of the city’s government.

And third, mayor John Hieftje has repeatedly and emphatically insisted that the DDA is an “arm of the city” – based on the kind of activity and actions the DDA has taken historically. That again points to an analysis of the DDA as a part of the executive branch of the city government.

Earlier this spring I communicated those three arguments in an email to city attorney Stephen Postema and several councilmembers, including Hieftje. [.pdf of May 9, 2013 email to city attorney Stephen Postema]

Falling Through the Cracks?

That May 9, 2013 email also alerted Postema and Hieftje, who makes the nominations to the LOCC, that the LOCC had at that time only two appointed members. From the email:

It’s worth noting that besides Hewitt, the city’s Legistar system indicates only one other member of the seven­ member LOCC has a current appointment (Eunice Burns). Given that the LOCC is required to meet sometime this year and make a recommendation on city council and mayoral salaries (as 2013 is an odd­-numbered year), we’d encourage you to advise your client in a timely fashion, so that the necessary appointments can be made to the LOCC.

The last time the LOCC met, back in 2011, the LOCC had only four members. The Chronicle’s coverage included the following [from "No Raises for Ann Arbor Mayor, Council"]:

Before the meeting was convened, as the commissioners were waiting for their full complement to arrive, they reflected on the fact that three vacancies exist on the seven-member body.

Mary Fales reported that there are not even three applications on file. She indicated that she’d informed the city clerk of the vacancies. But Bill Lockwood indicated that he’d been looking for vacancy listings for a different body and had not seen any vacancies listed for the LOCC. …

About the lack of applications, Eunice Burns said: “If no one knows, no one will apply.”

So I think the lack of adequate membership on the LOCC can be fairly described as an issue that the city’s leadership could have and should have known about. And neither Hieftje, nor anyone else, has taken action that’s resulted in filling the vacant positions on the LOCC.

Filling Potholes, Vacancies

During his unsuccessful campaign this year to win election to city council representing Ward 2, Kirk Westphal talked about the idea that filling every last pothole shouldn’t be a barrier to planning for and investing in the future:

Yet we’ve heard council members who have invoked all manner of excuses not to invest in our future. Excuses inspired by Sisyphus: We shouldn’t invest in the future until we have filled every pothole.

Accepting Westphal’s position, the analogy I would draw to the LOCC is this: Generally we should not rend our garments and raise lamentation to the sky that our local governance is some kind of abject failure, just because we have not filled every last vacancy on every one of the city’s myriad boards and commissions.

But when we can manage to fill just two out of seven potholes – on a road we’ve been driving for at least the last two years, somehow managing to ignore those bumps – then I think it’s fair to register complaint.

The LOCC is not just some obscure advisory body – some kind of tiny side street – with no real impact on our governance. If the LOCC were to make a determination that the mayor’s salary should be increased from roughly $42,000 to $60,000, then that’s what the mayor of Ann Arbor would be paid – unless the city council took action to reject that increase.

So what are Burns and Hewitt supposed to do next Monday, Dec. 16? If they’re advised by the city attorney’s office that they constitute a quorum and can meet and make a salary determination, then they’d likely feel they were shirking their duty not to do exactly that.

What choice do they have?

On Dec. 16 at 2:30 p.m., I think they have the choice to do what members of any public body can do if at the appointed hour for a meeting no quorum is achieved: Take reasonable measures to try to achieve one. In this case, I think those measures would include communicating to Hieftje that at least two more members need to be appointed to the LOCC so that the LOCC can achieve a quorum.

Later that same day, at 7 p.m. the city council will convene its last regular meeting of the year. At that meeting, the council could confirm nominations to the LOCC in a one-step process, if there’s an eight-vote majority. After those appointments were made the LOCC could meet and make salary determinations.

I’m not particularly enthusiastic about using a rushed process to appoint even just two additional LOCC members – because they serve seven-year terms.

But here’s a link to the application form anyway: [.pdf of standard city board and commission task force application]

A couple of applications could at least serve as something analogous to a wheelbarrow full of cold patch. But the mayor and council will need to do their part – and take action to tamp down that tar and gravel to fill the holes.

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