Column: On Taking Time to Hear

At the Aug. 18 Ann Arbor city council meeting, anti-Israel activists left council chambers mid-session. Their parting shot was to contend that the council cared more about deer than about people. The reference to deer was an allusion to an agenda item that allocated $20,000 for development of a deer management plan. It was approved by the council in a unanimous vote.

But this column is not about deer versus people. It’s about corporations versus people. Also football. Even the U.S. Constitution.

First, here’s some background. On Aug. 18, the anti-Israel activists had not been able to address the council during reserved public comment time at the start of the meeting – because the council rules stipulate that preference is given to speakers who want to address an agenda item. A boycott against Israel was not on the agenda.

So during that comment period, the council heard from five people who spoke in favor of spending the $20,000 on a deer management plan. The other five reserved slots were taken by: Thomas Partridge, who was officially signed up to talk about the planning commission’s work plan (one of the attachments in the clerk’s report); two people who signed up to talk about revisions to the taxicab ordinance; and two people who had signed up to talk about the lease agreement with the University of Michigan for three parking lots at Fuller Park.

That meant that anti-Israel activists were not able to reprise their demonstration at the previous council meeting, on Aug. 7, when eight of their group were signed up to speak. On that occasion, nearly all the commentary was complete. But then chants of “Boycott Israel” led mayor John Hieftje to recess the meeting. And he eventually decided to have Ann Arbor police clear the room of more than 50 activists. In this case, “clearing the room” translated into two officers telling the group’s leaders – Blaine Coleman and Mozghan Savabieasfahani – that they and their group had to leave. And after a few minutes, amid more loud chants and heated statements, the group left council chambers under their own power.

The contrast on obvious display at the Aug. 18 meeting was between two types of meeting attendees: (1) those who wanted to address the city council about an agenda item; and (2) those who wanted to address the council, but not on an agenda item.

That’s not the contrast I want to focus on. I want to focus on the contrast between two speakers who were alternates on the waiting list for reserved speaking time – both of whom wanted to address the council about an agenda item.

The two alternates were: Larry Baird, an Ann Arbor resident who signed up to talk about the Fuller Park lease agreement; and Michael White, a representative of Uber who was attending the meeting to speak against regulation of drivers for hire. Baird was slotted ahead of White on the alternate list.

The Person

Under the council’s rules, alternate speakers are assigned the slots of other speakers on the list if those slots are “vacated.” On Aug. 18, the first speaker on the list was Rita Mitchell, who was signed up to talk about the Fuller Park lease. When mayor John Hieftje started off public commentary, he called Mitchell’s name. A 10-second pause ensued as Mitchell did not approach the podium or say anything. Hieftje scanned the room. Ward 4 councilmember Jack Eaton then pointed her out, in the audience on the north side of the council chambers.

She remained there, telling Hieftje, “I’m electing not to speak.” Under the council’s rules, it would not have been allowed for Mitchell to transfer her speaking time to someone else. But she was within her rights to vacate the slot – which she did, first by not saying anything and then, when Hieftje addressed her, replying, “I’m electing not to speak.” So when the other nine speakers had completed their turns, Larry Baird – as the first alternate – should have been allowed to speak, according to the council’s rules.

Here’s what happened instead. Hieftje ended the public commentary section. Ward 2 councilmember Jane Lumm ventured there was another speaker left. But Hieftje disallowed Baird’s turn as Baird approached the podium, explaining “Ms. Mitchell was here and chose not to speak. It’s not as if she wasn’t here. And so we’re gonna continue with our agenda.”

The incorrect application of the council’s rule by Hieftje meant that Baird’s only guaranteed opportunity to speak during the meeting would come after the council’s action on the Fuller Park lease, at the end of the meeting.

The Corporation

In that regard, Uber – in the form of Michael White – was in the same boat as Baird. But later in the meeting, the council chose to invoke a different rule, which worked to Uber’s benefit.

When the council came to the taxicab ordinance on the agenda, Uber was invited to the podium to speak. Under the council’s rules, any councilmember can invite someone to address them outside of public commentary reserved time, unless three councilmembers object. No one objected when Lumm invited Uber to the podium.

Uber spent about 25 minutes at the podium doing a great job of not actually answering point-blank yes/no questions posed by councilmembers, but hammering all of Uber’s standard marketing points.

Having used Uber a half dozen times, I would note in passing that I think those are easy marketing points to hammer – because Uber provided a great travel alternative when I used it. If concerns about safety and equity can be sorted out, I think rideshare services should have a place in Ann Arbor’s transportation marketplace.

However, based on Uber’s performance at the podium, I’ll probably be giving Lyft a try.

People Versus Corporations

When the council came to the Fuller Park lease item, Baird was still present in council chambers and available to speak. But no councilmember was stirred to invite Baird to the podium to deliver the three-minutes of rightful in-person public commentary he’d been denied. The council voted to postpone the lease item, without hearing from Baird, who was not able to stay until the end of the meeting to address the council at that time.

So the real contrast on display at the Aug. 18 Ann Arbor city council meeting was not deer versus people. It was corporations versus people. What I observed was a council that was – at least on that occasion – more interested in hearing from a corporation than it was from a person who lives here.

Bear in mind that Ann Arbor city councilmembers are the sort of folks who are content to state publicly their personal opposition to the U.S. Supreme Court’s Citizens United v. Federal Elections Commission decision – which determined that corporations are people for the purposes of political campaign contributions. (That statement about the sentiments of councilmembers appears to be true, even if not all of them were willing to vote yes on a resolution in 2012 calling for the U.S. Congress to send a constitutional amendment to the states to overturn the ruling.)

And councilmembers routinely compete with each other in this kind of contest: Who can talk longer about the importance of public input? A few years ago, the council even enacted a public participation ordinance, requiring all developers to meet with residents in the early stages of proposed new developments.

Political Football

But when it comes to the practical implementation of that stated value of public participation, John Hieftje dropped the ball on Aug. 18.

As a quarterback of the council, Hieftje has never been particularly sure-handed, so that fumble wasn’t surprising – and consequently, not all that disappointing. What’s truly disappointing, to me at least, is that no one on Team Council dove into the pile to make the recovery. Jane Lumm might have come closest to that, when she ventured that there was another speaker remaining – after Hieftje announced that public commentary was over.

So Lumm at least yelled “FUM-BLE!” But Hieftje responded by declaring that the alternate speaker wouldn’t be allowed to speak – because Rita Mitchell was present in the audience.

At that point, no one on the council threw a red challenge flag – by asking that the text of the rule be reviewed, to see if and how it applied. At the end of the meeting, during council communications, Sumi Kailasapathy raised the question by citing the relevant council rule, stating that a mistake had been made. She asked if the situation could be rectified in some way. But as Chuck Warpehoski pointed out, following up on Kailasapathy’s sentiment: A point of order needs to be raised at the time the issue arises.

Otherwise put, you can’t ask for a review of the play after the game is over. So in the future, the council has to be ready to throw that challenge flag onto the field before the next play starts.

Knowing the Rule Book

Kailasapathy knew the exact wording of the rule by the end of the meeting, because I showed her the text of the rule during a recess. During that recess, I gave her and Stephen Kunselman (who were standing together) not just the rule but also a piece of my mind – because they’d sat mute at the council table and had not defended Baird’s right to speak under the council’s rule.

Kunselman responded by saying he didn’t have all the council’s rules memorized. Well, I don’t have them memorized, either. But I do know how to look stuff up [emphasis in bold italics]:

Public Commentary – Reserved Time:
A total of 10 speakers shall be allowed to address Council during the time designated as Public Commentary – Reserved Time by signing up with the City Clerk either in person or by telephone. Each person may speak a maximum of 3 minutes. Speaking times are not transferable, and vacated speaking times shall be assigned to the two alternate speakers on the waiting list. Speakers may not use public commentary-reserved time to address Council on an agenda item for which a public hearing is scheduled for the same meeting.

And the only thing any councilmember needed to do was to ask for a pause in the action: “Is that really the rule, Mr. Mayor? Can we take a minute and look that up?” To look up the rule would have taken any councilmember about as long as it took me, even while I was typing out live updates of the meeting – about 10 seconds at their laptop computer.

Granted, the inclination to look something up in the council rules is premised on having some doubt about the presiding officer’s determination. But I think any scenario that involves a citizen poised to speak, like Baird was, followed by a denial of that opportunity to speak, should itself trigger a big floppy red flag of doubt: Are we really justified under our own rules in denying someone the right to address us right now?

That didn’t happen, because the culture of the Ann Arbor city council does not include routine, matter-of-fact consultation of rules and laws – even though they are really easy to look up with modern digital technology.

Knowingly Misapplying the Rule

The day after the council meeting, I sent each councilmember a one-question emailed survey. It asked for their assessment of Hieftje’s application of the rule, which had the effect of prohibiting Baird from taking his rightful turn during reserved public commentary.

Of the eight councilmembers who responded, some hedged a bit, but all indicated at least some inclination toward the idea that the rule had been misapplied and that Baird should have been allowed to speak. Ward 2 councilmember Sally Petersen’s response was interesting, because she speculated about Hieftje’s interpretation of the rule. From Petersen’s email:

I considered this a “vacation” rather than a “transfer” of speaking time. I think Mayor Hieftje considered it otherwise because Rita was there in person. It’s up to interpretation because the rule doesn’t specify the condition when the person is present.

Hieftje himself was quite clear about his own interpretation of the rule. During the council’s recess, when I confronted him about his apparent mistake, I assumed his error stemmed from the fact that he just didn’t know the exact rule. But he insisted he already knew what the rule was, when I recited it to him: “I know what the rule says, Dave.” So I told him that only a perverse interpretation of the rule would allow Mitchell’s words – “I’m electing not to speak” – to be interpreted as an attempt to “transfer” speaking turns, or as an actual speaking turn.

Hieftje’s reply was incredible to me: He stated that it was not his interpretation that Mitchell’s words were an attempt to transfer her speaking turn to someone else; however, “I was concerned that someone else might think that.”

I’ve made an emailed query to Hieftje to invite any elaboration he might like to make on that statement, to which I have not received a reply. But based on the context of the Aug 18 and Aug. 7 meetings, it appears that Hieftje deliberately misapplied the rule due to the presence of anti-Israel activists – because he was afraid they might use that as an opportunity to object to an inappropriate “transfer” of speaking turns and possibly cause a disruption of the meeting.

Hieftje’s response to Kailasapathy at the end of the meeting is consistent with that understanding. Hieftje came close to admitting that he misapplied the rule. He told Kailasapathy that the council’s rules were under very close scrutiny, and pointed to the events of the last few days:

I will take another look at that. I’m happy to do that. The speaker was indeed here … I understand that it states “vacate” and I will agree to take a close look at that. But I also want you to understand that our rules are under a special scrutiny right now given what’s transpired at the last few council meetings, and we are paying very close attention, both at the clerk’s office, and throughout the city, to make sure that people believe that those rules are being administered fairly. At the last meeting we had three or four people who showed up to speak because they’d been told they could speak under public comment and yet they didn’t have a spot on the agenda. So we’re just being especially careful right now. And maybe I was being too careful.

So this unfortunate incident ultimately stemmed from an apparent concern by Hieftje that his own preferred interpretation of the council’s public speaking rule – about vacated speaking turns being assigned to the alternate speakers on the waiting list – might provoke the ire of anti-Israel activists. So he opted to err on the side of denying someone a rightful opportunity to speak.

A slightly different possibility – one raised by Margie Teall in her response to the emailed one-question survey – was that the mayor’s concern related to a possibility that a “loophole” would be created. Teall was absent from the meeting, but clearly got an account of the meeting from other sources. From Teall’s response:

My concern is that this could become a loophole around the sign-up time. Had [Baird] been one of the first 10 to sign up, he would have spoken regardless. What Rita [Mitchell] did gives me pause, and could be used in the future to secure speaking times for others who are unable, for whatever reason, to sign up when others are required to.

It’s worth noting that alternate speakers are required to sign up, just like the other speakers. So it’s not allowed for someone to sign up for a speaking slot, and then take some action to cause the slot to transfer to a person who has not signed up. That’s the “non-transferable” clause of the council rule.

It’s not clear to me what advantage this purported “loophole” described by Teall might afford to anyone who sought to exploit it. Nor is it clear what detriment there might be to anyone, if someone were to choose to exploit this “loophole.”

U.S. Constitution

To sum up, the council used its own internal rules to give greater deference to a corporation’s right to speak at its Aug. 18 meeting than it did to a person’s right to speak under those rules.

But who cares about the Ann Arbor city council’s dumb old rules? They’re just the stupid rules of a local government unit. It’s not like they’re the U.S. Constitution.

But they are like the U.S. Constitution. And here’s why. Take a look at the First Amendment, just look at it – with emphasis added in Hieftje’s preferred email font:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

So the First Amendment is, among other things, about a right to petition the government. This is more fundamental even than a requirement imposed by Michigan’s Open Meetings Act (OMA): A public body must provide an opportunity for the public to address it during its meeting.

So when the city council sets up rules for public commentary, it’s not just establishing the exact manner in which the council will comply with the OMA. Those rules also establish one formal mechanism under which someone can petition the local government – which is a constitutional right. So when the council mucks about with the application of its public speaking rules, it’s mucking about with the right to petition the government.

That’s not to say that it’s necessarily a violation of someone’s constitutional right to petition if their right to speak under the council’s rules is denied. There are plenty of other ways to petition the Ann Arbor city council, including sending them email. Uber knows that well enough. Margie Teall noted in her response to my one-question survey that she’d received over 1,800 emails (!) about the taxicab ordinance via Uber’s online petition.

And Baird told me that he’d sent his planned remarks by email to the council before the meeting. Of course, that doesn’t justify Hieftje’s misapplication of the public speaking rule. Listening to someone read aloud for three minutes is not the same thing as glancing through a few hundred words of text. Written petitions are different in kind from oral petitions.

Conclusion: Simplify Access

Most Ann Arborites won’t care if someone did or didn’t get a chance to speak at a city council meeting. That’s because most Ann Arborites don’t think of their local government as a government of them, by them, or for them – because they’ve got way better things to do with their giant brains than think about anything as trivial as local government. I’d hazard that there are more Ann Arborites with a deeply held opinion about Obamacare than have a strong view on a need for a new, improved local rail station.

So we’ll continue to elect folks to the jobs of city council and mayor who are content to engage in a regular tussle over a relatively small fraction of the total votes that could potentially be cast in a local election. I don’t think there’s any particular incentive for our current local electeds to look for ways to increase participation in those elections, or in the boring, routine work of our collective governance.

That boring work might entail showing up to a city council meeting every once in a while and telling councilmembers what’s on your mind – for a minute or two, or even for the current maximum of three.

If someone does show up and they’ve followed the rules, the least we can do is ensure they’re allowed to speak. Figuring out what the rules are – when you have to sign up, which speakers get preference, and (now apparently) what counts as vacating a speaking turn – is one barrier to participation in Ann Arbor’s local governance. That’s because the Ann Arbor city council has enacted procedures designed to limit and discourage public comment, not to promote and market it.

I think it should be possible in one sentence to explain to any newly-arrived resident in Ann Arbor how to address our local city council: Show up at one of their regular meetings, at 7 p.m. on the first and third Mondays of the month, and sign in. That’s it.

Of course, if everyone who shows up and wants to speak is allowed three minutes, then we could routinely wind up with a citizens filibuster. But suppose we set an upper limit on the total time for public commentary. And suppose everyone who showed up and signed in was allowed 30 minutes divided by the number of people who’d signed up – with the proviso that the minimum time allowed to any speaker was a minute. That type of scheme would be a lawful way to provide for public commentary under Michigan’s Open Meetings Act, according to Attorney General Opinion #5332.

So that’s one small specific concrete suggestion for improving the ease of participation in our local governance. If the new edition of the council to be elected in November has additional or better ideas for including a wider swath of the community in our local governance, I will cheer for all that. But after Sept. 2, of course, my cheers won’t come from the hard benches of city council chambers.