Column: Email and Open Meetings

Fun and games aside, policy issues should be openly discussed

As we reported more than a month ago, a Freedom of Information Act request made by the Great Lakes Environmental Law Center – in connection with a possible environmental lawsuit against the city of Ann Arbor – yielded records of email correspondence between Ann Arbor city councilmembers made during some of their regular council meetings.

In that article, we indicated that the “the content seems to fall into two categories: (i) adolescent humor, and (ii) apparent ‘backchannel’ discussion of issues before the council, which raises more serious concerns.” The content of some of those emails has now been published in various forms in other media outlets.

We begin our own treatment of this episode in city politics by providing historical context for the Ann Arbor community’s concern about city council email exchanges during council meetings – one that predates the FOIA requests by GLELC.

In that context, we’d like to consider one of the email exchanges in more detail and use it to illuminate ethical issues surrounding the use of electronic communications during official meetings. And on that basis, we’ll explore some possibilities for the use of technology to push information to the public, instead of using it to screen decision-making processes from the public. In addition to the ethical and informational issues, there are legal questions that arise from these FOIA-ed materials. Those legal questions relate to possible  violation of the Michigan Open Meetings Act, as well as the city’s preparedness to meet the requirements of FOIA when electronic records are requested.

Historical Context

The recent publication by The Ann Arbor News of excerpts of the email exchanges between Ann Arbor city councilmembers during their meetings has provoked intense criticism of councilmembers by The News (in a June 7 editorial) and by the newspaper’s readers. The criticism has been appropriately harsh, and some councilmembers have now issued apologies.

In an online comment posted on in response to a June 7 Ann Arbor News article, Christopher Taylor (Ward 3) contended he was treated unfairly by The News – a single-word reply he had made was not presented in its accurate context by The News, and he’d been given no opportunity to clarify that context before publication. Apologies from Carsten Hohnke (Ward 5) came on the radio Tuesday morning (June 9, 2009) with Lucy Ann Lance on WLBY 1290AM, and from Leigh Greden (Ward 3) and Margie Teall (Ward 4) via emails sent to some of their constituents.

Criticism of councilmembers for managing email correspondence – or working on their city-issued laptop computers – during their meetings is not new.

On March 29, 2009, LuAnne Bullington (former city council candidate in Ward 3) wrote in a letter to the editor published in The News:

While citizens speak, these council members type away on their computers, whisper to each other and giggle like schoolchildren. Some council members don’t even look at the people speaking to them.

And more than a year ago, on April 8, 2008, Ann K. Dilcher wrote in a letter to The News:

I always question the use of laptops by the council members. They often seem more tuned into their screens than the presentations from the floor. The members may be looking up important documents that relate to the discussion or may be e-mailing family – as an observer, you just don’t know. I think it would be good for them to consider going “topless.”

Councilmembers themselves have historically defended multi-tasking with their laptop computers during meetings as an efficient use of their time, and have not tried to hide the fact that emailing takes place during council meetings. They have also not tried to hide the fact that on occasion this emailing bears in a substantive way on deliberations. As we reported in our Jan. 5, 2009 report on a city council meeting, during deliberations on the postponement of the City Place PUD application, Leigh Greden (Ward 3) announced that the contents of an email he’d received factored into his rationale for a postponement.

Greden indicated that his reasons for postponing had gone from two to three in light of an email he’d just received.

That effort to postpone ultimately failed. In light of The Chronicle’s report of that meeting, some readers inquired with us about Greden’s use of email during the meeting. Here’s my reply to one of those inquiries in excerpted form:

There’s no doubt that the open meetings act and FOIA have not kept pace with current communications technology. I’d note that Greden simply referenced an email – who it was from (a council colleague, a random citizen, the developer, his mom … ) is anybody’s guess. Which, I take it, is part of your point: we shouldn’t have to guess.  … It’s a general issue that I’m attuned to, but would most likely require devotion of considerable resources in order to do it right. I think to take aim at this particular instance of a reference to an email by Greden would come off as a “pot shot.”

Prompted in part by Greden’s announcement about the email at the January meeting, The Chronicle has since then urged the Ann Arbor city council to move its workings more squarely out of the realm of email and into public view. That urging has taken the form of encouraging council members to use their Sunday night caucus in a way that is more constructive than its current use – which can fairly be described as yet another occasion on which to passively entertain input from the public.

And that urging has been coupled with an encouragement by citizens to play a constructive part in a productive Sunday night caucus: one that results in council sharing publicly the way it slogs through its workload. The public’s role in that, we’ve suggested, is to ask “journalist-citizen” questions. In published form, that suggestion was included in our most recent Monthly Milestone, but in draft form, it’s something I’ve conveyed  to several people privately. Here’s a different excerpt from the same reply above to the inquiry about Greden’s email:

Sure, council members sometimes interrupt and ask clarificational questions, but typically the communication is one-way: citizens speak their mind and all council members have to do is sit and listen politely. Imagine, though, a scenario where a citizen had on Sunday asked these questions of councilmembers:

  1. What have your conversations (if any) with members of the planning commission focused on?
  2. What have your conversations (if any) with the developer focused on?
  3. Does the “by right” threat factor into your analysis how to vote? If so, how?
  4. What standards should the council apply in not following a recommendation by the planning commission?

The only change I’ve noticed in Sunday night caucus since The Chronicle has made these efforts is that Mayor John Hieftje now introduces the event by stressing that it’s optional for councilmembers to attend and that many of them have family obligations that preclude their attendance.

Efforts by The Chronicle to be included on correspondence from councilmembers to city staff with their “caucus questions” has also met with minimal success. And efforts to be copied in on the staff response to their emailed questions has not yet met with success, despite good faith efforts made by the city attorney to put such a mechanism in place. We’re still optimistic that eventually some kind of mechanism can be established.

It’s in that context that The Chronicle has executed a FOIA request for additional electronic mail records from the city. Factoring in the extension which the city is allowed by law to take, the deadline for compliance with that request is June 15, 2009.

Deliberations on Postponement?

In their public apologies for their emails, some councilmembers have stressed that their future emails during council meetings will not involve the kind of irreverent non-city-related business that has provoked intense criticism from the community. In her emailed apology, for example, Teall wrote: “Any further non-business e-mailing during Council meetings has ceased, and will not continue.”

It is the business-related emailing, however, that warrants our attention, especially because the now-apologetic councilmembers seem to indicate that it will continue unabated.

To illustrate one kind of email exchange that GLELC’s FOIA brought to light, we examine one in which councilmembers – during the Feb. 17, 2009 council meeting – write about the possibility of a postponement of site plan approval and the authorization of bonds for the Fifth Avenue parking garage. For the sake of readability, we’ve excluded some back-and-forth about a “rate-setting meeting” that was included in the message bodies of some exchanges. [The exchanges are in the file "pack5.txt" at the conclusion of the article.]

Sent: Tuesday, February 17, 2009 7:19 PM
From: Hohnke, Carsten
To:  Smith, Sandi

I assume DDA would not be happy with a
postponement of the structure, yes?


Date:  Tue, 17 Feb 2009 19:35:05 -0500
From:  Smith, Sandi
To:    Hohnke

True. But postponing to a date certain
may be palatable...


Sent: Tuesday, February 17, 2009 7:40 PM
From: Hohnke, Carsten
To: Teall, Margie

Are you supportive of postponing the structure?


Sent: Tuesday, February 17, 2009 7:41 PM
From: Teall, Margie
To: Hohnke, Carsten

No. Why is anyone thinking about it?


Sent: Tuesday, February 17, 2009 7:43 PM
From: Hohnke, Carsten
To: Teall, Margie



Sent: Tuesday, February 17, 2009 7:44 PM
From: Teall, Margie
To: Hohnke, Carsten
Cc: Greden, Leigh

But why?


Sent: Tuesday, February 17, 2009 7:46 PM
From: Greden, Leigh
To: Teall, Margie; Hohnke, Carsten

She's against 5th/Division and wants time
to work on excluding that.


Sent: Tuesday, February 17, 2009 7:49 PM
From: Teall, Margie
To: Greden, Leigh; Hohnke, Carsten

Doesn't that put her squarely against Sandi?


Sent: Tuesday, February 17, 2009 7:49 PM
From: Greden, Leigh
To: Teall, Margie; Hohnke, Carsten

Yup. And against Hewitt and maybe Gunn.
I told her that. She doesn't care.


Sent: Tuesday, February 17, 2009 7:50 PM
From: Teall, Margie
To: Greden, Leigh; Hohnke, Carsten

She cares...


Sent: Tuesday, February 17, 2009 7:55 PM
From: Greden, Leigh
To: Teall, Margie; Hohnke, Carsten

She said she doesn't.


Sent: Tuesday, February 17, 2009 7:56 PM
From: Teall, Margie
To: Greden, Leigh; Hohnke, Carsten

She told me what you said, and she was not happy...
I think she does care.
Does Sandi know what's going on?


Date:  Tue, 17 Feb 2009 19:56:33 -0500
From:  Greden, Leigh
To: Teall, Margie; Hohnke, Carsten

I was only telling her the truth.


Sent: Tuesday, February 17, 2009 8:27 PM
From: Higgins, Marcia
To: Briere, Sabra; Smith, Sandi
Subject: I won't be asking for a postponement

[message body was empty as it was conveyed
in the subject line]


Sent: Tue 2/17/2009 8:27 PM
From: Smith, Sandi
To:  Higgins, Marcia
Subject: RE: I won't be asking for a postponement



Other FOIA-ed material by GLELC makes clear that the issue of postponement had been raised by resident Steven Bean with councilmembers up to the day of their meeting. [Bean is also chair of the city's environmental commission, but raised the issue as an ordinary citizen – the environmental commission's input was not sought on the underground parking garage.] Bean’s concern was different from the one attributed by Greden to Higgins in the above email exchange.

In an email addressed to all councilmembers on the day of the meeting, Bean wrote:

I believe that a delay is fully justified given the state of the economy, the upcoming addition of several hundred new parking spaces elsewhere downtown, the incomplete implementation of alternatives for managing peak parking demand, the lack of consideration of environmental impacts (such as greenhouse gas emissions) from increasing parking supply, and the likelihood of a permanent decrease in parking demand early in the lifetime of the proposed structure. (The last two might seem contradictory, but any increase in emissions, no matter how short-lived, would be very detrimental.)

Replying to Bean at one point during their back and forth, Greden wrote: “I enjoy these debates!” Bean responded:

Me too! Why didn’t we (all) have one on this before council decided that the best alternative was an underground structure at the library lot? Or before they asked the DDA to get a design for one? Or before the bond sale was approved? (Okay, we’re a few hours away still.) Or …? Well, at least you and I are having it.

Ethical Issues

John Chamberlin is founder of Center for Ethics in Public Life at the University of Michigan’s Gerald R. Ford School of Public Policy, and spoke with The Chronicle by phone a few weeks ago – but not about the specific emails that have since been published. Reacting to our summary of some of the emails as “adolescent humor,” Chamberlin said at the time, “They ought to know better. There is no public purpose served.”

But emailed communication could serve a public purpose. As for the general question of emailed communication, Chamberlin suggested that one way to frame the issue was by asking if those communications were a substitute for some other mechanism that did serve a public purpose, and asking if that mechanism was something that needed to be brought into the open.

If the communication is a substitute for deliberations on a matter before the council, Chamberlin said, then that communication should obviously be opened up: “You’re acting in your official capacity as a public official. You have hidden part of your commentary.” It’s certainly okay for two members of council to talk, he noted, but the question of whether they should be able to talk privately during a meeting is a different question. You’re permitted to lean over and whisper in someone’s ear, he noted. Such a conversation could be a clarificational matter as simple as “What did he say?” and possibly be more efficient than calling for a recess from the meeting.

But Chamberlin allowed that one of the ways that leaning over and whispering in someone’s ear is different from email is this: It’s readily apparent that some sort of communication is taking place when such whispering occurs – emailed communications are not so readily apparent. Working at a laptop looks much the same to an observer, whether someone is emailing or looking up material on the internet.

In evaluating the ethics of the email exchanges above – about a possible postponement of the parking garage decision – it’s apparent that a postponement was an option that some members of council might have been willing to entertain, even if there were not enough votes to pass a postponement.

There had apparently been conversations before the meeting among various parties on the merits of a postponement. Yet there were no deliberations on the question of a postponement, because no motion to postpone was brought. The emailed exchanges, then, served as a substitute for a conversation at the table about whether a motion to postpone would be brought, as well as a substitute for a conversation at the table about the fact that there had been discussions prior to the council meeting about the possibility of postponement.

If those prior discussions about a postponement had been conducted in a public meeting, then the email exchanges would not necessarily count as a substitute. However, those discussions apparently did not take place in public meetings. One opportunity to talk publicly about the issues related to the postponement would have been the council’s regular Sunday night caucus. However, that meeting was cancelled by Hieftje.

On the standard of whether the above email exchanges were a substitute for communication that should have otherwise been made openly at the council table, I think that they were a substitute. One need not conclude that those actual exchanges qualify as “deliberations” in order to reach that conclusion. And on that basis, I think it’s a fair assessment that the exchanges do not reflect an ethical approach.

Informational and Organizational Issues

If city councilmembers are inclined to use email exchanges as a substitute for communications that should otherwise best be made publicly, then it is worth reflecting on the mechanisms available to the media and the public at large to compel the public availability of those communications.

One obvious tool is to make a request based on the Freedom of Information Act.

Based on the method with which the city of Ann Arbor appears to have complied with GLELC’s FOIA requests, the city does not  seem to be ideally prepared to deal with requests under FOIA for a modest volume of electronic records. In the GLELC corpus, the email exchanges among councilmembers that were provided under FOIA were apparently identified by requesting that councilmembers voluntarily forward them to assistant city attorney Abigail Elias.

Otherwise put, the relevant emails do not appear to have been identified through a computer server-level query, as might be reasonably expected. Even assuming that councilmembers complied in good faith with the request – a fair assumption – human error among 11 councilmembers could result in accidental failure by the city to produce records as required by law.

If the records were identified by both means – voluntary forwarding, plus a server-level request – then it’s fair to ask what purpose the voluntary forwarding served. There have been conflicting reports, but my best current understanding is that The Chronicle’s FOIA request is being completed via a server-level query.

The format of provided documents is another way to evaluate how prepared a public body is to meet FOIA reqeusts. The format of the documents provided to GLELC under FOIA was paper printouts of emails. But the 1994 case “Zeeff v. City of Ann Arbor” makes clear that the original electronic format for FOIA-ed materials can be compelled. Why not provide the format that a requester could compel anyway?

In at least some cases, the city of Ann Arbor seems to opt for needlessly complex solutions to FOIA requests. In an unrelated FOIA request made recently with which The Chronicle is familiar, a request for city staff compensation data was met by the city in the following way: (1) print out the electronic report, (2) physically mask names of personnel, (3) scan the masked document to create electronic images, (4) run an image-to-text program on the scanned image, (5) provide the resulting electronic output as the requested record. As The Chronicle was processing the material, the apparent method came to light due to image-to-text conversion errors, plus an imperfect job done in masking names.

Given the potential need to meet FOIA requests for thousands of email records, it’s thus worth reflecting on the problem from a purely information-technology point of view. Rather than respond to FOIA requests in a reactive way, one could imagine a public body taking the view that any and all records subject to FOIA would be made public as a matter of the usual workflow of that public body.

If all or most of the material that could be requested under FOIA were already publicly accessible, then a public body would be practically immune to any extra work caused by FOIA requests.

It’s worth making the distinction here between “making publicly available” and “publishing.” Take salary information, for example. If there’s a PDF file containing a list of salary information, which citizens can access online if they want to know how much the city administrator is paid, that can fairly be described as “making the information publicly available.” And that’s a reasonable state of affairs to contemplate. Somewhat less reasonable is a “publishing” scenario, where the caption to Roger Fraser’s photograph on the city of Ann Arbor’s website would include his salary.

The University of Michigan is an example of an institution that for years has made its salary information publicly available.

Short of shoving all FOIA-able material into the public realm proactively, one could contemplate a combination of technology and policy that would make compliance with FOIA requests for electronic documents more straightforward than the method apparently employed by the city of Ann Arbor. Until recently, at least, that method seemed to entail voluntary submission of records by councilmembers, printing out the material, inspection of each sheet of paper, redaction with a black marker if necessary, photocopying the stack of paper, then handing it to the requester.

Those redactions reflect exemptions, which an institution may (but is not required to) apply under the law, which include :

15.243 Exemptions from disclosure; withholding of information required by law or in possession of executive office.
Sec. 13. (1) A public body may exempt from disclosure as a public record under this act:

(a) Information of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.

(h) Information or records subject to the attorney-client privilege.

(n) Communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption does not apply unless the public body shows that in the particular instance the public interest in encouraging frank communications between officials and employees of public bodies clearly outweighs the public interest in disclosure.

In the spirit of a desire for a simpler approach to compliance, we posed the following challenge to two faculty members of the University of Michigan School of Information.

Challenge: For an organization subject to FOIA, design a policy standard for use and configuration of email accounts and servers to eliminate the need for any visual/manual inspection of email records in response to FOIA requests.

David Wallace is a lecturer at the school, who focuses on the role of archives in enabling and denying accountability and justice, and the computerization of government records. Professor Virginia Rezmierski’s research interests include institutional norms to address issues of privacy and security of electronic records.

Based on emailed responses from Wallace and Rezmierski, our challenge is phrased in a somewhat extreme way. They both rejected the idea that it was feasible or desirable to provide documents without visual inspection. Wrote Wallace:

… Technologically you could do wide searches but again I cannot imagine any agency releasing records in response to a FOIA request without proper screening. And in fact not screening can lead to improper disclosures of personally identifiable information or sensitive information. To my mind what is needed is a combination of sound records management combined with a transparent and open practices (not rhetoric about transparency – but real efforts at affirmative disclosure in absence of FOIA requests.)

Rezmierski, for her part, said:

… the issue that strikes me is that ALL records need to be visually reviewed before it is possible to identify any exemptions that might apply …

For a long time we have needed email to be configured in such a way that notes and communications preliminary to a decision could be managed by the writer as private, while official responses or decisions could be configured and marked in such a way as to be readily available as records. Even under such a system however, the FOIA request would have to be specific enough that it could be readily identified, and visual inspection for any potential exemptions would still most probably occur.

With respect to Rezmierski’s suggestion of configuration and marking of records “in such a way as to be readily available as records,” the FOIA law itself provides some direction, requiring that agencies subject to FOIA undertake practicable measures to facilitate separation of exempt material from non-exempt material:

15.244 Separation of exempt and nonexempt material; design of public record; description of material exempted.
Sec. 14.

(2) When designing a public record, a public body shall, to the extent practicable, facilitate a separation of exempt from nonexempt information. If the separation is readily apparent to a person requesting to inspect or receive copies of the form, the public body shall generally describe the material exempted unless that description would reveal the contents of the exempt information and thus defeat the purpose of the exemption.

In the case of electronic mail, one could imagine a policy, together with a technology, that would prompt the author of an email who hits “send” to flag the correspondence  in an appropriate way – a way of forcing the author of an email to categorize it, say, as “attorney-client privileged” or “personal” or “ready for publication” with a default as “ready for publication.”

Speaking to The Chronicle by phone, Rezmierski told us that she thought exclusive reliance on that approach for release of records wouldn’t work for two reasons. First, the average email author in an agency subject to FOIA would not be familiar enough with FOIA interpretation to make an accurate assessment. Second, the judgment should be based not on an individual’s desire, but rather on the public interest.

Still, Rezmierski points to her own work in this field that calls for a technical solution to allow a distinction to be maintained between “notes,” “preliminary decisions” and “official records.” To designate official records, she has suggested the application of an “electronic letterhead” to documents. One “fly in the ointment” is the reliance on the author of such documents to attach the letterhead.

Rezmierski traces part of the current challenge posed by myriad electronic documents to a historical failure to maintain the proper relationship between policy and technology. When it was recognized that email would be traveling through multiple servers, she said, we too readily accepted that email was not private communication and that there was no reasonable expectation of privacy. Instead of accepting that premise, she suggests, we could have set a policy that electronic communication should be treated just like a sealed letter with the same expectations of privacy associated with a sealed letter. From that policy we could have developed appropriate technologies to ensure that the expectation of privacy was actually met, she says.

In any case, the release of documents without review – that is, based purely on the flags or letterhead attached by document authors – is not something Rezmierski sees as feasible.

In its FOIA request for additional records, The Chronicle has specified the requested records in a way that has a similar effect to a pre-separation of exempt materials from non-exempt materials. Specifically, the way that we specified the request does not target emails to or from constituents of councilmembers (triggering possible redaction due to unwarranted intrusions of privacy). Nor does our request include communications between the city attorney’s office and councilmembers, which we suppose would have a high probability of being exempted due to attorney-client privilege.

Legal Implications: Open Meetings Act

The  Michigan Open Meetings Act provides that the public must be given notice in advance of the meetings of a public body. And the regular meetings of the Ann Arbor city council in council chambers are announced in various ways that fully comply with the act. If councilmembers email each other during such a  meeting – one which has been properly noticed – where does the potential violation of OMA lie?

The potential violation is that the emails themselves could possibly constitute a separate meeting from the one that was properly noticed – a separate meeting that would require its own notice and public access, not to mention its own minutes.

To get a clearer understanding of what it takes to constitute a meeting via email communications, The Chronicle spoke by phone with Lisa Rycus Mikalonis, an attorney with Sommers Schwartz in Southfield, Mich., who specializes in communications law, freedom of information and open meetings acts.

By way of general orientation to the issue, Mikalonis stressed that the basic legislative intent of open meetings acts is to ensure that public work is done in public view. And the spirit of Michigan’s Open Meetings Act, she continued, is “openness.”  Given that emails exchanged between councilmembers are not in public view, isn’t that – on its face – a violation of OMA?

No, says Mikalonis. There are two aspects to determining whether a “meeting” has taken place: (i) whether a quorum was reached (ii) whether the substance of the communications was related to the business of the public body.

In the case of the Ann Arbor city council, for a single email exchange to count as a “meeting” there would need to be six participants in the exchange – the council has 11 members –  and the substance of the communication would need  to be in some sense deliberative. In the  case of some of the emails that have been previously published by The Ann Arbor News – concerning golden vomit and sea turtles, for example – the best defense against a charge of an OMA violation would be to maintain that the communications amounted to horseplay, and were in no way deliberative. In my view, a defense based on the frivolous character of the exchanges is fairly compelling – many of them are uncontroversially frivolous.

However, the example we’ve laid out above – involving the possible postponement of the resolution about the underground parking garage – is less clearly non-deliberative. The communications are gossipy in flavor, to be sure – indeed, Smith’s contribution in its entirety is a winking smiley. Should a winking smiley count as a contribution to a deliberation? On its own, I’d say probably not.

Taken in aggregate, however, all the email exchanges suggest a background in which the merits of postponement were discussed by among multiple parties before the meeting. So it’s those discussions that I think could potentially warrant consideration as an OMA violation.

And it’s worth noting that the number of people involved on any one email exchange or who were a party to any one of those discussions need not necessarily achieve a quorum, in order to count as an OMA violation. Mikalonis pointed us to a 1988 case, “Booth Newspapers v. Wyoming City Council,” in which the court held that serial meetings of sub-quorum groups amounted to a “constructive quorum,” and thus violated the OMA.

But what’s crucial to the question of discussions about the possible postponement of the parking garage resolution, said Mikalonis, is the fact that no motion to postpone was ever brought at the table. If a motion had been brought, and no discussion had taken place at the table on that motion to postpone, it might be possible to argue that the decision against postponement had been made in prior conversations, confirming the nature of those conversations as deliberative, she suggested. But given that no motion to postpone was ever brought at the table, no decision was ever made on that question, so it’s moot to ask when it was made.

I would conclude then, that making a case for an OMA violation based on the exchange we have published above would require more research. That research might well show that no violation took place. On the other hand, it might show definitively that a violation did take place. It’s not an issue that The Chronicle intends to pursue at this time.

If not the letter, then I think the spirit of OMA – openness – is violated when email exchanges take place between councilmembers about matters they could just as well discuss openly at the council table. It’s not particularly important to me whether councilmembers  apologize for the frivolous emails they’ve sent in the past, nor do I attach any particular weight to their apologies – a month went by with no apologies.

What’s important is a recommitment by the Ann Arbor city council to openness and transparency. It’s not a commitment that can be articulated in emailed statement to constituents or in a radio interview. It’s a commitment that will be reflected by conducting public business in public.

Future of Transparency for the City of Ann Arbor

The one example we’ve considered in this column shows that laptop computers – as they’re currently used by councilmembers – can and do serve to screen some of the decision-making process and rationale from the public.

One approach to achieving a city government that is not just transparent, but also illuminates its citizens – so brightly that we might have to contemplate dimming it during certain times of the year to protect migratory birds – is to add even more technology to the equation.

One example: If city council members receive proposed amendment language via email from their colleagues or the city clerk during meetings, it would make sense that council chambers be equipped with wireless internet access so that members of the public can receive the same information if they choose to bring a wifi-ready device to council chambers, or if they’re watching the meeting live on Community Television Network. It would also make sense that the same information be projected on a screen so that members of the public can easily follow along.

The city’s planning commission deals with material on a regular basis that is at least as complex as that handled by the city council. Yet its members are not issued laptop computers by the city, and their meetings are run quite efficiently and transparently with only a single staff member using a laptop computer to project images and text onscreen when necessary.

So it’s not just a matter of adding more technology. It’s a matter of putting aside the use of some “private technology” – like laptop computers – in favor of “public technology” – like projectors.

It’s not a matter of promising to keep laptop computers closed when members of the public are addressing council, or refraining from sending frivolous emails to each other during meetings.

It’s a matter of reflecting continuously on the question:

Is the information on this screen I’m staring at – which by definition is important and relevant to my decision-making … because I’m staring at it during a council meeting – as equally accessible to the public as it is to me?

I think a fair answer to that question is, too often, no.

Email Corpus

The following are raw, uncorrected text files. They are made from the image-to-text processing of digital scans taken of the paper copies provided by the city of Ann Arbor in response to the GLELC FOIA request.


  1. June 10, 2009 at 5:57 pm | permalink

    Thanks so much for this thoughtful analysis and examination of an important issue. I can’t help but believe that this will show up in study packets for political science courses at various locations.

    I’d like to reinforce the point about amendment language sent only to council members. In my opinion, the only reason this may not violate the OMA is that it has not caught up with technology. I think that the language should at a minimum be read out loud so that the audience/public can access it. Otherwise, the deliberations are not clear.

    Again, you have performed an important public service. Thank you.

  2. By Linda Diane Feldt
    June 10, 2009 at 10:30 pm | permalink

    What a thorough and thoughtful contribution to this question. And an outstanding example of the difference between the provocative headlines that minimize the issue, and analysis that can substantially increase our understanding and consideration of the events in context. Thank you for doing the hard work. It is appreciated.

  3. June 10, 2009 at 11:41 pm | permalink

    Thanks for a very thorough review. I’ve struggled with this issue ever since I took office and, as I read, I found each of my gut-level reactions addressed in some way in the text.

    One aspect of this conversation that I continue to wrestle with is the tension between the letter/spirit of the law and the realities of contemporary politics, media and communications. Given the “sound byte” nature of so much news these days, it is completely conceivable that total sunshine would actually result in less-thoughtful and collaborative public policy — in other words, the public might not get the outcome it seeks if the “deliberation” is in the public eye as much as “decision-making”. Certainly, any actions taken should be done in the public eye. Deliberation, however, can be a very private thing or a very public discourse. Where the line between those two is drawn is really tough for me to define.

    Take this for example: if I want to recommend a policy change and poll the members of the board separately to find out if I have the support of a majority, am I then deliberating toward a decision in a way that violates the spirit of the OMA?

    Or this: if I know that there is a single swing-vote on an issue and I pull her aside at a meeting to make a deal, does that one-on-one conversation constitute a violation, of the spirit of the law at least?

    The ramifications of opening up all deliberation to public scrutiny might be severe and counter productive. For example, almost certainly the treatment of this issue by the Ann Arbor News will force more communications underground. By deliberately mocking and denigrating the members of council in both the article and the accompanying editorial (remember the callous caricatures?), they sought to shame rather than enlighten. If I were a council member having gone through that treatment (as opposed to the fair and thoughtful analysis by the Chronicle) I would certainly consider privatizing my communications to avoid FOIA in the future. That might not be in the public’s best interest, but it would certainly be in mine once I’m put into a self-protective mode.

    Consider, too, the interaction of public deliberations and politics. How often do things that public officials say at meetings get taken out of context? How gleefully does the opposition snatch at any opportunity to use officials’ words against them! Already at every level of government, elected officials tend toward being circumspect: “I did not have sexual relations with that woman!” Can you blame them? Knowing that even slight missteps are mercilessly exploited, it pays to be either firmly right or absolutely quiet.

    Again neither position serves the public interest well. We should want politicians who feel comfortable not knowing an answer (or, heaven forfend, admit to being wrong once in a while!) but the society that craves a wholly open discourse also has an obligation to create a safe environment for it.

  4. By suswhit
    June 11, 2009 at 8:05 am | permalink

    “Again neither position serves the public interest well. We should want politicians who feel comfortable not knowing an answer (or, heaven forfend, admit to being wrong once in a while!) but the society that craves a wholly open discourse also has an obligation to create a safe environment for it.”

    While that’s a lovely soliloquy, I’m not sure it applies in this situation. It does not seem, from what we have seen so far, that certain council members were genuinely trying to better understand an issue or make more thoughtful, informed decisions. Instead, they were mocking each other and their constituents, polling to find out how others were voting and doing personal business completely unrelated to the discussion at hand smack in the midst of an ongoing council meeting. Certain council members have regularly, out loud, displayed an arrogance and superiority that may, in fact, be the #1 cause of this current situation. Council members have long been disrespectful of citizens who speak at council meetings. The current council has taken that disrespect to a whole new level and this very public chastising is what they get for it. If Council members and other local politicians want a “safe” environment for open discourse then it’s their job to create that environment. And I truly believe the community would embrace it. Instead they have chosen to create a disrespectful environment and the community is, unsurprisingly, responding in kind.

  5. By Steve Borgsdorf
    June 11, 2009 at 10:48 am | permalink

    Quorum by emoticon? I’m determined to find my way onto your teeter-totter to discuss these issues in more detail. Next time I see you pedaling West on Liberty (past Eighth, not quite to Eberwhite) I’ll pounce. Also, can we see the FOIA issued by The Chronicle?

  6. By UMGrad1234
    June 11, 2009 at 10:59 am | permalink

    I think it’s important to realize (and very unpalatable, to borrow from Sandi Smith’s email above) that Council’s recently exposed use of email to mock each other, their office, their constituents and to keep secret their deliberations is by no means an ISOLATED incident. Leigh Greden “apology” emailed to a select group of Third Ward residents, as well as Margie Teall’s emailed to 17 people in the Fouth Ward, attempted to make it appear as though what was discovered was the result of isolated lapses in judgement. That’s not the truth, unfortunately, as much as we’d like to believe them. That Greden and Teall chose to be disingenuous in their apologies is both disappointing and a further slap in the face to the voters.

    Certainly we’ll have to wait until the AA News FOIA (and others) is responded to by the city, but what we might have to come face-to-face with is ingrained political corruption among our Council and Mayor. Rapundalo and Higgins are trans-Dems, and Greden’s email in which he tells his colleagues he’s interested in little other than money and buildings qualifies him to be a member of the group. However, Hohnke, Taylor, Smith, Derezinski and Teall are all Dems. Sandi Smith ran as a progressive Dem.

    Taylor, Derezinski and Hohke each have campaign web site’s that wax rhapsodically about the importance of honest, open and transparent communication. So, either each premeditatedly lied to voters about how they intended to behave in office, or perhaps they found themselves on a Council where secrecy and duplicity is the norm, and simply decided to play ball with Greden, Higgins, Teall and Rapundalo who had been conducting business that way for, perhaps, years. One ex-Council member is alleging that vote-rigging regularly went on by email during meetings.

    Dave’s focus on how to use the technology differently to enhance transparency is as welcome as it is pragmatic. The problem, of course, is not the technology; the problem lies with the misuse of the technology by the Council members. If the FOIAs reveal vote-rigging, vote-swapping, or secret deliberations, we voters will stand at a crossroads.

  7. By mr dairy
    June 11, 2009 at 11:20 am | permalink

    Suswhit nails it. The actions and attitudes of the politicians who engage in this kind of behavior caused the uproar, not the media or the outraged public.

    The arguments regarding the law and the use of email as a form of communication among public servants are straw men. While worthy of discussion they are beside the point.

    If elected officials are fearful of comments being taken out of context and becoming sound bites, then let the public see the context, complete and unexpurgated. The best way to do that is to SPEAK openly and honestly and cast votes based on the facts and your conscience rather than for political expediency.

    “Take this for example: if I want to recommend a policy change and poll the members of the board separately to find out if I have the support of a majority, am I then deliberating toward a decision in a way that violates the spirit of the OMA?”

    Yes, it is deliberation for the purpose of political expediency rather than openly speaking one’s doubts in public. Some of us would appreciate to see how and why consensus is achieved and not just witness the end result.

    “Or this: if I know that there is a single swing-vote on an issue and I pull her aside at a meeting to make a deal, does that one-on-one conversation constitute a violation, of the spirit of the law at least?”

    Yes. The public deserves to know the terms of the deal. Is there a quid pro quo based on factors not necessarily relevant to the issue under discussion? The public is very tired of opaque dealmaking by all public officials, elected or otherwise.

    “For example, almost certainly the treatment of this issue by the Ann Arbor News will force more communications underground.”

    Straw man argument. Why be fearful of how and why you might arrive at a decision and thusly feel the need to be more secretive? Is the need to be circumspect more important than open and honest discussion? Using the Clinton analogy further distracts from the substantive discussion of transparency, although the level of arrogance demonstrated by Mr Clinton and local officials is relevant.

    “I would certainly consider privatizing my communications to avoid FOIA in the future. That might not be in the public’s best interest, but it would certainly be in mine once I’m put into a self-protective mode.”

    That’s very revealing Mr Smith.

  8. June 11, 2009 at 11:50 am | permalink

    There is a more recent Michigan Court of Appeals case on the Open Meetings Act that may be helpful. It is St. Aubin v Ishpeming City Council, 197 Mich App 100, 494 NW2d 803 (1992). Here is a link (I hope):

    [link] [Editor's note: We're working to make the link work. No success yet.]

  9. June 11, 2009 at 1:02 pm | permalink

    Not corruption, UMGrad1234, just confusion. The same sort of confusion that we each experience daily. Don’t want your council reps (or county commissioners) to be confused? Give them a copy of Byron Katie’s book, Loving What Is, and then help/remind/encourage them to do The Work.

  10. By Diane
    June 11, 2009 at 1:36 pm | permalink

    First: Ok, I don’t get it. When I skimmed through the attached documents (I admit skimmed because there is way too much for me to read right now) it looks to me just simply that the councilmembers are doing their jobs. Our elected officials are doing their jobs, looking up facts discussing things NOT in a quorum and weighing the facts. They do this ahead of time so that a well thought out and educated decision can be made during the FINAL deliberation. The OMA was not created to limit discussion to ONE discussion but rather to inform the public of FINAL deliberations where there is a record of who voted which way and why. Do some of you actually want a play by play of how each person thought process develops? That is ridiculous and completely unreasonable. This isn’t facebook where you can get a twitter update about what someone is thinking throughout the day. The spirit of the OMA is the transparency of the decision and the meeting not the thought process a person uses to make a decision. That is way too Big Brother and “1984”for me.

    To assume that the fact checking, research and questions posed beforehand are sinister, where back room deals are made is to assume that being educated and thoughtful is against the OMA. If all material had to be presented that night at council with no prior discussion, the decisions would be biased and based on the speech of the most powerful or articulate speaker not necessarily based on facts. I actually want my representative to weigh all the facts, hear the feedback from their constituents, go to the table the night of the deliberation and vote while stating why they are choosing to vote that way. To know the play by play and how many times they went back and forth on it really is not relevant to me because I am going to hold them responsible for how they ultimately voted. That is what matters, not how many people they talked to, not how much time they spent discussing it, not their personal thought process. Their ultimate vote and why is what the elected official is held accountable for.

    I know many are going to jump on me now and say but if we don’t see the thought process how do we know everything is on the up and up. To that I say grow up. If you actually see that much evil in the average person or elected official, it actually shows the flaws in your character not theirs. Just because you don’t like how someone votes that does not mean they arrived at the decision in an unethical way. I admit that there are some unethical politicians at all levels of government, but to come in with the premise that all of them are unethical just because they ran for public office is too extreme and just plain asinine.

    Second: As for the emails during the meeting, no round robin discussions were occurring where they purposely hiding things from the public; no quorum took place. Politicians lobby for votes, that is just the way it is; there are sides in every issue. Have you never watched CSPAN? All that matters in the end is the discussion at the table. Lining up you side IS the game of politics.

    To me the question here is, “does the open meeting act imply that the public has a role in watching the thought process take place or a role in watching the FINAL deliberation take place where the elected official’s opinions are on record and where the final vote is cast?” We take meeting minutes so that there is a record of deliberations. We don’t insist that councilmembers keep a “thought” journal/diary on how they came to their decision.

    The system of this “100%’ transparency of the thought process just seems like fantasy to me. The people calling for it surely don’t understand that once your thoughts are constantly monitored, people cannot ask all questions that need to be asked (some might not be so PC) and might avoid looking into highly relevant issues for fear of retribution. By fear of public retribution, I don’t mean losing an election I mean tactics such as leaking irrelevant, juvenile emails to the press because you don’t like how they voted on the parking structure. This definitely will not benefit the city or any of the residents if this happens.

    I honestly don’t see any OMA act violation here that offends me as a city resident. Actually I just see them doing their jobs.

    I would like to commend Dave for writing a well done article on this topic even though I do disagree with some of it. He did not sink down into the gutter and purposely embarrass people unnecessarily.

  11. By UMGrad1234
    June 11, 2009 at 1:39 pm | permalink


    Do you really think Leigh Greden and Chris Taylor, Margie Teall and Marcia Higgins are confused and that’s the root of the problem? Well, guess I’d be interested in knowing about what, exactly, you think they’re confused.

    Your emails to Greden about various issues make clear your belief that there was really a chance to have an impact on the issues under consideration. However, emails to which you were NOT privvy make clear your email “debates,” were taken as an opportunity for some fun jousting for Greden, but really your comments were little more than a distraction. You (none of us, really) were never a part of the “real” deliberation.

  12. By Alan Goldsmith
    June 11, 2009 at 1:59 pm | permalink


    So you are fine with Marcia Higgins using council time and a city owned laptop to email the city clerk to ask who has filed to run against her in the upcoming election?

  13. June 11, 2009 at 2:26 pm | permalink

    Well, we can’t make the link to St. Aubin v Ishpeming City Council work. So here is what happened. The Ishpeming city manager was fired, and she sued. Here are the two relevant paragraphs from the Court of Appeals decision:

    “Mayor Bosio stated in his deposition that before the October 4 meeting [of the city council], he held individual discussions with all the council members regarding whether plaintiff should be retained as city manager. Bosio stated that before the meeting he felt there was a consensus among the members of the council to terminate plaintiff. Plaintiff argues that this one-on-one canvassing, which resulted in a private consensus by the council, contravened the OMA. We disagree.

    “The OMA requires that all decisions of a public body must be made at a meeting open to the public. MCL 15.263(2); MSA 4.1800(13)(2). In this case no decision was made by the body, instead Bosio was polling the individual members to determine their opinions. We find this conduct, an informal canvass by one member of a public body to find out where the votes would be on a particular issue, is not violative of the OMA.”

  14. By Diane
    June 11, 2009 at 2:51 pm | permalink

    David, your opening line implies that you are trying to MAKE the evidence(the emails) fit the crime. How about looking at the evidence and deciding on face value.

  15. By Alan Goldsmith
    June 11, 2009 at 3:02 pm | permalink


    David was refering to the internet page link (see post # 8…).


  16. By Diane
    June 11, 2009 at 3:04 pm | permalink

    Oh, I see now. silly me

  17. By Dave Askins
    June 11, 2009 at 3:05 pm | permalink

    Re: [14] “… opening line implies you are trying to make the evidence fit the crime.”

    I take the opening line in question to be David Cahill’s comment [13], in which he writes “Well, we can’t make the link to St. Aubin v Ishpeming City Council work.”

    This is simply a reference to his own prior attempt to include a link to the text of the citation — in comment [8]. The link went to a WestLaw citation, which we were not able to make work.

    Based on the summary David Cahill provided, the case bears on the exchange on the postponement of the parking structure we published above in the following way: Polling of all members of a body is allowed and does not count as an OMA violation, so to the extent that Hohnke’s emailed queries are “polling” then they would not qualify as a violation.

  18. By Diane
    June 11, 2009 at 3:08 pm | permalink

    That just goes to show you how email can be taken out of context so easily.

  19. By Richard
    June 11, 2009 at 3:34 pm | permalink


    I don’t mean to pick on you, but your posting is remarkably Cheney-esque. A little secrecy in government is a good thing? I don’t buy it.

    You suggest that by allowing some secrecy, you are keeping public officials from greater secrecy (“going underground”) due to the potential scrutiny. Your logic is bizarre and really disappointing.

    I have to admit that I’m also a little disturbed by the comment about people taking things out of context.

    How gleefully does the opposition snatch at any opportunity to use officials’ words against them!

    I think it shows how little faith you have in the public that they can’t make competent judgments about the actions of elected officials.

    I’ve always felt that you were one of the better commissioners, but after reading your posts, I have to admit I’m really disappointed that you would argue for greater secrecy in government.

  20. By hospadaruk
    June 11, 2009 at 4:02 pm | permalink

    Ho Hum.
    Take away their lap-tops and they can use their own. Is it a big deal the they are city provided laptops? If they were personal laptops would you consider the situation any differently?
    Dis-allow laptops and they may message with cell phones. I would. Shall we take those away too? I haven’t been to a any kind of meeting in the last few years were everyone is not typing away or texting. These leaders only fault was not using Skype, which would be much harder to FOIA. Come on people, let’s move on!

    We elect our officials to make decisions for us, not to be bird-dogged and micro managed by the public. To me is the results that count, not what the banter contains.

    How bout those Wings?

  21. By kate whitaker
    June 11, 2009 at 5:24 pm | permalink

    I was thinking today how interesting it would be if Council didn’t have laptops and the members who feel they need to express themselves to one another, rather than listening to their constituents, just spoke out loud to one another. Would that be tolerated?

    Beyond anything to do with the OMA, I am appalled by this behavior because it tells me that there are elected officials who do not find the concerns of the citizens of Ann Arbor important enough to deserve their full attention. I cannot have confidence that the members who engage in this activity are making informed decisions when they vote.

    I am so tired of the “out of context” defense. I don’t buy it.

    To Hospadarak: So you are satisfied with all of the decisions made by Council?

  22. By hospadaruk
    June 11, 2009 at 6:12 pm | permalink

    Touché Kate, but I have the same level of satisfaction I did 15 years ago, before laptops existed.

  23. By Jennifer Santi Hall
    June 11, 2009 at 6:31 pm | permalink

    I’m hoping someone (David?) can explain the St. Aubin decision in more detail. I don’t understand why the court decided that no decision was made as a result of the informal poll. It seems that the intent of such a poll was to decide ahead of time whether there would be support of the council to terminate the employee. In this case, it seems the informal poll produced information which indicated support for the termination, and then, I presume, a motion was made in an open meeting to terminate the employee. However, if the informal poll had indicated that there was not support for the termination, presumably no motion would have been brought in front of the public. And, isn’t this a decision?

  24. June 11, 2009 at 6:42 pm | permalink

    For Dave’s post on the St. Aubin v. Ishpeming City Council (#13) case, keep in mind that the informal polling done by city council members in that case was not done during a public meeting when the Open Meetings Act requires that all deliberations be open to the public. The email discussion by some Ann Arbor city council members regarding postponement of the parking structure was done during a city council meeting with a quorum of city council members.

    Here is an excerpt from a very recent (2008) Michigan Court of Appeals case, Hoff v. Spoelstra. It’s an unreported case, but quotes several published decisions and provides a good overall summary. Note the broad definition of “deliberation” in the last sentence which is far more expansive than simply a final vote or decision. I’ve removed the footnote references and some internal quotations but otherwise not edited it at all:

    The purpose of the OMA is to promote openness and accountability in government; it is therefore to be interpreted broadly to accomplish this goal. Accordingly, the OMA provides that whenever a quorum of a public body deliberates or renders a decision on public policy, such deliberations or decisions must take place in an open meeting, unless an exception applies. In other words, in deciding whether there was an OMA violation, the relevant inquiries are: (1) whether the board acted as a public body, (2) whether there was a meeting, (3) whether the members deliberated on or rendered a decision, and if so, (4) whether any exceptions apply. To constitute a “meeting” of a “public body,” as contemplated by the OMA, three elements must be present: (1) a quorum, (2) deliberation toward or rendering of a decision, (3) a matter of public policy at issue. Because the OMA does not define the term “deliberation,” this Court has turned to dictionary definitions and stated that “deliberation” includes “discussing,” which, in turn, is defined as “the act of exchanging views on something[.]”

  25. June 11, 2009 at 7:26 pm | permalink

    Polling ahead of a meeting or “counting noses” probably originated with the first caveman council – or at least the first one using Robert’s Rules of Order. Congress has officers called “whips” whose major function is counting and enforcing votes. As has been indicated by various voices in this thread, there is a functionality to this.

    Some years ago the City Council got into a different mess with emails. As I recall, there were some emails that went out to the entire group or a large number of them, saying “Don’t forget we’re going to vote for (or against) this.” They got slapped with a lawsuit, a complaint, or something. (Note how this has faded into history?) At the time, we commissioners asked our corporation counsel how to avoid making such a mistake. We were told (a.) don’t send out group emails (b.) don’t say vote for this. But individual communication ahead of the meeting was okay. (Sorry, I don’t have the text of his advice and of course he is not responsible for my account of my recollection of it.)

    So if I were thinking of bringing a resolution, I might call various commissioners and ask: “if I bring this, will you be able to support it?” Answers might be yes, no, haven’t decided, or I don’t want to discuss it with you. If overwhelmingly “no”, the resolution would be dropped. (I am talking in generalities and not about any specific issue.) A friend on the BOC liked to call this “the tom toms beating”. If results were ambiguous, it was time for a floor fight. If overwhelmingly negative, why waste floor time, staff time, and everyone’s patience bringing it up?

    I agree with what I perceive to be Noah Hall’s interpretation that when these communications occur during the actual course of the public meeting, that should trigger the OMA. (Or, of course, if they occurred within a quorum prior to it.) Politics would be a very different animal without some sort of negotiation and communication between individual members prior to the meeting.

  26. By Linda Diane Feldt
    June 11, 2009 at 7:54 pm | permalink

    And that to me is the critical point, as Vivienne further clarifies. Not the content of the e-mails, but that a separate and private (secret) conversation was happening during the public deliberations. It changes a public meeting – required by law – into something else entirely. During a public meeting, there is an expectation that the discussions, comments and observations will be made publicly. And now we know they are not.
    It damages the trust, the climate, and the process of public discourse and decision making.
    People are also noticing that maybe some elected representatives have poor attention spans, or find simple things amusing. That doesn’t in itself harm the process of public deliberation.
    Our public meetings are less public and transparent than we thought. That is a significant loss, and so far the simple apologies I’ve heard have not addressed that or caused me to regain my faith in the part of process that is open for our view.

    I would like my representatives to inspire greater awareness and support for participatory government. Instead, these few have done real harm. That is unfortunate. Being defensive makes it worse. How can the council and mayor now assure us that it is a public body that respects open deliberations? That I would like to hear.

  27. By jcp2
    June 11, 2009 at 9:53 pm | permalink

    So I guess the solution would be to have informal discussions one on one before the meeting, pay attention during the meeting, and make the jokes (which are always made, regardless of profession) after the meeting.

  28. By Sabra Briere
    June 12, 2009 at 7:06 am | permalink

    What a truly novel concept.

    Why didn’t I think of that?

  29. June 12, 2009 at 9:32 am | permalink

    We also need to keep the historical perspective — something that Dave’s article does much better than the hysteria in the paper.

    Before the advent of laptops, it wasn’t at all uncommon to watch multiple Council members regularly and simultaneously disappear into the offices behind the meeting room. We never had any idea what they were discussing — probably pretty much the same things they now email — but, of course, those conversations couldn’t be FOIA’d.

    Who among us hasn’t sat during a boring part of some meeting and exchanged side quips with another equally bored attendee? Or nattered back and forth about an upcoming agenda item of greater mutual interest?

    The fact that these are elected representatives doesn’t make them less subject to these normal human foibles — it simply makes their actions subject to being breathlessly smeared across multiple pages of a newspaper. On a ten-point scale of iniquity by public officials, this rates about a two.

  30. By Off Topic
    June 12, 2009 at 10:19 am | permalink

    [Editor's note: This comment has been moved to an orphaned comments page, because in our judgment it is off topic from the original article or the thread of discourse that followed. ]

  31. June 12, 2009 at 10:24 am | permalink

    The lesson of these court cases is that a quorum must be present in order for the Open Meeting Act to apply. A quorum is not present one-on-one meeting, or in a series of one-on-one meetings.

    Another way of looking at the e-mail problem is to consult Robert’s Rules of Order. City Council Rule 18 says “The rules of parliamentary practice, comprised in Robert’s Rule of Order, shall govern the Council in all cases to which they are applicable, provided they are not in conflict with these rules or with the charter of the City.” So Robert’s provides “default” rules for a host of situations not covered by the City Council’s own rules.

    On page 382 of the 10th edition of Robert’s (the “Gold Book”), we find: “Refraining From Disturbing the Assembly. During debate, during remarks by the presiding officer to the assembly, and during voting, no member should be permitted to disturb the assembly by whispering, walking across the floor, or in any other way.”

    The e-mails in question obviously disturb the assembly, so they fall under “any other way”. Sending them is out of order. Now that Mayor Hieftje knows of the extent of the e-mailing, he should rule them out of order, either at the beginning of next Monday’s Council meeting or in response to a point of order made by a Council member during a meeting.

  32. By Off Topic
    June 12, 2009 at 12:22 pm | permalink

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  33. June 12, 2009 at 1:46 pm | permalink

    UMGrad1234, I’m not using “confused” in the usual sense, but in the sense that Byron Katie uses it to describe how we are when we believe thoughts that clash with reality. In such cases we typically feel stress. One example might be that some council members believed the thought that they “couldn’t” sit through a meeting without having an outlet for some humorous exchanges. A subsequent thought that could lead to confusion might be that people shouldn’t judge them. That’s ridiculous, of course, because the reality is that people do. We see evidence of it here and various other places.

    I posed the question on Arbor Update for council members: what have you learned–in particular about yourself–from this experience? Isn’t that what we really want to know, assuming that we want to know their thoughts about this at all? What’s done is done. Apologies are meaningless stories about a past that doesn’t exist. Defensiveness has no value. Judgments are made, and we either stress over them or examine and learn from them.

    As for the exchange between myself and councilmember Greden on the parking structure, I think it’s interesting that he saw it as a debate. I actually thought of it as a discussion (i.e., an opportunity to learn)–I just didn’t catch his use of the former term when I replied or I would have pointed out my different perspective on that. I haven’t looked yet at all the emails to see what he shared with others during or after our exchange. The full exchange is quite revealing, I think. In particular, I thought his conclusion that “The economy trumps all else right now.” was a sign of confusion on his part. Now it seems that the law may demonstrate that other considerations are equally important.

  34. By Off Topic
    June 12, 2009 at 3:43 pm | permalink

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  35. By Off Topic
    June 12, 2009 at 3:45 pm | permalink

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  36. By Off Topic
    June 12, 2009 at 6:12 pm | permalink

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  37. By Off Topic
    June 12, 2009 at 6:43 pm | permalink

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  38. By Ward 3 Member
    August 5, 2009 at 12:32 am | permalink

    I know that this is way late, but it seems to me that the only person at a city council who ought to have a laptop is the recording secretary.