Column: A Charter Change on Publishing?
The word on the button is bigger than it appears.
At last Thursday night’s work session, city council members reached a consensus on a city income tax proposal. Their consensus was this: They did not want city staff to place on their Monday agenda an item that, if passed, would have put a city income tax question on November’s ballot.
So based on the agenda posted on the city of Ann Arbor website, and in light of the Sunday night caucus discussion among council members, it appeared there would not be any really substantive issues before that body at its Monday night meeting.
Yet council ended up voting on three substantive items – all introduced late in the day on Monday. One was a reconsideration of a historic district study committee resolution passed at the council’s previous meeting – it amounts to a wording change. But it’s a wording change that has a material affect on what projects homeowners in the district can undertake on their properties during the study period. The original resolution at the previous council meeting had also been introduced late in the day, with no public discussion beforehand surrounding the resolution.
A second item introduced late Monday concerned a new transit center on Fuller Road. It entailed the authorization of around $200,000 – about half of that from the city’s economic development fund, which was originally established to pay for parking spaces that Google had demanded as a part of its decision to locate offices in downtown Ann Arbor.
And finally – even though councilmembers had decided at their work session they didn’t want to contemplate putting an income tax before the voters – they decided to put something else before the voters: a charter amendment that would give council the authority to decide how certain notifications are published.
The amendment would change current requirements that certain items are printed in a newspaper, instead allowing for a broader range of options, including online publications.
How could an online enthusiast like me, the editor of an online publication, be against this move? Easy.
Background
Printed agendas are provided to audience members at Ann Arbor city council meetings. They’re similar in function to church bulletins that I recall from the Methodist upbringing of my youth – for many attendees they’re just a way to track how much time is left in the purgatory of public policy discussion. In other ways, of course, those agendas are different from church bulletins – for one thing, they don’t give hymn numbers for the musical elements that have become familiar over the last few council meetings, including last night.
Musical elements aside, the timing of last night’s ballot resolution was ironic. The resolution to put a charter amendment before voters – one that would change the newspaper publication of council’s ordinances – was added so late that it could not be included in the printed agendas at council chambers on Monday evening. Not even in the section labeled “Added After Newspaper Deadline.”
That deadline comes not from the city charter, but rather from the council’s own set of rules:
3F – Publication of Agenda: The approved agenda for all meetings of Council, including Work Sessions, shall be published in a newspaper of general circulation in the City no later than the Sunday prior to each meeting, except those meetings called less than six days prior to a meeting. All meetings of the Council will be posted in the lobby of City Hall and on the City Website.
As we reported in our summary of Sunday night’s caucus, one resident there addressed councilmembers on the issue of newspaper publication of various notices. One of her points was that the city council agenda had not been printed in the print edition of AnnArbor.com, and that was where she and many other residents expected it to appear – printed in a newspaper.
The FY 2010 budget (the current budget year), which was adopted by the city council in the spring, includes an assumption that the city council agenda will no longer be printed in a newspaper – at a cost savings of around $15,000.
But this is a council rule, not a part of the city charter. As such, it needs to be changed by the council to conform with the current practice of non-publication. Editor’s note: As clarified in comment [6] below by the city clerk, and the contentions at caucus notwithstanding, the agendas do continue to be published – in AnnArbor.com, which The Chronicle has verified [photo]. Such a change is likely to be included in the raft of rule changes that are expected to be considered at council’s Sept. 8 meeting – along with rules governing email exchanges.
What, then, has city council decided to put before voters on the November ballot?
What the City Charter Says Now
There are two parts of Chapter 7, “City Legislation” of Ann Arbor’s city charter that voters will be asked to amend. Here’s what they say now:
7.3 (d) A zoning ordinance or an amendment or revision thereof shall be published in one or more newspapers of general circulation in the City, and opportunity for a public hearing allowed thereon before final action is taken by the Council.
7.4 (a) Each ordinance shall be published within ten days after its enactment in one of the following two methods:
(1) The full text thereof may be published in a newspaper of general circulation in the City of Ann Arbor, or
(2) In cases of ordinances over five hundred words in length, a digest, summary or statement of the purpose of the ordinance, approved by the Council, may be published in a newspaper of general circulation in the City of Ann Arbor, including with such newspaper publication, a notice that printed copies of the full text of the ordinance are available for inspection by, and distribution to, the public, at the office of the City Clerk. If Method (2) is used, then printed copies shall promptly be so made available, as stated in such notice.
What the Amended City Charter Would Say
As the “Whereas” clauses to the resolution make clear, the city council is asking voters to change the city charter because we live in a different world than when the city charter was first adopted – in 1956. This was a point that city attorney Stephen Postema made in his remarks to the city council that introduced the resolution. From the resolution: “Methods of communication and forms of media have altered materially since the adoption of these provisions and similar provisions in State law; …”
The amended versions of 7.3 (d) and 7.4 (a) in the city charter would change the requirement of newspaper publication to simply one of many unspecified options (additions are indicated in blue):
7.3 (d) A zoning ordinance or an amendment or revision thereof shall be published in one or more newspapers of general circulation in the City or any other media otherwise permitted by law, and opportunity for a public hearing allowed thereon before final action is taken by the Council.
7.4 (a) Each ordinance shall be published within ten days after its enactment in one of the following two methods:
1. The full text thereof may be published in a newspaper of general circulation in the City of Ann Arbor or by posting to the City’s website or by any other means or method determined by City Council appropriate to properly inform the general public in matters of municipal concerns, or
2. In cases of ordinances over five hundred words in length, a digest, summary or statement of the purpose of the ordinance, approved by the Council, may be published in a newspaper of general circulation in the City of Ann Arbor or by posting to the City’s website or by any other means or methods determined by City Council appropriate to properly inform the general public in matters of municipal concerns, including with such publication, a notice that printed copies of the full text of the ordinance are available for inspection by, and distribution to, the public, at the office of the City Clerk. If Method (2) is used, then printed copies shall promptly be so made available, as stated in such notice.
Public Policy Considerations: Beyond Dissemination
It was good public policy back in 1956 for the city charter to require publication of these items in a newspaper of general circulation – newspapers were an effective way of disseminating information about the actions of the city council. This public policy concern is reflected in the resolution passed on Monday night: “… the original intent of these provisions was to provide notice of Council actions by the most effective means available; …”
Given that there are now other ways to disseminate textual information that are arguably at least as effective as newspapers – direct mail from the U.S. Postal Service, email list-serves, RSS feeds, text messaging services, websites – it’s reasonable to contemplate adding other options to printed publication in newspapers.
But it’s not merely the effective dissemination of information that made printed publication of notices in newspapers good public policy in 1956. The merit of that public policy also stemmed in part from the fact that a third party – a newspaper – was involved. That third party, which stood outside of the government agency whose actions were to be documented, acted as some sort of external check on the government agency – in this case, the city council.
Publishing versus Posting
How does a requirement for publication of notices in newspapers provide a check on government agencies? This check does not stem from the fact that newspapers print information on paper. There’s nothing magical about the paper and ink. Rather, this check stems from the fact that newspapers publish information. Otherwise put, newspapers have editors.
Web-based publications can have editors, too. So, it’s possible to publish information on the Web as well as in print, and we prove that every day here at The Ann Arbor Chronicle. But our claim to the act of publishing does not rest on the label of the blue button in our software, which reads “Publish.” Clicking on that button makes an article accessible to the public, but making it accessible to the public is not the same as publishing it.
What makes this column you’re reading published as opposed to just posted is that someone else besides me looked at it, evaluated it, made some changes, discussed with me various issues, and ultimately decided whether to press that publish button. So not everything that appears on The Chronicle’s website is published. Comments that readers leave at the end of articles, for example, are merely posted. It makes no sense to say, “The Chronicle published my comment.” We did not publish your comment – we gave you a tool to post your comment.
Why is this distinction between publishing and posting a big deal? It’s not that we imagine that there would be editing to do for an ordinance that’s been passed by city council. Quite the opposite. If the city clerk, Jackie Beaudry, were to send along an ordinance for publication in The Chronicle, it would not be my editor’s role to examine the text and suggest that she use “will” instead of “shall” or perhaps rethink the “Whereas” clauses in terms of providing more dramatic tension for the reader.
Rather, it would be my role to ensure that what appeared on The Chronicle’s website matched exactly what she gave me. So what’s the benefit of adding this third-party editorial process that allows us to call it publishing an ordinance? How does publishing serve as check on government? Isn’t this really just an argument that government should write a check – to publishers? No.
Benefits of Publishing
Here’s where I see the check. Attached to publishing is a cultural understanding that publishers archive what they publish. Part of the reason The Chronicle keeps all of its old articles online is that they’re useful as archival reference – for readers and for us as well. Part of the reason I write articles in the amount of detail I do is that I want to use those detailed accounts myself – to write additional detailed articles in the future. This is not idiosyncratic to The Chronicle. That’s what publishers do.
So when a question arises as to what was published and how it was published, you can appeal to the publisher’s archives. Why is that important? Because if there’s a question about whether the government met its 10-day deadline requirement of the city charter, it should not be the government itself that adjudicates the question of whether it has met its obligation. Rather it should be the third-party publisher’s archives.
Similarly, what if there’s a question about whether the wording of an approved ordinance that first appeared on a website matched the wording that currently is displayed in the archives? Or what if there’s a question about whether the currently displayed archives match the wording deliberated on and approved by the city council? These questions, too, should be settled not by asking the government itself whether it has created an accurate record, but by appeal to the third-party publisher’s archives.
Posting on the City’s Website?
The charter amendment that city council is asking voters to approve in November states that a sufficient means to disseminate the content of its passed ordinances is to post them on the city’s website.
As I’ve laid out, there’s no built-in external check, if the city itself – through posting as opposed to publishing – disseminates the content of its own ordinances. Certainly it’s a good idea if the city posts the content of its passed ordinances on its website. The question, however, is whether the city charter should require anything more than that. What the city council is asking voters to approve is a measure that would allow the city to satisfy the charter by posting ordinances to the city website – and nothing more.
The Flexibility Afforded to City Council
In the amendment to 7.4(a), the city council is also asking voters to give the council the broad discretion to use “any other means or method determined by city council appropriate” to disseminate the content of its ordinances.
A future city council could thus determine that spray-chalking ordinances on the sidewalks around city hall is appropriate for dissemination of this information. Were it to decide such a thing were appropriate, it’s not clear from the proposed charter amendment how the council might express its desire that this count as an appropriate method. Would a resolution be required? Would that resolution need to be passed before the method were deployed? Could “no means at all” count as “any other means” in terms of the amended charter language?
According to Ann Arbor’s city attorney’s office, no other municipality in Michigan affords its city council the kind of latitude that this charter amendment does to determine compliance with requirements of dissemination.
Ballot Language: Copy Editor Needed
The ballot language accompanying one of the proposed charter amendments is as problematic as its content. That’s important, because it’s the ballot language that voters will confront in their voting booths, and it’s the language that is likely to be used as a briefer, more efficient version of the proposal in various publications that cover this issue leading up to the November election.
First, given the broad latitude that is afforded to the city council by the proposed charter amendment to 7.4(a), it’s unfortunate that the ballot language puts unneeded grammatical distance between the council and its role as the determining agent. Here’s how the ballot language reads:
Shall Sections 7.4(a) (1) and (2) of the Ann Arbor City Charter be amended to permit the current requirement of newspaper publication of City ordinances to be satisfied also by posting to the City website, any media permitted by law or determined appropriate to inform the general public by City Council? [emphasis added]
As written, it’s not immediately clear that it’s the city council that is determining the appropriate means of communication. The “by” phrase would be better placed immediately after “determined” – like this: “… or determined by City Council to be appropriate to inform the general public?”
The more serious problem with the ballot language is that the “any media permitted by law” phrasing is not a part of the proposed amendment for 7.4(a), but is included in its ballot language. However, the “any media permitted by law” phrasing is a part of the 7.3(d) amendment. I would conclude that this is sloppiness on the part of the city attorney’s office and/or the resolution’s sponsor, Marcia Higgins.
To reflect the proposed amendment accurately, the ballot language should instead use the “any other means or methods” phrasing of the 7.4(a) amendment.
In sum, the ballot language that council approved probably should have read:
Shall Sections 7.4(a) (1) and (2) of the Ann Arbor City Charter be amended to permit the current requirement of newspaper publication of City ordinances to be satisfied also by posting to the City website, or also by any other means or methods determined by City Council to be appropriate to inform the general public?
Conclusion: I’m Voting No
At the council’s Monday meeting – when councilmembers approved the ballot question for the charter amendments on newspaper publication – Tony Derezinski (Ward 2) was spot-on when he lambasted his colleagues for failing to support his motion to postpone the historic district study committee appointment at the council’s previous meeting. He’d asked for 12 days, he said, arguing that something so controversial – which had in one form or another been discussed over multiple months and multiple meetings – should not be introduced for consideration late in the very day of a council meeting.
As it turned out, the language of the resolution on the historic district had to be brought back before council for reconsideration to get the difference straightened out between “demolition” and “all construction, addition, alteration, repair, moving, excavation, or demolition.” A postponement might have avoided the glitch.
Some city council members seemed to think it did not matter about the late timing of the charter amendment – because they assumed it wouldn’t be controversial. The problem with that assumption is that it’s impossible to know if a proposal is controversial until it’s made public.
Now that it’s been made public and approved, here’s a news flash for Ann Arbor’s city council: Asking voters to give you charter authority to do anything you didn’t already have authority to do – that’s going to be controversial.
There are problems with the ballot language as well as with the basic premise of these charter amendments. They could have probably been altered in a way that would have made the proposal truly uncontroversial – if the city council had publicly discussed the possibility of putting such an amendment forward before it suddenly appeared on its agenda.
There is no particular urgency here, and once the charter amendment and accompanying ballot language are revised appropriately, it could be passed in spring of 2010.
But as the charter amendment stands, I find it impossible to support and I’ll be voting no.
I’m voting “yes”. This proposed charter amendment merely gives the City a “menu” of options in an unprecedented situation: the collapse of the newspaper of general circulation.
I will vote “yes,” too, and point out another issue about the proper democratic choice: In a May election, there are many fewer voters. The Council wanted to get this on the ballot when the most voters would see it.
I’ll vote no. Giving the city the power to be its own press is scary.
Thanks, Dave, again you have elucidated some critical points. I would add that there is a regrettable tendency to add items at the last minute so that even councilmembers do not have a chance to read them. This assumes that councilmembers will merely vote as told. It is bad governance because the public has no chance to be forewarned of the action and to contact their representatives about it. (Whatever “it” is.) We are having too many big items added in this way. We need a charter amendment or just a change in council rules that prohibits these last-minute additions without, say, a three-quarters supermajority voting to add it to the agenda. Administration is taking advantage of the council and not allowing them to do the job they were elected to do – make decisions on behalf of the citizenry.
As usual, you did a great job describing and then analyzing this issue Dave.
I will vote no on the proposed change. I do not think posting a notice on the City’s web site is the same as providing it to a third party to disseminate by publishing or even mere posting. It’s sad that the Council’s (and Administration’s) conduct has cause me to have an inherent lack of trust, but indeed it has.
Hi Dave:
Just a clarification regarding the publication of City Council agendas – we are still publishing the Council agendas in the newspaper per the Council Rules. Despite the change in the Clerk’s Office advertising budget, we won’t actually stop publishing the agenda until Council changes its Rules. Last night’s agenda was published in the Sunday print edition of Annarbor.com – page D9.
This is completely off topic and for that I apologize and beg your indulgence. But, I feel the need to compliment everyone for the quality of community discussion on the Ann Arbor Chronicle site which in my humble opinion way surpasses the discussion on the AnnArbor.com site. I’m sure that the relative quality of the Chronicle reporting plays a role in encouraging the high level of discussion, but I also want to express my thanks and gratitude to the contributors to this site for keeping the debate and discussion so high minded. I am truly disappointed at the inane level of discussion at Ann Arbor.com which I consider to be only slightly above the drivel I see at the Free Press site.
Re: [6]. Thanks, Jackie, for the correction. Duly logged.
I think a key ingredient of a publication in this context is that you get a copy with a date stamp. An important part of the “permanent” record.
Excellent article, Dave.
I’ll vote no. I got to admit that I don’t feel strongly either way on this issue. But, you’re logic seems to have some validity and the cost to the city is modest (I assume you’ll charge for publication). To what you offered, I’d add that “publication” carries marketing efforts that broaden exposure of the information. That’s worth the few bucks the city would pay.
Public notice is too important to drift solely into the domain of government websites. The notices should be posted there, of course. But the independent publication has served as a bulwark of due process throughout the nation’s history. For now, the printed record is still essential to archiving, though posting on news websites is becoming more important. But there are many reasons why posting to govt sites alone isn’t sufficient. For one, Pew research indicates most people never visit government websites. For another, there is the independent tracking noted in this excellent article. For a third, some people are sensitive to the public agency’s cookies being able to track readers, so an independent option gives them a venue that lacks official powers. In the end, the notice should be in all of these places. Who would ever argue for less notice?
I need to throw in my two cents here. Not publishing the notices in a newspaper would save the city a small amount of money but small amounts can rapidly add up. I think the quoted savings by the city is $15K /year but I might be mistaken. Just a few months ago we spent many council meetings and still have major ongoing drama over whether to fund inexpensive items like project grow and the civic band. Face it, next year we will have to cut the budget somewhere and this looks like a good place to start. If we cut here, then maybe we can save those other programs that many still want covered, if at all possible.
In this day and age, I actually think more people check websites then government notices in the newspapers. In fact I don’t think I have EVER actually looked at the official government notices in a newspaper. Nonetheless, it would not be a bad thing to have more people actually go the government site for the notices because then they might browse around and see other important information. This actually seems like a good way to force people to be informed. There is nothing that irks me more than people who claim they were not told when they never bothered to pay attention. If you want to be informed, checkout the web sites and sign up for the new egov delivery system.
The few people out there who are not computer savvy and who do not have email addresses I do feel for. Maybe the city can have a weekly telephone recording listing all events and meetings that they can access. But those of you are who fully capable of looking up a website and getting email are just wasting our tax dollars to insist that the city publish these events in an actual newspaper. Get with the times.
Re: [12] “I think the quoted savings by the city is $15K /year but I might be mistaken.”
From the article published just above: “The FY 2010 budget (the current budget year), which was adopted by the city council in the spring, includes an assumption that the city council agenda will no longer be printed in a newspaper – at a cost savings of around $15,000.”
This part of [12] reveals clearly that there was not a close reading of the column by the author of [12]. And it’s thus understandable that the commentary in [12] doesn’t address the central issue of the column or subsequent comments.
The “Be Generous” commenting policy of the Chronicle means, in part, that it’s our expectation for commenters to be generous enough with their time to read, understand, mull over, and reflect on what others have written, before posting.
The vast majority of Chronicle commenters adhere to this practice, and is possibly an partial explanation for comment [7].
I particularly appreciated the differentiation between “posting” and “publishing”. There have been times in the past when “posting” (to satisfy the requirements of the Open Meetings Act) for some meetings was a piece of paper on a string in the city hall. It is important that this information is truly accessible to the public at large, and not to those who are sufficiently motivated and knowledgeable to thread their way through procedural thickets. Your point about an archived version is also good.
(And thus I return to my point in #4 about last-minute additions to the agenda.)
Vivienne, “posting” (to satisfy the requirements of the Open Meetings Act) is still being done with pieces of paper tacked up to a tack strip at City Hall. Link
Wow. Wonder how hard it would be to have an “electronic bulletin board” space on the city website where those responsible for meetings could post last-minute changes.
I’m all for saving money when possible. My question is: what costs the city $15K to print notices in a newspaper? if the city pays to have these printed, then they’re ads, not news. If it’s to pay someone to send these notices to a newspaper, that seems a lot of money for a few electrons and hitting the “send” button.
For the city save money, things like the issuance of GO bonds for optional projects (police station, convention center foundation, underground parking), $7 million buyouts for police officers 2 years away from retirement, and free-and-loose use of tax increment financing for private real estate projects need to be reigned in. $15,000 to publish council agendas is the wrong place to look for savings.
It is always “with the times” for government to be pro-active in its communications with the public. Contempt by government officials – and their apologists – for any portion of the public is never “with the times” in a democracy.
I’m voting “no,” too. The current wording in the city charter does not exclude any type of posting or publishing. It only requires publication in a newspaper. I don’t trust the wording of the proposed change that reads “by any other means or methods determined by City Council appropriate.” What if in 50 years we end up with a Bush II-type council that is obsessed with privacy. They could determine that a very restricted method to be appropriate, thereby limiting public awareness and input. I can’t imagine that happening in Ann Arbor, but then I couldn’t imagine someone like Bush being voted in for a second disastrous term.
Dave Askins has done an Other Perspectives segment on this.
Channel 17:
Premiere: Wednesday, 10/28 12:30 PM
Replays: Wednesday, 10/28 10:30 PM
Thursday, 10/29 2:30 PM & 6 PM
Friday, 10/30 10:30 AM & 8:30 PM
Saturday, 10/31 3 PM
Sunday, 11/1 1:30 PM
Monday, 11/2 2:30 PM, 5:30 PM & 8 PM
(Coincidentally, a separate part of this segment is an interview with Hatim Elhady. I’m looking forward to hearing what Dave has to say. I already voted against the charter amendment.)