Column: Upholding the Open Meetings Act

On Friday, Sept. 17, 2010, The Ann Arbor Chronicle filed suit against the city of Ann Arbor alleging that a violation of the Michigan Open Meetings Act occurred on July 19. The allegations are based in part on remarks made by councilmember Stephen Rapundalo during open session of the Aug. 5 city council meeting – remarks that referred to the July 19 closed session. The subject of both the open and closed session discussions was medical marijuana.

We don’t take this decision lightly, and in this column we lay out the circumstances that led us to file this lawsuit. Our decision was prompted by more than this one clear violation. More broadly, we’re concerned about a culture of closed city government that goes beyond a laxity about conformance with the state’s Open Meetings Act and Freedom of Information Act.

This culture isn’t uniform – many city staff and elected officials are committed to doing the public’s work in public view. However, the prevailing culture is one of closed government – in which city officials assume that they can do their work in a way that’s shielded from public view. It’s a culture we’ve observed in the thousands of hours we’ve spent covering city council and other city commissions and committees over the past two years.

We believe the culture of closed government that exists in the city of Ann Arbor will not change until a lawsuit is filed and won – and that’s why we’ve chosen to litigate.

We’re being represented by East Lansing attorney Jeffrey Hank of Hank Law PLLC, who also believes this is an important case: “Open and transparent government is important for a multitude of reasons. In this case, advocating for open government on behalf of a citizen-based news organization, which is covering the reawakening of our liberty as it relates to marijuana prohibition in one of Michigan’s greatest intellectual cities, is as American as apple pie. This case is the perfect nexus of what our society needs to reinvigorate our democratic spirit.”

Chronology of the Lawsuit

Rapundalo’s remarks on Aug. 5 indicated that the July 19 closed session included a discussion of medical marijuana policy and a decision by the council to consider some kind of local legislation in Ann Arbor. Either policy discussion or decision-making would be unjustified under the purported reason for the closed session, which was to discuss attorney/client privileged communication. Statutory and case law for closed sessions to discuss attorney/client privileged communication requires that the conversation be constrained to specific legal advice contained in a written opinion from legal counsel – and excludes public policy discussion or decision-making.

Before deciding to file a lawsuit, we gave the city council and the city attorney ample opportunity to address the issue. Our attorney sent a “demand letter” to the city attorney and the city council on Aug. 11, asking that the council take specific steps at their regularly scheduled Aug. 16 meeting.

Those steps, which could have been accomplished relatively quickly at their Aug. 16 meeting, were: (i) to acknowledge that their July 19 closed session did not conform to the Open Meetings Act (OMA), (ii) to vacate the medical marijuana moratorium that they’d approved on Aug. 5 based in part on the July 19 closed session, (iii) to entertain additional public comment on the medical marijuana moratorium, and (iv) to take appropriate action on a medical marijuana moratorium.

At the Aug. 16 meeting, the Ann Arbor city council did not take any action in this regard.

The Chronicle sent a follow-up demand letter on Aug 19. And at the council’s Sept. 7 meeting, Stephen Rapundalo made further comments about the closed session on July 19, meant to clarify that he’d misspoken or misrepresented the closed session with his earlier remarks. Aside from rejecting the labels “discussion” and “directive,” however, Rapundalo left unretracted a key part of his earlier comments: While everyone was in the room, a city councilmember had expressed a desire to see local legislation brought forward at the earliest opportunity. That evening, on Sept. 7, both Rapundalo and the city attorney refused to speak to The Chronicle to offer any further clarification.

In the time between Sept. 7 and the date the lawsuit was filed – Sept. 17 – no additional facts were provided to The Chronicle that would suggest that the events of July 19 in city hall did not constitute to a violation of the OMA. This is why The Chronicle decided to take the step of filing a lawsuit. What we are asking the court to do is straightforward: To find that the city council violated the OMA on July 19 and to instruct the city council that in the future, they should not engage in the practice that resulted in the July 19 violation.

Lawsuit Timeline

Here’s the chronological narrative of these actions, presented in timeline form. The facts of this case have in large part already been reported in The Chronicle.

• July 19, 2010: Ann Arbor city council holds closed session from 10:07 p.m. to 10:14 p.m. p.m. to discuss attorney/client privileged communication. [Chronicle coverage of the open meeting in which the closed session was embedded: "Zingerman's Moves on to HDC"]
• Aug. 3, 2010: Primary elections held.
• Aug. 4, 2010: Late in the afternoon, a measure calling for a medical marijuana moratorium in the city of Ann Arbor is added to the city council agenda.
• Aug. 5, 2010: Ann Arbor city council approves a medical marijuana moratorium. During deliberations – to refute contentions by Carsten Hohnke (Ward 5) and Margie Teall (Ward 4) that they did not know the measure was coming forward – Stephen Rapundalo (Ward 2) tells them they may have been distracted by their primary election campaigns, concluding with: “In fact, this was discussed at our last meeting and a directive was given to the city attorney at that time to bring this forward to this meeting tonight and I believe everybody was in the room when that was indicated.” During a recess in the Aug. 5 meeting, Rapundalo tells The Chronicle he was describing a closed session from the council’s previous meeting – July 19. [Chronicle coverage of the Aug. 5 meeting: "Modified Moritorium on Marijuana Passed"]
• Aug. 11, 2010: After retaining legal counsel, The Chronicle sends a demand letter, asking for remedy – including re-enactment of the closed session – at its next council meeting, which is scheduled for Aug. 16. [.pdf of Aug. 11 demand letter]
• Aug. 16, 2010: The city council takes no action with respect to the demand letter; the city attorney does not ask for a closed session with the council to discuss the matter. [Regular Chronicle coverage of the meeting: "Four Year Trail to Non-Motorized Path"]
• Aug. 19, 2010: The Chronicle sends a follow-up demand letter reminding the city attorney and the council of the case law that delineates a very narrow range of possible discussion covered under attorney/client privilege, and asking if they dispute the veracity of Rapundalo’s Aug. 5 open session statement. [.pdf of Aug. 19 follow-up demand letter]
• Sept. 7, 2010: Rapundalo makes a statement intending to clarify earlier remarks, but leaves them largely intact: “First of all, I think I might have used or indicated that there had been a ‘discussion’ – if there was a discussion it was actually one-sided. It was done by the city attorney as part of the focus of that closed session, which was concerning legal advice. Secondly I think I indicated that there was a directive given. That was a misrepresentation. There certainly was a councilmember who indicated that they were interested in bringing this matter forward at the earliest time, the next meeting.” [Chronicle coverage: "Column: Open Meetings and Marijuana"]
• Sept. 17, 2010: The Ann Arbor Chronicle v. City of Ann Arbor filed.
• Sept. 24, 2010: Lawsuit served.

The set of general allegations in the complaint includes the following:

Upon information and belief, other councilmembers will testify to the fact that policy discussions and decisions were made at the July 19, 2010 closed session regarding medical marijuana, which strayed outside the stated purpose for the closed session, and further, that there was no written document that was a part of the closed session discussion.

We base our assertion of what councilmembers will say when deposed on what they’ve said to The Chronicle about the closed session – no councilmember has agreed to be a Chronicle witness in this case. We will not be naming the sources on the city council who’ve commented on the subject to us.

Why Isn’t Rapundalo’s Disavowal a Clear Defense?

It’s not our intention to argue the case for an OMA violation point by point in the pages of The Ann Arbor Chronicle. However, in light of Stephen Rapundalo’s attempted clarification – which apparently came in response to the demand letters sent to the city via The Chronicle’s legal counsel – it’s worth making a few observations about that attempted clarification.

Not a Defense: Credibility

First, we think Rapundalo’s attempt at clarification lacks credibility, because the same clarification could have been offered publicly as early as the council’s Aug. 16 meeting or via a public written statement at any time prior to the Sept. 7 meeting. No clarification was offered by Rapundalo during that time period in response to a request from The Chronicle.

Further, no other councilmember objected to the content or the wording of Rapundalo’s comments that evening of Aug. 5.

And even though city attorney Stephen Postema said at the Sept. 7 meeting that he welcomed Rapundalo’s clarification and insisted for his part that there was no directive given to him, Postema had no objection to Rapundalo’s comments on the night that Rapundalo made them. Postema himself was in a position to object to Rapundalo’s representation on the night of Aug. 5, because he took active part in the deliberations, participating in the back-and-forth with councilmembers.

Not a Defense: Basic Assertion Left Intact

Even if one were to grant Rapundalo’s contention that the words “discussion” and “directive” are not the best words to describe what happened during the July 19 closed session, his clarification leaves unchanged the basic assertion he’d made originally: That a councilmember had expressed interest in seeing local legislation come forward at the earliest possible time and that everyone had been in the room when that happened.

The specific query that Rapundalo and Postema refused to answer for The Chronicle on the night of Sept. 7, when Rapundalo gave his clarification, was this: Can you confirm that Rapundalo meant that the councilmember who weighed in, asking that local legislation be brought forward quickly, did so during the closed session?

Their refusal to respond to that particular question was reason enough for The Chronicle to revisit Rapundalo’s somewhat curious statement that “I believe everyone was in the room when that was indicated.” On the one hand, it could be construed as expressing – with a bit of flourish – that “it was at an actual meeting when this happened.” But it’s also possible that the phrase was not a matter of a rhetorical flourish.

What if it simply was included as part of ordinary conversational logic? The kind of conversational logic we’re considering here is that set forth by H.P. Grice in his seminal work, “Logic and Conversation,” in 1975. Paraphrasing somewhat, here are Grice’s basic axioms of a cooperative conversation:

• Maxim of Quality: (Truth) Don’t say what you believe is false.
• Maxim of Quantity: (Information) Say enough but not too much.
• Maxim of Relation: (Relevance) Be relevant.
• Maxim of Manner: (Clarity) Be clear.

Of particular interest is the Maxim of Relation (Relevance). On this line of inquiry, we consider that Rapundalo’s remark that “I believe everyone was in the room when that was indicated” to be worth stating, and relevant. What would make such a statement relevant?

Well, first consider a different, hypothetical statement. What if Rapundalo had instead said, “I believe everyone was fully clothed when that was indicated.” If that’s what he’d said, then we assume by the Maxim of Relation that the non-nudity of councilmembers is relevant. And the non-nudity of councilmembers is relevant, only if there were some reason to think that some members might have at least partially disrobed.

So, for the statement that Rapundalo did make – “I believe everyone was in the room when that was indicated” – everyone’s presence is relevant. And the presence of everyone is relevant only if there were some reason to think that some members might not have been in the room.

There are at least two possible reasons we can imagine to think that some councilmembers might not have been in “the room”: (i) If councilmembers had reached a consensus that the closed session would end, and were physically preparing to leave the council workroom [adjoining council chambers], where closed sessions take place, or (ii) If councilmembers continued deliberations past the adjournment of the entire meeting, and the room in question was not the council workroom but rather city council chambers. In either case, there might have been some reason to think that not all councilmembers were still in the room – they might have already left – so Rapundalo’s statement clarifies in both scenarios that everybody was still in the room.

Either of those two scenarios would be a violation of the OMA.

Pattern: Lack of Discipline and Knowledge

Councilmembers may have different recollections about the exact context of their discussion and directive given on July 19: Did this happen in the middle of the closed session? Did it happen “on the way” back into open session, but still in the closed session? Did it happen after the meeting was officially over and had been adjourned?

Part of the reason that recollections might differ is that there is a lack of discipline on the part of the Ann Arbor city council, which The Chronicle has observed, when it comes to adherence to the seemingly inconsequential requirements of the OMA. For example, it’s required that a public body adjourn its meetings in an open session – adjournment is not a permitted activity for a closed session.

Until last year – when The Chronicle voiced its objections to the city attorney – the Ann Arbor city council would adjourn its council meetings out of closed sessions in its workroom, by holding the door to the workroom ajar while doing so. It’s a nice wink and a nudge to the OMA, but falls short of compliance. Why does it fall short? From most locations inside city council chambers, it’s not possible to see into the workroom to ascertain if there is even a quorum still present in the room when the adjournment vote is taken. But open meetings have to be held in locations accessible to the public.

Now, how big of a threat to democracy is that, really, for the council to cut that corner, instead of coming all the way back into the council chambers, taking their seats and performing the ritual of adjournment? After all, if nobody from the public is left in the council chambers to witness the adjournment – which is mostly the case – what’s the big deal?

Here’s the big deal. When the ritualistic distinctions between open and closed session are blurred for the sake of expediency – by forgoing the seemingly inconsequential requirements of the OMA – a sense of discipline is lost. And that can lead to lack of conformity with substantive requirements – which is what we believe happened on July 19.

The city council, out of all the city’s bodies, should set the standard and the example for every other public board and commission to follow, and it’s the city attorney’s job to educate our public servants about their duties to conform with the OMA, and to do the public’s work in public. So the fact that many of the city’s other boards and commissions display a similar lack of knowledge and discipline to the city council is, we think, not accidental.

Ann Arbor Chronicle publisher Mary Morgan conveyed this sentiment in an email sent to city attorney Stephen Postema on Sept. 13, 2010:

At their Sept. 8 meeting, the Ann Arbor Greenbelt Advisory Commission went into closed session, as they typically do, to discuss land acquisitions. Apparently, they also have the habit of adjourning in closed session, if there is no additional business to conduct in open session. I learned this because I was awaiting their return to the county boardroom, where the open session had been held, when I heard the sounds of people talking as they walked through the lobby and out of the building. When I went out and told them that they needed to adjourn the meeting in open session, they were surprised – this has not been their practice. (Also awaiting their return, by the way, were a CTN staff member and representative from the clerk’s office.)

This is not the first time The Chronicle has encountered a city body that’s been inadequately informed about compliance with the Open Meetings Act. When we first began covering the Ann Arbor Public Art Commission, that group was meeting in a private building – the offices of JJR – that was inaccessible to the public after the start of the meeting. It wasn’t until I pointed this out that the venue was changed.

…

Obviously, compliance is a legal issue – and not contingent on whether someone is there to observe it. This lack of discipline results in a blurring of the lines between when meetings are in open session, closed session or adjourned, and might well have contributed to the OMA violation that we believe occurred on July 19, 2010 – a violation that, unless acknowledged and remedied, we are prepared to challenge in court, as you are aware.

Postema apparently did not take the threat of litigation seriously enough to do anything about it, and four days later The Chronicle’s suit was filed.

There are also various measures – not required by statute or case law – which the city council could enact to help enforce discipline and awareness about the nature of open government, but has chosen not to. For example, the justification for a closed session based on attorney/client privileged communication requires that the closed session discussion by the body be limited to the specific legal advice contained in written communication from legal counsel. No statute or case law requires any particular protocol to help educate or to enforce discipline with regard to this requirement, but such protocols could help enforce discipline as well as provide means to prove compliance after the fact.

Obviously, our own legal counsel – Jeffrey Hank of Hank Law, PLLC – supports our position in this lawsuit.

Not representing The Chronicle in this matter is Lisa Rycus Mikalonis, an attorney with Sommers Schwartz in Southfield, Mich. She is former general counsel for the Michigan Press Association, specializing in First Amendment law, freedom of information and open meetings issues – legal areas of interest to media.

In a phone interview with The Chronicle, Mikalonis noted the inherent difficulty in pursuing a claim about a closed session – because no one from the public was there. She suggested that if public bodies routinely made audio recordings of their closed sessions and transcribed them, they could easily demonstrate, if challenged, whether closed session discussions stray from their stated purpose.

Generally, Mikalonis said, “If they really want to show their commitment to open government, they need to enact protocols that allow confirmation that the requirements are met for closed sessions in the OMA.” In the case of The Chronicle’s lawsuit, she said, if the city council recorded its closed sessions, it could be in a position to respond to our suit by submitting a transcript under seal to be reviewed by a judge in chambers.

We think it would be straightforward to implement a protocol that would serve to remind councilmembers of the narrow confines of their permitted conversation in a closed session based on attorney/client privileged communication, plus educate councilmembers and the public about the nature of such a closed session. For example:

• Upon entering into a closed session in order to discuss the meaning of legal advice from legal counsel, the Ann Arbor city council will, as a part of the motion that must be voted on to enter into the closed session, name the specific written document that underpins the closed session in the following format: “The advice memo prepared by [Name], dated [Date], on the topic of [Subject], which is [N] pages long; and
• At the start of the closed session, legal counsel shall verify by roll call of each member present that each member has visual access to a copy [paper or digital] of the document that is the stated basis of the closed session.
• An audio recording made of discussions of closed sessions from which the attorney’s staff shall make a verbatim transcript, which shall be attached to the official minutes of the closed session, which are required by the OMA to be kept for a minimum of one year.

For closed sessions justified under the OMA provision that allows discussion of pending litigation, the state attorney general’s handbook on the OMA suggests something similar:

We suggest that every motion to go into closed session should cite one or more of the permissible purposes listed in section 8 of the OMA. An example of a motion to go into closed session is:

I move that the Board meet in closed session under section 8(e) of the Open Meetings Act, to consult with our attorney regarding trial or settlement strategy in connection with [the name of the specific lawsuit].

Yet the Ann Arbor city council does not adhere to this straightforward advice from the attorney general – Ann Arbor city council motions do not as a matter of habit name the pending litigation. Mary Morgan’s email to Postema concludes with the specific suggestion that various protocols like these be enacted:

I urge you to consider how you plan to enact specific policies, procedures and educational efforts to enforce OMA compliance, which is at minimum a legal requirement. Beyond that, I would suggest that you find ways to demonstrate that the city embraces the concept of open government, rather than to approach OMA as simply a legal annoyance that can be skirted if at all possible.

I understand that it’s easier to conduct the public’s business out of public view. I understand that democracy can be messy, inefficient and uncomfortable. I understand the inevitable clubbiness and patronizing attitudes that result from a select group of people having access to information, because of their office, that’s not available to the general public.

And because I understand all this, I am doubly grateful that I live in a country where safeguards are in place to ensure that the privileges of power and the tendencies of human nature don’t thwart the greater good of the public – open access to our government, its actions and information. I take these safeguards seriously, and I hope that as the leader of an office charged with upholding these safeguards, you will begin to take them seriously, too. Anything less, and you are not fulfilling the duties of your position.

There’s not yet any indication from the city attorney that he’s willing to take his job or open government seriously in the way that we’ve suggested.

Pattern: Doing Public’s Work out of Public View

Chronicle readers who followed our coverage of the “mutually beneficial” committees of the Ann Arbor Downtown Development Authority and the city council over the past year will not be surprised by our contention that the city’s elected officials generally prefer to do their work out of public view, even when it’s required to be done in public. [For a summary, see "DDA to Tie $2 Million to Public Process"]

For example, the city council of 1991 passed a resolution even stronger than the Open Meetings Act:

R-642-11-91

RESOLUTION REGARDING OPEN MEETINGS FOR CITY
COMMITTEES, COMMISSIONS, BOARDS AND TASK FORCES

Whereas, The City Council desires that all meetings of City boards, task forces, commissions and committees conform to the spirit of the Open Meetings Act;

RESOLVED, That all City boards, task forces, commissions, committees and their subcommittees hold their meetings open to the public to the best of their abilities in the spirit of Section 3 of the Open Meetings Act; and

RESOLVED, That closed meetings of such bodies be held only under situations where a closed meeting would be authorized in the spirit of the Open Meetings Act.

To evade the requirement of the 1991 resolution, some city council and DDA members formed a “working group” early in 2010 to meet to discuss the parking agreement between the city and the DDA – despite the fact that both bodies had already appointed committees to do that work. By calling the collection of people a “working group,” they apparently felt they were complying with the 1991 resolution, which only covers “boards, task forces, commissions and committees.”

When The Chronicle emailed Christopher Taylor earlier this year to set up a phone interview on the subject of the “working group,” he did not respond for a few weeks, and when we followed up, he finally agreed to have us email him questions. When he received the questions, he then responded saying he was declining to answer any of them because they made him feel like he was a suspect in a police interrogation. Among the questions:

What would you consider to be the key material differences between a “working group” and a “committee” or a “task force”? That is, are “working groups” different from “committees” with respect to their authority to a make recommendations, the kind of conversations they can have, the information they can seek, the locations they can meet, the process by which they make decisions, or anything of a substantive nature beyond the labels of “working group” and “committee”?

By way of contrast, DDA board member Russ Collins and DDA executive director Susan Pollay responded the same day to The Chronicle’s request for a phone interview on the topic of the “working group.”

Having laws and resolutions on the books are thus no guarantee of open government. What’s required for open government is elected and appointed officials who are committed to doing the public’s work in public view, whenever that’s possible – not just when it’s convenient or required by law.

That is to say, it was not just the July 19 OMA violation that kept the medical marijuana issue shielded from public view until the Aug. 5 meeting when council considered the moratorium. At any point between Chuck Ream’s Feb. 1, 2010 remarks made to city council during public commentary and August 2010, it would have been possible for a city council member or the city attorney to have mentioned during their communications slots on a meeting agenda something like: We’re currently considering various options to handle regulation of medical marijuana in our city. One could even imagine the city attorney asking for a city council work session to be held on the topic – open to the public.

Instead, the city council and the city attorney kept their consideration of medical marijuana out of the public discourse until the last possible moment. They could have still done that without violating the OMA – because they didn’t really need to convene that closed session on July 19. The city attorney could have decided on his own to send a draft moratorium to a city councilmember, and that councilmember could have decided to place it on the agenda.

But city council did decide to convene a closed session – one that violated the OMA. And that’s why we decided to invest some of our limited financial resources to file this lawsuit.

About the writer: Dave Askins is co-founder and editor of The Ann Arbor Chronicle.