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

Seven-member local officers compensation commission to meet on Dec. 16 – with just two members appointed and serving

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

History of Ann Arbor city councilmember and mayor salaries as determined and accepted/rejected by the Ann Arbor city council.

History of Ann Arbor city councilmember and mayor salaries as determined by a process involving the LOCC and the Ann Arbor city council.

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

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

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

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

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

What Is a Quorum?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Who Can Serve?

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

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

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

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

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

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

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

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

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

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

Falling Through the Cracks?

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

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

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

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

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

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

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

Filling Potholes, Vacancies

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

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

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

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

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

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

What choice do they have?

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

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

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

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

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

The Chronicle could not survive without regular voluntary subscriptions to support our coverage of public bodies like the local officers compensation commission. Click this link for details: Subscribe to The Chronicle. And if you’re already helping The Chronicle fill its own potholes, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!


  1. By Jack Eaton
    December 13, 2013 at 11:27 am | permalink

    Thank you for your persistence in seeking City compliance with the LOCC law.

    The failure to appoint members to the LOCC is very much like the recent experience where terms of all members of the downtown citizens advisory committee expired and were not renewed for months.

    The downtown citizens advisory committee is required by the State downtown development authority statute. Similarly, the LOCC is required by state statute.

    Those legally required committees differ from many of the other boards and commissions established by the city. The state mandates that we have those committees

    I don’t believe the City can argue that it is really complying with the LOCC requirements by calling a meeting for which it has failed to appoint sufficient members to constitute a simple quorum. Even if there is technical compliance, I think we should expect more.

    Perhaps members for the committee have not been appointed because some elected officials do not want to discuss pay increases. The statute provides the simple means for rejecting a recommended pay increase. I know that many of the newly elected Council members would vote against a pay increase as long as we have an understaffed police department.

    You might ask why I would insist on having a fully staffed LOCC and why I would want it to convene and conduct its business if I intend to vote against a raise in Council pay. The simple reason is because the state legislature instructed local governments to have a LOCC and to have the commission meet in odd numbered years. I don’t think it is asking too much for us to do what the state legislature has instructed us to do.

  2. By John Floyd
    December 13, 2013 at 12:23 pm | permalink

    Jack, don’t go rational on us. It’s too disorienting.

    I would love to hear more from Mr. Westphal about the specifics that are driving his fear that we as a community are unwilling “to invest in our future.” That is, what are the specifics of that future that Mr. Westphal envisions? Another 100,000 residents? Another 100,000 commuters? What specifics drive his belief that in keeping the roads in usable shape, we are not investing in the future? I don’t recall that he mentioned any of them in his recent campaign.

  3. December 13, 2013 at 2:14 pm | permalink

    This lapse in filling vacancies should never happen. I thought the administration learned its lesson from the Downtown Citizens Advisory Council debacle.

    Apparently not.

  4. By Rod Johnson
    December 13, 2013 at 2:22 pm | permalink

    At least we’re not Wallsburg, Utah.

  5. By Curious
    December 13, 2013 at 3:54 pm | permalink

    Mr. Floyd, re: (2): I’m guessing that was during the Fuller Station push, when people’s reluctance to throw hundreds of millions of dollars into a project that had no justification was “interpreted” by the cheerleaders of said projects to not be “future minded.” In other words, to want to use money to fix what is broken instead of buying new and different things is somehow incorrect and not considerate of “the future.”

    In addition to the above being an incorrect, irresponsible take on things, the analogy is also false; it suggests that in general the roads are in OK shape, or at least that a minority are in bad shape, and to fill “every pothole” would be an over-use of funds/effort. When, in fact, the entirety of almost all of our roads is in an embarrassing condition. Literally. We are literally embarrassed about our roads when we have visitors.

  6. December 13, 2013 at 4:27 pm | permalink

    The point that I recall Kirk Westphal was making is that we need not have all immediate service levels (potholes, police, etc.) at the very highest and best level before we divert money to those “future investments”. He talked in terms of benchmarking to other communities rather than using local perceptions of service levels to dictate spending decisions.

    I’ve never heard a really convincing explanation of why our roads deteriorate so rapidly. Madison, Wisconsin has excellent roads despite the winter weather. I just know that when I moved here, it reminded me of a third-world country (in road terms).

  7. By Steve Bean
    December 13, 2013 at 4:34 pm | permalink

    @6: It’s the difference between being in zone 5b to 6a in southern MI versus 4b to 5a in central to southern WI. We have more freeze/thaw cycles. Either that or we build lousy roads. :-)

  8. December 13, 2013 at 4:51 pm | permalink

    Re (7) Are you sure you used the correct emoticon?

  9. December 13, 2013 at 6:24 pm | permalink

    So the State can pass a law allowing the City to ignore its own charter, and the City actually took advantage of that?

    If Hewitt is ineligible, then Eunice Burns is the only member of the commission, and constitutes a majority of one.

    Re 8: No. 7 is actually a rare correct use of that emoticon, which means “just kidding.”

  10. December 13, 2013 at 7:32 pm | permalink

    This is a commission that I am interested in but it meets during the workday. I have noticed that more than one commission does this and I have to question this. Even if one works in town, one can’t always leave work at 2:30 on a Monday. In my next life, should I just marry rich so I can be involved? (Yes I’m being uncharacteristically crabby…I don’t like being kept away from things because I have to work)

  11. December 13, 2013 at 10:19 pm | permalink

    From the 2011 minutes:

    “Four members of the LOCC constitute a quorum for conducting business.”

  12. December 13, 2013 at 10:27 pm | permalink


    Two reasons for this: One is that almost every weekday evening is already taken up with meetings and scheduling becomes a problem.

    Another is that staff are almost always involved and it means that they have to meet with a group outside their workday.

  13. By Steve Bean
    December 14, 2013 at 11:26 am | permalink

    8 & 9: It means I love reality, whatever it is. :-)

  14. December 16, 2013 at 9:55 am | permalink

    re: 6
    Wisconsin also invests significantly more for roads than Michigan, at least on a per capita basis: [link]

    I would like to see those numbers on a per mile basis.

  15. December 16, 2013 at 10:25 am | permalink

    (14) Yes, I’m sure that is true, even on a per mile basis. I think they put down a better base.

    As I recall, most of the roads inside Madison are concrete, not asphalt.

  16. By DrData
    December 16, 2013 at 10:14 pm | permalink

    Wisconsin also doesn’t have gravel or dirt roads for its minor county roads.

    I lived in Wisconsin for a year and visited relatives in Illinois that year for Thanksgiving. All the folks said “Wisconsin has good roads.” I wasn’t all that impressed, coming from Texas, which also has good county roads. Then I moved to Michigan and really appreciated Wisconsin’s roads.

  17. December 17, 2013 at 11:38 am | permalink

    When I was growing up in Oklahoma (an even poorer state then), almost all rural roads were paved. When we got to a dirt road, we knew we were really out in the boonies.

    It was a shock to see dirt roads even inside the city here (in a township island in the Second Ward, in an affluent neighborhood).

  18. By John Q.
    December 17, 2013 at 12:28 pm | permalink

    I can’t speak for Oklahoma but I didn’t see the level of sprawl in Wisconsin that we have here in Michigan. Look at the level of infrastructure that’s left behind in Detroit and other urban cities that still has to be maintained even as the population has migrated elsewhere and demanded the same level of infrastructure follow them. There’s no way to maintain that.

  19. By Dan Ezekiel
    December 18, 2013 at 6:37 am | permalink

    When I lived in Wisconsin, I was surprised to see so many paved roads out in farm areas, having grown up here. I was told that the farm roads were paved because dairy tanker trucks traveled them. Don’t know if that’s the real main reason, but it was certainly a striking contrast to farm roads in Michigan.

  20. By John Floyd
    December 18, 2013 at 11:22 pm | permalink

    @5 Curiously, I share your embarrassment.

    I’d still like to know why the future demands, for example, a train station that the present (apparently) does not. What is the basis for the claim that the current station will be inadequate for “The Future”? How many new people does Mr. Westphal expect will come here to ride the train? Why does The Future need the intercity passenger station to be at University Hospital, when the present (again, apparently) does not? Why does Mr. Westphal believe that his crystal ball sees so much deeper into the further than the balls used by those whom he opposes? Does he really know something to which the rest of us are not privy, or is he just on a rant?

    Feel free to substitute your favorite “For the Future” item for “Train Station” in the above paragraph.