Column: A Reminder on Open Government
As part of an ongoing study of Ann Arbor’s sanitary sewer system during wet weather, a public meeting will take place next Thursday, Feb. 6, from 6:30-8:30 p.m. in the Slauson Middle School auditorium. At that meeting, an update will be presented on the study. Also to be discussed at the meeting are results of a recent survey of participants in the city’s footing drain disconnection program.
Government should not be like an open sewer, but it should be open.
Fact: In local government, it doesn’t get any sexier than sanitary sewers.
The study’s full name is the sanitary sewer wet weather evaluation (SSWWE). As background reading, in preparation for next Thursday’s meeting, readers might find it useful to immerse themselves in this recent Chronicle report: “Backups: Lawyers, Sewers, Pumps.” That report is centered on a Jan. 9, 2014 meeting of the city’s citizens advisory committee (SSWWE-CAC) associated with the study.
But this column does not dwell on the substance of either the Jan. 9 or the Feb. 6 meetings. Instead, it focuses on the nature of meetings and expectations of Ann Arbor residents for local governmental activity: Government shouldn’t be like an open sewer, but it should be open.
First, meetings that are accessible to the public – like the one earlier this month or the one next Thursday – are a part of the fundamental standard set by Ann Arbor residents for the function of our local government. Ann Arbor residents don’t consider the convening of a publicly accessible meeting, with data and information available beforehand, to be some kind of bonus, value-added feature of our local governance. It’s just axiomatic.
Of course, Ann Arbor residents don’t have a monopoly in Michigan on an expectation of open government. Two state statutes ensconce a statewide commitment to open government – the Open Meetings Act (OMA) and the Freedom of Information Act (FOIA). From the OMA: “All meetings of a public body shall be open to the public and shall be held in a place available to the general public.”
But a group like the SSWWE-CAC is not, strictly speaking, a “public body” as defined in the statute. So in Ann Arbor, we take the OMA a step further. By longstanding city policy established through a city council resolution passed in 1991, even advisory groups like the SSWWE-CAC are expected (to the best of their abilities) to conduct their meetings in accordance with the OMA.
I’ve written a lot about this topic in the past, and don’t really have much to add now.
What prompted me to write this column, more as a reminder than anything else, was seeing a note sent to SSWWE-CAC members via Basecamp – a piece of project management software that allows group collaboration and communication. The note was sent by one of the city’s outside consultants for the sanitary sewer wet weather evaluation – Charlie Fleetham of Project Innovations.
Fleetham’s note included the following statement about the Basecamp site that’s been set up for the SSWWE-CAC: “… I believe that the CAC is and would be well served by having a site [Basecamp] to discuss this very complex and emotional issue without fear of public scrutiny.”
While I think that Fleetham’s sentiment was likely well-intended, public scrutiny is part of what Ann Arbor residents sign up for when they serve on one of the city’s citizens committees. This kind of service makes a resident a participant in a quintessential governmental function. As such, that service should be and will be subjected to public scrutiny.
City Policy on Open Meetings
The city’s policy on various committees, commissions, boards and task forces was established through a city council resolution, passed on Nov. 4, 1991:
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.
The idea of the resolution is this: Even entities to which the OMA would not technically apply are still expected to conform to the spirit of Section 3 of the OMA – to the best ability of that entity’s members. Section 3 includes a provision that allows a person to address a meeting of a public body.
The first meeting of the SSWWE-CAC took place on Aug. 21, 2013. The time for public commentary was provided at the end of the meeting. But on that occasion, facilitator Charlie Fleetham indicated to the members of the CAC that they were free to leave the meeting before the public commentary started. And a few CAC members did leave before members of the public addressed the CAC.
Subsequent CAC meetings attended by The Chronicle have, fortunately, not included an invitation to members to depart before the public commentary started.
Just as members of the CAC should not be shielded from the responsibility of listening to what the public has to say, the public should not, as suggested by Fleetham, be shielded from conversations among CAC members. Here’s Fleetham’s side of some communications obtained by The Chronicle:
From: Charlie Fleetham
Date: Fri, 17 Jan 2014 at 2:23pm
Please find attached a draft copy of the FDD Survey report.
Until the CAC has reviewed this report, it is DRAFT and should not be distributed outside of the CAC. We want to gather your input/requests before finalizing and distributing.
Please provide your input before Wednesday, January 22th …
Charlie Fleetham Fri, 24 Jan at 11:22am
Regarding the question of whether or not BaseCamp is subject to FOIA, per a conversation with Abigail Elias, as a private website, BaseCamp is not subject to FOIA provisions.
…Charlie Fleetham Fri, 24 Jan at 2:06pm
I believe that BaseCamp needs to be off limits to FOIA requests. It provides a venue for the CAC to express their opinions without fears about legal actions/scrutiny etc.
…Charlie Fleetham Fri, 24 Jan at 8:27pm
The question that was asked was whether or not the BaseCamp is subject to FOIA. According to Abigail [Elias, city of Ann Arbor assistant city attorney] it is not, and that is what I reported. I also said that I believe that the CAC is and would be well served by having a site to discuss this very complex and emotional issue without fear of public scrutiny.
…Charlie Fleetham Sat, 25 Jan at 6:18pm
Regarding keeping information secret, no one on the project team has ever suggested keeping project data away from the public or using BaseCamp to conceal information. However, I believe it is appropriate to all folks to review draft reports before distribution to the public. That said, Lori and I scanned the project library last week, identified some documents that needed to be uploaded and the City has done so. (Note – we need to correct the year date for the Jan 9 meeting and note that the video covers the last 90 minutes only – we will do this on Monday.)
…
What’s the OMA issue here? If Basecamp is used as proposed by Fleetham, then Basecamp is a venue to conduct what are functionally meetings of the CAC – which are, according to Fleetham, explicitly intended to escape public scrutiny. Because Basecamp is protected by password, the meetings of the CAC that take place in the forum of Basecamp are, in fact, inaccessible to the public. They’re also not noticed to the public as to when they take place. But it appears that there’s a standing, ongoing meeting of the CAC that’s taking place on Basecamp.
In any event, inviting CAC members to share their opinions on Basecamp, shielded from public view, is problematic with respect to the 1991 city policy on the OMA – in at least two ways. First, these meetings are inaccessible to the public when the meetings happen. Second, there’s no opportunity for a member of the public to address the CAC on Basecamp during such meetings.
Basecamp: Freedom of Information
If the 1991 city policy on the OMA is flouted by the use of Basecamp to facilitate closed meetings of the CAC, how does this practice stack up against Michigan’s Freedom of Information Act (FOIA)?
The answer is already included in the communications above: Records held by a private entity are not subject to required disclosure under Michigan’s FOIA.
This technique for shielding records from public access is one familiar to the city’s history of citizen participation in matters related to sanitary sewers and footing drain disconnection. The Feb. 24, 2001 meeting minutes of Ann Arbor’s sanitary sewer overflow (SSO) prevention task force reflect a conscious choice to use private contractors to hold raw data, so that the data couldn’t be obtained through Michigan’s FOIA:
Raw data will be held by CDM or sub-contractor to prevent anyone from obtaining data under the Freedom of Information Act. [.pdf of Feb. 24, 2001 minutes of the SSO task force]
While the city appears to be on solid legal ground if it were to deny a request for information on the Basecamp site set up for the SSWWE-CAC, I don’t think that would be a good idea. This approach fuels a perception that information that belongs to the public is being withheld from the public. It’s not in the spirit of Michigan’s FOIA to use the statute as a legal guide to keeping public information out of the public’s hands.
We certainly have a legitimate interest that documents still in draft form not be represented to the public as if they were final documents. For example, the initial draft of the survey results to be discussed at the Feb. 6 meeting contained some mistakes and did not include all of the survey responses. Some people were still responding to the survey when the draft was created. So it was important not to present that preliminary draft report as if it were the final version.
However, a concern about the draft nature of documents is not effectively addressed in the way that Fleetham suggests in the communications above – by circulating the drafts to committee members on Basecamp and admonishing them not to share the draft documents outside the group. If a document is a draft, it can simply be clearly designated as such through watermarking or some other digital technique. It’s not a constructive approach to ask committee members not to share the documents outside of a private website that is immune to requests made under Michigan’s FOIA.
Meetings: Coda – Feb. 6, 2014
One complaint I heard from a member of the public at the Jan. 9 meeting of the SSWWE-CAC was that the Jan. 9 meeting had not been posted anywhere on the city’s website. In fact, the meeting had been included in the city of Ann Arbor’s listings of events. Those are a subset of events that are included in The Chronicle’s event listings.
Neither of those sources is perfectly exhaustive for every single meeting. But it’s worth checking those sources.
To reiterate, the next public meeting for the study of Ann Arbor’s sanitary sewer system during wet weather will take place on Thursday, Feb. 6 from 6:30-8:30 p.m. in the Slauson Middle School auditorium.
And again, here’s the link to results of a recent survey of participants in the city’s footing drain disconnection program, which will be part of the agenda. The meeting will also include an update on the study itself, which included flow measurements in the sanitary system made last year.
About the author: Dave Askins is editor and co-founder of The Ann Arbor Chronicle. The Chronicle could not survive without regular voluntary subscriptions to support our coverage of government and civic affairs. Click this link for details: Subscribe to The Chronicle. And if you’re already helping The Chronicle flush its toilet, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!
“So it was important not to present that preliminary draft report as if it were the final version.”
And likewise to CAC members as to the public. Is there any value in _anyone_ seeing incomplete data? Or are committee members expected to proof the work of consultants and staff? Seems like something dysfunctional is going on.
“Charlie Fleetham Fri, 24 Jan at 8:27pm
The question that was asked was whether or not the BaseCamp is subject to FOIA. According to Abigail [Elias, city of Ann Arbor assistant city attorney] it is not, and that is what I reported. I also said that I believe that the CAC is and would be well served by having a site to discuss this very complex and emotional issue without fear of public scrutiny.”
Is it Abigail Elias’ job as city attorney to give legal advice to block open and transparent flow of public information? Did she decide to take this path on her own? Did it come from her boss? This is the kind on nonsense that invites skepticism about this entire process. From her other legal advice to the group paticipants (which sounded half baked and off the cuff and certainly poorly researched at best)about person liability and now this, it makes me wonder who is she protecting? The interests of Ann Arbor residents or for the flooding issue task force that moving in the direction of covering the City’s previous bad decision ala sump pumps. Either way it stinks to high heaven.
Wow, thanks for your ongoing efforts to obtain open government. We need active investigative journalists like those with the Chronicle to keep that light shining.
I found another lack of information about sewers and our policy regarding them when I began to inquire about the extension of utilities to two Scio Township proposed developments. It appears that our city has quietly been supporting sprawl by offering utility service to outlying developments even as we tax ourselves for the Greenbelt in an effort to minimize sprawl. We are also extending our transit system in order to minimize auto traffic into the city core, yet Scio Township’s developments would result in 500 new trips into the city each day, or more, if all were built and all worked in Ann Arbor. Scio does not participate in AAATA at all, even to the extent of a limited POSA.
Of course we do have utility contracts with Scio and a couple of other surrounding townships. But though I found Ann Arbor Township’s agreement on the internet, I have been unable to find the contracts for Scio and Pittsfield Townships. This is a policy issue that has not been sufficiently addressed in public.
Many other committees, which are at least equally important to me, operate without regard to the intent of OMA. I do not want to debate the legal requirements of the OMA. However, Ann Arbor is a community that values transparency, so why do we tolerated this behavior?
Two examples:
The Alternative Transportation (ALT)Committee serves at the advisory committee to the Non-motorized Transportation Plan Review. See [link] page 187 for full description and note the lack of AAPS in the listing of stakeholders. Many other references to the ALT Committee are listed on the A2gov.org website, but not the meeting schedule, location or minutes.
Committees of the board of the Ann Arbor District Library (AADL) are held in private and committee reports are very brief.
Thank you for your persistent advocacy for open public process.
For the City to address the problems related to storm flooding, sewer back ups and the impact of the footing drain disconnect program, we will need public trust. How can the City expect residents to trust a process that involves secrecy?
Thanks for writing this article Dave.
I recently joined the SSWWE CAC and this morning received a “Doodle Poll” from Charlie Fleetham on which I was supposed to vote to either keep the BaseCamp conversations private or to make them public. This is what I wrote to Charlie Fleetham: “I have decided not to vote in today’s Doodle Poll because it implies there is something to vote about. I believe that this is a public study funded by public dollars and the public has a right to know what is going on and what is being discussed. It is not up to the volunteer CAC members to decide if the discussions are FOIA-able or not.”
I feel very strongly about this, as I already knew about the 2001 SSO Report in which some of the data was kept by the consultant/contractor so that it would not be available via FOIA.
[6] Judy Hanway, I am glad to hear that.
Dave, thanks for your attention to public process, and sins of both omission and comission.
Without intending to support Mr. Fleetham’s moves here… there’s an inherent conflict between conducting government business, where openness and accountability are important, and the kind of thing that takes place in visioning activities, which depend on facilitators being able to create a “safe space,” somewhat free from consequences, so that people can say difficult things. That seems to be what Mr. Fleetham does, if you look at his website. I don’t know how to reconcile the two, except to note that the freedom of that “safe space” is a temporary thing, and at some point you have to move back into decision-making mode.
It might not be a terrible thing, from the standpoint of a creative process, to hold the need for public information in abeyance for a little while, but there doesn’t really seem to be room for that within the Open Meetings Act framework. So maybe Mr. Fleetham has been hired to do something he does well, but it’s just not a good fit with the way government operates.
I have sent in my 2014 subscription to the Chron. How ’bout everyone else?
It is a relief to see that a new member of council understands that our local government(s) have largely exhausted their stock of moral capital. The reason to want a discussion out of sight and sound of the public is that “The Public” (i.e., the people that make up our community) will go ballistic when board members brainstorm. The reason the public will go ballistic is that there is no longer any basis to trust that members of public bodies are looking out for the interest of city residents. Indeed, it is no longer obvious that our governments can discern wheat from chaff. Things are so bad that the assumption is that EVERY public body is “out to get us”. The fear of the public going ballistic at brainstormed ideas, is the acknowledgment by those seeking secrecy that no one trusts them.
The exhaustion of the public’s trust in the members of its government – elected, appointed, employed – is the lasting legacy of The Council Party, worse even than the eyesores of Huron Street or the distruction of 5th Avenue. This point needs to be underscored: more than any policy decision, it is the depletion of public trust that is the great lasting damage this Council Party has caused. It follows its members wherever they go in government.
It is a great sadness that the absence of trust, not policy, is gradually becoming the driving force in our community’s political dynamic. It is possible to have policy disagreements, and still have trust. Indeed, the capacity to disagree and still – win or lose on policy – be able to trust is the very foundation of self-government. The Council Party’s members – including its appointees – are afraid of the public, and rightly so. That’s why they crave secrecy.
The jig is up for those council members who love to hire consultants – this confirms what many have suspected – that the use of consulting firms by the city is (was) a simple way to dodge public input.
If you want a “safe space” you should not be involved in an activity of the AA city government. Everything should be public.