Column: Ann Arbor’s Dumb Old Charter

Are you bored by baseball? Of course you are. And you’re bored even more by the inside baseball of Ann Arbor city politics.

So this is not really a column about city politics or baseball. Instead, it’s a column based on a saying that baseball Hall of Famer Casey Stengel loved to repeat: “You can look it up.”

Yes, we can look stuff up. And we do look stuff up. Because looking stuff up and writing it down is part of The Job of a journalist. It’s just as much a part of The Job as showing up to a place and writing down what you see there.

Where does a local journalist look stuff up? When the past actions of the Ann Arbor city council are of interest, one place I check is the set of official minutes of city council meetings. When basic law is of interest, one place I check is the Ann Arbor city charter.

Now, the city charter has been the subject of some recent community conversation because of the eligibility requirements it appears to impose on city officers. That conversation has been prompted by Bob Dascola’s attempt to run for a seat on the Ann Arbor city council representing Ward 3.

Fair warning: This is going to be a long windup.

According the city clerk, Dascola doesn’t meet the city charter’s requirements on eligibility for office. Those requirements include two separate one-year durational requirements dating from the time of election: residency in the ward and voter registration in the city. Dascola contends he does meet the requirement on residency. But he concedes he doesn’t meet the requirement on voter registration.

But Dascola is represented by local attorney Tom Wieder, who’s arguing that both charter requirements are null and void as a result of two court decisions in the early 1970s. The city’s position is that court decisions after those from the 1970s have re-established the validity of the charter requirements.

That lawsuit is currently in the U.S. District Court, slated to be handled on an expedited schedule. So the matter is likely to be resolved before ballots are finalized sometime in early June for the Aug. 5, 2014 Democratic primary election. A key question of law in the case is whether subsequent court rulings in other jurisdictions can be interpreted in a way that restores Ann Arbor’s charter provisions, which had previously been ruled null and void.

In a recent blog post on the topic of Dascola’s lawsuit, local attorney and Ann Arbor Downtown Development Authority board member Joan Lowenstein argues that the Ann Arbor city charter’s eligibility requirements have, in fact, been revived by subsequent court cases. She further argues that Ann Arbor voters themselves also “revived” the charter requirements – by citing a failed 2003 voter referendum on a proposed charter amendment.

About that referendum question, which the city council voted to place on the ballot, Lowenstein had this to say: “After Wieder lost the Wojack case in 2002, he convinced the city council to put the residency requirement to a vote, which it did.”

In her blog post, Lowenstein does not quote out the language the council voted to place on the ballot, though she does include in its entirety a post-election Ann Arbor News article from 2003.

Had Lowenstein included the council-approved ballot language from the 2003 city council minutes, it would have been clear that the vote was about much more than just durational residency requirements for city councilmembers.

And had Lowenstein included the council minutes from March 3, 2003 in their entirety, it would have been clear that she herself was part of the council to which she refers. And it would have been clear that she herself co-sponsored the resolution, which includes the following statement in a “whereas” clause: “Fewer restrictions on holding office are more consistent with open and democratic government;”

How do I know this? I took a dead baseball player’s advice: I looked it up.

Now here comes the pitch: I think it’s about time to establish a charter commission – to review a document that is nearly 60 years old and no longer can be interpreted without studying the state’s history of legislation and jurisprudence.

Who Are City Officers?

The charter requirements on eligibility of city officers are included in the March 3, 2003 city council meeting minutes. They seem at first glance to be about elected officials – councilmembers and the mayor – and the appointed members of city boards and commissions. Here’s the language:

Eligibility for City Office-General Qualifications
SECTION 12.2. Except as otherwise provided in this charter, a person is eligible to hold a City office if the person has been a registered elector of the City, or of territory annexed to the City or both, and, in the case of a Council Member, a resident of the ward from which elected, for at least one year immediately preceding election or appointment. This requirement may be waived as to appointive officers by resolution concurred in by not less than seven members of the Council.

That section explicitly highlights councilmembers by referring to “the case of a Council Member.” Even though the case of a councilmember, according to The Chronicle’s stylesheet – for reasons I cannot explain and will not defend here – is lowercase and one word, we’re talking about the same office. And the most familiar types of appointments handled by the council at its regular meetings are those for boards and commissions. So without studying the rest of the city charter, it might be reasonable to conclude that Section 12.2 is about councilmembers, the mayor and relatively familiar city board and commission memberships.

But now let’s compare the current block of charter text with the one that was proposed (and subsequently rejected by voters) as a substitute in 2003 [emphasis added]:

Eligibility for City Elective Office-General Qualifications
SECTION 12.2. Except as otherwise provided in this charter, a person is eligible to hold a City elective office if, at the time of election or appointment to that office, the person is a registered elector of the City and, in the case of a Council Member, of the ward from which election is sought or appointment is made. A person is eligible to hold public appointive office as a volunteer if that person is a resident of the City. The residency requirement may be waived as to volunteer appointive officers by resolution concurred in by not less than seven members of the Council.

First, the proposed language would have established a point-in-time (not durational) registered voter eligibility requirement and confined it to just elected officers. Second, the proposed language introduces a notion of “volunteer” as a category of appointive officer.

The introduction of “volunteer” as a category of appointive officers might seem a little odd – unless there exists some category of paid appointive officer. This paid category was actually mentioned explicitly in the ballot language that was presented to 2003 voters. It’s worth noting that the ballot language did not include the proposed new Section 12.2, but instead a description of its impact. In pertinent part, here’s how the ballot language approved by the council read: “Shall the Charter be amended to … eliminate the requirement that paid appointed officers be registered electors?”

This might still strike some readers as odd: Does the city of Ann Arbor even have paid appointed officers? If so, who are they? The answer is: Yes, Ann Arbor has paid appointed officers. You can look it up.

From the city charter:

City Officers
SECTION 12.1.
(a) The elective officers of the City shall be the Mayor and two Council Members from each of the five wards.
(b) The appointive officers shall be the City Administrator and the Attorney, who shall be appointed by the Council; the Assessor and the Treasurer, the Clerk, the Controller, the Director of Building and Safety Engineering, the Fire Chief, the Police Chief, the Superintendent of Parks and Recreation, the Superintendent of Public Works, and the Superintendent of Utilities, who shall be appointed by the Council on the recommendation of the City Administrator; the Health Officer, who shall be appointed by the Council on the recommendation of the Board of Health with the advice of the City Administrator; the Planning Director, who shall be appointed by the Council on the recommendation of the Planning Commission with the advice of the City Administrator; and persons appointed to other offices or to boards and commissions established pursuant to law, this charter, or ordinance.

It’s well known that the positions named in that section are paid positions. City administrator Steve Powers and city attorney Stephen Postema don’t work for free. Neither does city clerk Jackie Beaudry or city treasurer Matt Horning. And Craig Hupy does not volunteer his time as public service area administrator – which appears to be the closest modern position to the “superintendent of public works.”

What Was the 2003 Ballot Question?

So the question before 2003 Ann Arbor voters was not just whether to eliminate a durational residency requirement for city councilmembers, but also whether to eliminate a requirement that key employees at the city – paid appointed officers – be registered to vote in the city. (A requirement on voter registration has the impact of a requirement on residency as well.)

That change would have made the city charter conform with Public Act 212 of 1999, which prohibits public employers from requiring “that a person reside within a specified geographic area or within a specified distance or travel time from his or her place of employment as a condition of employment or promotion by the public employer.” It’s worth noting that the city administrator at the time, Roger Fraser, had been criticized for choosing to live outside the city, in Scio Township, after he was hired in 2002. In contrast, current city administrator Steve Powers bought a house on East Stadium Boulevard in the city.

So in trying to divine the sentiment of 2003 voters in rejecting the proposed charter amendment, it’s worth noting that the charter was proposed to be changed in various other ways, besides the councilmember durational residency requirement.

The ballot language does not help clarify the issue – because it seems to have presupposed that there was at the time no effective durational voter registration requirement, despite the fact that the words describing that durational voter registration requirement were (and are still) included in the city charter. From the March 3, 2003 minutes [emphasis added]:

ANN ARBOR CITY CHARTER AMENDMENT ESTABLISHING ELIGIBILITY REQUIREMENTS FOR ELECTED AND VOLUNTEER APPOINTED OFFICES
Shall the Charter be amended to replace the requirement that the Mayor and Council Members be registered electors in the City at the time of election and that Council Members be residents in their wards for one year prior to their election, with a requirement that the Mayor and Council Members be registered electors of the City, and the Council Members of their wards, on the date they are elected or appointed to office, to require that volunteer appointed officers be residents rather than registered electors in the City, and to eliminate the requirement that paid appointed officers be registered electors?
_YES _NO

If you search through the city charter for a “requirement that the Mayor and Council Members be registered electors in the City at the time of election,” you’re not going to find such a requirement. It might be argued that the requirement that an officer be “a registered elector of the City … for at least one year immediately preceding election or appointment” has as a consequence that the mayor and city councilmembers need to be registered electors at the time of election. But I don’t think that naming one consequence of a requirement serves as a fair description of that requirement.

It’s even plausible, I think, to argue that the ballot language was an implicit acknowledgment by the city that the durational voter registration requirement as of 2003 was still null and void in consequence of the federal court ruling from 1972.

It’s also conceivable that the inclusion of the phrase “at the time of election” in the ballot language was just a copy-editing mistake and was fixed administratively before ballots were printed. I haven’t looked that up.

In sum, I don’t think it’s reasonable to try to draw conclusions about voter sentiment on any particular city councilmember eligibility issue by appealing to the failed 2003 charter amendment.

What I think is completely reasonable would be for the city council now to allow the community to grapple seriously with a document that is over a half century old, and which plain language can no longer be straightforwardly interpreted by a layman.  So the council should take the necessary steps toward establishing a city charter commission – to give the document a comprehensive review and eventually to place an overhauled city charter before the Ann Arbor voters. The council would need to place before voters the question of establishing a charter commission. If voters are favorably inclined, then members of a charter commission would need to be elected by popular vote.

Changes to ward boundary descriptions, the number of wards, or the local partisan election process might or might not be a part of the charter review. The list of “officers” of the city could certainly be cleaned up: We don’t have a city health officer any longer – for reasons I have not looked up. If we did have a city health officer, it’s conceivable that the outdoor smoking ordinance that Ward 5 councilmember Chuck Warpehoski is currently shepherding through the approval process could be enforced by that officer.

I’ve suggested that the city council take steps toward establishing a charter commission as recently as this past February. So I’m repeating myself.

Rinse, Repeat

Even if I’m repeating myself, so does everyone. Those March 3, 2003 Ann Arbor city council meeting minutes from 11 years ago – when I compare them to my own direct experience covering the city council for the last five and a half years – provide some evidence of repetition.

On March 3, 2003, resident Thomas Partridge spoke about ending the “the class war on America’s most vulnerable people.” In general terms, that’s also what Partridge talked about at the council’s April 7, 2014 meeting, and likely most meetings in the intervening decade.

On March 3, 2003, Jeff Irwin – then a commissioner on the Washtenaw County board – addressed the city council on the topic of the Environmental Protection Agency’s revolving loan program. Now state representative in Michigan’s house District 53, Irwin still counts the environment as one of three points of emphasis: education, environment, and equal rights.

As a side note, given the 1:25 a.m. adjournment of the most recent city council meeting, I was intrigued to see that the March 3, 2003 meeting adjourned at 9:33 p.m. – even after starting a half hour later than the meetings of the current era. That made for a two-hour meeting, which is about an hour shorter than an average baseball game.

The subhead to this section, for those of you who are still following along, is an inside baseball joke. Dascola, the would-be Ward 3 candidate, is a barber – and the “rinse, repeat” is a phrase commonly printed in directions that appear on shampoo bottles in 21st Century America. I make a note of this only because I’m not sure that 50 years from now this joke will be understandable to someone who’s just trying to look up some fact about Ann Arbor’s history, and finds this column as the only record of the dispute over Dascola’s candidacy.

Of course, the real rinse will come when the federal court makes a decision on Dascola’s candidacy.

Right now we’re still lathering up.

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