Stories indexed with the term ‘attorney-client privilege’

Sixteen days after the Ann Arbor city council directed its city attorney to re-draft for a public audience a privileged memo on tax assessment procedures, the city attorney’s office has provided the document to the city clerk’s office, councilmembers and the city administrator.

The council voted at its March 17, 2014 meeting to direct the preparation of a new memo – instead of simply voting to waive privilege on an existing memo. [.pdf of public opinion on tax assessment]

After the Ann Arbor city council voted on March 17, 2014 to waive attorney-client privilege on a memo written by outside bond counsel, the city of Ann Arbor has provided the document to The Chronicle in response to a request made under Michigan’s Freedom of Information Act.  [.pdf of Aug. 9, 2012 Dykema memo]

The Chronicle has not yet reviewed the memo, which deals with private-use tests as applied to the Library Lane underground parking structure. The private-use limitations stem from the fact that the structure was financed with Build America Bonds. For additional background, see: “Column: Rocking Back on the Library Lot.”

The question of how the top of the Library Lane underground parking structure in downtown Ann Arbor will eventually be used has taken some steps toward getting answered. The city council acted on two key related resolutions at its March 17, 2014 meeting.

The council’s meeting actually featured three items related to … [Full Story]

A memo prepared by Dykema Gossett, the city of Ann Arbor’s outside bond counsel, will now be made public as a result of city council action taken on March 17, 2014.

The council voted over dissent from Christopher Taylor (Ward 3) – who is himself an attorney – to waive attorney-client privilege on the document, dated August 9, 2012. The memo apparently provides an analysis of the implications for use of the Library Lane parking structure, based on the Build America Bonds used to finance its construction. Facilities financed by such bonds carry with them private-use limitations.

The Chronicle has not yet been provided with a copy of the memo.

Taylor made a bid to amend the resolution so that it directed the city … [Full Story]

Editor’s note: This “Live Updates” coverage of the Ann Arbor city council’s March 17, 2014 meeting includes all the material from an earlier preview article published last week. The intent is to facilitate easier navigation from the live updates section to background material already in this file.

The Ann Arbor city council’s March 17, 2014 meeting features an agenda with one significant item held over from the March 3 meeting: a resolution that reserves a portion of the surface of the Library Lane underground parking structure in downtown Ann Arbor for an urban park that would remain publicly owned.

But related to that item is a new resolution that directs the city administrator to move toward listing for sale the development rights for the top of the parking structure. The urban park designation was postponed from the March 3, 2014 meeting in part to synch up its timing with this resolution, which is being brought forward by Stephen Kunselman (Ward 3).

An additional related item is a resolution that would waive the attorney-client privilege on a document prepared by Dykema Gossett, the city’s outside bond counsel. The Build America Bonds used to finance construction of the Library Lane structure have private-use limitations on facilities constructed with financing from such bonds. The Dykema memo analyzes those limitations with respect to Library Lane.

That’s one of two separate resolutions on the waiver of attorney-client privilege. The other one, postponed from the council’s March 3 meeting, would waive privilege on a city attorney memo dated Feb. 25, 2014 on the topic of how appeals to property assessments work. The memo apparently helps explain “… the effect of a reduction of the assessment for one year by the Board of Review and/or the Michigan Tax Tribunal on the property tax assessment for the subsequent year.” The council’s agenda also includes an attachment of a report sent to the state tax commission, explaining how the city has complied with various deficiencies in documentation identified previously by the commission.

The council will be considering two items related to energy issues. First, the council will consider a resolution that directs the city’s energy commission and staff to convene a stakeholder work group, with the support of the city attorney’s office, to draft a commercial building energy benchmarking and disclosure ordinance. It’s an effort to help achieve goals in the city’s climate action plan.

The second energy-related item is a resolution that would direct the city administrator to hire an additional staff member for the city’s energy office, bringing the total back to two people, according to the resolution. The energy office staffer would “create and implement additional community energy efficiency, conservation, and renewable energy programs that further the Climate Action Plan’s adopted targets.”

After approving the purchase of 18 replacement vehicles on March 3 and several pieces of basic equipment at its Feb. 18 meeting, the council will be considering three resolutions that involve additional vehicles and equipment: two forklifts for the city’s materials recovery facility, a Chevrolet Impala for use by police detectives, and a lease for golf carts from Pifer Inc.

The 15th District Court, which is the responsibility of the city of Ann Arbor, is featured in two agenda items. The council will be asked to approve a $160,000 contract with the Washtenaw County sheriff’s office for weapons screening services for the 15th District Court, which is housed at the Justice Center – the police/courts building immediately adjoining city hall at the northeast corner of Huron and Fifth.

A second item related to the court is an introduction of Shryl Samborn as the new administrator of the 15th District Court. Samborn is currently deputy administrator. Current administrator Keith Zeisloft is retiring. His last day of work is March 28.

At its March 17 meeting, the council will also be asked to approve the temporary relocation of Precinct 1-7 from Pierpont Commons, 2101 Bonisteel, to Northwood Community Center (family housing). That relocation will be in effect for the May 6 vote on the transit millage and for the Aug. 5 primary elections.

Among the items attached to the March 17 agenda as reports or communications is one from the city administrator noting that for the April 5 Hash Bash event on the University of Michigan campus, all sidewalk occupancy permits and peddler’s licenses in the immediately surrounding area will be suspended. The possibility of such suspension – which the city administrator’s memo indicates is motivated by a desire to relieve congestion – is part of the terms and conditions of such licenses. They’ve been suspended for Hash Bash for at least the last six years, according to the memo.

Also among the attachments are the Ann Arbor Downtown Development Authority’s annual reports for 2004, 2005, 2006 and 2007. Those reports have been the subject of back-and-forth between Stephen Kunselman (Ward 3) and The Ann Arbor Observer over a report in The Observer’s December edition. A follow-up to an initial correction by The Observer is anticipated in the April edition – establishing that Kunselman’s contention had been correct: The DDA annual reports had not been filed with the governing body as required.

The consent agenda also includes approval of street closings for seven upcoming events: a soap box derby, SpringFest, Cinco de Mayo, Burns Park Run, Dexter-Ann Arbor Run, Washington Street Live and the Mayor’s Green Fair.

This report includes a more detailed preview of many of these agenda items. More details on other agenda items are available on the city’s online Legistar system. The meeting proceedings can be followed Monday evening live on Channel 16, streamed online by Community Television Network starting at 7 p.m.

The Chronicle will be filing live updates from city council chambers during the meeting, published in this article below the preview material. Click here to skip the preview section and go directly to the live updates. The meeting is scheduled to start at 7 p.m. [Full Story]

The Ann Arbor city council’s March 17, 2014 meeting features an agenda with one significant item held over from the March 3 meeting: a resolution that reserves a portion of the surface of the Library Lane underground parking structure in downtown Ann Arbor for an urban park that would remain publicly owned.

But related to that item is a new resolution that directs the city administrator to move toward listing for sale the development rights for the top of the parking structure. The urban park designation was postponed from the March 3, 2014 meeting in part to sync up its timing with this resolution, which is being brought forward by Stephen Kunselman (Ward 3).

An additional related item is a resolution that would waive the attorney-client privilege on a document prepared by Dykema Gossett, the city’s outside bond counsel. The Build America Bonds used to finance construction of the Library Lane structure have private-use limitations on facilities constructed with financing from such bonds. The Dykema memo analyzes those limitations with respect to Library Lane.

That’s one of two separate resolutions on the waiver of attorney-client privilege. The other one, postponed from the council’s March 3 meeting, would waive privilege on a city attorney memo dated Feb. 25, 2014 on the topic of how appeals to property assessments work. The memo apparently helps explain “… the effect of a reduction of the assessment for one year by the Board of Review and/or the Michigan Tax Tribunal on the property tax assessment for the subsequent year.” The council’s agenda also includes an attachment of a report sent to the state tax commission, explaining how the city has complied with various deficiencies in documentation identified previously by the commission.

The council will be considering two items related to energy issues. First, the council will consider a resolution that directs the city’s energy commission and staff to convene a stakeholder work group, with the support of the city attorney’s office, to draft a commercial building energy benchmarking and disclosure ordinance. It’s an effort to help achieve goals in the city’s climate action plan.

The second energy-related item is a resolution that would direct the city administrator to hire an additional staff member for the city’s energy office, bringing the total back to two people, according to the resolution. The energy office staffer would “create and implement additional community energy efficiency, conservation, and renewable energy programs that further the Climate Action Plan’s adopted targets.”

After approving the purchase of 18 replacement vehicles on March 3 and several pieces of basic equipment at its Feb. 18 meeting, the council will be considering three resolutions that involve additional vehicles and equipment: two forklifts for the city’s materials recovery facility, a Chevrolet Impala for use by police detectives, and a lease for golf carts from Pifer Inc.

The 15th District Court, which is the responsibility of the city of Ann Arbor, is featured in two agenda items. The council will be asked to approve a $160,000 contract with the Washtenaw County sheriff’s office for weapons screening services for the 15th District Court, which is housed at the Justice Center – the police/courts building immediately adjoining city hall.

A second item related to the court is an introduction of Shryl Samborn as the new administrator of the 15th District Court. Samborn is currently deputy administrator. Current administrator Keith Zeisloft is retiring. His last day of work is March 28.

At its March 17 meeting, the council will also be asked to approve the temporary relocation of Precinct 1-7 from Pierpont Commons, 2101 Bonisteel, to Northwood Community Center (family housing). That relocation will be in effect for the May 6 vote on the transit millage and for the Aug. 5 primary elections.

Among the items attached to the March 17 agenda as reports or communications is one from the city administrator noting that for the April 5 Hash Bash event on the University of Michigan campus, all sidewalk occupancy permits and peddler’s licenses in the immediately surrounding area will be suspended. The possibility of such suspension – which the city administrator’s memo indicates is motivated by a desire to relieve congestion – is part of the terms and conditions of such licenses. They’ve been suspended for Hash Bash for at least the last six years, according to the memo.

Also among the attachments are the Ann Arbor Downtown Development Authority’s annual reports for 2004, 2005, 2006 and 2007. Those reports have been the subject of back-and-forth between Stephen Kunselman (Ward 3) and The Ann Arbor Observer over a report in The Observer’s December edition. A follow-up to an initial correction by The Observer is anticipated in the April edition – establishing that Kunselman’s contention had been correct: The DDA annual reports had not been filed with the governing body as required.

The consent agenda also includes approval of street closings for seven upcoming events: a soap box derby, SpringFest, Cinco de Mayo, Burns Park Run, Dexter-Ann Arbor Run, Washington Street Live and the Mayor’s Green Fair.

This report includes a more detailed preview of many of these agenda items. More details on other agenda items are available on the city’s online Legistar system. The meeting proceedings can be followed Monday evening live on Channel 16, streamed online by Community Television Network starting at 7 p.m. [Full Story]

At least two topics on the council’s Oct. 7 agenda could offer potential points of friction: (1) leftover controversy from the confirmation of Al McWilliams to the board of the Ann Arbor Downtown Development Authority at the council’s previous meeting on Sept. 16; and (2) adoption of an update to the city’s solid waste plan.

A resolution added to the agenda on Friday, Oct. 4 would, if approved, result in the waiver of attorney-client privilege with respect to a specific advice memo that has already been written by the city attorney’s office on the McWilliams appointment.

The memo responds to questions that were raised about the procedure used to appoint McWilliams to the DDA board. Mayor John Hieftje had asked the council to vote on McWilliams’ appointment after saying at a previous meeting that he was withdrawing the nomination. Under the council’s rules, an 8-vote majority is required for confirmation of an appointment when the nomination is made at the same meeting when the confirmation vote is taken. McWilliams was confirmed on a 6-5 vote.

It’s also possible that a motion could be put forward to reconsider McWilliams’ confirmation, in order to eliminate the procedural controversy. However, by the end of the weekend before the meeting, no such item had been added to the agenda.

The council will also be asked to adopt an update to its solid waste plan. [Waste Less: City of Ann Arbor Solid Waste Resource Plan] [Appendices to Waste Less] The update proposes a number of initiatives, including goals for increased recycling/diversion rates – both generally and for apartment buildings in particular. A pilot program would add all plate scrapings to the list of materials that can be placed in the brown carts used to collect compostable matter.

And if that pilot program is successful, the plan calls for exploring the possibility of reducing the frequency of curbside pickup – from the current weekly regime to a less frequent schedule. Also included in the draft plan is a proposal to relocate and upgrade the drop-off station at Platt and Ellsworth. The implementation of a fee for single-use bags at retail outlets is also part of the plan. [Previous Chronicle coverage: "Waste as Resource: Ann Arbor's Five-Year Plan."]

The solid waste plan update could face opposition from some councilmembers who don’t think it would be feasible or desirable to reduce the frequency of curbside trash pickup to once every two weeks.

The council will be asked to give initial consideration to a new definition of a sidewalk, covering so-called cross-lot walkways. Such walkways aren’t really on the “side” of anything. They connect a street to a park or school, or two parallel streets. The item had been up for final consideration at the council’s July 1, 2013 meeting, but it was postponed until Oct. 7.

In the meantime, the city’s approach to the cross-lot walkways has changed. Currently if an existing walkway meets the definition of a “sidewalk,” then the city bears responsibility for its repair for the duration of the sidewalk repair millage. All other things being equal, the adjacent property owner would be responsible for snow removal in the winter. The new approach, to be considered on Oct. 7, would allow the cross-lot walkways to qualify as sidewalks under the city’s ordinance, but not trigger a winter maintenance requirement for adjacent property owners. This fresh look would mean that any action taken on Oct. 7 would be considered only an initial approval of the ordinance change.

Land use is on the agenda in the form of two developments and one annexation.

Returning to the council’s agenda is the planned unit development (PUD) zoning for the Shell/Tim Hortons at the northeast corner of Ann Arbor-Saline Road and Eisenhower Parkway. The proposal for the 1.44-acre site would allow for a drive-thru restaurant within the existing convenience store, where a Tim Hortons is already located. The project includes constructing a 109-square-foot drive-thru window addition and access driveway on the north side of the building.

The council had given initial approval for changes to the project’s PUD supplemental regulations at its Sept. 3, 2013 meeting. That’s when Chuck Warpehoski (Ward 5) objected to including the drive-thru as a public benefit in the regulations: “To say that somebody now doesn’t have to spend the 10 extra calories between getting out of their car to get their salt-sugar-fat fix?! I don’t see that as a public benefit and I don’t want us to list that as some big thing that we’re modifying our zoning for in our ordinance.” On that occasion, the council modified the PUD regulations to accommodate his objection. The final approval of the PUD zoning as well as the site plan is on the council’s Oct. 7 agenda.

Councilmembers will also be asked to approve a site plan for Belle Tire on the north side of Ellsworth, adjacent to and east of a different Tim Hortons – one that’s located near the intersection with South State. The currently vacant 1-acre site will become a one-story, 9,735-square-foot auto service facility with 49 parking spaces, including 10 spaces located in service bays.

The council will also be asked to vote on a standard annexation from Ann Arbor Township to the city of Ann Arbor – a 0.39-acre site at 2640 Miller Ave.

Also on the Oct. 7 agenda is an item to approve a change to fees associated with liquor licenses. Some fees are being eliminated – those related to licenses for which the state of Michigan doesn’t require local review.

Other Oct. 7 agenda highlights include an allocation for more traffic calming studies and a resolution that would direct the city administrator to apply for a Rockefeller Foundation grant to make Ann Arbor one of 100 Resilient Cities.

More details on other meeting agenda items are available on the city’s Legistar system. Readers can also follow the live meeting proceedings on Channel 16, streamed online by Community Television Network. The Chronicle will be filing live updates from city council chambers during the meeting, published in this article “below the fold.” The meeting is scheduled to start at 7 p.m. [Full Story]

A resolution that’s been added to the Ann Arbor city council’s Monday, Oct. 7, 2013 agenda would, if approved, result in the waiver of attorney-client privilege with respect to a specific advice memo that has already been written by the city attorney’s office.

The memo responds to questions that were raised about the procedure used to appoint Al McWilliams to the board of the Ann Arbor Downtown Development Authority at the council’s Sept. 16, 2013 meeting. Mayor John Hieftje asked the council to vote on McWilliams’ appointment after saying at a previous meeting that he was withdrawing the nomination. Under the council’s rules, an 8-vote majority is required for confirmation of an appointment when the nomination is made at … [Full Story]

National Sunshine Week started yesterday. That’s not a celebration of daylight saving time, which started the same day. But the two could be connected. Yesterday’s annual conversion to daylight saving time is supposed to give everyone some extra literal sunshine toward the end of the day. Sunshine Week is an occasion to remind ourselves of the extra figurative sunshine in our governance – ensured in many states through legislation enacted in the 1970s.

Sunshine Week is an occasion to remind ourselves that open government is good government.

Michigan has two laws that are key to open government: the Open Meetings Act (OMA) and the Freedom of Information Act (FOIA). Both of these laws rely crucially on good faith. For example, the FOIA allows a public body to deny access to certain public records – like those that are protected by the attorney-client privilege.

If a record is requested and then denied based on the attorney-client privilege, a requester has no way of judging whether the assertion of privilege is appropriate. A requester relies on the good faith of government officials that privilege is not inappropriately extended to records that are not in fact protected by privilege. A requester can resort to a lawsuit, which under Michigan case law can result in the review of the records by a judge to confirm – or refute – the public body’s assertion of privilege. But few requesters have the wherewithal to file a lawsuit over a FOIA denial.

Here at The Ann Arbor Chronicle, we’re celebrating Sunshine Week by laying out a recent occasion when we requested records under the FOIA, were denied the records, appealed to the city administrator, were denied under the appeal, but then were able to obtain some of the records by other means. The record in question is an email written by Ann Arbor city attorney Stephen Postema. This provides an opportunity to evaluate independently, without filing a lawsuit, whether the city inappropriately asserted attorney-client privilege in denying access to a record.

We consulted on the matter with an attorney, Marcia Proctor, who agreed to analyze the relevant factors in a hypothetical scenario. Proctor is former general counsel of the Michigan Bar Association, a specialist in legal ethics, whose practice specializes in professional responsibility for lawyers and judges.

We first present the hypothetical scenario, followed by a brief discussion of the relevant factors in the scenario identified by Proctor. We then present the text of the email and apply the various tests outlined by Proctor. We reach the conclusion that the city inappropriately asserted attorney-privilege to the document.

We then evaluate whether a different exemption provided by the FOIA might apply. That exemption allows a public body to withhold communications internal to the body – to the extent that they are non-factual and preliminary to a final decision by the body. In the balancing test prescribed by the state statute, we reach a different conclusion than the city did: We think the public interest in disclosure outweighed any interest the city had in shielding this frank internal communication from public view.

Finally, we urge the city council to weigh in on the city’s administrative policy on FOIA response, which is currently being revised. It’s important for councilmembers to set the overarching principle that guides the city’s FOIA responses. And we think that guidance should be biased in favor of disclosure. [Full Story]