AATA Bus. Advertisements appear on the sides of buses. (Photo illustration by The Chronicle – which consists of applying a graphics filter and digitally adding the word “settlement” to an image that included the original text “out of service.”)

In an email responding to an inquiry from The Chronicle, American Civil Liberties Union attorney Dan Korobkin, who represented plaintiff Blaine Coleman in the case against the Ann Arbor Transportation Authority, stated: “After the court ruled that AATA’s advertising policy was unconstitutional, AATA made significant changes to its policy based on the ruling and current case law. Both sides decided that a settlement was appropriate, and we ultimately reached an agreement that worked for everyone.”

Korobkin added: “I am able to say that Mr. Coleman did not ask for any payment as part of the settlement, and that the ACLU accepted payment for some of its expenses and attorneys’ fees.”

In 2011, the Ann Arbor Transportation Authority had refused to place the ad on its buses as a part of its advertising program. The proposed ad reads “Boycott ‘Israel’” and “Boycott Apartheid” and features an image of a spider-like creature with a skull for a head. [.pdf of image and text of proposed ad]

According to AATA controller Phil Webb, the AATA is currently projecting that its net revenue from the advertising program – which is managed under a contract with CBS Outdoor Advertising – will come to about $276,000 for the fiscal year. This is the first year of the contract with CBS Outdoor. Compared with the previous contractor, CBS is generating about 2.5 times as much revenue to the AATA. [.pdf of billings through May 2013]

The lawsuit was filed by Coleman – an Ann Arbor resident who was represented by the ACLU – over a year and a half ago, on Nov. 28, 2011.

The case had remained in the preliminary injunction phase and had not yet proceeded to trial. Before the settlement, the most recent court action had come in early June, after a four-month pause in activity. In his June 4, 2013 ruling, federal judge Mark Goldsmith did not agree with the ACLU’s argument that the preliminary injunctive relief to which Coleman was entitled should take the form of placing the ad on AATA buses.

On the general motion for a preliminary injunction made by the ACLU, Goldsmith had earlier ruled in the case that the AATA’s policy – under which the advertisement had originally been rejected – was in fact unconstitutional. In light of that ruling, the AATA then changed its advertising policy to remove a “good taste” requirement and to add a clear prohibition against political ads in general, not just those for political candidates.

The AATA then reconsidered the original ad under its revised policy. Under this new policy, which the court has found to be constitutional, the AATA rejected the ad again.

Goldsmith then entertained arguments from both sides on the question: Should further preliminary injunctive relief be granted, beyond AATA’s revision of its advertising policy and the ad’s reconsideration and rejection? The ACLU argued that it would be appropriate to grant injunctive relief by forcing the AATA to place the ad on its buses. The AATA argued that this kind of relief was not justified. And four months after the last briefs were submitted on that question, Goldsmith ruled that the ACLU had not met the criteria for injunctive relief in that form.

But in Goldsmith’s June 4 ruling, he laid out the importance of establishing a clear argument on “viewpoint discrimination” – which he felt that the ACLU had not adequately developed within the frame of its request for preliminary injunctive relief. The ruling seemed to indicate a willingness on Goldsmith’s part to entertain further arguments along the specific lines of “viewpoint discrimination” – if the case had gone to trial.

The ACLU could have proceeded to trial, where one result could have been that the AATA was forced to place the ad or that the case was adjudicated in favor of the AATA. Or the ACLU could have immediately appealed the June ruling on the injunctive relief. After a June 17 status conference between the parties, another status conference was scheduled for June 27. In the interim, however, the AATA board met on June 20 in closed session about the case. And on June 21, at the request of the parties, the case was referred to magistrate judge Mark A. Randon for settlement. A settlement conference took place on June 26.

But the parties did not reach an immediate settlement and the court forged ahead by setting a schedule for a trial. [.pdf of June 28, 2013 scheduling order] The settlement on July 17 came nine days before disclosures were scheduled to be served on opposing counsel as a part of the trial schedule.

In the key earlier ruling in the case, on Sept. 28, 2012, Goldsmith had found the AATA’s advertising policy – in effect at the time when Coleman’s proposed ad had originally been denied – to be unconstitutional. Goldsmith had determined that the ad had been denied on both the “good taste” provision and the “scorn and ridicule” provision of the AATA’s advertising policy. The “good taste” provision itself was ruled unconstitutional. That provision was eliminated from the AATA’s revised advertising policy.

Based on Goldsmith’s June 4 ruling, a main issue at trial – if it had proceeded– would have been whether the AATA applied the “scorn and ridicule” provision in a way that was constitutional.

The AATA would have likely contended that its application of that “scorn and ridicule” provision was constitutional, setting up the argument: Coleman was not damaged by having his ad denied for an unconstitutional reason (“good taste”) – because there was some other, constitutional reason for denying the ad. So the ACLU would have likely made an effort to establish that the denial of the ad was based on an application of the AATA’s “scorn and ridicule” provision that included viewpoint discrimination, and was thus also not constitutional.

However, the settlement reached on July 17, 2013 means none of those arguments will be necessary.

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AATA board members: Clockwise from left bottom: Roger Kerson, Sue Gott, David Nacht, Charles Griffith, Jesse Bernstein, Anya Dale, Eli Cooper. (Photo by the writer.)

After about two hours in closed session, the board emerged and voted unanimously to reject – for a second time – an advertisement that had been submitted by Ann Arbor resident Blaine Coleman for placement on the sides of AATA buses. The ad included the text “Boycott ‘Israel’ Boycott Apartheid” and a graphic that depicts a scorpion-like creature.

Both the text and the image figured into reasoning for the board’s decision to reject the ad – based on a new advertising policy that the AATA board adopted in November. [See Chronicle coverage: “AATA Adopts New Advertising Policy”]

The board’s resolution stressed that there were two reasons for rejecting the advertisement, either of which the board considered to be sufficient on its own to warrant rejection. First, the proposed ad violates the policy’s provision against political advertisements. Second, the advertisement is likely to hold up a group to scorn or ridicule, according to the board’s resolution – by dint of the enclosure of the word “Israel” in quotes, and the inclusion of the image. [.pdf of new ad policy, with changes indicated]

The AATA board reconsidered the advertisement using the new policy because of a court order issued on Dec. 17. [.pdf of Dec. 17, 2012 court order] That order came from judge Mark Goldsmith of the U.S. District Court for the Eastern District of Michigan, who’s presiding over the case. The reconsideration of the ad is part of the injunctive relief that Goldsmith is proposing, having ruled in favor of Coleman on his request for a preliminary injunction. Granting the preliminary injunction was based on Goldsmith’s finding that the AATA’s old advertising policy was in part unconstitutional. Coleman’s requested relief, however, was for the AATA to run the advertisement. Goldsmith has not yet explicitly ruled on that request.

Under the court order, the AATA had until Jan. 4 to notify Coleman of its decision on the re-submitted advertisement.

A status conference scheduled for Jan. 9 will focus on whether the injunctive relief that’s been granted thus far is sufficient, and will allow the parties to talk to each other and the judge about how they’d like to move forward. The lawsuit, filed in late 2011, has not yet proceeded to trial. However, the legal standard of review for granting Coleman’s motion for a preliminary injunction is based in part on the likelihood that Coleman would prevail, if the case were to go to trial.

Public commentary at the Jan. 3 special meeting of the AATA board was focused on the possible conflict of interest that judge Goldsmith has, given his membership in various Jewish organizations. 

Public Commentary: NRA Analogy

Addressing the board during public commentary at the start of the meeting was Henry Herskovitz, who offered an analogy to board members that the board might use to understand what he contends is a conflict of interest on the part of Mark Goldsmith, the judge who is presiding over the advertising lawsuit case.

Herskovitz invited the board to consider a situation where an Ann Arbor citizen wanted to put an anti-handgun sign on the side of a bus as part of the local bus company’s advertising program, with text like “Guns are bad,” and possibly with a graphic image. The image might be drawn from the Sandy Hook tragedy, he suggested – not something grisly, but rather just painful. Or the image might be of a gun dripping blood, he said. Continuing the analogy, he described the board of the hypothetical bus company as one that included several members of the  National Rifle Association (NRA). In that scenario, there would be a conflict of interest, Herskovitz contended.

Herskovitz then added to the hypothetical situation he was describing by suggesting that a lawsuit was filed and it turned out that the presiding judge was also a member of the NRA, and perhaps a member of the local Michigan Coalition for Responsible Gun Owners. And he asked the AATA board members to imagine that the judge owned a lot of guns himself – as a collection, or for target shooting and hunting. How would that judge fairly decide a case that involves placement of a sign on a bus that calls into question handgun ownership? Herskovitz asked.

A federal judge would need to abide by the canons of judicial conduct, he said, which includes a requirement that: “A judge should avoid impropriety and the appearance of impropriety in all activities. …  A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.” In the hypothetical, Herskovitz said, it would be reasonable to question that judge’s ability to decide fairly the question of whether to allow an anti-handgun sign on a bus.

Encouraged to wrap up his comments by board chair Charles Griffith, noting that Herskovitz was at the two-minute time limit, Herskovitz allowed that he didn’t know if Goldsmith was a member of the NRA. But he did know that Goldsmith was a member of many pro-Israel groups, including the Anti-Defamation League, and has other strong ties to the state of Israel. Goldsmith sends his daughter to Israel to study, Herskovitz said, and is a cantor at the synagogue. Using the analogy of the anti-handgun advertisement, he said, allows the bias to be understood more clearly. He said that the Goldsmith’s bias was obvious in his mind – but Herskovitz allowed that he had his own point of view.

Rejection of Ad

When the board finished its closed session, the open session portion of the meeting was brief. Jesse Bernstein read aloud the board’s resolution, outlining the board’s conclusion that the ad was to be rejected and its reasoning in doing so. The only commentary on it was from Roger Kerson.

Kerson said the board had discussed the issue “quite a bit” and had wrestled with it. He did not think that anyone joined the AATA board for an opportunity to increase their expertise in dealing with “knotty constitutional matters,” but he indicated this was simply part of being a public body. The board had tried as best it could to observe and comply with all the relevant court decisions. The language the AATA had adopted for its new policy, Kerson continued, was specifically approved in the AFDI v. SMART decision from the 6th Circuit Court of Appeals late last year. The advertisement, he said, is not in conformance with the new policy – based on the political issue and the defamation issue.

Rejection of Ad: Defamation Issue

The scorn-and-ridicule provision was part of the AATA’s original policy, under which Coleman’s ad was initially rejected over a year ago. Included among the kind of ads that can be disallowed under the policy is any advertisement that:

B5: Defames or is likely to hold up to scorn or ridicule a person or group of persons.

In support of the conclusion that Coleman’s ad violates B5, the AATA board’s resolution states:

The placement of quotation marks around the word “Israel” implies that Israel does not exist. Further, the graphic combined with the text of the proposed advertisement hold a group of people up to scorn and ridicule.

The board’s resolution highlights the fact that it views the violation of B5 to be a sufficient basis for disallowing the proposed ad. The basis for the original rejection of the ad a year ago was the subject of some of the lawsuit’s discovery process – as AATA staff members and Jesse Bernstein, who was board chair at the time, were deposed and asked specifically about their reasons for rejecting the ad under the advertising policy current at the time.

In granting the preliminary injunction to Coleman, Goldsmith had found that the AATA rejected the ad at least in part based on a provision he found to be unconstitutionally vague – the “good taste” provision – which is not a part of the AATA’s new policy. From the ruling: “… the Court concludes that it is likely that Plaintiff’s ad was rejected under both the ‘good taste’ provision and the ‘scorn or ridicule’ provision. ”

The “good taste” provision, which has since been stricken from the AATA’s advertising policy, read as follows:

All advertising must be considered in good taste and shall uphold the aesthetic standards as determined by AATA.

Rejection of Ad: Political Issue

Also considered by the AATA board to be a sufficient and independent reason for rejection is the portion of the policy that disallows an ad that:

B7: Contains political or political campaign advertising.

The version of this clause that was included in the AATA’s original advertising policy was more specific and does not appear to provide an adequate basis for rejecting Coleman’s ad:

B7 (old version): Supports or opposes the election of any person to office or supports or opposed any ballot proposition.

Bus advertisements for 2008 judicial candidates Joan Lowenstein and Margaret Connors were accepted by the AATA in error, according to court documents. Lowenstein and Connors were running for the 15th District judgeship eventually won by Chris Easthope.

Outcome: The board voted unanimously to reject the ad as submitted by Coleman, evaluated against the criteria of the new advertising policy. 

Present: Charles Griffith, David Nacht, Jesse Bernstein, Eli Cooper, Sue Gott, Roger Kerson, Anya Dale.

Next regular meeting: Thursday, Jan. 17, 2013 at 6:30 p.m. at the Ann Arbor District Library, 343 S. Fifth Ave., Ann Arbor [Check Chronicle listings to confirm date]

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The vote came in the context of a lawsuit against the AATA – over the rejection of the same advertisement over a year ago. The current reconsideration of the ad came under a court order. It was reconsidered under the criteria set forth in a newly revised advertising policy, which the board adopted in late November.

Grounds for rejecting the ad cited by the board were the policy’s prohibition of political or political campaign advertising, as well as a prohibition against holding a person or group up to scorn and ridicule. The resolution passed by the board rejecting the ad highlighted the graphic associated with the ad, which is a scorpion-like creature. The enclosure of the word “Israel” in quotation marks implies that Israel does not exist, according to the resolution, and was part of the reason that the board found the ad to violate the AATA’s new ad policy.

Under the court order, the AATA had until Jan. 4 to notify Coleman of its decision on the re-submitted advertisement.

It was a Dec. 17, 2012 court order in which judge Mark Goldsmith of the U.S. District Court for the Eastern District of Michigan ruled that the AATA had to reconsider the ad. [.pdf of Dec. 17, 2012 court order]

In the course of the lawsuit, which was filed over a year ago, the court has ruled in favor of Coleman on his request for a preliminary injunction, based on a finding that the original advertising policy had unconstitutional portions. But Goldsmith left the question of appropriate relief to be determined. Since that initial ruling, the AATA board, at its Nov. 29, 2012 meeting, revised its advertising policy. [For detailed coverage, see Chronicle coverage: “AATA Adopts New Advertising Policy.”] So the court’s order on Dec. 17 required the AATA to reconsider the advertisement under its new policy. [.pdf of marked up new ad policy]

Crucially, the new policy omits a “good taste” provision, which the court found to be unconstitutional. The policy also includes a revised provision that previously disallowed ads supporting or opposing political candidates or ballot propositions. The new policy more broadly bans “political or political campaign advertising.”

The court’s order also established a timeline: (1) By Dec. 21, 2012, Coleman had to resubmit the ad – either the original version of the ad or a revised version. (2) By Jan. 4, 2013, the AATA had to reconsider the ad under its revised advertising policy and notify Coleman. (3) On Jan. 9, 2013 a status conference with the court will be held to discuss whether additional preliminary injunctive relief is proper and what will happen next.

This brief was filed from AATA headquarters at 2700 S. Industrial Highway, where the board held its special meeting. A more detailed report will follow: [link]

The purpose of the special meeting is related to a pending lawsuit against the AATA – for refusing to allow an anti-Israeli advertisement to be placed on the sides of its buses. Based on the timeline set forth in a recent court order, the board’s meeting will likely include a closed session to evaluate the previously rejected advertisement under the terms of a newly revised advertising policy. The board adopted the revised ad policy in late November. By Jan. 4, the day after the special meeting, the AATA must notify the plaintiff in the case, Ann Arbor resident Blaine Coleman, of its decision on the advertisement.

In the Dec. 17, 2012 court order, judge Mark Goldsmith of the U.S. District Court for the Eastern District of Michigan ruled that the Ann Arbor Transportation Authority had to reconsider an advertisement it had previously rejected for placement on the sides of its buses. [.pdf of Dec. 17, 2012 court order] The ad included the text “Boycott ‘Israel’ Boycott Apartheid.”

In the course of the lawsuit, which was filed over a year ago, the court has ruled in favor of Coleman on his request for a preliminary injunction, based on a finding that the original advertising policy had unconstitutional portions. But Goldsmith left the question of appropriate relief to be determined. Since that initial ruling, the AATA board, at its Nov. 29, 2012 meeting, revised its advertising policy. [For detailed coverage, see “AATA Adopts New Advertising Policy.”] So the court’s order on Dec. 17 required the AATA to reconsider the advertisement under its new policy.

Crucially, the new policy omits a “good taste” provision, which the court found to be unconstitutional. The policy also includes a revised provision that previously disallowed ads supporting or opposing political candidates or ballot propositions. The new policy more broadly bans “political or political campaign advertising.”

The court’s order established a timeline: (1) By Dec. 21, 2012, Coleman had to resubmit the ad – either the original version of the ad or a revised version. (2) By Jan. 4, 2013, the AATA reconsiders the ad under the revised advertising policy and notifies Coleman. (3) On Jan. 9, 2013 a status conference with the court will be held to discuss whether additional preliminary injunctive relief is proper and what will happen next.

According to Coleman’s ACLU attorney, Dan Korobkin, the ad that would be re-submitted to the AATA was the original ad.

The board’s meeting comes in the context of a legal case that’s pending against the AATA for refusing to run an advertisement on the sides of its buses that states, “Boycott ‘Israel.’” The initial substantive ruling in the case went against the AATA, when the judge granted a motion for injunctive relief. But the nature of that relief – which could include forcing the AATA to run the ad – has not yet been determined.

After the initial ruling, the court asked both parties to file briefs with arguments on the nature of the injunctive relief. The AATA’s position is that it should be allowed to develop an advertising policy that’s constitutional in the opinion of the court and apply that policy to the ad – which was proposed by plaintiff Blaine Coleman. The ACLU, which is representing Coleman in the case, has argued that the injunctive relief should force the AATA to run the ad. A status conference with the court and the two parties is scheduled to take place on Dec. 6.

The AATA board’s apparent strategy will be to have a revised advertising policy in place for the Dec. 6 status conference, so that it’s in a position to argue the constitutional merits of that already-enacted policy. One significant part of the revision to the advertising policy that the board will be asked to vote on is the deletion of a clause that refers to poor taste: “All advertising must be in considered in good taste and shall uphold the aesthetic standards as determined by AATA.” The clause factors crucially in the court’s initial determination that the AATA’s advertising policy is likely not constitutional.

Updated: The Chronicle’s report on the Nov. 29 meeting of the AATA board is available here: [link]

Plaintiff Blaine Coleman had attempted to purchase an advertisement on AATA buses that included the text “Boycott ‘Israel’ Boycott Apartheid,” and an image depicting a scorpion-like creature with a skull for a head. [.pdf of image and text of proposed ad] Coleman filed suit last year on Nov. 28, 2011.

In the Sept. 28 ruling, Mark Goldsmith of the U.S. District Court for the Eastern District of Michigan denied the AATA’s motion to dismiss the case. Goldsmith also granted plaintiff Blaine Coleman’s request for a preliminary injunction. But Goldsmith did not specify the relief to be granted to Coleman under the injunction, and instead asked the parties to file supplemental briefs outlining their view of proper relief.

Responding to the court’s Sept. 28 ruling, the ACLU of Michigan, which is representing Coleman, submitted a brief on Oct. 12 outlining arguments for relief in the form of a requirement that Coleman’s ad be placed on AATA buses.  [.pdf of ACLU brief on proper relief] [.pdf of supplemental brief]

AATA’s response was required to come within 14 days of the ACLU’s brief and was filed on Oct. 26. The AATA’s position is that it should not be required to place Coleman’s ad but rather should be allowed to revise its advertising policy in light of the court’s finding. [.pdf of AATA view of proper relief]

As a next step, based on the court’s Sept. 28 ruling, a hearing could be held to entertain oral arguments on the question of proper relief.

In the meantime, in light of the court’s denial of the AATA’s motion to dismiss, the AATA two weeks ago filed its formal answer to Coleman’s initial complaint. The answer to the complaint denies the claims made by Coleman and includes a demand for a jury trial. [.pdf of AATA answer to complaint]

The AATA board held a closed session lasting nearly two hours during its Oct. 18 meeting to discuss the pending litigation.

Several members of the unincorporated Act 196 board attended the AATA’s Sept. 5 special board meeting. Clockwise from the near left corner of the table: Bob Mester (U196 West District – trustee, Lyndon Township); David Read (U196 North Middle District – trustee, Scio Township); Peter Murdock (U196 Ypsilanti District – councilmember, city of Ypsilanti); Roger Kerson, Charles Griffith, and Jesse Bernstein (AATA board members); Michael Ford (AATA CEO), David Nacht (AATA board);  Karen Lovejoy Roe (U196 Southeast District – clerk, Ypsilanti Township); and Bill Lavery (U196 South Middle District – resident, York Township).

According to a press release announcing the 5-year service plan’s final draft, a millage to support The Washtenaw Ride could be placed on the ballot by May 2013.

The estimated cost of the service in the plan is now 0.584 mills, an increase of 0.084 mills compared to the estimated cost in a draft plan that was released in April. Compared to the draft plan, the final version also includes several additional services, which were added based on input from district advisory committees (DACs).

The 5-year service plan includes: (1) countywide demand-responsive services and feeder services; (2) express bus services and local transit hub services; (3) local community connectors and local community circulators; (4) park-and-ride intercept lots; and (5) urban bus network enhancements. For Ann Arbor, the program includes increased bus frequencies on key corridors, increased operating hours, and more services on weekends. According to the Sept. 5 press release, Ann Arbor and Ypsilanti will get a 56% increase in service hours compared to current levels.

The possible transition from the AATA to The Washtenaw Ride will take place under the framework of a four-party agreement between the city of Ypsilanti, the city of Ann Arbor, Washtenaw County and the AATA.

The other vote taken by the AATA board at its Sept. 5 meeting stemmed from a formal protest in connection with the AATA’s award of a contract for handling advertising on its buses – to CBS Outdoor Advertising of Lexington, New York. The contract previously had been held by Transit Advertising Group Ann Arbor (TAG).

TAG president Randy Oram addressed the board during public commentary at the Sept. 5 meeting. Also during the meeting, AATA CEO Michael Ford pointed the board to his written response to the protest and asked board members to uphold his decision to award the contract to CBS. The board voted in a formal resolution to support the advertising contract award to CBS.

5-Year Transit Program

The special meeting of the board had been called specifically for the purpose of releasing the final draft of a 5-year transit program. An earlier draft had been released in April of this year.

5-Year Transit Program: Background

Publication of a 5-year transit program and a plan to fund it is one requisite to incorporation of The Washtenaw Ride under Act 196 of 1986. That’s not a requirement of the state statute, but rather a stipulation in a four-party agreement, ratified between the city of Ann Arbor, the city of Ypsilanti, Washtenaw County and AATA. [The Washtenaw County board of commissioners again had the agreement on its agenda for its Sept. 5 meeting – and voted again to approve its side of the agreement. See "Washtenaw Board to Re-Vote Accord" for a preview.]

That four-party agreement establishes the legal conditions under which assets of the AATA could be transferred to The Washtenaw Ride. A key condition is a voter-approved funding source adequate to pay for the services outlined in the plan released on Sept. 5. While the draft plan issued in April stopped short of recommending a millage as the funding source, the AATA now indicates that a millage vote could take place as soon as May 2013.

The four-party agreement also calls for the cities of Ypsilanti and Ann Arbor to direct the proceeds of their current transportation millages to the new authority. If approved by voters, the 0.584 mills from a new millage would be paid by property owners in those cities in addition to the existing transit taxes. Current transit taxes are about 1 mill for Ypsilanti and about 2 mills for Ann Arbor.

Washtenaw County’s role will be to file the articles of incorporation for the new transit authority. The articles would be filed with the state of Michigan under Act 196 of 1986. But that filing would come only after a request from the AATA and only after the AATA publishes details of the service and funding plan for the authority in newspapers of general circulation in Washtenaw County. This is the current phase of the possible transition.

At the point of incorporation, jurisdictions throughout Washtenaw County would have the ability to opt out of the new transit authority. If their governing bodies don’t opt out, those jurisdictions will be included in the new authority. Residents of jurisdictions that choose to stay in the new authority – and do not decide to opt out – would participate in a vote on any millage placed on the ballot to fund The Washtenaw Ride.

5-Year Transit Program: From 0.5 mills to 0.584

The estimated gap between revenues ($184.2 million) and expenses ($223 million) for a 5-year period of the program is $38.8 million. That gap could be covered with a tax on the participating jurisdictions of 0.584 mills. A popular vote on that tax could come as soon as May 2013.

One mill is $1 for every $1,000 of taxable value on a property. So for a house worth $200,000, with a state-equalized value of $100,000, an 0.584 mill transit tax would cost that property owner about $58 per year. For an Ann Arbor resident with a $200,000 house, adding the 0.584 mill tax to the existing city transit tax of roughly 2 mills works out to a transportation tax burden of about $258 a year.

AATA expects The Washtenaw Ride to add 3.6 million rides to the existing 6 million rides that the AATA already provides.

A previous estimate of 0.5 mill as sufficient to cover the operating gap of a new authority’s 5-year plan had been generated by a financial advisory group led by McKinley Inc. CEO Albert Berriz and Bob Guenzel, retired Washtenaw County administrator. That group had worked with the AATA’s consultant on the project, Steer Davies Gleave, to generate the estimated cost.

The current revised estimate is the result of service additions to the 5-year plan made since the draft was released earlier this year. After the Sept. 5 meeting, AATA strategic planner Michael Benham, who has led the project for the AATA, responded to a question from The Chronicle by saying that the new calculations were done by AATA staff, building on the work already done by Steer Davies Gleave. Benham indicated that he hoped the financial advisory group would also be able to convene to review the revised plan and figures.

At the AATA board’s Aug. 16, 2012 meeting, Benham had sketched out in broad strokes some of the changes that had been made since the draft service plan had been released in April. For example, the urban bus network – in Ann Arbor and Ypsilanti – has been expanded compared to the draft. In the draft plan, it was based on a 16-hour day, while now it’s based on an 18-hour day for some routes. That will involve a number of select routes operating until midnight. Some routes will also operate a little bit earlier in the morning, starting at 6 a.m. instead of 6:30 a.m.

Connectors and circulators for Milan have been added. The Northfield Express has been extended to Brighton. Also at the Aug. 16 board meeting, Benham also indicated the AATA is thinking about extending service to Lincoln Consolidated Schools in August Township, using a combination of flex service and limited extensions of the already-proposed Route #46. They’re also looking at a park-and-ride proposed in Pittsfield Township – and they’re thinking about either adding an additional park-and-ride, which would be further east, or perhaps just taking the existing one and moving it.

5-Year Transit Program: Board Response

During his oral report to the board, Michael Ford – the AATA’s CEO – noted that the document reflected a lot of hard work. The AATA had begun with a 30-year vision, which had been refined to a 5-year implementation program. A lot of work had been done with the district advisory committees over the last two years, he said, taking in comments and suggestions and making sure that the AATA had heard what people had to say.

CEO of the AATA Michael Ford takes bound copies of the 5-year plan out of a box before the Sept. 5 board meeting.

During the month of September, Ford said, the AATA is going out to the districts again to get full support and concurrence on the document. He emphasized that it’s a very detailed document – as it goes through a lot of layers of detail to provide people the best information to make an informed decision about whether to participate. He called it a very important document and reiterated that a lot of hard work has gone into it.

Ford took a moment to acknowledge some staff members individually – Sarah Pressprich-Gryniewicz, Mary Stasiak and Chris White. He singled out strategic planner Michael Benham as having done a yeoman’s job, which prompted a round of applause.

Board chair Jesses Bernstein then delivered some remarks, giving his personal perspective. That week marked the start of his 45th year in Ann Arbor and Washtenaw County, he said. During that period, he had worked for the county government, started two businesses, worked in a lot of other settings and volunteered in a lot of places. He had never seen a process and an outcome like the AATA had produced with this 5-year program.

The AATA has a 30-year vision and a 5-year program to implement it, Bernstein said. One of his favorite sayings, he continued, is “If you don’t know where you’re going, you’re never going to get there. … We know where we’re going.” He allowed that the road would not be straight and smooth, and there would be twists and turns and curves. Bernstein said he is very proud to have been on the board while the AATA had undertaken the effort. He added his personal thanks to the staff for their incredible work that they’ve done – including nights and weekends – saying it has been just an unbelievable effort. He concluded his remarks by saying, “And as the song says: We’ve only just begun.”

Charles Griffith appreciated that the document has evolved to the point that it has, noting that it’s the result of a lot of good work and thought. He appreciated the fact that it is still a “living document.” He ventured that it probably won’t ever be final because the AATA will always be adjusting and tweaking it and making it better – as it does currently with its existing system. The AATA changes its service plans, altering routes on an ongoing basis to make sure the AATA has the most efficient system that it can have. The new transit authority will continue to that. He stressed the fact that the AATA will continue to need to work on this.

David Nacht ventured that anybody who’s been paying attention in Michigan understands that there are communities in the state that have taken a “parochial view” of their role – such communities imagine that they are an island and can function without connection to their neighbors. These communities are either being taken over by the state government or are in danger of being taken over by the state government, Nacht said.

But Ann Arbor sees itself differently, Nacht said. Ann Arbor views itself as part of the surrounding environment, which includes different communities that are different from Ann Arbor, but are connected to it. It’s an environment where people live and work and participate in the economic life of Ann Arbor. Nacht continued by saying it is in Ann Arbor’s interest to reach out to its neighbors in an open way, to transparently say: Let’s be connected in a way that we think is reasonable and fair, that works for people no matter what part of the county they live in.

Nacht observed that he had been a part of this process for a long time – there were people on the board just talking about expanding service countywide, when he joined the AATA board nine years ago. Michael Ford, he said, has led a team to bring the AATA to this point. Nacht did not think the process was perfect, and he did not think that the outcome was perfect. But he called it an outstanding political and policy result for a public entity.

For a public entity, “This is as good as it gets,” Nacht said. He agreed with Bernstein, in that he’d been through a lot of projects at different levels of government and in the private sector, and he was very proud of the AATA’s work. The AATA is offering the community a choice to move forward to take care of those who need transportation services, to help the environment, and to prosper, Nacht said. Ultimately, Nacht said, if we move people around better, everyone will prosper.

Roger Kerson echoed what had been previously said. He added that it’s the easiest thing in the world to say, “Let’s work together,” but it’s in fact very hard to do. It’s a real testament to the staff work that so many different jurisdictions are cooperating and participating.

Kerson addressed some remarks to those board members from the as-yet-unincorporated board of The Washtenaw Ride who were at the table – thanking them for participating in an enterprise that was still not completely 100% defined. He thanked them for attending meetings where they don’t get to vote yet. And he thanked them generally for helping the AATA in the process.

Kerson felt that the existing board would be able to do its job better as a steward of the AATA’s resources, when the board gets bigger – and when it has more input and more ideas and more knowledge of the communities that the AATA is trying to connect with. Right now, the AATA is running buses to Ypsilanti and Chelsea, he pointed out – places where board members don’t live. The AATA will be able to provide service more effectively and efficiently when the team is expanded. He looked forward to a time when everyone at the table also had a voice and a vote.

Outcome: The board voted unanimously to release the 5-year plan. A series of district advisory committee meetings will be now be held in different areas of the county to go over the plan. Ann Arbor’s meeting will take place on Sept. 24, 2012 from 6:30-8:30 p.m. at the Mallets Creek branch of the Ann Arbor District Library. A complete meeting schedule is available on the MovingYouForward.org website.

Bus Advertising

At its Sept. 5 meeting, the board considered a resolution upholding a previous decision to award a contract for handling advertising on the sides of AATA buses to CBS Outdoor Advertising.

Bus Advertising: Background

At its Aug. 16, 2012 meeting, the AATA board authorized a three-year contract with CBS Outdoor Advertising of Lexington, New York, to handle placement of ads on its buses and bus stops. The contract had been held by Transit Advertising Group Ann Arbor (TAG) for the last seven years, but that contract had expired. So the AATA solicited bids for a new contract. The AATA selected CBS Outdoor Advertising from seven respondents to an RFP (request for proposals).

The AATA’s advertising program currently accounts for about $80,000 a year in a budget for fiscal year 2012 that calls for $29.4 million in total revenues. In the past, the advertising program has netted up to $169,000 a year.

When first implemented in 2005, the program was expected to generate $200,000 a year [.pdf of 2005 Ann Arbor News article: "Some AATA Buses to Be Used as 'Movable Billboards'"] Ann Arbor News coverage from that era documents some controversy associated with the decision to offer advertising on buses, as well as the initial implementation that allowed for complete wraps. [.pdf of 2007 Ann Arbor News article: "AATA to Review Bus Ads"]

An ad rejected by the AATA for placement on its buses prompted a lawsuit filed last year on Nov. 28, 2011. The text of the ad included the words “Boycott ‘Israel’” and featured an image of a scorpion-like creature. In the most recent court action connected with that lawsuit, TAG and its president Randy Oram were dropped as defendants in the case by mutual agreement of the parties. The court has not yet ruled on the substance of the case, but an evidentiary hearing was held on July 23.

The lawsuit was not related to the routine process of putting the advertising contract out for renewal.

Bus Advertising: Protest, Commentary

In his written protest about the award, TAG president Randy Oram detailed a number of objections, among them a contention that the proposal from CBS did not actually respond to the AATA’s request for proposals. TAG also points to the recent elimination of a CBS staff position for someone who’s named in the CBS proposal as a person who would be part of a team fulfilling terms of the contract.

For its part, the AATA maintains that it followed its RFP procedures, that it violated no laws, and that CBS was able and willing to meet the requirements of the RFP but that TAG, based on its proposal, was either unwilling or unable to meet those requirements. TAG felt that the contingencies it had included in its proposal – based on its experience as the vendor over the last seven years – had been held against it in the AATA’s evaluation of the proposal. [.pdf of TAG protest and AATA response]

Randy Oram, president of Transit Advertising Group Ann Arbor, addressed the board on Sept. 5.

Oram addressed the board during public commentary at its Sept. 5 meeting. He told the board that TAG had been proud to serve the AATA as the exclusive agent for bus advertising services since 2005. He appreciated the opportunity to partner with the AATA in that endeavor. TAG had always served the AATA and its constituents to the best of its ability and with fidelity, he said. He appreciated the efforts of the board in hearing the appeal he was making concerning the denial of the contract award to TAG and the award the contract to a different vendor.

Oram allowed that the process had required a lot of time and effort on the part of the AATA staff so far. A clear understanding of the contract requirements at the onset, he continued, will benefit the AATA and an agency in evaluating all the proposals that have been made. He felt that the board needs to understand clearly what the issues are before making a final recommendation.

In honoring its past contract in partnership with the AATA, TAG had prepared a proposal that was detailed and knowledgeable in operating a bus advertising system according to the contract, Oram said. That knowledge, he said, appeared to be the key in TAG’s failure to be recommended for the award of the contract. TAG’s proposal reflected its understanding of the contract and past operations, and that was faithfully spelled out as part of the request for proposals. TAG is not trying to create any more difficulties, he assured the board.

If the eventual awardee can comply with each and every one of the requirements in the request for proposals, with no exceptions or deviations, exactly as the RFP is written, that firm would be deserving of the contract regardless of which company it is, Oram said. It’s important for TAG that the AATA understand that TAG’s proposal was not an indication that TAG was unwilling or incapable of performing the contract. It was a proposal that reflected the application of the past performance of the contract and the forethought, recognition and planning for contingencies – which should have been seen as a strength, not a weakness, he said.

Shortly before Oram concluded his remarks – as he was pushing past the limits of the two-minute speaking time – board chair Jesse Bernstein asked Oram if he had much more to say. Oram indicated he had just two more sentences and then he would “pass out.” Board member David Nacht joked that Oram surely meant that he had a “hand out,” not that he was actually going to pass out. Nacht’s remark generated chuckles around the board and from Oram.

Oram concluded by thanking the board members and the staff for considering TAG’s appeal. He hoped that the board would consider delaying the award of the contract until all of the issues could be examined.

Bus Advertising: CEO & Board Response

Michael Ford, the AATA’s CEO, responded to Oram’s remarks at the meeting by telling board members that he had taken time to write out a detailed response. After review and consultation with the staff, Ford said he felt the AATA had responded appropriately. He asked the board for their support to uphold his decision to affirm the contract award to CBS.

He felt that the AATA’s RFP evaluation team had done its due diligence, and he felt that he had answered Oram’s questions very thoroughly. He was confident and comfortable upholding the decision. Roger Kerson sought confirmation that CBS Outdoor Advertising also had experience with handling advertising with transportation agencies. Ford indicated CBS  had such experience.

AATA CEO Michael Ford, right, approaches TAG president Randy Oram after the Sept. 5 board meeting.

David Nacht followed up by asking if Ford was confident that the AATA had followed all relevant procedures in the contract award process. Ford indicated he was confident. Nacht noted that the AATA’s legal counsel – Jerry Lax, of Pear Sperling Eggan & Daniels, P.C.  – was attending the meeting. Nacht asked if Lax thought there was anything else the board should be aware of. Lax did not think there was  – beyond what was in their information packet.

Nacht indicated that as a general matter, he thinks it’s healthy for a public agency to follow processes, and for the board not to take a role in selecting contractors who get public dollars. Instead, the board has a role of making sure that the process was followed, he said. The CEO and the legal counsel for the agency had assured the board that processes were followed. And Nacht said he had a chance to review what had just been handed to him, so he supported the resolution to uphold the decision.

Outcome: The board voted unanimously to uphold the decision to award the advertising contract to CBS Outdoor Advertising. 

Present: Charles Griffith, David Nacht, Jesse Bernstein, Roger Kerson.

Absent: Eli Cooper, Sue Gott, Anya Dale.

Next regular meeting: Thursday, Sept. 20, 2012 at 6:30 p.m. at the Ann Arbor District Library, 343 S. Fifth Ave., Ann Arbor [Check Chronicle event listing to confirm date]

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Karen Lovejoy Roe, Ypsilanti Township clerk, attended the AATA board’s Aug. 16 meeting as representative of the Southeast District on an as-yet unincorporated board of a countywide transportation authority. During the meeting she expressed enthusiastic support for expanded transit. (Photos by the writer.)

As part of that goal of establishing the new authority, the AATA board gave final approval to a four-party agreement – between the city of Ann Arbor, the city of Ypsilanti, Washtenaw County and the AATA. The agreement would establish a framework for the transition of the AATA to a transit authority incorporated under Act 196 of 1986 – to be called The Washtenaw Ride. That authority would have a 15-member board.

An unincorporated version of the Washtenaw Ride’s board (the U196) has been meeting since late 2011. The three guests at the table for the Aug. 16 AATA board meeting are representatives of three districts in the possible new authority: Karen Lovejoy Roe (Southeast District), Bob Mester (West District) and David Phillips (Northeast District).

Those three were not there to vote, and did not participate in deliberations, though they could have. However, Lovejoy Roe – who serves as Ypsilanti Township clerk, an elected position – gave one of the most enthusiastic statements of support for the countywide initiative that’s been heard at the AATA board table over the last two years. “I’m just really excited about where we’re headed as a community, as a county at large. I know that there’s been a lot of hiccups, but I think that that’s normal … I’m committed, and I think that those who’ve asked me to be here working willingly and openly to do what’s best for all county residents [are, too] …”

One element of the 30-year vision that the AATA has developed for countywide transportation is a north-south commuter rail connection between Ann Arbor and Howell, in Livingston County. And the planning effort was given continued support at the Aug. 16 meeting when the board awarded a $105,200 contract to SmithGroupJJR for station location and design services in connection with the WALLY (Washtenaw and Livingston Railway) project.

That overall planning effort was given a boost by a somewhat unexpected $640,000 federal grant to the AATA and Michigan Dept. of Transportation. The grant was awarded on Aug. 6, 2012 under the Transportation, Community and System Preservation (TCSP) program. AATA had applied for the grant last November, but did not have high expectations, given the competitive nature of the grants.

In other business, the board decided to accept a non-applicable penalty – which has no actual impact – and not comply with Michigan’s Public Act 192 for its unionized employees. The act mandates limits on how much public employers can contribute to their employee health care costs. The decision was essentially based on deference to a federal law that applies to agencies receiving federal funding – like the AATA. That federal law requires benefits like health care to be collectively bargained, not stipulated. Under the state law, failure by the AATA to comply would just mean that it would be denied state funds to which it is not even entitled.

In the meeting’s other business item, the AATA approved a three-year contract with CBS Outdoor Advertising of Lexington, New York, to handle placement of ads on its buses and bus stops. That’s a change from the previous contract, which was held by Transit Advertising Group (TAG) of Farmington Hills, Mich.

Four-Party Agreement, Countywide

In front of the board again for its approval was the four-party agreement outlining a framework for a possible countywide transportation authority, and its articles of incorporation. The other three parties to the agreement are the cities of Ann Arbor and Ypsilanti, and Washtenaw County.

The most recent iteration of approvals came as a result of an amendment to the articles of incorporation made by the Washtenaw County board of commissioners at its Aug. 1, 2012 meeting. The county board’s amendment changed the minimum threshold of votes required on the proposed new 15-member transit authority board, in order for the board to change the authority’s articles of incorporation. That threshold was increased from a 2/3 majority (10 votes) to a 4/5 majority (12 votes).

Washtenaw County’s role will now be to file the articles of incorporation for a new transit authority – The Washtenaw Ride. The articles would be filed with the state of Michigan under Act 196 of 1986. But that filing would come only after a request from the AATA and only after the AATA publishes details of the service and funding plan for the authority in newspapers of general circulation in Washtenaw County. At that point, jurisdictions throughout Washtenaw County would have the ability to opt out of the new transit authority.

Even after the funding plan is published and the new authority is incorporated, the four-party agreement stipulates that any transfer of assets from the AATA to The Washtenaw Ride would take place only after a voter-approved funding mechanism is established. And only after a voter-approved funding mechanism is established would proceeds from the transportation millages currently levied by the cities of Ann Arbor and Ypsilanti be pledged to The Washtenaw Ride.

A financial task force recruited by the AATA – to assess the amount of funding that would be necessary to offer the kind of service that AATA is proposing – concluded that it would require roughly the equivalent of 0.5 mills countywide. [.pdf of final version of transit documents] It will not be on the ballot for Nov. 6, as the deadline will expire by the end of August and not nearly enough time exists to complete remaining steps before then.

Four-Party Agreement, Countywide: Comment from Lovejoy Roe

Karen Lovejoy Roe, Ypsilanti Township clerk, will represent the Southeast District in the proposed new transit authority. That district consists of Ypsilanti Township and Augusta Township. Of the three members of the as-yet unincorporated (U196) transit board who attended the Aug. 16 meeting, she was the only one who spoke at the table.

Her remarks prompted Thomas Partridge, a frequent critic of the AATA, to rise from his seat and applaud.

She opened by saying, “I’m just really excited about where we’re headed as a community, as a county at large. I know that there’s been a lot of hiccups, but I think that that’s normal … A lot of questions have been raised about trust and I just want everybody to know I’m committed, and I think that those who’ve asked me to be here working willingly and openly to do what’s best for all county residents [are, too] …”

She stressed three key points related to the importance of better transportation in the county: jobs, seniors and young people.

What drew her attention, she said, is the impact that countywide transportation could have on economic development. Even though the national climate is difficult, she allowed, “we can control our destiny here, so we focus on that.” She said was sitting at a dinner table with a top executive of one of the largest private employers in the county, Thompson Reuters, who told her that they make their decisions about where to locate their businesses based on where public transportation is located. A huge lightbulb went off in her head, she said. That had led her to conclude: “I don’t even know why this is up to debate. The debate should be about the details of what we’re going to do, but not about whether we’re going to do it.”

As the process has gone along, she told the board, one of the things that she’d pushed for was data. She always knew that Ypsilanti Township had a huge population and travels to Ann Arbor to work – but how many? And she’d been given those numbers, she said – about 5,000-6,000. When you add in the city of Ypsilanti and Superior Township, it’s even more, she said. “Our folks need jobs,” she said, and Ann Arbor is where the jobs are. She expressed support for that idea, saying what’s good for Ann Arbor is good for the rest of the county. Ypsilanti Township and Augusta Township residents need jobs, she said, and they don’t care where those jobs are located.

Turning her attention to senior issues, Lovejoy Roe told the board that during the primary election campaign, she and Ypsilanti Township supervisor Brenda Stumbo had, between the two of them, knocked on every door in the township. As a result of that, she said, they know now that their intuition was exactly right: “Our seniors need transportation.” There are so many people that she knew four years ago who used to drive, and are not driving now, she said. They would ask, “Karen, Brenda, what can we do?” It’s true not just for Ypsilanti Township, she said, but for all of Washtenaw County – the population is aging. Seniors deserve to be able to stay in their homes, Lovejoy Roe said – especially facing an inability to sell their homes without taking a huge loss. There is not enough assisted living housing that they can move into, she said. By helping seniors stay in their homes by providing on-demand door-to-door services, it’s providing “assisted living” by helping them stay in their homes, she said.

Lovejoy Roe rounded out her remarks by talking about the importance of public transportation for young people. Washtenaw County has to be a place where young people want to live and stay, she said. She wants her five children to stay here and she’s looking forward to having grandchildren. And they need public transportation, she said. She’s learned so much through her own children and talking to other young residents, she said. For them, it’s a cultural positive. When she grew up, whoever had the fastest, hottest car was the coolest around. But now your status gets measured by whether you’re able to live and work without an automobile. That’s who young people are today, she said.

She’s really excited about the future, she said, and she knows there’s still a long way to go to get to where we need to be. But for her, the arguments for doing it are: jobs, our seniors, and our young people.

Lovejoy Roe allowed there are a lot of questions, and watching the Washtenaw County board of commissioner meetings, she knows that people are concerned that they’re going to get sucked in and “screwed over” – saying she’s probably not as politically tactful as they are. She believes in her heart that it’s going to work. She pointed out that if the millage is requested and voters approve it, then it will eventually need to be renewed – so every single community will need to benefit. They’re not going to be voting for a millage in perpetuity. So there’s a real incentive to everybody working together to move the process forward, she said.

Four-Party Agreement, Countywide: Public Comment

All of the public commentary could be connected in some way to the four-party agreement and the possibility it provides for broader governance and service area.

Carolyn Grawi from the Ann Arbor Center for Independent Living addressed the board during public commentary at the end of the meeting. She congratulated the board as well as the community, saying that we will now move forward with a chance to have countywide transportation. The disability community can’t wait for this opportunity to exist, she said. She echoed the comments of Karen Lovejoy Roe. It really will help add value to the community, Grawi said.

Larry Krieg introduced himself as an Ypsilanti Township resident, and began by thanking his township clerk [Karen Lovejoy Roe] for such rousing support. He said he wanted to bring three things together that are significant.

The first was an article in online Bridge Magazine about the number of millages that were passed in Michigan at the Aug. 7, 2012 primary. Out of 805 millages on the ballot, a total of 90% passed, he reported. Of the road millages that were on the ballot, 89% had passed. In spite of the rhetoric against taxes, people are passing millages at a remarkable rate, he observed. Second, he said the Center for Automotive Research in Ann Arbor last week released the estimate that in the next 20 years, cars will average $50,000 apiece. The third point is that as he is researching fuel costs and where the money goes, almost all the money leaves Michigan, he said, and over half of it leaves the United States. And up to 8% goes to governments that are hostile to the United States. So when people object to increasing taxes, they don’t realize that just by filling up their gas tank they are paying money to governments that are hostile to the United States. So he encouraged the board to be a bit more aggressive.

At the first opportunity for public comment, at the start of the meeting, Thomas Partridge introduced himself as a resident of the city of Ann Arbor, and advocate for everyone in Ann Arbor and all of the cities and villages and townships of Washtenaw County and the state of Michigan. He called on the board to mount an assertive, stepped-up campaign to bring about a quality countywide transportation system. It had been his proposal, he contended, made to the Washtenaw County board of commissioners more than six years ago at a board meeting, to bring about the foundation of a Washtenaw County department of transportation under the Washtenaw County government. Instead, the board has bided its time and avoided tackling this very important and vital issue, he contended.

Partridge also called on the AATA board to be more assertive about getting the proposal on the ballot as soon as possible. [It will not be on the Nov. 6 ballot.] He called on the representatives of the new transit authority board to become more vocal and more assertive to bring about this much-needed countywide transportation system.

At the second opportunity for public commentary at the end of the meeting, Partridge expressed appreciation for those who’d voted for him in the Democratic primary election – as he’d run for state representative of the 53rd District. [He received 11.5% of the vote, compared to 88% for incumbent Jeff Irwin.] He ventured that they’d voted for him based on his leadership on the issue of bringing about a badly-needed countywide transportation system. He called on everyone to unite the county in order to achieve progress.

Four-Party Agreement, Countywide: Board Deliberations

Board chair Jesse Bernstein briefly described the Washtenaw County board’s amendment, made on Aug. 1, 2012. The amendment changed the minimum threshold of votes required on the proposed new 15-member transit authority board, if the board wants to change the authority’s articles of incorporation. That threshold was increased from a 2/3 majority (10 votes) to a 4/5 majority (12 votes).

Outcome: The board voted without further discussion. That means that the all four parties to the agreement have given final approval. After the Washtenaw County board had given its approval on Aug. 1, the Ann Arbor city council re-approved the agreement on Aug. 9, 2012, and the Ypsilanti city council gave its re-approval on Aug. 14.

Four-Party Agreement, Countywide: Next Steps

In his verbal report to the board, CEO Michael Ford outlined the next steps. They include making sure that all the stakeholders know all service benefits that each district will receive. When the AATA board believes it has done all it can to inform the public of the benefits of the five-year transit program, the board can then request that the county initiate the incorporation process – filing articles of incorporation for the new authority with the state. And at that point, he continued, the local governments of the county will have 30 days to opt out, if they choose to do so.

Left to right: AATA CEO Michael Ford welcomes David Phillips to the meeting. Philips, Superior Township clerk, represents the Northeast District on the U196 board.

But several steps will precede the decision to request incorporation. The week of Aug. 20, the AATA will be mailing out a letter to all local clerks to explain the incorporation process, Ford explained. AATA will be planning and following up with all those communities. The AATA will also be sending out a newsletter to all community leaders and the public. And on Aug. 23, Ford said, the AATA will meet with the unincorporated board members to prepare for the public release of the five-year transit program.

Throughout the month of September, the AATA will be meeting with the district advisory committees (DACs) to seek local recommendations on the proposed program. They’ll also meet with local leaders and government boards to explain the program and answer all questions to build support. The AATA board and the district representatives will play an important role in ensuring that the local leadership and the public understand what the plan provides, he said. When the AATA believes it has a consensus on the scope of the service plan, the current board will then request that the county start the incorporation process. Ford said: “We believe the plan, guided by the 30-year master plan and vision, clearly benefits all local government units and citizens in the county.”

Ford stated that the AATA will continue its relationship with each local government, whether or not they decide to participate in the new transit authority.

Four-Party Agreement, Countywide: Five-Year Service Plan

A condition for a request to incorporate the new transit authority is to publish a five-year service plan. A draft of the plan was released in April.

At the board’s Aug. 16 meeting, Michael Benham – strategic planner with the AATA – gave an update on the five-year service plan. The plan is in the process of being introduced to the public, he said. There have been a number of new suggestions for additional services, he said.

Since the previous draft, which was released in April, he said, a Milan connector has been included. That will run on Carpenter Road from Milan to a Meier store at Ellsworth and Carpenter. Also, a Milan circulator has been added. That’s contingent on involvement with the southern part of Milan, which extends into Monroe County. The Milan connector is actually a rerouting of something that was previously in the plan that went from Milan through Saline to Ann Arbor. He explained that “connector services” are “semi-express services” that connect communities in rural areas.

Other changes include an extension of the previously included Northfield Express to Brighton. The urban bus network [Ann Arbor and Ypsilanti] has been expanded. Previously, it was based on a 16-hour day and now it’s based on an 18-hour day for some routes. That will involve a number of select routes operating until midnight. Some routes will also operate a little bit earlier in the morning, starting at 6 a.m. instead of 6:30 a.m. There were also a number of miscellaneous routing and scheduling changes to the urban bus network – too numerous to get into, he said.

They are also thinking about extending service to Lincoln Consolidated Schools in August Township, using a combination of flex service and limited extensions of the already-proposed Route #46. They’re also looking at the park-and-ride proposed in Pittsfield Township – and they’re thinking about either adding an additional park-and-ride, which would be further east, or perhaps just taking the existing one and moving it.

The schedule for the next round of District Advisory Committee meetings is available on the AATA’s Moving You Forward website.

North-South Rail (WALLY)

A somewhat unexpected $640,000 federal grant to the AATA and Michigan Dept. of Transportation was part of the background for a resolution the board was asked to consider – which continues planning and study for the WALLY (Washtenaw and Livingston Railway) project. The grant was announced on Aug. 6, 2012 and was awarded under the federal Transportation, Community and System Preservation (TCSP) program. AATA had applied for the grant last November, but did not have high expectations, given the competitive nature of the grants.

The AATA had also allocated other funds for continued planning on WALLY at its June 21, 2012 meeting.

On Aug. 16, the AATA board was asked to award a $105,200 contract to SmithGroupJJR for “station location and design services” in connection with the WALLY project. The board’s authorization includes an option to increase the contract scope at a later date.

A possible downtown location for an Ann Arbor rail station, between Washington and Liberty streets. The railway is highlighted in yellow. The city-owned First and William lot has been designated by the city council as part of a future greenway. The city-owned 415 W. Washington parcel is the focus of possible development as a greenway and arts center.

Based on a staff memo included in the AATA’s performance monitoring and external relations committee minutes, the initial phase of the project will focus on station location studies for five communities: Ann Arbor, Whitmore Lake, Hamburg Township, Genoa Township and Howell. In Ann Arbor, attention will be focused on the Barton Road location and how a station can be designed that overcomes the constraints imposed by a large drainage culvert.

Future phases would also include detailed designs of each site selected in the initial phase, with additional station sites in Ann Arbor – a downtown location (probably between Liberty and Washington streets, according to the memo) and one near the University of Michigan football stadium at Main and Stadium Boulevard.

The track from the Barton Road location southward is owned by the Ann Arbor Railroad, which has historically been uninterested in passenger rail use on it tracks. But in the fall of 2011, AARR indicated at least a willingness to entertain a “business proposition” on such use. Some kind of arrangement would be necessary in order to contemplate stations south of Barton Road – like downtown or the football stadium.

North-South Rail (WALLY): Board Deliberations

Charles Griffith said he was excited that the AATA can continue to evaluate the potential of this commuter rail line. It’s nice to propose something like this, Griffith said, but then you have to really figure out the details – where exactly would you put the stations and what would they look like, and how would they connect up to other services. So the AATA is very fortunate to have support from the federal government to help figure that out.

Eli Cooper stated that this step is really important – because it is work that the AATA is doing on behalf of many others. He spoke of the local contributions that come from other communities in Washtenaw and Livingston counties that had enabled the AATA to think about a smaller station design process.

By way of background, the financial support outside the AATA for WALLY includes: Ann Arbor Downtown Development Authority ($50,000); Washtenaw County ($50,000); and the city of Howell DDA ($37,000).

“Lo and behold, as we were bringing this forward, comes to us support from above!” Cooper said. It’s very interesting to see that not only has the Federal Transit Administration provided AATA the grant – but the FTA has done it through the Michigan Dept. of Transportation. In the early stages of the WALLY rail service planning, Cooper said, it was all about the local involvement. And what can be seen in this agenda item, he said, is the importance to all levels of government and to all the communities to do a proper job of planning for future rail service. A new rail system, even on an existing railroad, requires a lot of effort, Cooper cautioned.

MDOT has invested in the rail infrastructure to make sure the existing rails can sustain passenger service, Cooper said, but we don’t have rail stations yet. So this begins the process of putting ideas and plans together to allow those stations to emerge – as the system becomes ready for carrying employees and families back and forth, up and down this corridor.

Cooper reported on a session sponsored by the Ann Arbor/Ypsilanti Regional Chamber of Commerce with Joseph C. Szabo, administrator of the Federal Railroad Administration. [The press was barred from the event.] Cooper relayed some numbers provided by Szabo. For the generation age 16-35, the amount of vehicle miles traveled is down 23%. Their reliance on transit and rail is up 40%. That’s a generational shift, Cooper concluded.

These investments are really allowing this generation to prepare for the next one, Cooper said.

Bernstein noted that he and AATA strategic planner Michael Benham had also attended the meeting at the Ann Arbor/Ypsilanti chamber. Bernstein said he was glad to see the commitment that the FRA has to commuter rail and also to long-distance rail. He was especially glad that the AATA had received the extra $640,000.

Bernstein is deeply concerned about the terminus of the north-south line, and he believes it needs to come into downtown Ann Arbor. He hopes this study will give more time and wherewithal to make that happen.

Outcome: The board voted unanimously to approve the WALLY station design and location study.

Health Care Contribution Policy

The board was asked to authorize a resolution that sets a policy that the AATA will not meet the conditions of Michigan’s Act 152 – which limits the amount that public employers can contribute to their employee health care. The resolution stipulates that the AATA will accept the penalty specified in Section 9 of Act 152, which actually has no practical effect on the AATA. But the resolution also allows the AATA to comply with its obligations under federal law with respect to collective bargaining rights.

Act 152 limits the amount that a public employer like the AATA can make to its employees’ medical benefits plans – $5,500 for single-person coverage, $11,000 for two-person coverage, and $15,000 for family coverage. And the law provides another option, where the employer limits its contribution to 80% of the medical benefit.

The penalty specified in Section 9 of the law involves funds to which the AATA is not entitled in any case:

15.569 Noncompliance by public employer; penalty.
Sec. 9.
If a public employer fails to comply with this act, the public employer shall permit the state treasurer to reduce by 10% each economic vitality incentive program payment received under 2011 PA 63 and the department of education shall assess the public employer a penalty equal to 10% of each payment of any funds for which the public employer qualifies under the state school aid act of 1979, 1979 PA 94, MCL 388.1601 to 388.1772, during the period that the public employer fails to comply with this act. … [.pdf of full text of Act 152]

The rationale for the resolution was this: In order for the AATA to comply with Title 49 of United States Code 5333, as an agency that receives federal assistance, unionized health care benefits must be subject to collective bargaining – not the state’s mandated fixed-dollar or percentage caps. AATA bus drivers are members of the Transport Workers Union Local 171.

The AATA had already begun to grapple with this issue, when it voted at its June 21, 2012 meeting to comply with Michigan’s Act 152 for its non-union management staff. That was followed with a discussion of possibly rescinding that vote at the board’s July 16, 2012 meeting. Although the possibility of scheduling a special meeting was discussed – to deal with non-union employee health care – no meeting was scheduled.

Health Care Contribution Policy: Board Deliberations

The board deliberations were significant, because they highlighted differing views on the appropriate language to describe the action the board was taking. The resolution itself stated [emphasis added]:

IT IS RESOLVED, that the AATA Board of Directors invokes Section 9 of Act 152 so as to protect the collective bargaining rights of its union employees under its Section 13(c) agreement with the TWU, and …

When he described the resolution in his report from the board’s performance monitoring and external relations committee, Charles Griffith reminded his colleagues that they’d already addressed the issue for non-union management staff. What the board is being asked to do now, he said, and what is being recommended, is that the resolution be passed, giving an assurance that the AATA will address the impacts to union health care benefits only through the collective bargaining process. This is triggering what he called “a waiver” in Section 9 of Act 152.

When the board came to the item on the agenda, board chair Jesse Bernstein ventured that there are conflicting requirements in state and federal law regarding health care costs and collective bargaining. The bottom line, he contended, is that the AATA can claim an “exemption” under Section 9, and the consequences don’t impact the AATA, because the AATA does not receive the money that would be impacted if it did not comply with Act 152. So Bernstein indicated that the AATA is invoking the section that says the AATA is not going to participate in the state law – and that covers the AATA for the federal law.

AATA board member Eli Cooper, who also serves as the city of Ann Arbor’s transportation program manager.

Eli Cooper took a different view of the appropriate description of the board’s action. Having read the opinion of the AATA’s legal counsel, he said, and having read the statute, he felt that words like “waiver” and “exemption” don’t fully describe what is at play. He indicated that he felt a better description would be “not applicable.” The penalties that are referenced in Section 9 of the statute do not apply to an authority such as the AATA – and as such, the AATA is not being granted a waiver or an exemption, he pointed out. It’s just that the statute, as fashioned, doesn’t have a penalty clause that applies to the AATA.

Cooper felt that it’s the right thing to do – to stay in step with the federal authorities and to continue to work constructively and positively with the union representation. He called it a point of clarification that there’s not a waiver or an exemption. The penalty is simply not applicable to the authority.

Outcome: The board unanimously approved the resolution that defers to federal requirements over state law with respect to health care contributions.

Bus Advertising

The board was asked to authorize a three-year contract with CBS Outdoor Advertising of Lexington, New York, to handle placement of ads on its buses and bus stops. That’s a change from the AATA’s previous contract with Transit Advertising Group (TAG) of Farmington Hills, Mich.

The contract had been held by TAG for the last seven years, but expired. The AATA selected CBS Outdoor Advertising from seven respondents to an RFP (request for proposals). The contract required board approval because the amount of revenue generated from the deal is expected to exceed $100,000 for the three-year period of the contract.

In the most recent court action connected to a lawsuit filed against the AATA over an advertisement rejected for its buses – which included the text “Boycott ‘Israel’” – TAG and its president Randy Oram were dropped as defendants in the case by mutual agreement of the parties. The court has not ruled since an evidentiary hearing was held on July 23.

During board deliberations, Eli Cooper talked about the way the authority is operated. He felt it was important to note that bus advertising is a revenue source. The authority and the staff use all means to generate revenue to help provide the high level of service that it does to the community. It might be seen as a simple award of a contract, he said, but it’s part of a manner of doing business that is entrepreneurial and is in partnership with the private sector. So he fully supported the resolution. Board chair Jesse Bernstein noted that every bus presents a different configuration – it’s not just slapping something up on the side of a bus. It requires a great deal of skill on the part of the vendor, he said.

Outcome: The board voted unanimously to award the advertising contract to CBS Outdoor Advertising.

Communications, Committees, CEO, Commentary

At its Aug. 16 meeting, the board entertained various communications, including its usual reports from the performance monitoring and external relations committee, the planning and development committee, as well as from CEO Michael Ford. Here are some highlights.

Comm/Comm: Blake Transit Center

In his verbal report to the board, CEO Michael Ford noted that the new downtown Ann Arbor Blake Transit Center would go before the Ann Arbor city council on Monday, Aug. 20.

By way of background, the new BTC will be built on the opposite site of the lot from the current center. So it will front on Fifth Avenue instead of Fourth Avenue. Buses will enter from Fourth and exit onto Fifth, which is the opposite traffic flow from the current configuration. The plans were reviewed by the city planning commission on July 17, 2012. As a public entity, the AATA is not required to get planning commission or city council approval. But the planning commission voted to affirm that the site plan conformed to city code with two exceptions. The city council had the BTC on its Aug. 20 agenda only as a written communication from the city administrator, and did not discuss the BTC at all. But AATA staff were in the audience until the meeting ended – after midnight – in case they were called upon to answer questions.

At the AATA board meeting on Aug. 16, Ford indicated that the BTC would be before the AATA board in October and e hoped to start breaking ground at that time.

Comm/Comm: New Website

CEO Michael Ford told the board that new AATA website will be brought online in mid- to late September. He felt that people would be very impressed with the outcome of that.

Comm/Comm: Ridership

Also as part of his verbal report, CEO Michael Ford said that ridership on Route #4 since January, compared to this time last year, is up over 28% as a result of the more frequent service being offered. NightRide service is up over 55%. ExpressRide – which included commuter service to Canton and Chelsea – is up 54%. Reverse commutes [leaving Ann Arbor in the morning for those two cities] are also now available, Ford said. The first week of AirRide service [between downtown Ann Arbor and Detroit Metro Airport] had around 400 passengers. Now the service is averaging consistently between 800 and 1,000 passengers per week. Ford also reported that AATA now has 20 vanpools on the road.

AATA board member Charles Griffith, reporting from the performance monitoring and external relations committee, said that Routes #3 and #5, because of the increased ridership, have struggled a bit with staying on time and with overcrowding. So AATA is continuing to look at ways to address that. It’s not in the budget to increase the frequency of the service as the AATA had done for Route #4, he said – at least not at this time. Route #3 runs between Ann Arbor and Washtenaw Community College. Route #5 runs along Packard between Ann Arbor and Ypsilanti.

Comm/Comm: Financial Update

Reporting from the performance monitoring and external relations committee, Charles Griffith noted that both expenses and revenues are under budget.

Expenses are lower due to the later start for the AirRide service and filling some positions later than had been projected in the budget.

An issue of concern, Griffith said, is the possibility of state operating assistance decreasing for fiscal year 2013, due to a change in the formula the state has been using to distribute money to transit agencies around the state. It could result in a loss of $800,000 in next year’s budget. Griffith said that “we have folks working on that,” and the AATA is working with some of the other transit agencies in the state, and will be attempting to address that going forward.

Present: Charles Griffith, Jesse Bernstein, Eli Cooper, Anya Dale.

Absent: David Nacht, Sue Gott, Roger Kerson.

Next regular meeting: Thursday, Sept. 20, 2012 at 6:30 p.m. at the Ann Arbor District Library, 343 S. Fifth Ave., Ann Arbor [Check Chronicle event listings to confirm date]

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The contract had been previously held by TAG for the last seven years, but expired. The AATA selected CBS Outdoor Advertising from seven respondents to an RFP (request for proposals). The contract required board approval because the amount of revenue generated from the contract is expected to exceed $100,000 for the three-year period of the contract.

In the most recent court action connected to a lawsuit filed against the AATA over an advertisement rejected for its buses – which included the text “Boycott ‘Israel’” – TAG and its president Randy Oram were dropped as defendants in the case by mutual agreement of the parties. The court has not ruled since an evidentiary hearing was held on July 23.

This brief was filed from the downtown location of the Ann Arbor District Library at 343 S. Fifth, where the AATA board holds its meetings. A more detailed report will follow: [link]