On his last motion day before retirement, Shelton chose to deny a motion to disqualify the city attorney’s office in its representation of the city. He also declined to rule on the merits of a motion to reassign the case away from judge Timothy Connors – who will be taking over all of Shelton’s civil cases after Shelton’s retirement at the end of this week. On that motion, Shelton pointed out in denying it that he did not have the power to grant it and indicated that such a motion should go through the regular disqualification process.

However, Shelton delayed ruling on a third motion, on sanctions against the city’s attorneys – for making statements in a brief in support of summary disposition that plaintiffs contend did not have a well-founded basis. Shelton questioned assistant city attorney Abigail Elias closely on the matter, and appeared to indicate agreement with plaintiff’s contention that the city had, in its brief filed with the court, mischaracterized the plaintiff’s position.

However, Shelton indicated that the motion on sanctions should be heard when the motion on summary disposition is heard – on Sept. 18. So Shelton indicated he would be adjourning that motion until Sept. 18. That hearing is scheduled before Connors.

For additional background, see “Shelton to Hear Motions in FDD Case.”

This brief was filed from Shelton’s courtroom shortly after the hearing ended. A more detailed report will follow: [link]

From left: Assistant city attorney Abigail Elias, city attorney Stephen Postema and co-counsel for the plaintiffs Irvin Mermelstein. The photo is from the July 2, 2014 hearing on a preliminary injunction in the Yu v. Ann Arbor case, which judge Donald Shelton denied.

The latest procedural issues now appear set to be decided on Aug. 27, 2014 – judge Donald Shelton’s final motion day before his retirement.

The case involves a claim of unconstitutional takings – inverse condemnation. Plaintiffs in the case, Yu v. City of Ann Arbor, are three Ann Arbor residents who had their footing drains disconnected under the city FDD program.

The procedural issues that could be decided next week include a motion to disqualify the city attorney’s office from representing the city due to conflicts; a motion to sanction city attorneys for filing documents with statements that plaintiffs allege are not well-grounded in fact; and a motion to reassign the case to a judge other than Timothy Connors. All three motions were filed with the court on Wednesday, Aug. 20.

A dispute about whether those Aug. 20 filings were properly served upon the city is one of the issues Shelton could decide at the start of the hearing.

By way of background, the case was originally filed in the Washtenaw County 22nd circuit court and assigned to Shelton in late February. The city then removed the case to federal court. However, the plaintiffs moved for remand from the federal court back to the circuit court – a motion that was granted by judge Avern Cohn in late May.

When the case returned to the circuit court, plaintiffs filed a motion for a preliminary injunction, which was heard and denied by Shelton in early July. The city had filed a motion for summary disposition on June 9, which was originally scheduled for July 30. It was subsequently rescheduled by the city for Aug. 13, and then shifted by the city again to Sept. 18 – which is after Shelton’s scheduled retirement.

According to the court administrator’s office, the case will not officially be reassigned to a different judge until Sept. 2. However, when The Chronicle inquired with the 22nd circuit court’s central scheduling office, the staff indicated that the plan was to reassign all of Shelton’s civil cases to Connors. So the city’s paperwork scheduling of the Sept. 18 hearing specifies Connors as the judge.

Motion on Reassignment

The Sept. 18 hearing date on the city’s motion for summary disposition could change if Shelton grants the motion to reassign the case to a judge other than Connors.

The motion to reassign is based on the fact that attorney Mark Koroi is co-counsel for the plaintiffs. According to the brief in support of the motion to reassign the case away from Connors, Koroi has filed four Judicial Tenure Commission grievances against Connors, two of which have been upheld. Koroi’s brief also notes that he has engaged in “vigorous public advocacy against political candidacies of both Timothy Connors and his wife.”

The plaintiff’s brief notes that Michigan court rules stipulate that it is the challenged judge who must make an initial ruling on a motion for disqualification, so the motion to reassign is a proactive measure to eliminate the need to file a motion in front of Connors, which would asked that Connors disqualify himself. [Aug. 20, 2014 Yu v. City of Ann Arbor brief on reassignment]

The city’s response brief argues that the motion is actually a motion for disqualification, and as such the motion is premature and should be heard by Connors. The city also argues explicitly against the idea that Connors should be disqualified, noting that if political speech critical of a judge were adequate grounds for disqualification, then an attorney could engage in such speech specifically so that the attorney would never have to appear in front of that judge.

The city also argues that the brief in support of the motion to reassign doesn’t provide any evidence that Connors is aware of Koroi’s political advocacy or that Connors is actually biased against Koroi. [Aug. 22, 2014 Yu v. City of Ann Arbor response brief on reassignment]

Motion for Sanctions

A second motion filed on Aug. 20 for hearing on Aug. 27 is to sanction the city attorney’s office for filing papers that are “neither well-grounded in fact nor warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.” The papers in question are the city’s brief in support of its motion for summary disposition. [June 9, 2014 Yu v. City of Ann Arbor brief on summary disposition]

Included in the plaintiffs’ claims asking for sanctions to be imposed are that some of the key arguments in the city’s motion for summary judgment are frivolous. Plaintiffs assert that the city’s argument that the plaintiffs’ complaint is time-barred is frivolous. The plaintiffs then argue that one of the city’s positions – that the plaintiffs’ federal claims should be dismissed – is crucially based on the city’s contention that the claims are time-barred.

The plaintiffs’ brief in support of sanctions also asserts that the city has mischaracterized the plaintiffs’ position, highlighting instances where the city states that the plaintiffs have “recognized” or “conceded” some key aspect of the city’s legal position. The plaintiffs argue that the plaintiffs have not recognized or conceded the things that the city claims in its brief. [Aug. 20, 2014 Yu v. City of Ann Arbor brief on sanctions]

For example, the city claims in its brief that [emphasis added]:

Plaintiffs recognize that they own the sump pumps they installed and that the sump pumps and footing drain system operate as an integral part of their houses; in other words that neither the city nor a third party owns anything located in their homes, occupies their properties, or has otherwise taken their properties.

The claim is presented in the “introduction” section of the city’s brief, a section of pleadings where recitations of uncontroversial fact are typically presented. The question of pump ownership and occupation of residents’ homes by the third party are central points of dispute in the case. The plaintiffs’ brief in support of sanctions argues that the citations by the city to the plaintiffs’ pleadings – in support of the claim of “recognition” – do not in fact support a claim of “recognition.”

Another claim by the city – presented in the “background facts” portion of its brief in support of summary disposition – is that [emphasis added]:

“Plaintiffs concede that Sec. 1.1 [the footing drain disconnection ordinance] was adopted by the City to address the public health, safety and welfare issues of sanitary sewer back-ups in basements and sanitary overflows.”

The portion of the plaintiffs’ brief cited by the city in making that characterization does not, according to the plaintiffs, provide any support for the city’s contention that a concession has been made. And elsewhere in the plaintiffs’ brief, they state [emphasis added]:

Upon information and belief, the Ordinance was not enacted in response to emergency conditions or some other imminent threat to public health, safety or welfare. Rather, the Ordinance was enacted by the City in order to facilitate a solution to long-standing and self-created conditions in the least expensive and/or most expedient way possible.

Based on the city’s descriptions of the plaintiffs’ statements, the plaintiffs contend that the city is distorting the record. From the plaintiffs’ brief in support of sanctions:

This level of mischaracterization goes beyond zealous advocacy: it is misleading and is unfair to both the Court and to the Plaintiffs, whose lawyers are forced to ferret out mischaracterizations and distortions of the record when they should be responding to a “fair presentation of the issues” by opposing counsel.

The city’s response to the plaintiffs’ brief in support of sanctions deals with the part involving plaintiffs’ frivolous legal arguments by arguing for the merit of those arguments.

In its brief opposing sanctions, the city responds to the plaintiffs’ contention that their statements have been misrepresented to the court by insisting that the city’s characterization is based on the plaintiffs’ recitation of facts – and an attachment to the complaint of the city’s written “homeowner’s package” for sump pump install-ees.

The city’s position appears to be that whatever factual claims and characterizations that are made in the “homeowner’s package” were recognized and represented to the court by the plaintiffs as true – by dint of the attachment of the “homeowner’s package” to the plaintiffs complaint as an exhibit. So the city is not analyzing the plaintiffs’ exhibit merely as a representation by the plaintiff as to what the city itself claims to be true (via public documents produced by the city), but also what the plaintiff is recognizing to be true. [Aug. 22, 2014 Yu v. City of Ann Arbor response brief on sanctions]

The city blames any misunderstanding on the plaintiffs, arguing that the plaintiffs wrote poorly worded filings. From the city’s response brief, opposing sanctions:

[T]he City has not mischaracterized Plaintiffs’ Complaint, but has simply analyzed it as written by Plaintiffs. Plaintiffs’ dissatisfaction with the City’s reading of their Complaint arises from Plaintiffs’ own failure to draft a well-pleaded Complaint.

Motion on Disqualification

A third motion filed by the plaintiffs for hearing on Aug. 27 is one that would disqualify assistant city attorney Abigail Elias, and thereby the city attorney’s office, from representing the city in this lawsuit. [Aug. 20, 2014 Yu v. City of Ann Arbor brief in support of disqualification]

The brief arguing for disqualification cites an email sent by plaintiffs’ counsel in early February notifying Elias that she would likely be called as a witness in the case:

I am advising that your non-privileged testimony and evidence will likely be required in connection with litigation over the FDDP, which is now in preparation for filing. The case will include a claim for inverse condemnation. You are a necessary witness on both liability and relief, which probably comes as no surprise.

The plaintiffs argue partly on grounds that they need to depose Elias as a reason to disqualify her as the city’s representation.

In its brief in opposition to the motion on disqualification, the city contends that there is no testimony that Elias is in a unique position to provide other than testimony that would be subject to the attorney-client privilege. [Aug. 22, 2014 Yu v. City of Ann Arbor brief opposing disqualification]

The city also contends that disqualification of its city attorneys would be prejudicial to the city, because “Ms. Elias has been involved with the FDD program since its inception 13 years ago. Her familiarity with and knowledge of the issues in this case from those years cannot be replicated easily or quickly.”

Hearing

The next hearing is currently scheduled for Aug. 27 at 1:30 p.m. in front of judge Donald Shelton at the 22nd circuit courthouse, 101 E. Huron in downtown Ann Arbor.

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]

Redacted version of Library Lot RFP No. 743  from Aug. 14, 2009 produced by the city of Ann Arbor in response to a recent FOIA request. The un-redacted document had been disseminated on the a2gov.org website from Aug. 14, 2009 until sometime around March 20, 2014.

Allegedly, that document contains information that – if it were disclosed – would constitute a clearly unwarranted invasion of someone’s privacy. Never mind the fact that the context of the document itself makes clear that the information in question is clearly and deliberately intended to be publicly available.

To erase any possible doubt about that, I resorted to an advanced investigative technique: I asked the guy. And it turns out that current Ann Arbor Downtown Development Authority board member John Splitt had been content to have jsplitt@comcast.net publicly disclosed as his email contact information in the document – the same as elsewhere on the Internet.

The document in question is RFP No. 743 – issued in 2009 by the city for development of the Library Lot. Why did it even occur to anyone at the city to delete RFP No. 743 from a2gov.org?

It’s actually The Chronicle’s “fault.” The city had redacted Splitt’s email address in some records it provided to The Chronicle – in response to a request made under Michigan’s Freedom of Information Act. The RFP was not a part of that records request. So we pointed out to the city that Splitt’s email address was being disclosed on the city’s own website on an ongoing basis – in RFP No. 743. On that basis, we reasoned that the city couldn’t possibly think it was invading Splitt’s privacy by disclosing his email address as part of a records request made under the FOIA. We wanted the city to stop gratuitously redacting Splitt’s email address out of public records.

Instead of conceding that there was no privacy basis for the redaction, the city now ventures that the inclusion of Splitt’s email address in the RFP had been “inadvertent.” And the entire document (RFP No. 743) has now been deleted from the city’s website. If you ask the city for the document under Michigan’s FOIA, as we subsequently did, it will be provided – but with Splitt’s email address redacted.

Meanwhile, a different digital file containing Splitt’s email address – a document we didn’t tell the city about – continues to be disseminated to the entire planet by the city of Ann Arbor. If we thought there was any merit to the city’s position that Splitt’s privacy were being invaded, we’d help the city out and just say where that other file is located.

I can’t imagine a more foolish state of affairs. But it’s hard to say who’s more foolish.

We are apparently fools to be spending our time trying to get the city to reform its FOIA policies – by trying to convince the city at least to stop making gratuitous redactions. But a year now after we provided extensive commentary to the city administrator on the draft of a possible new FOIA policy, we’ve seen no action. So we’re willing to push the issue – at the risk of appearing foolish – by insisting  that the city stop redacting information that is already public.

And surely the city administrator and the city council must feel foolish in defending the following position: Disclosing Splitt’s email address as part of a records request under the FOIA is an invasion of his privacy, but disclosing it through the city’s website is not an invasion of his privacy.

Screenshot of Tweet sent by the city of Ann Arbor’s official Twitter account on Feb. 27, 2014: “A2Gov website is a communication tool, not a document archive system.” That’s an unfortunate policy choice, but one that supports the wholesale deletion of a public document – in the interest of defending a foolish position.

In connection with requests made under the FOIA, the only actors in the drama who don’t have to publicly play the fool are the staff in the city attorney’s office.

When a city attorney writes the words justifying the initial redactions, it is not an attorney’s signature that appears below those words. The signature belongs to the city clerk. And when a city attorney writes the words justifying the denial of the appeal of a redaction, it is not an attorney’s signature that appears below those words. The signature belongs to the city administrator.

In my experience, city administrator Steve Powers and the city clerk Jackie Beaudry are not foolish; if fact, they’re common-sense, rational folk. And for the majority of city councilmembers, I can point to at least some evidence from personal experience that they are capable of common-sense, rational thought.

So I think the city administration and the city council should stop letting city attorneys make them appear foolish when it comes to the FOIA. A useful first step would be for the council to direct its city attorney to provide responses – suitable for a public audience – to all of the questions raised by The Chronicle in its March 4, 2013 commentary on a new draft FOIA policy.

The fundamental principle for which we advocated in that commentary was one based on a presumption against redaction and for disclosure. (That’s the opposite of the city’s policy.) If that kind of policy were in place now, it would never have occurred to anyone to try to redact John Splitt’s email address. We would not have complained. And the city would not have deleted RFP No. 743 from its website.

In case the city of Ann Arbor is so stubborn that it really does not want to restore the document to the city’s website – reasoning that a2gov.org is “a communication tool, not a document archive system” – here’s the unredacted RFP: [.pdf of RFP No. 743]

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Assertion of the attorney-client privilege can, on occasion, inappropriately shield public records from view. This column shines a light on the subject by considering such a case.

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.

The Hypothetical

Here’s the hypothetical scenario we outlined for Proctor:

The results of a city’s annual financial audit are presented to the city’s audit committee at a regularly scheduled public meeting. Among the items in the report, and highlighted by the auditor orally, are instances of an employee who claimed mileage reimbursements while at the same time receiving a vehicle allowance. The auditor characterizes the instances as a “double dip” and violation of city policy. The records produced under a FOIA request identify the employee as the city attorney. The city attorney reports directly to the city council, and serves at the council’s pleasure.

Sometime after the meeting, the city attorney writes an email to all city councilmembers, the chief financial officer and the city administrator, addressing his reimbursements identified in the audit report.

Subsequently a second meeting of the audit committee is convened, in part to discuss the mileage reimbursements. The records produced under a second FOIA request exclude the city attorney’s email, and an appeal to the city administrator challenging the denial is unsuccessful.

Factors to Consider

Proctor identified four key factors to consider, in evaluating whether the email described in the hypothetical scenario might have attorney-client privilege properly attached. Summarizing Proctor, in Michigan the attorney-client privilege attaches to information satisfying the following factors:

1. The information is a communication;
2. The communication is made in confidence by a client to his or her attorney (or by the attorney to his client);
3. In the communication, the attorney is acting as legal advisor;
4. The communication must be for the purpose of obtaining legal advice on some right or obligation.

In the hypothetical, Proctor noted that the record in question is an email communication, thus satisfying Factor 1.

With respect to Factor 2, Proctor identified as relevant whether all the parties copied on the email – representatives of finance and administration – are ongoing clients in the scope of the city attorney’s duties. Although it wouldn’t be unusual for finance and administrative staff to be included in the scope of the city attorney’s  duties, Proctor notes that if the city attorney’s duties don’t cover giving advice to those staff, then communications that include a third party are generally not privileged. She also identified as relevant whether there was a label or some other indication that the communication was made in confidence. Based just on the limited facts in the hypothetical scenario, Proctor couldn’t conclude whether Factor 2 would be satisfied.

For Factor 3, Proctor highlighted that attorney-client privilege applies just when the lawyer is acting as legal advisor to the client in the matter. In the hypothetical scenario, she observed, it’s the city attorney’s own conduct that appears to be the core subject matter of the communication – given that the auditor’s report has called into question whether the city attorney’s mileage reimbursements were proper. Proctor noted that under lawyer ethics rules, a conflict of interest between a client’s interest and the lawyer’s own interests can prevent a lawyer from advising the client. But if the lawyer is not advising the client as the client’s lawyer, then the communication cannot be privileged.

Also related to Factor 3, Proctor notes that a lawyer might be asked to perform a variety of functions beyond providing legal advice – including providing input on business, financial or political issues. The email described in the hypothetical scenario, Proctor observed, appears to relate to the business duties of the audit committee. It’s only when the lawyer is acting as a lawyer for the client that a communication can be privileged, Proctor stressed.

Under Factor 4, Proctor indicated that if the purpose of the email is merely to explain the city attorney’s own past acts, not to advise the city council on some right or obligation, then the attorney-client privilege would not apply. The attorney-client privilege only protects the legal advice requested or provided, Proctor notes, and does not protect underlying facts relating to the subject matter.

Here we note that Proctor’s identification of the relevant factors in the hypothetical scenario should not be construed as Proctor making any claims about anyone’s professional conduct.

City Attorney’s Email

The hypothetical scenario is consistent with an actual recent scenario. How do the four relevant factors apply to the actual text and context of the email? We think that application of the four factors leads to the clear conclusion that the email in question was improperly withheld under Michigan’s FOIA under the exemption covering the attorney-client privilege.

City Attorney’s Email: Full Text

We’ve numbered the paragraphs for ease of reference.

1. From: Postema, Stephen
Sent: Fri 1/18/2013 5:03 PM
To: Postema, Stephen; *City Council Members (All)
Cc: Powers, Steve; Crawford, Tom
Subject: RE: Privileged and Confidential: FW: File: A05-01217 Litigation Updates Mayor and Council:

2. This is to inform you that I am back in the office after a restful vacation in Costa Rica with two of my children. However, I came back with a bad case of bronchitis. My body is clearly not used to all that rest.

3. It is always interesting to find what issues have arisen when one leaves. When I came in on Wednesday, I met briefly with Tom Crawford to discuss e a copy of the audit report. I had never seen the audit report, much less the paragraph on “reimbursement” issues, although Tom had discussed just in general terms the issue with me on December 31st when he asked about my contractual provisions and I gave him the appropriate paragraphs.

4. I will provide you additional information in a longer memo, but the audit report is obviously incorrect:

5. First, there is no violation of City policy as stated. Tom and I called the auditor on Wednesday to inquire what City policy he was referring to. (Steve Powers agreed that we should call the auditor.) The auditor didn’t know off the top of his head and reviewed the file. I spoke with him today and he admitted that there was no violation of City policy in the files he reviewed and the statement was incorrect. However, he is going to talk to his associates further, and let us know if he has missed anything. Any one-second review of the City’s mileage policy demonstrates that the auditor’s statement is incorrect.

6. Second, in any case, the terms of my agreement with the Council is my contract which was specifically negotiated. It calls for a car allowance (not a mileage allowance) and separately for travel reimbursement. This is no surprise to anyone. I have followed mileage reimbursement procedure for almost a decade. (Although I rarely file them even when entitled to.)

7. Amazingly, as to my contract, the auditor confirmed for me that he had not been informed of my contract, nor had he reviewed it, but that it would certainly be relevant. I told him I appreciated his candor.

8. Third, the fact that an auditor has put an incorrect statement in an audit report without even checking whether a City policy is in fact violated or whether another document (such as a contract) may govern the situation raises a host of concerns in my mind, but that is for Steve Powers and Tom Crawford to deal with in the bigger audit picture.

9. As to the specific issue of the incorrect statements in the audit report, Tom and I will be dealing with the auditor on this correction.

10. Fourth, the third sentence of the paragraph is also incorrect: “the City became aware of this situation during the year..” The City and the finance department has always been aware of my contract, as is the whole City, as the contract is FOIAed all the time and is posted on the internet.

11. Fifth, there seems to be a question about my decision to give up the car allowance. I thought about this issue in September as I completed my year end report. I then made this proposal in early October to Councilmember Higgins as I always have done. I did this because the raise I was due this past fall, would have put me in a situation where I had a similar salary to the City Administrator – but still a car allowance. If the City Administrator did not have a car allowance, I thought it best for me to forgo mine – just as a leadership issue. (Steve Powers wouldn’t have cared about the issue, as he is not like that, but I just thought this was the right thing to do.)

12. There was no discussion with the admin. Committee on my part about this first. I just thought it was a reasonable proposal that made good policy sense. It was not because of any issue or problem with a car allowance. Related to this, I have to manage a whole department, and I have other things to spend this car allowance money on in the upcoming budget as I am down two FTEs from when I started this job, and things are always tight.

13. Finally, I will provide additional information to the Council as we resolve this issue. In the meantime, I request that this information not be made public while this is ongoing. It is always a sensitive issue when an auditor has made a factually incorrect statement in an audit, particularly one stating that a violation of City policy has occurred. Tom Crawford will be providing a formal written response the audit, which will include this issue. Obviously, the audit committee will also be involved at the next audit committee meeting.

14. I’m sorry for delay from Wednesday when I reviewed this issue, but I wanted to get an understanding of what was going on here from the auditor’s side before I wrote you.

15. I have been informed that the reporting on this issue has not bothered to link the actual reimbursement policy at issue nor mention the actual terms of my contract. When appropriate I will address this issue also.

16. As always, please contact me with any questions or concerns.

17. Stephen K. Postema
Ann Arbor City Attorney

City Attorney’s Email: Ann Arbor Chronicle’s Factor 1 Analysis

Factor 1 requires that the privileged information be a communication, and there’s no question that the email is a communication. So it’s uncontroversial that this factor is satisfied.

City Attorney’s Email: Ann Arbor Chronicle’s Factor 2 Analysis

Factor 2 requires that the communication be made in confidence and not include third parties who aren’t clients.

The email includes at least two indications that it was sent in confidence. First, the subject line includes “RE: Privileged and Confidential.” The subject line also includes reference to “Litigation Updates.” Because the email itself doesn’t include litigation updates, it’s possible that the subject line label was inadvertently recycled from a different email and that the label was not intentionally applied. But even if the label was recycled, we think it’s almost certain that the label reflects an intention that the email was sent in confidence.

Second, the body of the email, in paragraph (13), includes a statement from Postema that “I request that this information not be made public while this is ongoing.” Here it’s not clear what the antecedent is of “this information.” The phrasing as a “request” – that the recipients of the communication could choose to honor or not – seems to allow for the possibility that this is not meant as an attorney-client privileged communication. That’s supported by the qualification “while this is ongoing,” which implicates that it would be appropriate at some future time to disclose the information – which doesn’t seem consistent with attorney-client privilege.

But all this hinges on the intended antecedent of “this information.” And “this information” might plausibly be the fact that, according to the city attorney, the city’s independent auditor has characterized the audit report as containing an inaccuracy. That is, the referent of the phrase “this information” is plausibly not the city attorney’s email itself, but rather some of the facts contained in it. Based on the email itself, and the subsequent assertion of attorney-client privilege, we think it’s fair to conclude that it was Postema’s understanding that the email was sent in confidence.

And based on The Chronicle’s experience, it’s the general understanding among most city officials that employees of the city – in particular, top level staff like the city administrator or the chief financial officer – are considered ongoing clients of the city attorney’s office. So the fact that Steve Powers and Tom Crawford are included doesn’t exclude the communication from attorney-client privilege.

We think it’s fair to conclude that Factor 2 is satisfied.

City Attorney’s Email: Ann Arbor Chronicle’s Factor 3 Analysis

Factor 3 requires that the lawyer be acting in his capacity as the client’s legal advisor. However, the majority of the email appears to be confined to Postema’s reports on the content of conversations with others – including the auditor, who is not Postema’s legal client – and Postema’s explanations of his past actions. It’s difficult to see how attorney-client privilege could be extended to Postema’s report of a conversation he had with a non-client. Further, the explanation for Postema’s desire to eliminate his car allowance from his contract – which involves Postema’s theory of how his car allowance might be perceived when contrasted with the city administrator’s lack of a car allowance –  doesn’t appear to involve a legal analysis or legal advice, but rather Postema’s theory of good leadership. So by sending this communication, Postema does not appear in any way to be acting as the council’s legal advisor.

The only paragraphs that might conceivably be construed as containing legal analysis or advice are paragraphs (6), (7) and (8). In those paragraphs, Postema might be considered to be offering an implicit legal opinion that his employment contract governs whether there was a policy violation, and an implicit opinion that his contract allows for both a vehicle allowance and mileage reimbursements.

But to the extent that Postema is acting as the city council’s legal advisor by writing the email, then he would have an apparent conflict in rendering this legal advice – because his own interest in establishing that he did nothing wrong obviously conflicts with the city’s interest in having a clear understanding of the facts, so that appropriate policy changes can be undertaken if necessary.

The most generous approach, we think, is to assume that Postema was adhering to his ethical obligation not to provide legal advice to a client on a matter in which he had a conflicting personal interest, in which he could reasonably anticipate could conflict with the city’s interest. But that forces the conclusion that he was not acting in his capacity as anyone’s lawyer by writing the email; thus, he was not making a communication to which attorney-client privilege properly applies.

It’s fair to conclude that Factor 3 is not satisfied.

City Attorney’s Email: Ann Arbor Chronicle’s Factor 4 Analysis

Factor 4 requires that the purpose of the communication be to provide legal advice on some right or obligation. The evaluation of Factor 4 is similar to that of Factor 3. In evaluating Factor 3, we noted that the email does not appear to contain much – if anything – in the way of legal analysis or advice. It’s confined to Postema’s explanation of his past actions and his reports of conversations with others.

Because the underlying facts related to the subject matter aren’t protected by privilege, it’s difficult to see how any of Postema’s reporting of facts concerning the audit are protected by attorney-client privilege.

It’s fair to conclude that Factor 4 is not satisfied.

Frank Communication

In addition to citing the Michigan FOIA’s attorney-client privilege exemption in denying Postema’s email to The Chronicle, the city of Ann Arbor asserted another exemption allowed under the FOIA. That exemption allows a public body to withhold records that are communications internal to a public body – but only to the extent that they are non-factual and preliminary to a final determination of the body, and only to the extent that the public interest in disclosure is outweighed by the public body’s interest in frank communication.

First, it’s not clear how the “frank communication” exemption could apply to the entire text of the email. The exemption applies only to non-factual communication – and much of the content of the email recites factual information pertinent to the audit committee’s work. When a record contains information that does qualify for an exemption as well as information that does not qualify for an exemption, then the Michigan FOIA requires that the exempt information must be separated from the non-exempt information (i.e., it must be redacted), and the non-exempted information must be disclosed.

The only portions of Postema’s email that appear potentially to be eligible for redaction under Michigan’s FOIA are those portions where Postema appears to draw negative conclusions about the professional performance of the independent auditor. For example in paragraph (8), Postema writes:

… the fact that an auditor has put an incorrect statement in an audit report without even checking whether a City policy is in fact violated or whether another document (such as a contract) may govern the situation raises a host of concerns in my mind, …

If we confine ourselves to just those portions of the email where Postema is expressing his exasperation to the council about the auditor’s performance, the Michigan FOIA requires a balancing test to be applied: Does the city’s interest in frank communication among its agents outweigh the public’s interest in disclosure?

In weighing that balance, the city appears to have concluded that the city’s interest in shielding from public disclosure Postema’s attitudes toward the auditor’s performance outweighed the public’s inherent interest in disclosure. Obviously, we weighed the balance differently. We think the public interest is best served by revealing the character of the city attorney’s relationship to the city council as documented in his email.

And in his email, Postema appears to have selectively omitted factual aspects of his conversation with the auditor that tend to mitigate Postema’s apparent position. His position seems to be this: Even though there was no factual basis for doing so, the auditor still inserted the note about mileage reimbursements in his report.

What Postema omitted in his email to the council was a significant consideration, and one we think he certainly should have included – if his purpose was to apprise the council of relevant facts related to his investigation of how the audit was conducted.

In his email, Postema faithfully reported to the council the fact that the auditor had, in conversation with Postema, acknowledged the factual incorrectness of the phrasing in the report – the phrasing indicating that there’d been a violation of city policy. What Postema did not convey to the council was the fact that his conversation with the auditor, described in his email, included a statement by the auditor characterizing the situation as “illogical.” From the auditor’s email to Postema, recounting the same conversation [emphasis added]:

As I also stated in our conversations, from a business practices standpoint, our conclusion (with or without the existence of a policy) was it would be illogical and, therefore inappropriate, to make mileage reimbursements to persons having a car allowance. This conclusion is in the absence of knowledge of an agreement that would reasonably identify that payment of both mileage reimbursement and car allowance is acceptable and appropriate.

We think it’s to the city’s credit that this email from the auditor was included in the city’s official formal response to the auditor’s note.

But in his own communication to the council, Postema chose not to include this perspective on the auditor’s original conclusion – that the conclusion had been based on the idea that the mileage reimbursements were illogical, if not a violation of a written policy. At the January council audit committee meeting that followed Postema’s email, the auditor emphasized that there had not been a violation of a policy per se, because there was no written statement among the city’s policies that if an employee had a vehicle allowance, then the employee was not eligible for reimbursement for mileage.

For the auditor, it may have been self-evident that vehicle allowances are not compatible with mileage reimbursements – so self-evident that a written policy wouldn’t be needed. Whether Postema’s “travel” clause in his contract would cover ordinary mileage – for example, to drive to Lansing to represent the city in court – was not a question the city council audit committee wanted to entertain at its January meeting.

It’s worth noting that even in the revised version of the report, the auditor notes the problematic character of the reimbursements, observing that  ”… in each instance the expense report was not subject to independent review and approval.” And the city’s own recommended policy revision includes a new procedure that would require the chair of the council administration committee to sign off on the mileage reimbursements for its two direct reports – the city attorney and the city administrator.

In addition to the omission of a relevant fact, Postema made an assertion in his email to the council that is factually wrong. In addition to the “violation of city policy” phrase, in paragraph (10), Postema disputes the accuracy of part of the auditor’s note:

Fourth, the third sentence of the paragraph is also incorrect: “the City became aware of this situation during the year..” The City and the finance department has always been aware of my contract, as is the whole City, as the contract is FOIAed all the time and is posted on the internet.

First, Postema’s reasoning here is muddled. Whether the finance staff had always been aware of his contract is not material to whether the city became aware of the issue of possibly inappropriate mileage reimbursements during the year.

Postema’s assertion is also refuted by the facts. In responding to a different request made under the FOIA, the city provided The Chronicle with a written statement from the auditor to a member of the city council’s audit committee. And that statement indicates that the issue of the city attorney’s mileage reimbursements had been brought to the auditor’s attention through a fraud risk questionnaire response, dated June 29, 2012, filled out by a member of the financial services staff.

It’s also significant that according to the auditor’s statement, the questionnaire response indicated that the issue had been raised previously, and that the city’s internal staff auditor had communicated the issue to the city’s CFO. This gives additional context to the auditor’s recommendation this year that the city consider having the internal staff auditor report directly to the city council audit committee, instead of to the CFO.

In any case, it’s evident that the auditor’s original report – stating that the city became aware of the situation during the year – was accurate, contrary to Postema’s assertion.

Conclusion: More Sunshine, Please

It’s in the public interest, we believe, for the public to understand the nature of the relationship between the current city council and the person who currently serves as the city attorney.

So we weighed the balance differently than the city did with respect to the “frank communication” FOIA exemption. We think it’s clear from Postema’s email that the city council – at least in this instance – did not receive a complete, accurate and unvarnished report from its city attorney about city business. And we think it’s important that the public be aware of that.

It’s not an appropriate use of Michigan’s FOIA exemptions to shield officials from embarrassment or to allow for needless denials of information. It’s our view that the city of Ann Arbor is routinely over-broad in its assertion of exemptions under the FOIA. And it’s our view that the city’s FOIA response procedures rely too heavily on input and control by the city attorney’s office. But we think it’s to the credit of the city of Ann Arbor that the administration is currently engaged in a revision to the administrative policy on FOIA response.

Given that it’s Sunshine Week, we call on the city council to weigh in on that administrative policy. We think the city council should weigh in on the basic overarching principle guiding the FOIA policy.

Currently, the guiding principle of the policy can be fairly paraphrased as follows:

(A) The city of Ann Arbor will produce no requested records, except those that the city is required by the FOIA to produce.

A better policy would be one that is biased in favor of disclosure. That guiding principle would be the following:

(B) The city of Ann Arbor will produce all requested records, except those records that the city is expressly prohibited from producing by some federal, state or local law.

We think (B) is a better starting point for an administrative policy. Even if the city council were to opt for (A), then the council should make that decision explicitly and openly as the governing body of the city – through a formal resolution put forth at an open meeting.

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The original version of the letter had indicated three instances of an employee with a vehicle allowance also being reimbursed for mileage, and characterized those reimbursements as a “violation of city policy.” It was subsequently revealed that it was the mileage reimbursements of city attorney Stephen Postema that had caused the auditor to flag the issue.

But after further review – pushed by Postema and chief financial officer Tom Crawford – auditor Mark Kettner agreed that there was no written policy per se that disallowed the dual claims. Kettner is a principal at Rehmann, the city’s auditor, which is in the first year of a five-year contract.

But Kettner also noted that his original conclusion of inappropriateness was based on his view that the dual claims would be “illogical” whether a policy existed or not. Kettner also indicated in reaching his conclusion of inappropriateness that he had not reviewed Postema’s employment contract, which Postema and Crawford contend would have permitted Postema to claim mileage reimbursements in addition to the vehicle allowance.

Postema’s contract was altered last year, chronologically after the contested mileage reimbursements, so that his vehicle allowance was eliminated.

The new wording of Kettner’s letter omits the characterization of the mileage claims as a “violation” but still calls attention to the issue, and adds language to highlight the problematic character of the reimbursements – that “… in each instance the expense report was not subject to independent review and approval.”

Postema’s contract stipulates that his reimbursements for travel are to be made according to standard city procedures. And one new procedure recommended by Crawford in his written response to the auditor’s report would address the lack of independent review. The recommendation is to require that reimbursements claimed by the city attorney or the city administrator – who are the city council’s two direct reports – be approved by the chair of the council’s administration committee.

[.pdf of original letter] [.pdf of revised letter] [.pdf of Crawford's Jan. 24, 2013 response]

This brief was filed from the city council’s chambers on the second floor of city hall, located at 301 E. Huron. A more detailed report will follow: [link]

That’s an idea that defines the character of Ann Arbor better than anything you might read in a brochure, or see in a Pure Michigan video.

Photo by Ward 2 Ann Arbor councilmember Jane Lumm, taken in summer 2012. She reports that a ranger at the Grand Canyon identified the bird as a condor. The plausibility of this being a condor has also been checked by a guy I know who is way smarter about birds than I am.

If you didn’t already know that, well, I guess that makes me … an Ann Arbor resident.

Besides writing op-ed pieces adorned with footnotes [1], another way Ann Arbor residents prove they are smarter than you is to deploy extraordinary words you’ve never heard before, possibly from a dead language – with an ever-so-slightly aggressive nonchalance, calculated to elicit from their listeners some kind of concession like “I’m sorry, but I’m not familiar with that term.” [Alternatively, super-long, syntacticky sentences.]

And then the conversation may continue along the lines of, “Oh, I’m sorry – I thought that expression was so common. But there I go again, just assuming that everyone is as … much a resident of Ann Arbor as I am.”

And those of us who observe these interactions, which depend on a carefully scripted casualness, wonder smugly to ourselves, “Does he not realize everyone can see exactly what he’s doing? I mean, it’s like he thinks he’s the only … person who lives in Ann Arbor!”

Many elected officials in Ann Arbor have a variant on this gambit, which involves not extraordinary bits of vocabulary, but perfectly regular words – to which some special technical sense is given, outside of any reasonable expectation. By way of example, the word “regular” itself has (apparently) a technical sense that can transform a special meeting of the city council into a “regular meeting.” That technical sense  of “regular meeting” can be paraphrased roughly as: Any meeting the city council chooses to label as “regular” by voting to label it as such in a formal resolution. [2]

Given that we all live here in Ann Arbor – i.e., we are all smarter than each other – local governance leads to arguments about the meaning of words, even those that are perfectly ordinary. By way of additional examples (beyond “regular” and “special”) these pairs might sound familiar to some readers: “sell” versus “lease”; “opinion” versus “memo” [3]; “committee” versus “work group” [4].

But at the most recent meeting of the city council, on Aug. 20, 2012, part of the argument at the council table depended crucially on the meaning of the word “many.” I’m not making that up. Carsten Hohnke (Ward 5) disputed a contention made by Jane Lumm (Ward 2) that began “Many Ann Arbor residents believe …” The nature of their disagreement can, I think, be analyzed in terms of a numerical understanding of “many” compared to a proportional one.

It’s actually a standard puzzle from the sub-field of linguistics called semantics, which I have studied at an institution of higher learning. Otherwise put, I live here in Ann Arbor even more than you do. And the standard example sentence used by semanticists to illustrate the meaning of “many” involves condors.

So let’s begin with a treatise on condors. The bird with the Latin name Gymnogyps californianus … Heh. I’m kidding.

By “kidding” I mean “not actually totally kidding.” See, you need to understand something about condors before you can understand the example. One thing you probably already know is that condors don’t live in Ann Arbor. 

Background

California condors are rare – only about 220 of them exist in the wild. Another 180 or so of the birds exist in captivity. This is up from a total of 22, back in the late 1980s when all of them were captured and put into a breeding program to try to boost the numbers. Among the treats in the Wikipedia article on California condors is this: “…  biologists began removing the first egg from the nest and raising it with puppets, allowing the parents to lay another egg.”

Due to some unfortunate encounters with power lines out in the wild, condors are now conditioned in captivity to avoid them, before being released. Ann Arbor condors, if they existed, would likely not need that kind of remedial training.

I was not able to determine the exact numbers for the California population of condors, but it looks like well over half live in California.

Many Condors

With that background, would you say that (1) is true or false?

(1) Many California condors live in California.

In this context, the word “many” has for most people two different understandings: (a) a cardinal, or numerical understanding based on whether the actual number is sufficient to merit the description “many”; and (b) a proportional understanding, where we judge the merits of “many” based on some proportion being sufficient to be called “many.”

So (1) – relative to the numerical interpretation of “many” – can be false, because there are so few condors, period. But relative to the proportional understanding of “many,” (1) can be true, because the proportion of condors in California is so substantial.

The sentence (2) is thus not a logical contradiction:

(2) Many California condors live in California, but there aren’t many California condors that live in California.

Many Ann Arbor Residents

The sentence that councilmembers were squabbling over was this one, from the “whereas” portion of a resolution that would have directed the city’s legal staff to draft ordinance language to repeal the funding mechanism for the city’s Percent for Art program.

(3) [M]any Ann Arbor residents believe the allocation of capital project funds to public art represents an inappropriate and unrelated use of dollars raised through tax millages and water and sewer system funds that they believe should be fully dedicated to their primary streets, parks, water/sewer, and solid waste purposes;

For readers unfamiliar with the basic format of city council resolutions, they consist of “whereas” clauses followed by “resolved” clauses. The “whereas” clauses are a recitation of facts that provide relevant background – they are supposed to be uncontroversial. The “resolved” clauses are the bits that state the specific action the council is taking.

I think (3) is true – relative to a proportional understanding of “many.” That is, I think if you ask those Ann Arbor residents who have any opinion or awareness at all about the manner in which the Percent for Art program is funded, a sufficient proportion of them have the belief described in (3) to make (3) true.

In the recent city council elections, candidates who I would describe as sympathetic to the belief described in (3) all had solid showings: Two of them won, a third came within 18 votes of winning, and a fourth polled 43.5%. That’s evidence that (3) is plausibly true, relative to a proportional understanding of “many.”

Hohnke objected to the inclusion of (3) in the list of “whereas” clauses. From The Chronicle’s Aug. 20, 2012 meeting coverage:

He dismissed that assertion by saying, “Many Ann Arbor residents believe yada yada yada. Many Ann Arbor residents believe a whole bunch of things and you can insert whatever you want.” He contended that the evidence is to the contrary. In the repeated conversations the council has had, he continued, the council had heard overwhelming support for the public art program. So he felt the statement was not an accurate reflection of the facts.

Of course it’s not true, as Hohnke contends, that you can insert anything after “Many Ann Arbor residents believe …” and get a true sentence. For example, I don’t think it’s true that “Many Ann Arbor residents believe they are no smarter than a bag of hammers.”

Hohnke could plausibly contend that (3) is incomplete, but by claiming (3) is not accurate, he’s reaching. And I use that word “reaching” intentionally, because that’s how Hohnke signs off in his “monthly” emailed updates to constituents that have arrived in my email inbox only about half a dozen times in the last two years: “Let’s keep reaching together.”

Rather than try to argue that (3) is not accurate, Hohnke might have maintained a more sensible level of discourse by simply acknowledging that (3) is true, yet incomplete, because it does not include (4), which is also true:

(4) [M]any Ann Arbor residents support public art in the city, with either no understanding of its funding mechanism or also with the full understanding that the allocation of capital project funds for public art comes through tax millages and water and sewer system funds;

Instead of keeping things sensible, though, it was apparently important to Hohnke to hammer Lumm with the vague implication that she was being dishonest.

And then Hohnke escalated his rhetoric to suggest that the Percent for Art program isn’t actually controversial. Instead, he claimed that any controversy has been “manufactured” by Stephen Kunselman (Ward 3), Jane Lumm (Ward 2) and a “small number” of other folks. Rhetorically, this is effective, because (5) can certainly be true, on a numerical understanding of the phrase “small number”:

(5) A small number of Ann Arbor residents think the Percent for Art program is problematic.

The number of Ann Arbor residents who have any kind of view on the Percent for Art program is surely small – I’d guess fewer than 10,000. So I’d guess the number of Ann Arbor residents who think the funding mechanism for the Percent for Art program is problematic could be less than 1,000. So (5) is plausibly true, relative to the numerical understanding of “small number.”

But whatever the actual number is, it’s proportionally sufficient that elected representatives have represented that view at the city council table.

And that is the actual point of this column, if it has one at all – that the views represented by other “electeds” at the council table should be acknowledged as the legitimate reflection of the views of “many residents.”

This should be a basic axiom for those who serve on an elected body like the city council:

My colleagues were elected by people who are just as smart as the people who elected me, and who are all smarter than me.

That axiom should not be hard to embrace here in Ann Arbor … because if you sit on the Ann Arbor city council, you were elected by Ann Arbor residents, who are all smarter than you: They got you to do this terrible job. QED.

Notes

[1] This is an example of a footnote.

[2] “regular” versus “special”: We all know what a “regular meeting” is. If a public body schedules an additional meeting – one that’s not on the regular meeting calendar set at the start of the year, and does not fit any pattern of regular meetings – and if the public body does so in order to handle one specific piece of business, then that’s a “special meeting” of that public body.

But almost a year ago now, on Oct. 3, 2011, the city council voted to add a meeting to its schedule for Oct. 24, which did not fit the pattern of regular meetings described in the council’s rules, and was added for the sole purpose of contemplating a rezoning request. At the time, Marcia Higgins (Ward 4) reasonably objected to calling it a “regular meeting,” saying it was a “special meeting.” But unless the council labeled it a “regular meeting,” it could not accomplish what it potentially wanted to achieve at that special, regular meeting – namely, the enactment of the zoning change associated with the Heritage Row development. That zoning change had to take place at a “regular meeting” – based on city charter requirements. So the council added this additional “regular meeting” to its schedule through a resolution that labeled it a “regular meeting.”

The whole thing turned out to be moot, as the Heritage Row development did not go forward.

[3] “committee” versus “work group”: Back in 2009, the city council appointed a committee of its members to negotiate a revision to the contract under which the Ann Arbor Downtown Development Authority manages the public parking system. By standing city policy, the “committee” would have been required to meet under the same constraints as a public body under the Michigan Open Meetings Act. But beginning in early 2010, members of that committee met with their DDA counterparts under the guise of a “working group,” thus escaping the requirement of the administrative policy – that their meetings be noticed and open the public.

[4] “opinion” versus “memo”: When a city attorney writes out an analysis of a piece of legislation – say, for example, on the membership eligibility requirements of the local officers compensation commission (LOCC), the content of that analysis is in the public interest to know and should be available for third-party use. For example, it’s a fair question for any citizen to ask: Does a member of the Ann Arbor Downtown Development Authority board meet the eligibility requirement of the LOCC – that “No member or employee of the legislative, judicial or executive branch of any level of government … shall be eligible to be a member of the commission.”

I don’t think a member of the DDA board meets that eligibility requirement. Yet Ann Arbor’s LOCC includes a member of the DDA board. If city attorney Stephen Postema adhered to the city charter requirement that his “opinions” be filed with the city clerk’s office, we might know what his legal analysis is that allows for a member of the DDA board not to be considered a member of a branch of government for the purposes of the LOCC. But the city attorney is especially keen not to call anything he writes an “opinion,” lest someone insist that he meet that charter requirement. By calling his opinions “advice memos,” he believes he is avoiding the charter requirement. And the public is left in the dark about this, or any other issue that could easily be illuminated by the city’s legal staff.

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Ann Arbor public art commissioner John Kotarski at AAPAC's July 25, 2012 meeting. (Photos by the writer.)

At Kotarski’s suggestion, commissioners considered three items related to AAPAC meetings: (1) adding a second opportunity for public commentary; (2) changing its meeting times; and (3) alternating the locations of its meetings. Kotarski also raised the possibility of recording the proceedings to be broadcast on Community Television Network (CTN).

The additional public commentary – offering speakers a second three-minute slot at the end of each meeting – was ultimately approved. Less enthusiasm was expressed for pushing back meeting times to later in the day. AAPAC meetings currently start at 4:30 p.m. on the fourth Wednesday of each month, and are held in the basement conference room at city hall. Kotarski proposed moving the meetings to different locations throughout the city, such as schools or other public sites, to make it easier for more people to attend. Commissioners had reservations about that idea too, nor was there much support voiced for a suggestion to record the meetings for broadcast by CTN. Kotarski plans to bring a specific proposal on these items to an upcoming meeting.

Another proposal by Kotarski – to include support for local sourcing as part of AAPAC’s strategic plan – was rejected by other commissioners. Some commissioners felt the idea didn’t fit into a strategic plan, because it was not an action item. Others questioned whether local sourcing of art projects was within AAPAC’s purview, because the commission doesn’t have authority over the city’s purchasing policies. They’ve also been advised that they can’t put geographic constraints on their selection of artists, and felt this would apply to sourcing, too.

Ultimately a four-year strategic plan was approved without Kotarski’s revision. The plan’s goals, in summary form, are: (1) increasing the number of public art pieces throughout the city; (2) diversifying the public engagement and participation in selecting public art; (3) increasing the public’s support and appreciation for public art through PR efforts; and (5) pursuing private funding for public art. More detailed objectives are provided for each of the goals.

Kotarski also was unsuccessful in convincing other commissioners to support an endorsement policy for non-city-funded art projects. AAPAC passed a resolution stating that the commission would not make endorsements – and Kotarski cast the lone dissenting vote. In a separate item, Kotarski joined his colleagues in a unanimous vote to establish an SOQ (statement of qualifications) process that creates an artist registry/database. The intent is to streamline the selection of artists for future projects.

During the July 25 meeting, commissioners were updated on several ongoing projects, including a follow-up on concerns raised last month about the Dreiseitl installation in front of city hall, artwork at a planned rain garden at Kingsley & First, and the status of security checkpoints allowing access to a hanging sculpture in the Justice Center lobby.

There were no updates for some projects because those projects are still being reviewed by the city attorney’s office. Several commissioners expressed frustration at the length of time these reviews are taking. One commissioner wondered what tools AAPAC can use to influence the process, perhaps by appealing to another level within the city administration. AAPAC chair Marsha Chamberlin agreed to draft a letter on the issue, and to discuss it with city councilmember Tony Derezinski, who serves on the commission but has not attended its June or July monthly meetings.

Action was deferred on proposed projects for public art at two locations: (1) a plaza next to the Forest Avenue parking structure near South University; and (2) a future roundabout at Ellsworth and South State. Commissioners wanted more time to visit those sites. They also debated whether to postpone action until task forces are formed to represent four quadrants of the city – it’s part of a new approach they’re planning to take to help guide the selection of projects and ensure that all parts of the city are represented.

The commission is likely to get more advance notice of possible projects, as Aaron Seagraves – the city’s public art administrator – will now be attending meetings of the capital improvements plan (CIP) team. The CIP is relevant to the art commission because funding for the Percent for Art program comes from the city’s capital projects –  with 1% of each capital project, up to a cap of $250,000 per project, being set aside for public art. The CIP also indicates which major projects are on the horizon that might incorporate public art. By identifying such projects, AAPAC can start planning the public art component as early as possible, as part of the project’s design, rather than as an add-on.

Dreiseitl Follow-up

At AAPAC’s June 2012 meeting, commissioners had discussed the status of the Herbert Dreiseitl water sculpture in front of city hall – in particular, the issue of why it’s been dry for long periods. The discussion had stemmed from a written update by public art administrator Aaron Seagraves. The update explained why the water feature had malfunctioned and had noted that the water flow was intended to mimic the rainfall in the area. This information about the water sculpture reflecting the rain cycle was new to many commissioners – including some who had been serving on AAPAC when the project was approved. One of AAPAC’s newest commissioners, John Kotarski, advocated for a follow-up about how the project had evolved.

The June discussion had concluded with commissioners agreeing to send questions to the Dreiseitl project team. At the July 25 meeting, Seagraves provided another written report with answers about the sculpture. Among other things, the report included an email exchange between Dreiseitl and Ken Clein, a project manager with Quinn Evans Architects who oversaw the Dreiseitl installation. [.pdf of full report]

One of the questions that commissioners had posed related to Dreiseitl’s original intent for the work – did he intend for there to be periods when the water didn’t flow? The following is extracted from the email exchange between Clein and Dreiseitl on that issue:

July 12, 2012 email excerpt from Ken Clein to Herbert Dreiseitl:

“There seems to be some confusion regarding your intention for the water supply. Currently only filtered rainwater is used and many have been surprised when it has run dry due to lack of rain this year. The City would like a brief statement from you regarding your intentions for the water supply to set the record straight. Apparently they had the impression that it would run all season (which with normal rain fall would probably be true). The City may ask us to devise a source of potable water as a back-up. If you have any misgivings about this, please express those as well.”

July 12, 2012 from Dreiseitl to Clein: 

“I think if there is no rain it is OK for me to use potable water. It is even more relevant to celebrate the beauty of water in a sensitive way just in dry weather conditions.”

That response resulted in a follow-up email from Clein later that day:

“To me there is something poetic about letting the sculpture reflect the natural cycles, but I too understand that the City and residents would like to see the water running all summer. Your original concept for the sculpture was to rely on the rain. Is that correct?”

Dreiseitl’s response:

“yes you are right we were thinking the sculpture is reflecting the seasons. Rainy days – water on the sculpture. No water for a long time – no water in the system.”

At the July 25 meeting, Marsha Chamberlin said she felt the responses to AAPAC’s questions – responses that also included comments from former AAPAC chair Margaret Parker and Matt Kulhanek, the city’s fleet and facilities manager – had answered the questions thoughtfully and completely.

Chamberlin indicated it was interesting that the people involved early in the project did not envision that the sculpture would have water flowing the entire time. [The Chronicle's attended all AAPAC meetings during the selection of Dreiseitl for this project, and covered Dreiseitl's presentation to city council and the public prior to the council's approval. In reviewing Chronicle coverage of those early discussions, a seasonal aspect that was highlighted related to the water flow during wintertime – when it was anticipated that the water feature would not operate because of freezing temperatures.]

Kotarski had several questions and comments related to the written report. He noted that Clein referred to AAPAC meetings, which are open to the public, as the means for getting public input on the Dreiseitl project. Though there is opportunity for public participation at these meetings, Kotarski said, that doesn’t translate into involvement. He thought AAPAC should try harder to engage the public.

Kotarski also suggested doing this kind of debriefing after every project. He was disappointed that only three of the 16 people who were directly involved in the Dreiseitl project had responded to AAPAC’s questions.

He then turned his comments to the functioning of the “water fountain.” At that, Theresa Reid corrected him, saying it’s a sculpture, not a fountain. Calling it a fountain is a misnomer, she said.

Kotarski expressed concern that it hadn’t been built as Dreiseitl had designed it. He contended that it appeared the sculpture did not capture water from the roofs of the Justice Center and city hall. Seagraves clarified that the rainwater from the roofs of city hall and the adjacent Justice Center is collected into two tanks, which can hold a total of 2,300 gallons of water. Water from those tanks is used for the Dreiseitl work. A separate cistern also collects water from the roofs. [Seagraves also initially referred to the work as a fountain, and was corrected by Malverne Winborne.]

Kotarski said he’d gone out and looked at the site, and it’s not clear to him how the water from the roofs flows into the underground tanks. He wondered how that could be verified.

Sabra Briere, a Ward 1 city councilmember who was attending the meeting, volunteered to explain. She stated that spouts from the police/courts building – which she noted was called the Justice Center, but said she preferred not to use that name – direct water into a holding tank on the west side of the site. Spouts on city hall direct water into a tank under the front plaza. That’s how the water is collected for use in the Dreiseitl piece, she said.

Connie Brown suggested that Seagraves invite an architect or someone else familiar with the project to attend an AAPAC meeting and explain how it works, so that commissioners aren’t speculating.

Commissioners also briefly discussed the text for a proposed sign to be located next to the Dreiseitl piece, which explains how it works in relation to the building and rain garden. [.pdf of text for the sign] There was general agreement that the text provided a good explanation.

Bob Miller returned to Kotarski’s suggestion about regular debriefings. He wondered if Seagraves could put together a debriefing survey for each project. Winborne urged the commission to keep it simple – he warned against “analysis paralysis” and suggested using the same questions that had been asked of the Dreiseitl piece. Other commissioners concurred. Those questions are:

• Who were the major decision-makers on this project?
• What went well with the process? Conversely, what were the lessons learned? (from the key stakeholders’ perspectives)
• What was the role of the commission on this project?
• How was public input folded into this project?

In addition, one set of questions was asked that was specific to the Dreiseitl project: Did the design take into account periods of little or no rain? If not, then what steps are being taking to address this issue?

Outcome: This was not a voting item, but commissioners directed Seagraves to invite someone from the Dreiseitl project to a future AAPAC meeting to explain how the sculpture relates to the site’s stormwater management.

Strategic Plan

The commission discussed a four-year strategic plan, which identifies several major goals to pursue through 2016. AAPAC chair Marsha Chamberlin had drafted the plan based on previous commission discussions – including a February 2012 retreat. Each goal was fleshed out with more detailed objectives. [.pdf of draft strategic plan]

Although commissioners discussed and edited the document during the July 25 meeting, no substantive changes were made. These are the draft goals, which were modified slightly during the meeting:

• Ann Arbor will substantially increase the number of public works of art throughout the city through the annual assignment of funds and an expedited project development and artist selection process.
• AAPAC will diversify public engagement and participation in the selection of Public Art by establishing a standing task force in each of the city quadrants to recommend public art projects therein. (Quadrants will be based on the “land use areas” from the City of Ann Arbor’s Master Plan, Land Use Element, 2009)
• AAPAC will increase the public understanding, appreciation and support of public art through consistent public relations efforts.
• Pursue private funding for public art.

Another goal from the draft – to develop an art-on-loan program by fiscal 2015 – was eliminated and instead incorporated as an objective in one of the other goals.

One potential major change was brought up by John Kotarski. He wanted to add a goal related to AAPAC’s commitment to local sourcing. Dreiseitl is an example of that, he said – although Herbert Dreiseitl is German, much of the fabricating and installation work was done locally. It was an important goal, he said, and one that would reflect concerns raised by the community. It supports the goal of building a sustainable local arts community, he said.

Several commissioners expressed concerns about adding that goal to the strategic plan. Malverne Winborne felt it was outside of the commission’s purview. AAPAC projects must adhere to city policies, he said. Cathy Gendron noted that AAPAC had been told they can’t put geographic limitations on the selection of artists – that could apply to other aspects of a project, too.

Wiltrud Simbuerger observed that even if AAPAC doesn’t have authority to make those sourcing decisions, commissioners do have to answer questions from the community. So they need to have an answer ready when someone asks about local sourcing. She supporting including it in a mission statement, saying that AAPAC wants to improve the city’s commitment to local sourcing.

Theresa Reid said that was a good point, but she didn’t think it belonged in AAPAC’s strategic plan – because there’s no action they can take.

After further debate, Kotarski conceded that ”I think I’ve beat the horse totally dead. Thank you all for your indulgence.” There was no change made to the strategic plan regarding local sourcing.

Chamberlin agreed to work on a final version that incorporates changes suggested during Wednesday’s meeting.

Outcome: Commissioners unanimously voted to accept the strategic plan through 2016.

Meeting-Related Logistics

Commissioners considered three items related to its meetings: (1) adding a second opportunity for public commentary; (2) changing its meeting times; and (3) alternating the locations of its meetings. Also raised was the possibility of recording the proceedings to be broadcast on Community Television Network (CTN).

AAPAC meetings are currently held in the basement conference room at city hall, starting at 4:30 p.m. on the fourth Wednesday of each month. They are not recorded by CTN.

Meeting-Related Logistics: Public Commentary

An action item on the agenda asked commissioners to add a second three-minute public commentary slot at the end of its meetings. Previously, members of the public could formally address AAPAC only at the beginning of each meeting.

The issue of adding another public commentary slot was raised at AAPAC’s June 27, 2012 meeting by commissioner John Kotarski. The intent would be for people to have the opportunity to give feedback before a decision by AAPAC, then provide feedback after that decision is made, he said. Before AAPAC made a decision about public commentary, the commission last month directed Aaron Seagraves, the city’s public art administrator, to research the public commentary practices of other city of Ann Arbor commissions and boards. The majority of those entities include two slots for public commentary. Most of them limit speaking turns to three minutes per speaker.

Bob Miller noted that before he was appointed to AAPAC, he attended several of the commission’s meetings and had wanted more opportunities to participate during those meetings.

Outcome: Commissioners unanimously voted to add a second public commentary slot to their monthly meetings.

At Wednesday’s meeting, one person – Thomas Partridge – spoke during public commentary. He urged commissioners to advocate for art projects that emphasize political, social and justice-oriented themes, as well as artwork that has an obvious connection to people.

Meeting-Related Logistics: Time, Location, CTN

Kotarski also proposed changing both the time and location of AAPAC’s monthly meetings. When he had spoken to people at the recent art fairs Townie Party, one concern he’d heard was that people didn’t feel that AAPAC is accessible. One difficulty was the meeting time – it’s difficult for many people to attend meetings in the late afternoon. He had subsequently reviewed the meeting times for other city boards and commissions, and noted that many of them start after 5 p.m. A later meeting time would make it easier for more people to attend AAPAC meetings, Kotarski said – especially people who work until 5 p.m.

He also wanted to move the meetings to different locations throughout the city, such as schools or other public sites. It ties into AAPAC’s decision to take a quadrant approach to selecting public art locations. By meeting in each of the quadrants, rather than city hall, it will give commissioners a better feel for different parts of the city, Kotarski said, and make it easier for people in those quadrants to participate in AAPAC’s meetings.

Ann Arbor public art commissioner Bob Miller.

Wiltrud Simbuerger wondered if meeting elsewhere would be possible. She noted that in the past, AAPAC had been told that it needed to meet in a city-owned location. [When The Chronicle began covering AAPAC in 2008, the meetings were held in the conference room of JJR, a private business. One of the commissioners at the time worked there. Later, the meetings were moved to a City Center office that the city leased, and then were moved to the city hall following its recent renovation.]

Aaron Seagraves, the city’s public art administrator, reported that there’s a designated list of meeting places that are acceptable for the city’s boards and commissions. He later clarified for The Chronicle that those locations include city-owned facilities, the Washtenaw County administration building, the Ann Arbor District Library and public schools.

Bob Miller said he agreed about the meeting time, but had reservations about changing the location. If they start moving the meetings, then the complaint will be that it’s hard to know where they’re meeting. He thought that sticking to one place is best, and city hall is where people expect to find groups like AAPAC.

Theresa Reid had the opposite view. She liked the idea of different locations, but didn’t feel she could meet at a later time. She has children and a job that requires work at night. She also noted that their meetings typically run until 7 p.m., and they’ve just added a new slot for public commentary at the end of the meeting.

Kotarski then proposed recording the meetings for Community Television Network (CTN), as another way to make AAPAC’s work more accessible. The idea generally did not appear to be enthusiastically received, although Miller supported it.

Reid noted that AAPAC planned to set up task forces for each quadrant. She felt those task forces would do much of the outreach work to address Kotarski’s concerns about accessibility. Kotarski replied that the commission could take baby steps, but he wants to move them in the direction of becoming more accessible.

Miller thought the suggestions needed more thought. Kotarski offered to come up with some specific options and present those at the August meeting.

Outcome: This was a non-voting item. Kotarski is expected to make a more formal proposal at AAPAC’s August meeting.

AAPAC Endorsements

The possibility of an endorsement policy had been on AAPAC’s June 2012 agenda, but was tabled so that commissioners could have more time to think it through. The issue had initially been raised at AAPAC’s April 25, 2012 meeting, when Dave Konkle and Tim Jones had asked the commission to consider endorsing a large Whirlydoodle installation they hope to build. Jones had invented the devices as miniature wind generators, with LED lights that vary in color depending on wind speed.

Aaron Seagraves, the city’s public art administrator, had prepared a report for AAPAC’s July 25 meeting, outlining possible advantages and disadvantages to an endorsement policy. Advantages included publicly encouraging other public art projects and expanding the influence of AAPAC. That approach would increase awareness of public art in the city. An endorsement policy also would fit under the city’s public art ordinance requirements to promote awareness and initiate public/private networking.

Downsides cited in Seagraves’ report include the fact that not endorsing a public art project could be to the detriment of that project. Creating criteria for an endorsement policy would be a distraction from AAPAC’s primary responsibilities, and the ordinance is unclear about the issue of endorsements.

Ann Arbor public art commissioner Connie Rizzolo Brown.

On July 25, Theresa Reid began the discussion by immediately making a motion – to pass a resolution stating that AAPAC would not make endorsements of other non-city art projects. She said she’d been totally persuaded by the downsides that Seagraves had cited.

Some commissioners objected to the word “endorsement.” Connie Brown preferred something less formal, saying she would support encouraging or sharing information about other art projects, but not endorsing them. Cathy Gendron noted that endorsements boil down to a subjective judgment.

John Kotarski argued strongly for developing an endorsement policy. He said such a policy would speak to four of the nine AAPAC duties outlined in the public art ordinance. [.pdf of public art ordinance] It would promote art in the community. It recognizes the fact that AAPAC has the power to persuade, he said, and would incentivize non-city projects. He noted that the reason AAPAC had been approached for an endorsement was because the commission is relevant. “If we weren’t relevant, they wouldn’t care what we did,” he said, referring to Jones and Konkle.

Reid noted that there are other ways to publicize non-city projects, including AAPAC’s website. Gendron also pointed to AAPAC’s Facebook page, and noted that not all commissioners take advantage of that or even have Facebook accounts.

Kotarski countered that by not making endorsements, AAPAC’s ability to function as a major public voice in the community is diminished.

Outcome: On a 7-1 vote, commissioners approved a resolution stating that AAPAC would not make endorsements. John Kotarski dissented.

Administrator’s Report

In his monthly written report, Aaron Seagraves – the city’s public art administrator – covered several topics and gave updates on projects. This section focuses on administrative issues that were raised in his report.

Administrator’s Report: Legal Staff Delays

There were no updates for some projects because those projects are being reviewed by the city attorney’s office. Several commissioners expressed frustration at the length of time these reviews are taking.

Wiltrud Simbuerger wondered how long it will take for the East Stadium bridges project to move forward – will the RFP (request for proposals) be in legal review for a year? She wondered what tools AAPAC can use to influence the process, perhaps by appealing to another level within the city administration.

In addition to the East Stadium bridges RFP, other projects being reviewed by the city attorney’s staff include a statement of qualifications (SOQ) to develop a pool of muralists, and an SOQ for an art project at Argo Cascades. Bob Miller also noted that he hadn’t received a response on questions he’d posed to legal staff about an art-on-loan program he’s developing.

Theresa Reid said the delays make AAPAC look bad. Miller indicated that Abigail Elias – the assistant city attorney handling these projects – had been expected to attend AAPAC’s July meeting. Why hadn’t she come?

Seagraves said Elias had other commitments and wasn’t able to attend, but she might come to the commission’s August meeting. He had talked with her and reported that Elias told him these projects are at the top of her list. Simbuerger replied: ”How often has she said this?”

Cathy Gendron observed that AAPAC had the same issue for the Fuller Road Station RFP, although that art component was ultimately halted after the University of Michigan withdrew from the proposed parking structure and transit center.

AAPAC chair Marsha Chamberlin offered to draft a letter about the situation and talk to Tony Derezinski, the Ward 2 city councilmember who also serves on AAPAC – although he didn’t attend the June or July meetings.

Administrator’s Report: CIP

Seagraves reported that he’ll now be attending meetings of the city’s capital improvements plan (CIP) team. The CIP is a list of major capital projects planned by the city – those that are funded as well as those for which funding hasn’t yet been identified. The city code requires that the CIP be developed and updated each year, looking ahead at a six-year period, to help with financial planning. It’s intended to reflect the city’s priorities and needs, and serves as a guide to discern what projects are on the horizon.

The CIP is relevant to the art commission because funding for the Percent for Art program comes from the city’s capital projects – 1% of each capital project, up to a cap of $250,000 per project, is set aside for public art. The CIP also indicates what major projects are on the horizon that might incorporate public art. By identifying such projects, AAPAC can start planning the public art component as early as possible, as part of the project’s design, rather than as an add-on.

Seagraves asked for direction in prioritizing capital projects that might incorporate public art. He suggested that AAPAC’s strategic plan could be used in that regard, to prioritize projects and locations. That could be done in the fall and winter, for AAPAC to consider including in its annual plan, which must be presented to the city council by April 1.

Commissioners discussed how to coordinate this information with a new approach they’re planning to take – forming task forces for four quadrants of the city, to help guide the selection of projects and ensure that all parts of the city are represented.

Seagraves also noted that a line item for public art could be included in the CIP. He said he’s also discussed the possibility of using the CIP evaluation criteria as a way to help select projects or locations. [For background on the CIP process and evaluation metrics, see Chronicle coverage: "Planning Commission Approves Capital Plan." More information is also on the city's CIP website.]

John Kotarski asked if Seagraves was recommending this approach. Marsha Chamberlin, the commission’s chair, noted that AAPAC has tried to develop a ratings document in the past, most recently in an effort spearheaded by Malverne Winborne, who serves as vice chair. She said that she and Winborne would work with Seagraves to develop a proposal for AAPAC to consider.

Administrator’s Report: CIP – FY 2013 Budget

Seagraves also presented a list of anticipated revenues for the Percent for Art program in fiscal 2013, which began on July 1, 2012. Based on planned capital projects, new Percent for Art funding in FY 2013 will total $320,837. That includes funding from the following sources: water fund ($55,797); stormwater fund ($20,608); street millage ($112,700); sewer fund ($93,610); parks millage ($11,647); and administration ($26,475).

The $320,837 in FY 2013 revenues is in addition to current funds in the Percent for Art program. At AAPAC’s June 2012 meeting, a written budget report indicated that the Percent for Art program had $1,367,148 in available funds through the end of FY 2012. Of that, $851,233 has been earmarked by AAPAC for future projects, including artwork for East Stadium bridges ($400,000), Argo Cascades ($150,000); and the Justice Center ($147,468).

Project Updates

In addition to items reported elsewhere in this article, two project updates received attention during AAPAC’s July 25 meeting: (1) the Kingsley rain garden, and (2) security in the Justice Center lobby, where a sculpture commissioned by the city will be located.

Project Updates: Kingsley Rain Garden

In November 2011, AAPAC had approved an art project as part of a rain garden that the city is building at the corner of Kingsley and First. The previous month – at AAPAC’s Oct. 26 meeting – Patrick Judd of Conservation Design Forum (CDF) and Jerry Hancock, Ann Arbor’s stormwater and floodplain programs coordinator, had talked to commissioners about possible public art in the rain garden.

The city bought 215 and 219 W. Kingsley – land that’s located in a floodplain. A boarded-up house is located on the corner lot; the adjacent lot is vacant. The city received a grant from the Federal Emergency Management Agency (FEMA) to demolish the house and stabilize the site.

From left: Jerry Hancock, Ann Arbor’s stormwater and floodplain programs coordinator; Patrick Judd of Conservation Design Forum; and Aaron Seagraves, the city's public art administrator. They met with residents on July 26 at the site of a future Kingsley & First rain garden. Hancock is showing FEMA maps that indicate a change in floodplain boundaries.

The city has awarded CDF the contract for the project, which will include building a rain garden on the site. CDF was also involved in the new municipal center project and the Dreiseitl sculpture.

The overall project cost is about $280,000 – and the city will pay for 25% of that, or about $70,000, with the rest funded by FEMA. Because the city’s portion will come from the city’s stormwater fund, the public art component can use pooled Percent for Art funds captured from stormwater projects. A balance of about $27,000 is available in stormwater Percent for Art funds. AAPAC approved the use that amount, with the final budget to be recommended by the project’s task force.

On July 25, Aaron Seagraves showed commissioners a four-question survey he’d developed to solicit public input on the project. [.pdf of rain garden survey] He said he planned to distribute the surveys at a July 26 public meeting about the rain garden project.

At that July 26 event, Hancock, Judd and Seagraves met with about a dozen residents at the First & Kingsley site to review plans for the property. The house will be demolished as soon as the relevant permit is received. Beal Construction has the contract for that work. Demolition will likely take place in early August, according to Beal’s Jim Mason, who attended the July 26 forum.

Hancock said that after the house is gone, the site will initially be regraded to leave a slight depression – about 6-12 inches over a large portion of the site – that will allow it to collect stormwater during heavy rains. This will be only an initial step until the rain garden is completed, which will likely take place in the spring. Judd said the area will include a path and bench, and “engineered soil” through which water will slowly drain. The intent is to eliminate flashing, he said – the sudden flooding caused by heavy rains.

Regarding the public art portion of the project, Seagraves said the intent is to integrate it into the overall rain garden design, ensuring that it won’t interfere with the stormwater management. Two artists from METAL, a nearby design and fabrication shop, will be among those helping select the artist, and a request for proposals (RFP) will be issued later this year.

Project Updates: Kingsley Rain Garden – Commission Discussion

At AAPAC’s July 25 meeting, John Kotarski said he’d been reading online comments on an AnnArbor.com article that was based on the city’s press release about the planned July 26 Kingsley & First public forum. Among other things, people were complaining about how they couldn’t reach the art commissioners, he said. He felt that Seagraves or commissioners should monitor those comments, and he encouraged Seagraves to respond to factual misrepresentations.

Other commissioners felt that people will inevitably complain, and that there are already ways that AAPAC can be reached – contact information is on the commission’s website and Facebook page. Kotarski felt that commissioners should be aware of the comments, and that Seagraves should take the initiative to respond so that AAPAC can have a voice in the online discussion. The fact that there are constraints on the selection of artists – but that AAPAC supports local sourcing – should be explained, he said. The commission shouldn’t pick a fight, he added, but they have a narrative that’s not being articulated.

Theresa Reid felt that Kotarski’s concerns were valid, but that individual commissioners should respond or alert Seagraves as necessary. There is contact information available for commissioners, she noted, and the situation is already being addressed. When Kotarski pressed for more discussion of a local sourcing policy, Marsha Chamberlin noted that given their full agenda, it was a discussion that should be deferred to a future meeting.

Project Updates: Justice Center

In his written report, Aaron Seagraves had noted that Ed Carpenter, the artist selected for the sculpture in the lobby of the Justice Center, is working with engineers to develop a design that would allow for ceiling access, needed for maintenance. [The $150,000 sculpture, called Radius, will be suspended from the ceiling in the southwest corner of the building's lobby.] The artist expects to have a completed working plan to share in August or September, according to Seagraves’ report.

At the July 25 meeting, John Kotarski asked what the status was for possible changes in the lobby’s security checkpoint. Seagraves replied that it wasn’t in AAPAC’s purview, so he didn’t have an update on it.

Sabra Briere, a Ward 1 city councilmember who was attending the meeting, reported that she and other councilmembers – Sandi Smith (Ward 1) and Margie Teall (Ward 4) – had met with city staff recently to discuss the issue. She said mayor John Hieftje has firmly stated his preference to move the checkpoint closer to the elevators, which are located at the opposite end of the building. [The checkpoint now is located at the building's public entrance, off of the Huron Street plaza adjacent to city hall.]

There’s a general acknowledgement that the artwork would be better viewed from inside the lobby, she said, and there are councilmembers who would like to use the lobby for receptions and gatherings. It’s an attractive place, she said. But the question of how to handle the security checkpoint is different from the public art piece, Briere noted. When the council approved the artwork, they asked city staff to look into the cost of possibly moving the checkpoint. No decision on that has been reached.

For more details on options for the security checkpoint, see Chronicle coverage: “Access, Security and Art at Justice Center.”

New Projects: Forest Avenue Plaza, Ellsworth Roundabout

Action on proposals for two new projects had been tabled at AAPAC’s June 2012 meeting – because the commission ran out of time. The proposals are for public art at: (1) Forest Avenue Plaza, next to the Forest Avenue parking structure near South University; and (2) a future roundabout at Ellsworth and South State.

Forest Avenue Plaza, facing west. On the left is the Forest Avenue parking structure. Pizza House is visible at the end of the alley, across Church Street. The plaza abuts the back entrance of Pinball Pete's and the U.S. post office.

Both projects are being proposed by city staff, as part of broader initiatives. The Forest Avenue Plaza proposal was submitted by Amy Kuras, the city’s park planner, and Susan Pollay, executive director of the Ann Arbor Downtown Development Authority. The city has held two public meetings to seek input on improving the small plaza, and has about $40,000 in funding for the project. The city would like additional public art funding – suggested at between $10,000 to $20,000 – for artwork to be placed in the plaza.

Regarding the second item, the roundabout at State and Ellsworth is a major capital project at one of the busiest intersections south of town, with construction planned for the summer of 2013. There’s some interest from one of the local Rotary clubs in partnering with the city to add public art and landscaping to the roundabout.

At the July 25 meeting, Theresa Reid proposed holding off on these projects until task forces for each city quadrant are formed. Then, those task forces could take over management of the projects. But because the task forces won’t likely be in place until October, some commissioners felt that was too long to wait.

After further discussion, it emerged that several commissioners hadn’t visited the two sites for the proposed projects. Bob Miller suggested waiting until next month to take action, and to allow time for commissioners to make site visits.

Outcome: No formal vote was taken. The items will be addressed again at AAPAC’s August meeting. 

General Statement of Qualifications (SOQ) Process

At last month’s AAPAC meeting, commissioners approved a statement of qualifications (SOQ) that will be issued by the city to create a pool of muralists for future projects. [.pdf of mural SOQ] The objective, as stated in the SOQ, is to “find professional muralists and other artists whose work meets a set of standards and to pre-qualify them for City of Ann Arbor mural projects to be contracted in 2012 to 2014.” [That SOQ is currently being reviewed by the city's legal staff.]

Commissioners were also interested in creating a pool of pre-qualified artists for more general projects. They directed Aaron Seagraves, the city’s public art administrator, to check with the city’s procurement staff to see if this would be possible.

In his written report for the July 25 meeting, Seagraves stated that when releasing an SOQ for a specific project, the city can include a form to be completed that would solicit information about a broader range of the artist’s qualifications. This form could request that applicants give permission to be included in an ongoing pre-qualified pool. The SOQ could be released annually – or at any scheduled period – and there would be no need for an artist to reapply if they granted their permission for continual inclusion in this pre-qualified pool. This could form the basis of an artist registry. Seagraves indicated that he would work with the city’s procurement staff to develop a qualifications form, and would present it to AAPAC for approval.

Marsha Chamberlin said Seagraves had clarified everything in his written report, and she supported the process. After a brief discussion, commissioners voted on the proposal.

Outcome: AAPAC unanimously voted to establish an SOQ process that creates an artist registry/database for projects in the next three years. Seagraves will develop a qualifications form for AAPAC to review.

Commissioners present: Connie Rizzolo Brown, Marsha Chamberlin, Cathy Gendron, John Kotarski, Bob Miller, Theresa Reid, Wiltrud Simbuerger, Malverne Winborne. Also Aaron Seagraves, the city’s public art administrator.

Absent: Tony Derezinski.

Next regular meeting: Wednesday, Aug. 22, 2012 at 4:30 p.m. at city hall, 301 E. Huron St. [Check Chronicle events listing to confirm date]

The Chronicle relies in part on regular voluntary subscriptions to support our artful coverage of publicly-funded programs like the Percent for Art, which is overseen by the Ann Arbor public art commission. Click this link for details: Subscribe to The Chronicle.

Ann Arbor city councilmembers Sabra Briere (Ward 1) and Tony Derezinski (Ward 2). (Photo by the writer.)

Part 1 of this meeting report focuses just on the medical marijuana-related items. In a separate article, The Chronicle has analyzed some of the key issues at stake: “Ann Arbor Marijuana Licenses: Who Decides?”

In front of the council for its consideration were three separate agenda items involving medical marijuana: (1) revisions to the city’s medical marijuana licensing ordinance as recommended by the licensing board; (2) direction to the city planning commission to make a recommendation on revisions to the city’s medical marijuana zoning ordinance; and (3) direction to the city attorney to delay enforcement action against dispensaries.

The council unanimously postponed consideration of the licensing ordinance revisions until June 18 – the council’s second meeting that month. During deliberations on the licensing ordinance, several councilmembers expressed concerns about the board-recommended revisions, in particular one that would allow the city council to waive requirements of the licensing ordinance for a dispensary.  In postponing, councilmembers wanted to give the planning commission enough time to act on its direction to review the medical marijuana zoning ordinance and give a recommendation to the city council. The intent is to bring forward any changes to the licensing and zoning at the same time.

The direction to the planning commission passed on a 9-1 vote, with dissent from the Tony Derezinski (Ward 2), who is the city council’s representative to the planning commission. [Marcia Higgins (Ward 4) was absent, leaving the 11-member council with 10 members present.]

The council tabled the resolution directing the city attorney to delay enforcement activities. The tabling was achieved on a 6-4 vote. Voting against the tabling were mayor John Hieftje, Sabra Briere (Ward 1), Margie Teall (Ward 4) and Mike Anglin (Ward 5). A tabled resolution will demise if it’s not brought back for consideration in six months.

The medical marijuana licensing board made recommendations on the award of licenses to 10 dispensaries at its  Jan. 31, 2012 meeting. Given remarks made at the council’s April 2 meeting by Sandi Smith (Ward 1), Carsten Hohnke (Ward 5) and Stephen Kunselman (Ward 3), there’s some sentiment in support of having the council go ahead and vote on those recommendations – before the council considers ordinance revisions in June. But it’s not clear whether the city attorney’s office would be prepared before June to provide advice on the license awards.

This report includes coverage of public commentary and council deliberations on the medical marijuana items, presented in detail. Other agenda items from the April 2 meeting will be included in a separate forthcoming report.

Medical Marijuana: Public Commentary

Luis Vazquez told the councilmembers he was standing before them as an Ann Arbor resident. He noted that he paid a lot of money in taxes. Of all the things the city attorney could and should be spending time and taxpayer money on, the recent actions of the city attorney on medical marijuana dispensaries are questionable – in light of the desire of Ann Arbor residents to have safe access points for medical marijuana, he said. He reminded the council that in 2004, three out of four Ann Arbor voters supported the city charter amendment on medical marijuana, which city attorney Stephen Postema claimed at the time was unenforceable. In 2008, around 4 out of 5 Ann Arbor voters supported the statewide ballot initiative on medical marijuana – it’s an overwhelming majority of Ann Arborites who are saying they prefer an end to the drug war, he contended.

The number of patients who legally use marijuana – and who applied for their patient cards – has outstripped the ability of the state of Michigan to process the paperwork in a timely fashion, Vazquez said. That may force some patients to use the black market to obtain their medicine until they can find a caregiver or find a way to grow their own. Vazquez said that in his view, Michigan attorney general Bill Schuette has vowed to thwart the will of the state’s voters by dragging patients and caregivers into court and proposing that the legislature change the Michigan Medical Marijuana Act to make it more difficult for patients to exercise their health care rights. To hear Schuette arguing for continued prohibition is like listening to Al Capone arguing for continued prohibition of alcohol, Vazquez said. Schuette’s actions have now prompted a ballot petition to legalize all uses of marijuana, he said.

Vazquez continued by saying that the city attorney should not be using his taxes to support the misguided and political actions of the state’s attorney general. He concluded by suggesting that the council consider three actions: (1) require that the city attorney’s office cease and desist action against dispensaries operating in Ann Arbor; (2) place on the ballot for the November 2012 election a measure similar to that passed by Kalamazoo voters – that the city charter be amended so that consumption or use of less than 1 ounce of marijuana by adults is the lowest priority for law enforcement personnel; and (3) appoint a marijuana regulatory commission, which would set quality standards, maximum prices, licenses and other fees, and an enforcement apparatus.

Jamie Lowell spoke on behalf of the Michigan Association of Compassion Centers (MACC). He thanked the council for being so steadfast on medical marijuana issues and working to resolve the challenges that have come up. He pointed out that the Michigan Supreme Court has decide to hear the appeal of the McQueen case. MACC has been invited to file an amicus brief in the case, he said. The court of appeals ruling on the McQueen case has served to cause more confusion and disagreement about how the state medical marijuana act impacts what a municipality may or may not do, he said.

MACC contends that the judges on the court of appeals lacked foundation and erred in their decision, Lowell said. He also indicated that MACC interprets the court of appeals ruling to be narrower than the interpretation by the attorney general and by some prosecutors and city attorneys. So MACC was not surprised when the supreme court decided to hear the case and take a closer look at it. Lowell said it would be appropriate for the council to set aside any implications that the McQueen case is thought to have had, until the supreme court rules.

Lowell also pointed out that state legislators are working on a “local option bill” entitled the Michigan Medical Marijuana Provisioning Center Act. Some legislators backing the bill are part of a bipartisan workgroup. The legislation would require a simple majority to pass (as opposed to the super-majority that would be required to change the voter-approved Michigan Medical Marijuana Act), so they believe it’s viable. During MACC’s discussions with state legislators, Lowell said, he’s repeatedly heard Ann Arbor cited as an example of a community that has embraced the opportunity to help citizens with their health care.

Nancy Wright Maxwell introduced herself as a 30-year Washtenaw County resident. She told the council that she was speaking in support of dispensaries. She said she’d been active her whole life, and she allowed that people might not think she looked like the face of the medical marijuana movement. She’s been a competitive athlete her whole life, she said, and has been playing national tournaments for the last 10-20 years. She’s had a lot of surgeries – three knee surgeries and two hip surgeries. She has chronic pain, she said.

Because she’s a senior executive for an insurance company and travels all over the world, she has limited options, Maxwell said. Vicodin isn’t a viable option, she said, citing the effects on the liver. She said that because she’s an athlete, she doesn’t want to smoke – so having safe, reliable dispensaries that she can trust is important. She doesn’t want to grow marijuana, she said, and did not want any part of that. She’d shown her 73-year-old conservative Grosse Pointe parents her registry card, and said it was a place of pride that she is legal. She said it’s important to be able to walk into a dispensary and get a little “medible,” that takes the edge off her pain so she doesn’t have to take Vicodin. She can no longer take the level of Advil that she’d been taking.

Maxwell allowed that she’d made the bed she was sleeping in with respect to her choice to engage in athletics. Ann Arbor is one of the most amazing places in the world to live – she wants Ann Arbor be a part of the cutting edge of having the model that will allow people to be helped. She allowed that some people will abuse it, and that’s unfortunate, but that’s a reality of every type of business.

Mitchell Elkiss began by saying he’d be offering a slightly different perspective – as a health care provider, a physician. So he had watched the emerging and evolving science of medical marijuana over the years, demonstrating its safety and efficacy. As a caregiver, he takes care of a lot of patients with chronic pain. He also suffers from chronic pain.

So with his doctor’s guidance, Elkiss had identified safe alternative therapeutic options that can be integrated into a whole complex of caregiving. With respect to dispensaries, if you’re going to write or fill a prescription, you need a quality source of whatever it is you’re going to use, he said. It needs to be a reliable source over time, each time you go. It has to be obtained in a safe and secure manner. So one of the things that distinguishes a dispensary from a single caregiver is that a dispensary can offer variety – different strains, medibles and tinctures. That’s not something a single caregiver can legally secure by himself. Elkiss told the council he’s a member of OM of Medicine, an Ann Arbor dispensary, and noted that the professionalism with which the dispensary conducts itself is part of the experience.

He reviewed the importance of finding a safe, effective alternative for the adjunctive use of medical marijuana, noting that it has to be done in a safe and reliable way, requiring special places where the products can be regularly of high quality.

Laurel Hufano introduced herself as a 33-year-old Ann Arborite, born and bred. She loves Ann Arbor and it’ll always be her home, she said. She felt very passionate about it being a safe, tolerant and welcoming place. She’s glad the University of Michigan and its hospital are located here.

Hufano had originally received her patient’s card in 2009 – she has arthritis and disc degeneration in her lumbar spine, along with a misaligned kneecap. She’s also suffered from migraines since she was 20 years old. So she has lived with chronic pain for some time. This year she was diagnosed with idiopathic inter-cranial hypertension. She’s had no positive response from various medications.

Having a medical marijuana patient card has made a world of difference in terms of making her daily pain livable, she reported. Dispensaries are important, because she needs a safe place that she can trust and access easily, and that is accountable to the city and that’s there to support patients. The center she visits has given her better care than many doctors, she said.

Drew Driver addressed the council from a wheelchair. He told the council he has a spinal cord injury. His primary care physician was barred from writing prescriptions for medical marijuana because of the hospital group he was with. So he recommended another doctor. Together they decided that medical marijuana was a good choice to deal with his muscle spasms, his pain and his lack of appetite.

Medical marijuana provides relief for him, Driver said. He said that although he visits Ann Arbor on a regular basis, he’s actually from Gaylord, about four hours north of Ann Arbor. After learning that medical marijuana helped him, he embarked on a mission to help others relieve their pain in a way so that they felt safe. He worked with his local city council, city police, county officials. They had a half dozen meetings about what they’d do – his goal was to have safe access and get dispensaries licensed and zoned properly. They’d come up with rules and regulations that worked for their town – they didn’t want a big marijuana leaf on the signs, for example. They didn’t want dispensaries within 500 feet of schools – that sort of thing, he said. It was a great experience for him, he said, because it got him involved in government and they all worked together and had a good outcome.

They had not actually written city ordinances, because at the time, Gaylord was worried they’d write an ordinance and they wouldn’t have control one way or another. His point, Driver said, was that a lot of other municipalities look to Ann Arbor for guidance – his own community had done that. There would be a lot of other cities who look to Ann Arbor as a leader on this issue. State legislators would also look to Ann Arbor as a leader.

Medical Marijuana Licensing Ordinance Revisions

The council was asked to consider a set of licensing ordinance revisions that had been recommended by the medical marijuana licensing board at its Jan. 31, 2012 meeting. Those recommended changes are included in the report that the licensing board subsequently submitted to the city council. [In the presentation below, the language recommended to be added is in italics, and language recommended for deletion is struck through.]

Licensing Revisions: Completeness, Conditions

The issue of completeness of applications is one that has been a chaffing point between the licensing board and the city staff. City staff were reluctant to present the board with license applications that they did not consider complete.

The licensing board agreed at its Jan. 31 meeting to recommend that the explicit role of city staff in determining completeness of applications be struck from two places in the ordinance [added language in italics; deleted language with strike-through]:

7:504 (4) Following official confirmation by staff that the applicant has submitted a complete application City Council approval of the issuance of a license, a new license shall not be issued to a medical marijuana dispensary until the applicant for the license complies with all of the following requirements…

7:505. If the applicant has successfully demonstrated compliance with all requirements for issuance of a license within 10 weeks (70 calendar days) after the date of City staff’s official confirmation that the application for a license was complete City Council’s approval of a license, the city administrator or designee shall grant renewal of an existing or issue a new license…

At the licensing board’s Jan. 18 meeting, the idea was entertained to remove staff from part of the process, by requiring that all the application materials be forwarded directly to the board, instead of to the city planning staff. Ultimately, the board weighed the volume of actual work it would take for board members to handle application materials, concluding it was more than a clerical task.

The board also agreed to a recommendation making explicit that there is flexibility in the kind of conditions that can be set.

7:502 (7) … The Board shall annually send to City Council a proposed resolution recommending either approval or rejection of each complete license application. A recommended resolution may set conditions for approval. The conditions may include a waiver by City Council of any provision or provisions of the licensing ordinance, and/or the imposition of a new provision or new provisions, if the public interest so requires.

Licensing Revisions: Entry for Inspection

The board agreed to recommend a change to make explicit that requests from the city to inspect a dispensary would be complaint-driven:

Pursuant to a complaint, an authorized person shall consent to the entry into a medical marijuana dispensary by the Building Official and zoning inspectors for the purpose of inspection to determine compliance with this chapter pursuant to a notice posted in a conspicuous place on the premises two (2) or more days before the date of the inspection or sent and by first class mail to the address of the premises four (4) or more calendar business days before the date of the inspection.

Licensing Revisions: Number of Licenses, Frequency of Recommendation

At its Jan. 31 meeting, the licensing board grappled with the tension between having a single annual recommendation on licenses (as the ordinance now specifies) versus a rolling recommendation as applications are submitted. The board agreed not to suggest changing from the process described in the ordinance as an annual recommendation for the award of licenses.

The board settled on capping the number of licenses at 20, which is the maximum number specified in the ordinance for the first year.

… but not more than 20 medical marijuana dispensary licenses shall be issued in the first year and shall be capped at that number.

Also recommended was a standardization of the timing requirements for applications – in some places there’s a 70-day condition but in others it’s a 90-day condition. The board agreed to recommend making that timing requirement uniformly 90 days.

Licensing Revisions: Council Deliberations

Sabra Briere (Ward 1) is the city council representative to the medical marijuana licensing board, so she led off the deliberations by reviewing how the licensing ordinance revisions had come to the council. She summarized them by saying that most of the changes were clarificational, but called her council colleagues’ attention two substantive changes – the cap at 20 licenses and the council’s ability, in the context of a license recommendation for a specific dispensary, to waive provisions of the licensing ordinance or add a new provision to the licensing ordinance.

Because only 10 dispensaries had applied in the first year, the board saw no reason to increase the number. With respect to the ability of the council to waive or add provisions to the licensing ordinance, Briere said it was not a recommendation about what provisions should be waived or added.

Sandi Smith (Ward 1) asked Briere what the impetus was for imposing a cap. Briere explained that the cap of 20 had been established by the council for the first year only. The board had been asked to recommend a number going forward. The recommendation to set the cap at 20 amounted to a recommendation to make no change, Briere said.

With respect to the other revision to allow waivers and additional requirements, Briere described how there was rigidity with respect to the way some people were attempting to apply the ordinance to existing conditions. Because those conditions weren’t being applied by the council (the governing body), she said, but by city staff just trying to figure out the right thing to do, the board didn’t want to say what new conditions might indicate making a waiver, but felt it should be within the council’s authority to do that without conflicting with the ordinance. What you run into, she said, is the licensing board’s sincere effort to anticipate things that can’t be anticipated.

Carsten Hohnke (Ward 5) asked Briere if she thought it would be useful to separate out the proposed actions into different motions. He identified the change that would make inspection “pursuant to a complaint” as one that some people might feel is substantive, as well as the two that Briere had identified. Briere responded by saying that one of the possibilities was not to vote on the changes that night. Her bias was to take up any changes to the zoning ordinance at the same time as the licensing ordinance.

Tony Derezinski (Ward 2) said he was somewhat troubled by the revision that would allow for the waiver or imposition of an additional requirement by the city council. He characterized it as amending an ordinance through a simple resolution. [By the city charter, ordinance revisions require votes by the council at two separate meetings and a public hearing before the second vote. A resolution can be passed by the council at a single meeting.] He said he had concerns about that. The licensing ordinance was, he said, to say the least hard fought and well thought out. There were a lot of compromises that were made, he said. He was troubled by the idea of altering an ordinance through a simple resolution and would not support it on that basis.

Jane Lumm (Ward 2) also expressed concerns about the idea of waiving provisions of the licensing ordinance. She wanted to understand what the change was meant to accomplish. She found it of concern to be routinely waiving ordinance provisions. Briere told Lumm that Lumm was understanding the ordinance “moderately correctly.” But Briere went on to clarify that she did not know if the licensing board felt very strongly about whether there should be a specific ordinance change associated with a waiver or a new provision. The board did feel that there were no criteria given for granting a license, and the lack of criteria of evaluating a license created a clear conflict “of the board.”

That is, Briere said, board members felt like all they could do, more or less, would be to see if all elements of the applications were present. There were not criteria offered by the council in the ordinance. And the board didn’t develop criteria, because the board didn’t have any guidance to develop criteria. As a result, she said, the board felt that if the council wants criteria, it should be able to say, for example, this dispensary would be too close to that dispensary, even though no criterion has been set that says dispensaries can’t be within 500 feet of each other.

Briere reiterated that her preference would be to introduce the revisions and then postpone them, to discuss zoning changes at the same time.

Lumm followed up with a question about the revisions that would strike language about the completeness of applications. She wondered why the change was needed. She felt that before council could act, it needs to know if the application is complete. Briere explained to Lumm that what the change does is ensure that the council has a consistent role. It’s the council that approves a license, not the staff, Briere said. The change clarifies what the final step is. The council won’t consider an application that hasn’t been through the licensing board, she said.

Mayor John Hieftje remarked that if the council were going to postpone the licensing ordinance revisions, he didn’t want to spend a lot of time discussing it that night.

Licensing Revisions: Council Deliberations – Postponement

Briere then made a formal motion to postpone the licensing ordinance revisions. She suggested that the postponement be to a date no later than the middle of June. The reason for the ambiguity was because of the subsequent resolution that the council would be considering, that asks the planning commission to evaluate the zoning ordinance for possible changes. She did not want to put pressure on the planning commission to act.

Christopher Taylor (Ward 3) wondered if a postponement to a date certain could be achieved with a “not later than” phrase. Hieftje suggested making it June 18 – the second meeting in June.

Derezinski said he supported the postponement. He wanted to see the issue he’d raised addressed [about the idea of essentially revising an ordinance through a resolution]. The ordinance language had gone through “a meat grinder, or a sausage grinder,” he said, so to amend it by a simple resolution in the context of a license approval gave him a lot of concern. That gives the council a lot of latitude to act in the “public interest,” he said. Derezinski expressed concern about the vagueness of that phrase, as well.

Stephen Kunselman (Ward 3) also supported postponement. He said he shared Derezinski’s concern over the waiver of a provision of the licensing ordinance. It struck him as far-reaching, he said.

Outcome: The council unanimously postponed the medical marijuana licensing ordinance revisions until June 18.

Direction to City Attorney on Enforcement

On the council’s agenda was a resolution to “delay all enforcement activities against medical marijuana dispensaries and cultivation facilities except for claims that they violate Section 5:50.1(3) of the City Code [zoning regulations], until the Council amends or rejects amendments to the zoning and licensing ordinances for medical marijuana.”

The resolution had been twice-previously postponed. On March 5, the council did not arrive at the agenda item until after midnight, due to lengthy deliberations on the four-party countywide transit agreement. So on that occasion the council opted to postpone until they were mentally fresher. And on March 19, three of 11 members were absent, and the prevailing sentiment on the council was that postponement would be appropriate, in order to allow those three absent members to vote.

Direction to City Attorney: Background

To evaluate compliance with the Michigan Medical Marijuana Act (MMMA), the city attorney’s office required that dispensaries submit with their license applications a clear statement of exactly how their business models would conform with the MMMA. [For analysis of the role of the city council compared with the role of the city attorney and the licensing board in the licensing process set up by the city council, see "Ann Arbor Marijuana Licenses: Who Decides?"]

For example, Cannabis Counsel, the attorney for MedMarx at Arborside, included a statement explaining its MMMA conformance in the wake of Michigan v. McQueen (Compassionate Apothecary). An Aug. 23, 2011 court of appeals ruling on the case has been interpreted by many authorities to mean that no medical marijuana dispensaries are legal. [.pdf of letter from Cannabis Counsel regarding Arborside's business model] The McQueen case has been accepted for review by the Michigan Supreme Court, which means that it’s not yet settled case law. And the broadest interpretation of the McQueen case – that it bans all dispensaries – is itself controversial.

The Cannabis Counsel letter lays out why the court of appeals in the McQueen case found that the Compassionate Apothecary business model was not in compliance with the MMMA: The problem was that Compassionate Apothecary did nothing to “assist” patients in administering or using marijuana, beyond exchanging marijuana for money. In contrast to Compassionate Apothecary, argues Cannabis Counsel, Arborside does assist patients in the manner described by the court – by assisting the patient “in preparing the marihuana to be consumed in any of the various ways that marihuana is commonly consumed.” Those ways include providing patients with “cleaned prepared de-stemmed cannabis including pre-rolled joints, medibles which have been inspected, tested, cleaned, grinded and rolled, or cooked in combination with foodstuff.”

The Ann Arbor dispensaries met the city’s request to submit with their applications an explanation of their compliance with the MMMA. And on Jan. 31, 2012, the city’s medical marijuana licensing board voted to recommend licenses to 10 dispensaries. Yet after that, when dispensary owners felt like they’d completed the application process with the final step to be a vote by the city council, the city attorney’s office sent out letters demanding additional data.

Among the questions posed to all dispensaries in the letters are the following: “Does any person or entity deliver marijuana to [Dispensary Name]? If so, does [Dispensary Name] ever pay, donate, or in any way give money to the person or entity who delivers the marijuana or to anyone else? If so, to whom is the money paid, donated, or given and how much?” [.pdf of set of letters]

Dispensaries have balked at the additional data request, arguing that the information is sensitive and the collection of such data by the city was explicitly removed by the city council during the legislative process that resulted in approval of the licensing and zoning ordinances. But the city is currently not granting Chapter 55 zoning compliance permits to license applicants – on the grounds that compliance with the MMAA cannot yet be verified.

The licensing board met on Feb. 24 in response to the new letters, and asked that the resolution, which the council was considering for the third time on April 2, be voted on by the council.

Direction to City Attorney: Deliberations

Sabra Briere (Ward 1) led off deliberations by sketching out the background of the licensing board’s meeting on Feb. 24, describing it as an unanticipated meeting. The board felt very strongly that the role of the city attorney’s office needed to be clarified, and the only body that can do that is the city council, Briere said. [The city attorney is one of two positions hired directly by the city council. The other position is city administrator.]

Sandi Smith (Ward 1) expressed sympathy with the intent of the resolution, but wanted to offer an additional resolved clause that would allow the resolution to be rescinded at any regular or special meeting called for that purpose. That amendment was accepted as a “friendly amendment,” which did not require a vote of the council.

Tony Derezinski (Ward 2) cited the same issue he’d raised earlier, in connection with the proposed licensing ordinance revisions – it’s a resolution that has the effect of changing an ordinance the council has passed. It says don’t enforce the law as the council wrote the law, Derezinski contended. With respect to the idea that the enforcement would be delayed until the council decides what to do, Derezinski felt that’s pretty “loosey-goosey” and that it left open the possibility that enforcement could be delayed for quite some time – until licensing ordinance revisions are decided on. The council had passed an ordinance, and the city attorney is obliged to enforce it, Derezinski said, so he’d be voting against the resolution.

Addressing the amendment proposed by Smith, Carsten Hohnke (Ward 5) asked if it’s an action reserved for the council in any case – to call a special meeting and rescind a resolution. Briere confirmed that was the case – it’s a belt and suspenders approach.

Responding to Derezinski’s concern about the indefiniteness of the delay in enforcement, Briere pointed out that by its decision to postpone the ordinance revisions until June 18, there was a date in the future by which time the council expected the issue to be settled.

Christopher Taylor (Ward 3) stated his belief that the status of medical marijuana in the state law as currently articulated by the courts is inconsistent and at odds with the way that most Ann Arborites would like it to be. He included himself in that view. That resulted in a tension between the council’s action and the state of the law generally. He characterized the resolution as “wandering towards” that tension and seeking to resolve it. But he said he did not believe that the council should do that. The council is a body that is subordinate to state law. The council has also enacted local laws and he felt that until the council chooses to change the law, the law should be enforced. So he said he would not support the resolution.

Mike Anglin (Ward 5) asked for clarification of the request of a delay. He asked what information the city attorney was requesting of dispensaries – was it information that’s supposed to be protected? Briere confirmed that this was the case. The letter sent by the city attorney’s office requested the names of individuals involved in providing medical marijuana to dispensaries and other information as well. She said that for her part the line was crossed when the city began seeking information that it’s not supposed to be seeking.

As the legislation was being crafted, Briere noted that the council had talked about whether to require dispensaries to maintain lists of patients or people growing marijuana. The council learned that if it did collect such a list, it would in any case not be able to confirm that someone was allowed to grow marijuana, or have a patient card, because that information is restricted and the state would not release it. For the city’s purposes, they could not match a name with patient or caregiver numbers.

Briere said she could appreciate the desire of the city attorney’s office to verify that a dispensary operation is in compliance with the Michigan Medical Marijuana Act, but indicated she felt it was as difficult for the city attorney’s office to do that as it was for the licensing board to develop any criteria by which to evaluate applications.

It shouldn’t be sufficient that someone merely fills out all the paperwork in the right order in order to get a license, she said. But the board didn’t try to set criteria, because there were so many other issues in front of the board. The city attorney’s office is, through its recent letter, trying to set those criteria – which includes the collection of information that the council had agreed it shouldn’t collect. That caused a problem for the licensing board and it caused a problem for her, Briere concluded.

Derezinski invited city attorney Stephen Postema to tell his side of the story, because he’d been mentioned as the staff person involved. In an aside to Derezinski, Briere pointed out that she’d cited the city attorney’s office, not Postema.

Postema then spoke at length on the issue, characterizing his office’s letters as simply trying to verify that a dispensary is in compliance with state law. He argued that the council should be considering whether to award licenses to dispensaries recommended by the licensing board, not thinking about revising the licensing ordinance.

… frankly I don’t know why, under the ordinance, the business licenses aren’t before the council. Ordinarily they’d come there. So again, this is all sort of backwards in one sense, because what they’re trying to do is get a license. They can’t operate right now, they’re not allowed to operate at all – without a license. And that is what they should be wanting to be in front of you, so you can rule on it. So if they do comply with state law, they can get a license. So asking them for basic information is part of what needs to be there. And that’s nothing surprising. The fact that the licensing board somehow took offense to this, that’s because they’re operating in a different realm in some ways than what I’m being asked to do. So there’s nothing surprising there.

[Postema's claim that the lack of a license, while an application is pending, precludes operation of a dispensary is contradicted by the ordinance language, which specifically allows a dispensary to operate while its application is pending. For more detail, see "Ann Arbor Marijuana License: Who Decides"]

Postema expressed puzzlement that the licensing board was recommending that compliance with the MMMA be struck from the zoning ordinance. [The zoning ordinance issue was discussed by the council later in the meeting.]

With respect to the sensitivity of the information that his office was requesting, he contended that dispensary owners have been told specifically that they can disguise the information in “the way it’s talked about in the ordinance.” The ordinance provides for unique alphanumeric codes to be used in labeling as follows:

(4) All marijuana delivered to a registered qualifying patient shall be packaged and labeled as provided in this chapter. The label shall include:
(a) a unique alphanumeric identifier for the person to whom it is being delivered;
(b) a unique alphanumeric identifier for the registered primary caregiver who is delivering;
(c) a unique alphanumeric identifier for the medical marijuana cultivation source of the marijuana;

[In asking "... does [Dispensary Name] ever pay, donate, or in any way give money to the person or entity who delivers the marijuana or to anyone else? If so, to whom is the money paid, donated, or given and how much?” the city attorney is apparently seeking to establish whether a “sale” of marijuana is taking place at the dispensary. The McQueen case turned in part on the court’s view that the dispensary in that case was not providing assistance to patients in the medical use of marijuana beyond the provision of the raw material and was thus engaged merely in the sale of marijuana.]

Briere countered Postema’s contention that the names could be disguised by pointing out that the letters sent by Postema’s office asked, “… to whom is the money given?” She said that she understood that to mean, “… give me the name of the person …” And that’s how dispensary owners and the licensing board had understood it, she said. Briere recalled the lengthy council discussion about whether to collect the names of people who were involved.

She also said that given all the intricacies, the licensing board is not asking that other laws not be enforced, but that until the council decides what it will do with the ordinances, it asks the city attorney not to consider anything else. The members of the licensing board don’t want to talk about whether a license should be granted, if they believe that the council will be advised that no licenses should be granted. The board wants the council to consider amendments to the ordinances first. What she hears from the city attorney is that he can’t assert at this time that anybody complies with the ordinances. So why should licenses be considered, if the advice from the city attorney will be that nobody is in compliance? The licensing board was asking the council to deal with the ordinances, she said.

Stephen Kunselman (Ward 3) zeroed in on Postema’s question about why the licenses were not in front of the council. He noted that Briere had implied that if the licenses came before the council, the council would be advised that the dispensaries don’t comply with state law. He alluded to the public commentary about the narrow interpretation of the McQueen case.

So Kunselman asked Postema why the licenses are not in front of the council. Who would bring them, he asked? Would it be the city attorney, or the city administrator? That seems the most rational thing to do, he said, to start moving forward, rather than delaying enforcement. “Let’s get the license applications in front of us,” Kunselman said. Postema then contended, “I think they are in front of you in one sense. I don’t really know why, in the ordinary course of something like this, they would just come in front of you … it is before you, it just doesn’t show up on the agenda.” He indicated that his office would not ordinarily put such an item on the agenda, but that it would happen “automatically.”

Briere responded to Postema’s remarks by noting that the council had been provided with the licensing board’s report, which includes the dispensaries that have been recommended for licenses. She said that if it’s the council’s desire, she could bring the license recommendations to the council for a vote – she could do that as soon as the next meeting. But she noted that if the ordinances have not been resolved, then the council may not believe it has the ability to approve a license. It’s the council’s decision about the order in which things flow, she said. But the licensing board wants the ordinances dealt with first.

Mayor John Hieftje said that in following reports out of Lansing, it seemed to him that the state law is in “flux” – alluding to the supreme court’s decision to hear the appeal of the McQueen case and possible new legislation that’s being considered.

Postema told Hieftje that the state of the law is not in flux. The body of law in the court of appeals has been consistent, he said. Postema said it was not a surprise that the supreme court had agreed to hear the McQueen case. He said most people who are following the case don’t believe the ruling would change. However, he allowed that there could be a change in the analysis of McQueen. He indicated he’d shared his thoughts with people working on new state legislation. He said he was not going to pursue the issue right now. But he repeated his contention that “… right now they don’t have a license, they’re not in compliance with the ordinance.”

Hieftje noted how much time the council had spent on the issue over many months, and said he was reluctant to “do anything concrete” with the possibility that legislation might move in Lansing and court cases still being considered. He said he didn’t want to spend any more time on the issue than they needed to: “We’ve spent way too much time on this issue for what it should have warranted.” He laid that at the feet of the state legislature in Lansing, saying they’d totally dropped the ball on providing guidelines for local governments.

Sandi Smith (Ward 1) asked for confirmation from Postema that other cities have collected fees and issued licenses for dispensaries. Postema allowed that was true. Smith ask if there’d been any state action against the cities that had done that. Postema said he didn’t think there’d been state action.

Smith felt the council’s discussion had provided fodder for the licensing board to reconsider the methodology of trying to get the licenses to go forward. She suggested that the council send the message back that the council wants to look at the licenses – that was the approach she wanted to take. If the state does something, the council could make adjustments as needed.

Carsten Hohnke (Ward 5) expressed concern about the order of things. He indicated support for Smith’s desire to go ahead and have the council consider the licenses. He felt that if the council considered the licensing applications after changing the ordinances, the council might find itself wishing that it had maintained the same ordinance language. He felt that the point is to get some better understanding of how dispensaries are conforming. In the discussion of whether to approve licenses, the council might come up with an approach to dealing with that.

So Hohnke moved to table the resolution directing the city attorney. It did not feel like the right order of things, he said. Hieftje said his concern was that the council could consider the licenses and then find that six months later the rules have changed at the state level and the council would be back to considering the licenses again. “It doesn’t seem to end, is the problem here,” he said. Hieftje was somewhat reluctant to consider the licenses, given what he thinks the city attorney’s advice would be in the context of the state law. What he liked about the resolution is that it says basically, “Listen, there’s nothing really wrong right now, and we haven’t had any particular problems, let’s give ourselves some time …”

Hohnke said it would be nice to get direction from the legislature. But absent the consideration of a license, Hohnke said, the need for asking questions about whether there is compliance to support approval of the licenses would be moot. It’s not clear then what might happen that the resolution would address. So Hohnke moved to table the resolution and it was seconded by Smith.

Briere noted that it’s completely in the control of the council to postpone to a date certain or to table. She allowed that the need to bring this back off the table might not exist, if the council evaluates licenses. Things might not be resolved at the state level in three months. To delay this longer than three months seems wrong, she said. If the council wants to see licenses before June 18, it may never need to come off the table.

Christopher Taylor (Ward 3) said that as he understands the status quo, one suspects businesses are operating and people are obtaining medical marijuana under what they believe to be safe and comfortable conditions. He said he had a problem with the idea of ceasing the enforcement of existing laws, so he’d support the tabling.

Outcome: The council tabled the resolution on a 6-4 vote. Dissenting were Sabra Briere (Ward 1), Margie Teall (Ward 4), Mike Anglin (Ward 5) and mayor John Hieftje.

Given the sentiment expressed by Smith, Hohnke and Kunselman, there is at least some interest on the council in seeing the license recommendations come before the council. However, the city attorney has told at least one councilmember that his office would not be prepared to give advice on the issue at least until June.

Direction to Planning Commission

Another resolution on the April 2 council agenda would direct the city planning commission to review the medical marijuana zoning ordinance, including the licensing board’s recommended change. The one board-recommended change is to strike the following sentence: “Medical marijuana dispensaries and medical marijuana cultivation facilities shall be operated in compliance with the MMMA (Michigan Medical Marijuana Act).” [.pdf of the recommended zoning ordinance change. For analysis of the implication of striking the sentence, see "Ann Arbor Marijuana Licenses: Who Decides?"]

The discussion at the licensing board’s Jan. 18, 2012 meeting on this issue included concern expressed by dispensary owner Chuck Ream, who indicated that deleting the phrase could cause alarm and attract unwanted attention to Ann Arbor if it were incorrectly perceived as sending a message that Ann Arbor’s dispensaries would not be following Michigan’s medical marijuana law.

Tony Derezinski (Ward 2) led off deliberations on April 2 by saying that with the action the council had just taken – postponing the licensing ordinance revisions and tabling the direction to the city attorney – giving direction to the planning commission didn’t make sense. He said that action should be postponed.

Sabra Briere (Ward 1) pointed out that one reason for postponing the licensing ordinance revisions was to allow time for the planning commission to consider the medical marijuana zoning ordinance. There was no other reason to postpone it. So she did not encourage postponing the resolution.

Christopher Taylor (Ward 3) asked if there was any reason to think the planning commission would not take action on the licensing board’s request in due course. Briere said that if the council were to ask the planning commission to take a look at the recommended change, the commission would take some action.

Taylor followed up by saying that his understanding was that the ordinary course of things would have the planning commission considering the licensing board’s request [without involvement of the city council]. He asked if the licensing board had communicated its request to the planning commission. Briere indicated that it’s the council that would make the request, not the licensing board. Taylor questioned whether the planning commission really would not consider any zoning change unless it’s been specifically requested by the council. Briere replied that this was the order in which she’d been told she had to do things. Based on her conversations with the city attorney’s office, this was the order in which things needed to go.

Jane Lumm (Ward 2) asked if there were a legal reason why for the recommended change to delete the explicit mention of MMMA compliance. She felt it was not an unreasonable requirement to include in the zoning ordinance. She wondered if the suggestion was that dispensaries don’t need to be in compliance with the MMMA.

Briere explained that during the course of the application process, the licensing board members learned that in part because of that specific clause, that [in the city attorney's view] each license applicant had to prove they were in compliance. The rest of the zoning ordinance has requirements that mirror the requirements in the MMMA. But the specific clause prevented any of the dispensaries from obtaining a zoning compliance permit – because they couldn’t, to the satisfaction of the city staff, prove they were in compliance with the MMMA. Without a zoning compliance permit, no application was complete, Briere said.

Postema said he didn’t think it was unreasonable for the process to go to the planning commission and come back to the council.

Carsten Hohnke (Ward 5) said that the merits of the appropriate changes could be discussed later, but he felt that the proper order of things was to send it to the planning commission. Mayor John Hieftje felt it wouldn’t take the planning commission an inordinate amount of time to act.

Derezinski asked if the city council was asking the planning commission to delete the section that had been recommended for deletion by the licensing board. Postema clarified that the resolution was asking the planning commission to take a look at it – it would not require the planning commission to make any particular recommendation. Derezinski asked if this were a case of making a change to an ordinance through a resolution. No, said Postema. Derezinski confirmed with Postema that the planning commission could do whatever it felt was best.

Lumm found the deletion of the sentence confusing, from the perspective of a planning commissioner. Postema noted that any change would need to come back to the council. Briere observed that it’s within the purview of the planning commission to make any recommendation.

May 7 was specified in the resolution as the date by which the planning commission was supposed to act. Mike Anglin (Ward 5) asked if the May 7 date was appropriate. Planning manager Wendy Rampson noted that they’d need 15 days for noticing any public hearing on the issue. Also it might be hard to respond quickly without additional background. It would be helpful to have some additional time, say until the end of May, Rampson said. Hieftje proposed June 1, for which there was general agreement.

Outcome: The council approved the resolution giving direction to the planning commission to review the zoning ordinance over the sole dissent of Tony Derezinski (Ward 2).

Present: Jane Lumm, Mike Anglin, Margie Teall, Sabra Briere, Sandi Smith, Tony Derezinski, Stephen Kunselman, John Hieftje, Christopher Taylor, Carsten Hohnke.

Absent: Marcia Higgins.

Next council meeting: April 19, 2012 at 7 p.m. in the council chambers at 301 E. Huron. [confirm date]

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Most notably, the meeting featured remarks from city attorney Stephen Postema indicating that he believes medical marijuana dispensaries should not be in business now because they lack licenses: “… [dispensaries] can’t operate right now, they’re not allowed to operate at all – without a license.”

That contradicts the city’s ordinance, which allows dispensaries to operate while their license applications are still pending. (The city is still in the process of issuing its first licenses for dispensaries.) From the ordinance: “The medical marijuana dispensary may continue to operate pending final action on the application unless the Building Official determines that it must be closed for safety reasons.” When The Chronicle sent Postema an emailed query questioning the accuracy of his statement, he responded by insisting his statement was accurate. However, Postema declined to provide any foundation for his feeling that dispensaries lacking a license – even those with applications pending – are not allowed to operate by dint of having no license.

If dispensaries are assumed to be operating in violation of the Michigan Medical Marijuana Act, then they would not be allowed to operate – whether they had a license or not. However, at the April 2 meeting Postema did not identify a basis for such an assumption. He stopped short of describing an interpretation of a recent Michigan court of appeals ruling (the McQueen case) as banning all dispensaries, but said the ruling presented “severe difficulties” for dispensaries.

The council’s deliberations on Monday night can be understood in the context of a struggle between the city attorney’s office on the one hand, and some members of council and the medical marijuana licensing board. The struggle relates to who has the decision-making authority for awarding licenses, and when those licensing awards should be decided. From a formal, procedural point of view, it’s not an open question: The licensing board makes recommendations to the city council, which has the ultimate decision-making authority. The board has already recommended that licenses be awarded to 10 different dispensaries.

However, from a practical point of view, the council will act only under the advice of the city attorney’s office. Since the licensing and zoning ordinances were enacted by the city council last year, Postema has proceeded in a way that reserves a role for city staff in the licensing process that has an uncertain basis in the actual ordinances approved by the council. Revisions to those ordinances, meant in part to address some of those uncertainties, were part of the council’s April 2 agenda.

Here’s a summary of the outcome on medical marijuana issues at the April 2 meeting: (1) the council unanimously postponed consideration of licensing ordinance revisions until June 18 – the council’s second meeting that month; (2) on a 9-1 vote, the council approved giving direction to the city planning commission to review the zoning ordinance; and (3) on a 6-4 vote, the council tabled a resolution directing the city attorney to delay enforcement activities against dispensaries. A tabled resolution will demise if it’s not brought back off the table in six months.

Deliberations suggested in sum that the current arrangement in Ann Arbor, under which patients are still able to get medical marijuana from dispensaries, will persist at least until the city council votes on licenses. But the timing of that vote appears fairly uncertain, given the mixed signals currently being sent by the city attorney.

Provided in this article is analysis of some of the local issues related to medical marijuana licensing and zoning. The analysis culminates by showing how the interpretation of a single requirement in the city’s zoning ordinance – that dispensaries adhere to the Michigan Medical Marijuana Act – makes a significant difference in who makes the practical decision on whether dispensaries receive a license and can legally operate, and where the burden of proof lies for MMMA conformance.

Local Ordinances

The city council passed two pieces of legislation on medical marijuana at its June 20, 2011 meeting – a licensing ordinance and a zoning ordinance. The final approval of the legislation came after more than a year of legislative work, which began in closed sessions by the council held with its city attorney. The council’s first public discussion and action, however, did not come until the council’s Aug. 5, 2010 meeting, when the council imposed a moratorium on the “initiation or expansion” of medical marijuana business uses within the city. So the moratorium, which was extended several times from its initial 120-day period, did not apply to existing businesses.

Local Licensing: Pending Applications

Existing medical marijuana businesses with ongoing operations before Aug. 5, 2010 were recognized in Ann Arbor’s local licensing ordinance in at least two ways. [.pdf of Ann Arbor medical marijuana licensing ordinance] First, they were able to submit applications for a license before businesses that were not in operation before the moratorium. Second, the licensing ordinance explicitly provides for a dispensary’s continued operation while its application is pending [Emphasis added]:

7:504. Application requirements for new annual license or renewal of existing license; license requirements for new license and for renewed license.
(1) Application Submission.
A medical marijuana dispensary that commenced operation prior to passage of the moratorium by City Council on August 5, 2010, shall have until 60 days after the effective date of this chapter to submit an application for a new annual license. If the medical marijuana dispensary commenced operation prior to passage of the moratorium in a zoning district where its operation is not permitted under the zoning ordinance, the application shall be for a location in a zoning district where operation of a medical marijuana dispensary is permitted under the zoning ordinance. No other applications will be accepted by the City until 75 days after the effective date of this chapter. The medical marijuana dispensary may continue to operate pending final action on the application unless the Building Official determines that it must be closed for safety reasons. Within 60 days after an application is denied, the medical marijuana dispensary shall discontinue all operation.

Postema’s characterization of the situation at the April 2, 2012 council meeting is at odds with the content of the ordinance. His remarks came in the context of an argument he was making that the council should be thinking about voting on the license awards for the 10 dispensaries that had been recommended for licenses. Final action on their applications is still pending, because the city council has not yet voted on them. From Postema’s remarks to council [inaccurate statement emphasized with italics]:

… frankly I don’t know why, under the ordinance, the business licenses aren’t before the council. Ordinarily they’d come there. So again, this is all sort of backwards in one sense, because what they’re trying to do is get a license. They can’t operate right now, they’re not allowed to operate at all – without a license. And that is what they should be wanting to be in front of you, so you can rule on it. So if they do comply with state law, they can get a license. So asking them for basic information is part of what needs to be there. And that’s nothing surprising. The fact that the licensing board somehow took offense to this, that’s because they’re operating in a different realm in some ways than what I’m being asked to do. So there’s nothing surprising there.

An emailed query from The Chronicle to Postema pointing out the contradiction between the actual ordinance language and Postema’s inaccurate statement at the meeting was met with this reply: “There is no inaccuracy in the statement as a careful review of the entire zoning and licensing ordinances demonstrate.”

Unanswered by Postema was a follow-up invitation to explain how he reasoned that a dispensary with a pending license application is illegal (by dint of lacking a license), in light of the specific language of the ordinance.

Beyond the part of Postema’s statement that is contradicted by the licensing ordinance, his remarks raise some interesting issues, most notably whether a detailed demonstration of a dispensary’s compliance with the Michigan Medical Marijuana Act (MMMA) could be a pre-requisite to receiving a license under Ann Arbor’s local ordinance.

Local Licensing: Role of State Law (MMMA)

The city’s licensing ordinance includes two provisions that allow the city to revoke a license, after has been granted, if a state law is violated:

7:508. License revocation.
…
(4) Marijuana is dispensed on the business premises in violation of this chapter or any other applicable state or local law, rule or regulation;
(5) The medical marijuana dispensary is operated or is operating in violation of the specifications of the license application, any conditions of approval by the City or any other applicable state or local law, rule or regulation.
…

The licensing ordinance also includes violations of state law under its prohibited acts:

7:507. Prohibited acts.
…
(b) Produce, distribute or possess more marijuana than allowed by any applicable state or local law.
(c) Produce, distribute or possess marijuana in violation of this chapter or any other applicable state or local law.
…

And the licensing ordinance requires that the conduct of business at a dispensary conform to a specific quantity requirement of the MMMA:

7:506. Conduct of business at a medical marijuana dispensary.
…
(3) No more marijuana than is permitted under the MMMA shall be kept on the premises of a medical marijuana dispensary.
…

However, the licensing ordinance does not establish as a pre-condition for licensing a demonstration that a dispensary has a business model that conforms with the MMMA.

The licensing ordinance does, however, establish a requirement that a license application include a zoning compliance permit:

7:504. Application requirements for new annual license or renewal of existing license; license requirements for new license and for renewed license.
…
(2) Application requirement for new licensee
…
(h) A zoning compliance permit that shows the proposed medical marijuana dispensary is located in a zoning district that would permit its operation.

Based just on Chapter 95, which contains the medical marijuana licensing code, it appears that a “zoning compliance permit” is simply a certification that a dispensary is in the correct zoning district. Otherwise put, as described in Chapter 95, a zoning compliance permit is simply a formal mechanism for ensuring that an applicant for a medical marijuana license intends to operate in a district that has been explicitly zoned for medical marijuana dispensaries.

By way of background, in Ann Arbor, medical marijuana dispensaries can be located only in those districts zoned as D (downtown), C (commercial), or M (industrial), or in PUD (planned unit development) districts where a retail use is permitted in the supplemental regulations.

Local Licensing: Chapter 95 Zoning Compliance Permit

But a zoning compliance permit is a notion that’s not unique to Chapter 95. The fact that there are other uses for a “zoning compliance permit” within the city bureaucracy – besides certifying that a business is in a district zoned for medical marijuana dispensaries – is made explicit in Chapter 95. In describing how the fee for a zoning compliance permit is assessed, Chapter 95 states [emphasis added]:

Fees for zoning compliance permits and certificates of occupancy shall be separate from the application fee, but shall be the same amount and shall be paid pursuant to the same procedures as applied to applications for zoning compliance permits and certificates of occupancy for other uses.

So Chapter 95 acknowledges that a zoning compliance permit as described in Chapter 95 serves a different purpose from zoning compliance permits mentioned elsewhere in the code. The purpose of a Chapter 95 zoning compliance permit, then, is none other than to establish that the dispensary is located in the correct zone. Nothing in Chapter 95 connects the granting of a zoning compliance permit to any type of compliance with the MMMA.

Local Zoning: Chapter 55 Zoning Compliance Permit

In evaluating license applications, however, the city attorney’s office and planning staff have applied an additional condition on granting zoning compliance permits – beyond a requirement that a dispensary is correctly zoned. That additional condition is for a dispensary to demonstrate compliance with the MMMA, which the city attorney’s office ascribes to the Chapter 55 zoning.

Local Zoning: Chapter 55 ZCP Conditions

The basis that staff is using for this additional requirement is not in Chapter 95, the medical marijuana licensing ordinance, but rather in Chapter 55, the general city ordinance on zoning. Chapter 55 includes the zoning regulations for medical marijuana dispensaries. [.pdf of medical marijuana zoning ordinance]

The Chapter 55 zoning compliance permit for medical marijuana dispensaries is described as follows:

(4) Medical Marijuana Dispensary and Medical Marijuana Cultivation Facility Regulations
…
(h) A zoning compliance permit shall be required consistent with Section 5:92

What is Section 5:92 of Chapter 55? It includes the following:

5:92. Zoning compliance permit required.
(1) It shall be unlawful to begin the excavation for the construction, the moving, alteration, or repair, except ordinary repairs as defined in Chapter 98 of the Ann Arbor City Code, of any building or other structure, including an accessory structure, costing more than $100.00 or exceeding 100 square feet in area until the Planning and Development Services Manager has issued for such work a Zoning Compliance Permit which includes a certification of his determination that plans, specifications, and the intended use for such structure do, in all respects, conform to the provisions of this Chapter.

Hypothetically, a dispensary that did not need to undertake any construction or alteration of a premises costing more than $100 or exceeding 100 square feet could meet the (4)(h) requirement without having a zoning compliance permit. That is, even though it did not have a Chapter 55 permit, it would still be consistent with 5:92. Such a hypothetical dispensary could then reasonably expect to be issued a Chapter 95 zoning compliance permit, if it simply demonstrates it is located in the correct zone.

So what is the basis of the city attorney’s contention that it’s his obligation to verify compliance with the MMMA? Consider a dispensary that undertakes enough work on the premises to trigger the 5:92 requirement that it obtain a Chapter 55 zoning compliance permit. In that case, the planning manager would need to determine that the “intended use” – as a medical marijuana dispensary – conforms to all the provisions of Chapter 55.

And one provision of Chapter 55 is this:

(4) Medical Marijuana Dispensary and Medical Marijuana Cultivation Facility Regulations
…
(k) Medical marijuana dispensaries and medical marijuana cultivation facilities shall be operated in compliance with the MMMA.

Local Zoning: State Law in Chapter 55 ZCP Conditions

Some licensing board members had this understanding of the city’s ordinance: If a dispensary owner states that the dispensary will or does conform with the MMMA, then the city planning manager could determine that the intended use as a medical marijuana facility conforms with (4)(k). Some board members felt that such an assurance would meet the conditions of a Chapter 55 zoning compliance permit.

It’s also possible to analyze the licensing requirements in a way that would result in the granting of a license, based on a Chapter 95 zoning compliance permit, but that could be followed by an immediate revocation of the license if the dispensary tried to operate, for failure to have a Chapter 55 zoning compliance permit.

The city attorney’s office sees the issue differently from the licensing board. The city attorney has interpreted the (4)(k) requirement to mean that a dispensary must demonstrate MMMA compliance to the city attorney’s office before it will be issued a zoning compliance permit. So the zoning compliance permits of the dispensaries that have been recommended for licenses are still pending. To evaluate compliance with the MMMA, the city attorney’s office required that dispensaries submit with their license applications a clear statement of exactly how their business models would conform with the MMMA.

For example, Cannabis Counsel, the attorney for MedMarx at Arborside, included a statement explaining its MMMA conformance in the wake of Michigan v. McQueen (Compassionate Apothecary). An Aug. 23, 2011 court of appeals ruling on the case has been interpreted by many authorities to mean that no medical marijuana dispensaries are legal. [.pdf of letter from Cannabis Counsel regarding Arborside's business model] The McQueen case has been accepted for review by the Michigan Supreme Court, which means that it’s not yet settled case law. And the broadest interpretation of the McQueen case – that it bans all dispensaries – is itself controversial.

The Cannabis Counsel letter lays out why the court of appeals in the McQueen case found that the Compassionate Apothecary business model was not in compliance with the MMMA: The problem was that Compassionate Apothecary did nothing to “assist” patients in administering or using marijuana, beyond exchanging marijuana for money. In contrast to Compassionate Apothecary, argues Cannabis Counsel, Arborside does assist patients in the manner described by the court – by assisting the patient “in preparing the marihuana to be consumed in any of the various ways that marihuana is commonly consumed.” Those ways include providing patients with “cleaned prepared de-stemmed cannabis including pre-rolled joints, medibles which have been inspected, tested, cleaned, grinded and rolled, or cooked in combination with foodstuff.”

The Ann Arbor dispensaries met the city’s request to submit with their applications an explanation of their compliance with the MMMA. And on Jan. 31, 2012, the city’s licensing board voted to recommend licenses to 10 dispensaries. Yet after that, when dispensary owners felt like they’d completed the application process with the final step to be a vote by the city council, the city attorney’s office sent out letters demanding additional data.

Among the questions posed to all dispensaries in the letters are the following: “Does any person or entity deliver marijuana to [Dispensary Name]? If so, does [Dispensary Name] ever pay, donate, or in any way give money to the person or entity who delivers the marijuana or to anyone else? If so, to whom is the money paid, donated, or given and how much?” [.pdf of set of letters]

Dispensaries have balked at the additional data request – the information is sensitive and the collection of such data by the city was explicitly removed by the city council during the legislative process that resulted in approval of the licensing and zoning ordinances. But the city is currently not granting Chapter 55 zoning compliance permits to license applicants – on the grounds that compliance with the MMAA cannot yet be verified.

Significance of (4)(k)

The interpretation of the seemingly innocuous requirement in (4)(k) of the zoning ordinance – that a dispensary operate in compliance with the MMMA – has a significant impact on two things: (1) Who makes the practical decision on dispensary license awards? and (2) Who bears the burden of proof with respect to the MMMA?

Significance of (4)(k): Applicability of the MMMA?

Absent the (4)(k) requirement, the city would need some other basis to deny a Chapter 55 zoning compliance permit to a dispensary. And that is one reason that the licensing board has recommended that (4)(k) be struck from the ordinance. At the council’s April 2 meeting, the idea of striking the (4)(k) was met with professed puzzlement by some councilmembers as well as the city attorney. Their rhetorical position trades on the idea that striking the provision would somehow mean that dispensaries do not have to operate in accordance with the MMMA. In fact, of course, removing the requirement would have no effect on the applicability of the MMMA. It’s not possible to render a state law inapplicable by failing to mention it in a local ordinance.

Significance of (4)(k): Decision Point

But it’s not entirely true – as city attorney Stephen Postema claimed at the April 2 meeting – that “… the [proposed] changes in the zoning or the other ordinance aren’t going to change the issue of whether they are compliant with state law.”

Under Postema’s understanding of the (4)(k) requirement, there’s a decision point before a city council vote on license awards. That decision point is effectively made by the city attorney – about granting a Chapter 55 zoning compliance permit. The decision has a material effect on a dispensary’s ability to operate. If a Chapter 55 zoning compliance permit is denied, or still pending, then it’s not clear why a councilmember would vote yes on the award of such a license.

From a practical point of view, operating without a zoning compliance permit would be a violation of the zoning ordinance (even if the zoning compliance permit were still pending), and that would be grounds for revocation of the license, even if one were awarded. So even if a license were awarded by the council, it would not give the dispensary the ability to operate in the absence of a Chapter 55 zoning compliance permit. On that scenario, a dispensary would have a meaningless license and could not operate until the city attorney decided to issue a zoning compliance permit.

Postema’s office has still not made decisions on the issuance of Chapter 55 zoning compliance permits for the dispensaries that have been recommended for licenses by the licensing board. The permits are still pending. So it’s not clear why Postema would say at the council’s April 2 meeting: “… frankly I don’t know why, under the ordinance, the business licenses aren’t before the council. Ordinarily they’d come there.” It’s especially not clear why Postema would say that, when he has told at least one city councilmember that his office would not be prepared for licenses to come before the council until June.

Postema’s feeling – that a zoning compliance permit can be issued only if he is satisfied that the dispensary is MMMA compliant – has a consequence for the practical decision point on awarding licenses. In order for the council to take a vote on awarding licenses with any practical consequence, a dispensary will need to have a zoning compliance permit. And if a dispensary has a zoning compliance permit, that means the city attorney has been satisfied that a dispensary is MMMA compliant.

So for any meaningful council vote on a dispensary license award, Postema will have publicly indicated that the dispensary is MMMA compliant – through granting a zoning compliance permit. If Postema were to present the opposite view confidentially to the city council in advising against the award of a license, that would be inconsistent with his public decision to grant a zoning compliance permit. So from a practical point of view, Postema’s interpretation of the criteria for granting a zoning compliance permit – the (4)(k) provision – moves the decision-making step on licenses from the city council to his office.

In contrast, on the licensing board’s interpretation of the (4)(k) requirement, dispensaries would simply need to do what they’ve already done – provide an assurance that their intent is to comply with the MMMA and a rationale for why their business model is MMMA compliant. On that interpretation, a dispensary would qualify for a zoning compliance permit if it’s located in the correct zone.

At that point, a license award could be voted up or down by the city council, with the city attorney free to provide the council whatever legal advice he felt was appropriate. For example, Postema’s advice could run along the following lines: Even while the dispensary owner has given an assurance of intent to operate in compliance with the MMMA, thus earning a zoning compliance permit, the opinion of the city attorney is that this dispensary will not or does not achieve actual compliance with the MMMA, based on a stated set of reasons.

Significance of (4)(k): Burden of Proof

The licensing board’s interpretation of (4)(k) would also have a practical effect on the issue of state law compliance – with respect to who has the burden of proof. The city attorney’s office contends that under the current zoning and licensing legislation, a dispensary has the burden of proof to demonstrate to the city attorney that it’s in compliance with the MMMA before it can be issued a zoning compliance permit. In any case, the zoning compliance permit is required under the zoning ordinance in order for a dispensary to operate – whether it has a license or not.

On the licensing board’s interpretation of (4)(k) – or if (4)(k) were deleted, as the board recommends – dispensaries would be issued zoning compliance permits. That issuance would be based on their appropriately-zoned location and their intention and rationale for compliance with the MMMA.  The city council could then weigh the city attorney’s advice in making its decision on a license award. And it’s possible that the city attorney’s advice would be that a particular dispensary already did not conform to the MMMA, or did not have a business model that would conform.

But suppose the council made a decision to award a license, against the city attorney’s advice. Then, if Postema believed the dispensary were operating in violation of the MMMA, the burden of proof would be on him to demonstrate that’s the case, in the context of starting a license revocation process.

Conclusion

The interpretation of the (4)(k) requirement thus has a significant impact on: (1) who makes the practical decision on license awards and the ability of dispensaries to operate; and (2) who has the burden of proof for determining MMMA compliance. On the city attorney’s interpretation, a practical decision on license awards can be made by his office, and the burden of proof for compliance rests with the dispensaries. On the licensing board’s interpretation, the practical decision about a license award is made by the city council, and the burden of proof on MMMA compliance rests with the city attorney.

So by suggesting that (4)(k) be struck from the zoning ordinance, the licensing board is not suggesting that dispensaries be allowed to operate in violation of the MMMA. Rather, the licensing board is suggesting that the question of interpreting (4)(k) – and its impact on the granting of zoning compliance permits and license awards – be removed from the discussion. With no (4)(k) left to interpret, the practical decisions on license awards would be made by the city council, and the burden of proof for violation of the MMMA would rest with the city attorney.

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