The city lost both phases of the litigation, which began when the city sought to enforce city charter eligibility requirements against Dascola to prevent him from being a candidate in the Ward 3 city council Democratic primary race. The election was won by Julie Grand in a three-person field that included Samuel McMullen.

The $35,431.75 amount is the total agreed to for the initial phase of the lawsuit on city charter eligibility requirements ($30,731.75), plus half the amount that was agreed to in the second phase, which involved the counting of misprinted ballots ($9,400). The other half of the $9,400 will be paid by the state of Michigan, which intervened in the second phase of the lawsuit. So the total paid to Dascola’s attorney, Tom Wieder, will be $40,132, which includes court costs.

Fees for the initial phase of the lawsuit were settled on June 19, 2014 – at $30,731.75. That total includes attorney fees in the amount of $30,306.25 – which was the result of 93.25 hours billed at an hourly rate of $325. The remainder of that total was $425.50 – costs for filings and document retrieval.

The motion for fees in the second phase of the lawsuit was filed by Wieder on Aug. 19, 2014 and asked for a total of $12,320 based on 30.80 hours of work at $400 per hour. Wieder’s filing parcels out each item of work to either the city or the state or to both jointly. The amount was reduced to $9,400 through back-and-forth among Wieder, the state and the city, with the final settlement splitting the amount evenly between the city and the state. [.pdf of Aug. 19, 2014 motion for fees]

The initial phase of the lawsuit was decided in favor of Dascola on May 20, 2014. At issue were city charter durational requirements on voter registration and residency – that require city councilmembers to be registered to vote in the city and to be a resident of the ward they want to represent for at least a year prior to taking office. Dascola contended he met the residency requirement, but conceded that he fell short of the voter registration requirement. He did not register to vote in the city until Jan. 15, 2014. The court ruled that the requirements were not enforceable, because they’d been ruled unconstitutional in the early 1970s, and never re-enacted by the city. Dascola submitted sufficient signatures to qualify, so the impact of the ruling was that Dascola was supposed to appear on the Ward 3 ballot.

However through a series of errors, his name did not appear on the printed ballots and nearly 400 of the misprinted ballots were sent to Ward 3 absentee voters. A dispute arose over how ballots would be counted if someone did not return one of the replacement ballots. The state of Michigan intervened on behalf of the Bureau of Elections, which told the city to go ahead and count the ballots. But on July 22, 2014 the federal court ruled that such ballots should not be counted.

The kind of city charter eligibility requirements that triggered the lawsuit in the first place should not become an issue in the future, if Ann Arbor voters approve charter amendments that the city council has voted to place on the Nov. 4, 2014 ballot.

On May 6, 2014, the final court-ordered supplemental briefs were submitted by both sides in the lawsuit, filed by Bob Dascola against the city of Ann Arbor. Dascola contends he’s an eligible candidate and wants the court to order that he be placed on the ballot in the Ward 3 city council Democratic primary. He would join Julie Grand and Samuel McMullen in that election, which will be held on Aug. 5, 2014.

But as the electorate awaits a ruling from federal judge Lawrence Zatkoff, the two sides have continued to lather up. Late last week, Tom Wieder – the attorney for Dascola – filed a motion asking permission from the court to file an amended complaint. The motion for leave to file the amendment describes the nature of the amendments as clarifying the precise source of rights that Dascola is seeking to enforce in his lawsuit [the Equal Protection Clause of the 14th Amendment and his rights under 42 U.S.C. §1983], and to clarify the basis of the claim for attorney fees, if Dascola wins. The motion contends that the changes to the complaint are minimal and raise no new legal or factual issues. On its face, the motion appears intended to ensure that Wieder can be paid, if Dascola were to prevail.

However, in responding to the motion for leave to file an amended complaint, Ann Arbor city attorney Stephen Postema offers a cutting characterization. He calls it ”procedurally odd” and accuses Wieder of failing to exercise due diligence in filing the motion. In addition, Postema responds to arguments made in Wieder’s supplemental brief, on the substance of the lawsuit. The substantial issue raised by the lawsuit involves the status of laws – like the city’s charter durational residency and voter registration requirements – when those laws have been found to be unconstitutional, null and void by a federal court.

Wieder responded in kind to the city’s brief, writing that the city does the following:

1) Misrepresent the nature of the proposed Amendment; 2) Misrepresent authority on the issue of futility and its applicability to this case; 3) Continue its fabricated argument that Plaintiff claims Charter Section 12.2 was “repealed” by the Feld and HRP decisions; 4) Produce and present to the Court what is, essentially, a Response Brief to Plaintiff’s Supplemental Brief, although none was called for by the Court’s Order; and 5) Present a fanciful “parade of horribles” that will befall the Court, the candidates, “possible donors and supporters,” the public and the Defendants if the Amendment is allowed.

By way of background, Ann Arbor’s city charter includes two durational requirements for city councilmembers – that they be registered voters in the city for a year before election, and that they be residents of the ward they seek to represent for a year before election.

Dascola contends that he meets the residency requirement. He allows that he does not meet the voter registration requirement. But Dascola’s core legal claim is that the two charter provisions were struck down as unconstitutional, null and void in federal court cases dating from the 1970s. The city contends that it can enforce the two city charter requirements based on case law that evolved subsequent to the 1970s cases.

The court ordered an expedited schedule so that the issue might be resolved before early June, when ballots must be printed. Briefs, responses, and replies had already been filed in April on motions for summary judgment and dismissal.

Here’s the complete set of briefs in the Dascola case, including the filings from last week.

• 03.28.14 [.pdf Dascola v. City of A2: Complaint]
• 03.29.14 [.pdf Dascola v. City of A2: Motion for Summary Judgment]
• 04.14.14 [.pdf Dascola v. City of A2: Motion to Dismiss]
  
• 04.14.14 [.pdf Dascola v. City of A2: Response to Motion for SJ]
• 04.18.14 [.pdf Dascola v. City of A2: Reply in Support of Motion for SJ]
• 04.18.14 [.pdf Dascola v. City of A2: Response to Motion to Dismiss]
• 04.23.14 [.pdf Dascola v. City of A2: Reply to Response to Motion to Dismiss]
• 05.06.14 [.pdf Dascola v. City of A2: Plaintiff's Supplemental Brief]
• 05.06.14 [.pdf Dascola v. City of A2: Defendant's Supplemental Brief]
• 05.08.14 [.pdf Dascola v. City of A2: Motion for Leave to File Amended Complaint]
• 05.09.14 [.pdf Dascola v. City of A2: Response to Motion for Leave to File Amended Complaint]
• 05.11.14 [.pdf Dascola v. City of A2: Reply to Response to Motion for Leave to File Amended Complaint]

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

A standard football-themed bit of joke advice on Ann Arbor politics goes like this: “Fake left, run right.” But football season is long since over and baseball season has started. This is a variant of that football joke – a spoof of the Ann Arbor city charter language projected onto a baseball. (“Art” by The Chronicle).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Who Are City Officers?

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

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

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

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

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

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

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

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

From the city charter:

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

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

What Was the 2003 Ballot Question?

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

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

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

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

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

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

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

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

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

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

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

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

Rinse, Repeat

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

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

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

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

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

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

Right now we’re still lathering up.

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Bob Dascola sitting in the audience of the April 19, 2011 Ann Arbor city council meeting. On that occasion, he addressed the council during public commentary on the topic of panhandling in the State Street area, where his downtown barbershop is located. (Image links to Chronicle report of that council meeting.)

But Dascola was subsequently notified by the city clerk that he did not meet city charter eligibility requirements to represent Ward 3 on city council for this election cycle.

Dascola will be challenging the city clerk’s conclusion based on court cases from the early 1970s.

The Ann Arbor city charter includes two time-based eligibility requirements for city office: (1) a requirement that any local elected official must have been registered to vote in the city for a year before election to office; and (2) a requirement that a city councilmember must have been a resident of the ward they’re elected to represent for at least a year before being elected.

Dascola has lived on Baldwin Avenue in Ward 3 for about a year and a half, he told The Chronicle, but he did not register to vote in the city until Jan. 15, 2014. So he appears to meet the residency requirement, but not the voter registration requirement.

However, both of those Ann Arbor city charter provisions were explicitly ruled unconstitutional in federal court cases dating from the early 1970s.

So Dascola will be asserting his right to compete in the Ward 3 primary. He is represented in the matter by attorney Tom Wieder.

In a telephone interview on March 15, Wieder indicated that if “friendly persuasion” does not result in a change to the city’s position, then he’s prepared to move forward to file a lawsuit to ensure that Dascola can run.

And in the meantime, Wieder told The Chronicle, Dascola will be collecting signatures and submitting them to the city clerk as soon as possible. Dascola confirmed by phone that he was collecting signatures on the afternoon of March 15 – a change from an earlier strategy of waiting until the matter is sorted out.

Wieder ventured it is possible that based only on the charter language, someone might in good faith think that Dascola would not be eligible to represent Ward 3 if he were elected this year. But two separate federal court orders – one from Jan. 12, 1972 and the other from March 29, 1972 – struck down as unconstitutional the Ann Arbor city charter residency requirement and voter registration requirement, respectively.

It does not appear likely that a July 30, 2002 ruling by 22nd circuit court judge Timothy Connors might play any role in the resolution to Dascola’s case. The Wojack case – also handled by Wieder – involved the 2001 candidacy of Republican Scott Wojack to run in Ward 1. Wojack was told he could not run based on the in-ward residency requirement. He was allowed to run. But after the 2001 election, Connors issued an opinion upholding the charter residency requirement.

However, according to Wieder: “A state court cannot overturn an existing, binding decision of a federal court on the same subject.” Further, the Wojack case involved the residency requirement, not the voter registration requirement. And it is the voter registration requirement that appears to be the basis of the city’s conclusion on Dascola’s ineligibility.

Ann Arbor City Charter: Two Requirements

The charter provisions on eligibility for office come from Chapter 12: “Officers.” Two one-year requirements are included – the first on voter registration and the other on in-ward residency.

The phrase “registered elector of the city” can be glossed as “registered to vote in the city.” From the charter [emphasis added]:

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

According to Dascola, he moved to his Ward 3 address on Baldwin Avenue from Grass Lake, Mich., about a year and a half ago. So Dascola appears to meet the requirement that he be a resident of Ward 3 for at least a year immediately preceding election.

However, Dascola indicated that he did not register to vote in the city until Jan. 15, 2014. That would put him outside the charter requirement for voter registration in the city – by about two months.

City’s Position: Residency or Voter Registration?

It’s not completely clear if the city’s position is that Dascola doesn’t meet the residency requirement or that he doesn’t meet the voter registration requirement, or both. The document maintained by the city clerk’s office to track petitions includes an asterisk by Dascola’s name with the notation: “Not eligible doesn’t meet one year residency requirement.”

City clerk staff provided that document to The Chronicle – with its asterisk and note – on March 13, the day after Dascola took out petitions to run. That came in the course of a regular in-person visit by The Chronicle to the clerk’s office to check on recent petition activity. At the office counter, city clerk Jackie Beaudry indicated that her conclusion that Dascola was not eligible was based on his voter registration date, which is public information that can easily be verified.

Wieder described the language in a letter Dascola received from the clerk’s office as somewhat unclear on the question of residency or voter registration. But he indicated that it suggests that the city’s conclusion is based on the one-year voter registration requirement.

Federal Court Cases

Two separate federal court cases from almost a half-century ago – about three months apart – struck down first the residency requirement and then the voter registration requirement of the Ann Arbor city charter.

The first case was brought by Daniel J. Feld, Charlene Parker Stern and Bruce S. Kahn. From Ann Arbor News coverage on Dec. 31, 1971:

In October, Feld attempted to take out nominating petitions to run for city council from the Second Ward. However, within the previous 12 months he had moved temporarily to the Fourth Ward and was ruled ineligible to run for the Second Ward by City Clerk Harold Saunders. Miss Stern and Kahn were involved in the suit as registered city voters who claimed they would be deprived of their rights to vote for the candidate of their choice if Feld was not allowed to enter the election.

From the court order by U.S. District Court Judge Lawrence Gubow, filed on Jan. 12, 1972 [emphasis in bold added]:

IT IS FURTHER ORDERED and declared that the portion of Section 12.2 of the Ann Arbor City Charter which requires all candidates for the office of councilman to have been residents of the ward from which they are elected for at least one year immediately preceding their election violates the equal protection clause of the 14th Amendment to the U.S. Constitution and is, therefore, unconstitutional and void. [From court order for Feld v. City of Ann Arbor]

The Ann Arbor News coverage of the Feld case highlights the difference between the residency requirement and the voter registration requirement:

Judge [Lawrence] Gubow ruled only on the one-year residency requirement, and did not rule unconstitutional the charter language requiring that a person be a registered voter for at least a year before assuming elective office. [City attorney Jerold] Lax said persons seeking elective office will have to have the one year of voter registration, stating that he asked Judge Gubow specifically if his ruling went beyond the residency requirement. The answer was “no.”

Even though Gubow’s ruling on the Feld case struck down only the Ann Arbor city charter’s residency requirement, just two and a half months later, the voter registration requirement was also struck down – by U.S. District Judge Ralph Freeman. That came in a ruling on a case brought by the Human Rights Party, David Black and Mark Dickman. Black was the HRP nominee for Ward 4 city council. Dickman was a registered voter who wanted to vote for Black. From Freeman’s order [emphasis in bold added]:

IT IS FURTHER ORDERED and declared that the portion of Section 12.2 of the Ann Arbor City Charter which requires all candidates for the office of councilman to have been registered electors of the City of Ann Arbor for at least one year immediately preceding their election violates the equal protection clause of the Fourteenth Amendment to the U.S. Constitution and is, therefore, unconstitutional and void. [From court order for Human Rights Party et al v. City of Ann Arbor]

In the opinion written by Freeman, he begins by noting the outcome of the Feld case. He then contemplates application of either the “rational basis” test or the “compelling interest” test for the charter requirement. He decides that question in favor of the “compelling interest” test, citing a U.S. Supreme Court decision from 1972 [Bullock v. Carter] on which “a filing fee system imposed on prospective candidates in Texas could not be sustained merely upon the showing of a rational basis.” [Opinion in Human Rights Party et al v. City of Ann Arbor]

The “compelling interest” of the city was claimed to be that “a candidate has some commitment to the electoral process.” Freeman concluded that, “Certainly, this is a proper interest.” However, Freeman then notes that “those measures which the city takes to further its interest must be carefully fashioned to attain their purpose without unnecessary infringement on the rights of the electorate.”

Freeman’s opinion cites a number of state offices that do not impose an additional requirement that a candidate’s voter registration must persist for a year before taking office. Freeman then goes on to state:

We can see some merit in the proposition that registration to vote indicates a belief in, or commitment to, the electoral process, but we do not see that maintaining that status as a registered elector for a period of one year necessarily has any relationship to determining the commitment of the registered voter to that process.

Freeman drives home that point by quoting from another opinion, written by judge Damon Keith:

Judge Keith said in Green, supra, at p. 634, In our opinion a candidate is not like a fine vintage wine. His years of residency in a particular community do not necessarily make him a better candidate.

Next Steps

Wieder indicated it might be possible that someone could conclude in good faith – based on just the language of the charter and without knowledge of the two federal cases – that Dascola was not eligible to represent Ward 3.

Wieder said he’s hopeful that when the federal cases are pointed out to the city, it will be recognized that the two charter requirements no longer have any force. If “friendly persuasion” does not result in Dascola being allowed to run for city council, then Wieder indicated a lawsuit would be filed.

Context of Ward 3 Race

The only other candidate so far to take out petitions to run in the Ward 3 Democratic primary is Julie Grand, who also competed in the August 2013 primary. Incumbent Stephen Kunselman received more votes than Grand in that race.

Kunselman is not up for re-election in 2014, but is running for mayor, along with three other councilmembers: Sabra Briere (Ward 1), Sally Petersen (Ward 2) and Christopher Taylor (Ward 3). Because he cannot simultaneously run for mayor and run to retain his Ward 3 seat on the council, Taylor’s decision to run for mayor leaves that seat open.

Petitions for the partisan primary in August 2014 must be turned in by April 22. For councilmembers, 100 signatures are required from their ward. For mayor, the requirement is for 50 signatures from each of the city’s five wards, for a total of 250 signatures.

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The land acquisition component of the closed session likely relates to the pending sale of the Edwards Brothers property on South State Street to the University of Michigan for $12.8 million, which was announced in a press release last week. A right of first refusal on the property is held by the city of Ann Arbor as a condition of a tax abatement granted by the city council almost three years ago, on Jan. 18, 2011.

Under Ann Arbor’s city charter, a special meeting can be called on request of the mayor or by any three councilmembers. In the case of the Dec. 9 special meeting, it was Sabra Briere (Ward 1), Jane Lumm (Ward 2) and Jack Eaton (Ward 4) who signed the call for the special meeting.

The unusual 4 p.m. start time for the special meeting results from the fact that the council already had its annual budget planning work session scheduled to start at that time and to last as long as 11 p.m. The location of the budget planning session will be the jury assembly room in the Justice Center adjoining city hall. The special meeting will be held in city hall, however – under the city charter provision requiring that “Special meetings of the Council shall be held at the regular meeting place thereof …”

The sequence of a special city council meeting followed by the budget planning session was also played out last year in mid-December. That’s when the council convened a special meeting to take a vote protesting the establishment of the southeast Michigan Regional Transit Authority. Like last year, the council’s budget planning session will be led by Julia Novak of the Novak Consulting Group.

At its Aug. 9 meeting, the Ann Arbor city council considered three different charter amendments for inclusion on the Nov. 6 ballot. Two were for millages, and a third was for a restriction on the contractual powers of the city with respect to parkland.

The council voted unanimously to place on the ballot a renewal of the city’s parks maintenance and capital improvements millage at the rate of 1.1 mills. One mill is $1 for every $1,000 of taxable value on a property. So for a house worth $200,000, with a state-equalized value of $100,000, a 1.1 mill tax would cost that property owner $110 per year. A renewal would run from 2013-2018 and raise about $5 million next year.

Examples of park maintenance activities include forestry and horticulture, natural area preservation, park operations, recreation facilities, and targets of opportunity. Capital improvement projects would cover parks, forestry and horticulture, historic preservation, neighborhood parks and urban plazas, park operations, pathways, trails, boardwalks, greenways and watersheds, and recreation facilities. The city’s park advisory commission (PAC) had voted unanimously nearly two months ago at its June 19, 2012 meeting to recommend placing that millage renewal before voters.

But one day before the council’s Aug. 9 meeting, PAC had voted unanimously against recommending that another park-related question be placed on the ballot – one that would have asked voters if they wanted to amend the city charter to require a referendum to lease parkland for non-park or non-recreational use for longer than five years. PAC was able to consider a recommendation only because the council had postponed the measure at its July 16, 2012 meeting.

And at its Aug. 9 meeting, the city council did not meet the 7-vote threshold on the 11-member body to place that charter amendment on the ballot. It got just four votes – from Marcia Higgins (Ward 4), Mike Anglin (Ward 5), Jane Lumm (Ward 2) and Stephen Kunselman (Ward 3). Sabra Briere (Ward 1), who had co-sponsored the original resolution, did not vote for it, after modifications to the wording had failed to win the council’s approval.

Not originally on the council’s Aug. 9 agenda, but added at the start of the meeting, was a resolution to place a ballot question before voters in November that would ask them if they want – at least temporarily – to change the way that funds are accumulated to pay for public art in the city. Currently, funds must be set aside as part of most capital improvement project budgets – 1% up to a limit of $250,000 per project.

The ballot proposal on public art would levy a 0.1 mill tax for a four-year period – which translates roughly to $450,000 per year. In its current version, the wording of the proposal would suspend the collection of Percent for Art funds under the city’s ordinance just for the four-year period of the millage. So if voters approved the public art millage this year, and then failed to approve a millage renewal four years from now – either because the council did not place a renewal on the ballot, or voters rejected the renewal – the Percent for Art ordinance would again require that funds from capital project budgets be set aside for public art.

The reaction from councilmembers to the proposal from Christopher Taylor (Ward 3) was generally positive; however, there was considerable dissatisfaction expressed – at the meeting and subsequently – with the secretive nature of the work that had produced it. Taylor’s apparent goal in placing it on the agenda at all was to reveal the content of the proposal, without asking his colleagues to vote on it. Taylor asked for postponement of the resolution after reading aloud a speech about it. The council agreed unanimously to postpone action until its next meeting, on Aug. 20.

Voting on Aug. 20 to place the question on the ballot would allow for some public discussion before taking action on that issue, while still meeting the statutory deadline for delivering ballot language to the Washtenaw County clerk.

The public art commission has called a special meeting for Aug. 15 in order to weigh in on the subject.

Part 1 of this council meeting report deals just with these ballot questions. Part 2 will handle other business items at the Aug. 9 meeting.

Public Art Millage

The council was asked to consider a resolution that would place a question on the Nov. 6 ballot, asking Ann Arbor voters to pay a 0.1 mill tax for four years to support public art.

Public Art Millage: Content

The ballot question would read:

Shall the Charter be amended to limit sources of funding for public art and to authorize a new tax of up to one-tenth (0.10) of a mill for 2013 through 2016 to fund public art, which 0.10 mill will raise in the first year of levy the estimated revenue of $459,273?

The corresponding charter language would be [emphasis added]:

Funds for Public Art
SECTION 8.24. In addition to any other amount which the City is authorized to raise by general tax upon the real and personal property by this Charter or any other provision of law, the City shall, in 2013 through 2016, annually levy a tax of up to one-tenth (0.10) of a mill on all taxable real and personal property situated within the City for the purpose of providing funds for public art, including but not limited to the permanent and temporary acquisition, maintenance and repair of works of art for display in or on public structures or sites and/or as part of or adjacent to public streets and sidewalks, and performance art on City streets, sidewalks or sites. Except for funds previously raised, set aside, allocated or otherwise designated to be used for public art, including such funds in the July 1, 2012 to June 30, 2013 fiscal year budget, and except for funds that are received by grant, gift, bequest or other donation to the City for public art, for the duration of this millage, the City shall not raise, set aside or designate funds for public art in any other manner. This millage also shall not preclude the grant, gift, bequest or other donation to the City of works of art.

One mill is $1 for every $1,000 of taxable value on a property. So for a house worth $200,000, with a state-equalized value of $100,000, a 0.1 mill public art tax would cost that property owner $10 per year. In Ann Arbor, a rule of thumb for the amount of revenue generate by 1 mill is $4.5 million. So a 0.1 mill public art tax would generate roughly $450,000 annually.

In place since 2007, the city’s Percent for Art program requires that 1% of the budget for any capital improvement project be set aside for public art – up to a cap of $250,000 per project. More than $1 million in Percent for Art revenues have been expended to date, primarily for the Herbert Dreiseitl water sculpture in front of city hall.

By year, here’s how much money has been set aside for public art by the Percent for Art program, according to information provided to The Chronicle by public art administrator Aaron Seagraves:

FY 08    $318,689    
FY 09    $521,457    
FY 10    $450,166    
FY 11    $451,213    
FY 12    $334,660    
FY 13    $320,837 (estimated)

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So the proposed millage would generate somewhat more money per year than the Percent for Art program has generated, on average, over its first six years of existence.

If approved by voters, the public art funds from a millage would not necessarily be restricted to permanent “monumental” type art, as the current Percent for Art funds are. The additional flexibility afforded by a millage-based public art program might include the ability to fund performance art or support artist-in-residency programs. It would also enjoy the endorsement of a referendum, eliminating the criticism that residents had not voted on the question of the Percent for Art program.

Public Art Millage: History

As far back as Feb. 1, 2009 at a council Sunday caucus, Marcia Higgins (Ward 4) publicly expressed her concern about the large amount of money the program was generating. Later that year, at a Dec. 7, 2009 meeting, the council gave initial approval to an ordinance revision that would have reduced the allotment from 1% to 0.5%. But at the council’s following meeting, on Dec. 21, 2009, the council voted down the ordinance revision, with councilmembers citing art as key to Ann Arbor’s identity.

At the Aug. 9 meeting, Ann Arbor resident Thomas Partridge peruses a Detroit Free Press article about the Detroit Institute of Arts millage that won voter approval on Aug. 7, 2012.

In connection with approval of the fiscal year 2012 budget in May 2011, Higgins brought forward a budget amendment that would have directed the city attorney to prepare an ordinance amendment to reduce the percentage in the public art ordinance from 1% to 0.5%. That attempted amendment failed on a 4-7 vote. Six months later, the council again gave initial approval to a reduction in the percentage allocated from 1% to 0.5%. But in its Dec. 5, 2011 vote, the council ultimately opted to make only a minor tweak to the ordinance, without changing the basic percentage.

During deliberations on May 7, 2012 about a piece of public art to be commissioned for the city’s new justice center, Stephen Kunselman (Ward 3) mentioned the possibility of establishing a millage just for public art. Kunselman has been a vocal critic of the funding mechanism of the Percent for Art program, based on the idea that it is not legal to appropriate public utility funds or dedicated millage funds for other purposes to public art, as the city’s Percent for Art ordinance does.

The council voted down a proposal by Kunselman on April 2, 2012 to request a legal opinion on the question from city attorney Stephen Postema.

Public Art Millage: Analysis

The effect of passing the public art millage would be to suspend the accumulation of funds for public art purposes under the city’s current Percent for Art ordinance. The language that does that is this:

… for the duration of this millage, the City shall not raise, set aside or designate funds for public art in any other manner.

Christopher Taylor has stated that the reason that the Percent for Art ordinance cannot be repealed with the same ballot resolution is a state law restricting ballot proposals to a single question. [From an email Taylor has sent to constituents of his]:

… state law requires that ballot measures be one-subject, Yes/No questions. For this reason, we cannot ask the voters to approve or reject a millage AND effect an ordinance repeal in the event of a No vote.

The state law in question is the Home Rule City Act:

A proposed charter amendment shall be confined to 1 subject. If the subject of a charter amendment includes more than 1 related proposition, each proposition shall be separately stated to afford an opportunity for an elector to vote for or against each proposition. If a proposed charter amendment is rejected at an election, the amendment shall not be resubmitted for a period of 2 years.

Taylor’s email to constituents continues:

That said, after a No vote, one could easily imagine an effort to wind down the program on the grounds that the people had spoken and rejected taxpayer support for the arts.

Taylor does not indicate that he would support such an effort to “wind down” the Percent for Art program – only that he can imagine such an effort. Based on the results of the Aug. 7 primary election, the necessary votes to repeal the Percent for Art ordinance might exist on post-general-election council in November – even without Taylor’s vote to repeal it. That scenario would allow Taylor to maintain that he’d never voted in a way to place funding for public art in jeopardy.

But if the public art millage were approved by voters, then the ballot initiative mandates that funds would not be set aside for public art through the Percent for Art ordinance for the duration of the millage. And if the public art millage were not approved by voters, then Taylor appears to be indicating that the council would be inclined to repeal the Percent for Art ordinance – even if that took place without his vote.

If the Percent of Art ordinance will not persist after the millage vote election – no matter what the outcome – it is not clear what argument would exist against repealing of the ordinance before a millage vote.

With the Percent for Art ordinance in place during the millage vote, the intent of voters in casting yes and no votes is not necessarily clear. A no vote might mean, “I support public art funding, and I think that the best way is through the Percent for Art ordinance, not this millage that I’m being asked to approve.” On the other hand, a yes vote might mean, “I do not support the use of public money on public art, but if it’s going to be spent, then I prefer that the funds be flexible enough to support performance art.”

If the city council were to eliminate the Percent for Art funding mechanism before the millage vote – through a partial rescinding of the ordinance (keeping the parts that establish the public art commission) – it would give clarity to the question on the ballot and to voters’ intent.

However, repeal of the Percent for Art ordinance before the millage vote would likely require Taylor’s vote of support for the repeal – given the current composition of the council.

Public Art Millage: Adding to the Agenda

Christopher Taylor (Ward 3) had added the item to the agenda at the start of the meeting, though he seemingly had not wanted or planned to do so, and had intended only to share the content of the resolution with his colleagues, without placing it on the agenda formally. Taylor’s demeanor at the table as he added the item, and the fact that he was unprepared to name the title of the agenda item, is consistent with the idea that Taylor added the item to the agenda only because of pressure from a council colleague just prior to the meeting.

According to city council rules, an item can only be added to the agenda with a 3/4 majority, and typically a separate vote is taken on the action to add the item, and then on the amended agenda. However, mayor John Hieftje, who chairs city council meetings, skipped the vote on the agenda addition.

The secrecy that Taylor maintained around the proposal was a point of friction for some councilmembers. Responding to an email from a WDET reporter asking for an interview, Jane Lumm wrote back to the reporter:

When I became aware that a ballot initiative was to be added (again, at the start of the council meeting), I did attempt to obtain information about the initiative from [city attorney] staff, but was told they were instructed and “not permitted to discuss” the matter. (That’s a verbatim statement.)

Responding to an emailed query from The Chronicle, Taylor refused to say whether he’d instructed the assistant city attorney to keep information from other councilmembers, but defended that kind of secrecy as an appropriate application of the attorney-client privilege:

… the ACP [attorney-client privilege] exists to incentivize clients to consult with their lawyers. Client knowledge of the law, its boundaries and opportunities is a social good. In this context, we want council members to consult with the attorney’s office – we want members to enlist the assistance of counsel early and often. If Member Jones thought that Attorney Miller would cavalierly discuss the subject of their conversation – the legal advice given to Jones – then that would have a chilling effect. In this case, Jones would not readily consult with counsel and the public would be harmed. It strikes me, therefore, that the attorney who declines to speak with one council member about legal advice given to another council member does so in the public interest.

By way of comparison, the Legislative Services Bureau – the group of attorneys who help legislators in Lansing do research, draft bills and the like – is bound by strict confidentiality rules with respect to their work for different legislators. So if a state legislator wants to work on a new bill and shield that work from other legislators, then the rules of confidentiality for the LSB would allow a legislator to keep that work secret, as Taylor did.

Public Art Millage: Taylor’s Remarks

The secretive nature of the work was one aspect Taylor had anticipated as objectionable, based on the prepared speech he read aloud. Although he had not previously indicated publicly his intent to bring forward this proposal, he portrayed the initiative as one that had been arrived at collectively:

I view this proposal without a sense of authorship, but rather as a collective product – the sum total of the many conversations we’ve had at this table and in and among the public.

Another foreseeable objection to the timing of the proposal was that input from the public art commission had not yet been sought.

The proposal did not originate with the commission; when The Chronicle reached Marsha Chamberlin, chair of Ann Arbor’s public art commission, by phone on the afternoon of Aug. 9, she told The Chronicle that she had not heard anything about the specific proposal until a few days ago, when she’d received a phone call to get her reaction to the concept. The issue has not been discussed at AAPAC’s monthly meetings, which are regularly covered by The Chronicle.

Taylor appeared to have anticipated the same criticism that had been made against the timing of the parks charter amendment proposal – that the park advisory commission had not yet been consulted. So Taylor indicated that he hoped to receive input from the public art commission, as part of the public input the council would receive before the council voted on the question of putting an art millage in front of voters.

He then contrasted the function of the public art commission as compared to the park advisory commission, pointing out that the public art commission is primarily a body that implements policy, not one that advises the council on policy as the park advisory commission does.

In order to meet before the council’s Aug. 20 vote, the commission would need to call a special meeting – because its next regular meeting is scheduled for Aug. 22. And subsequently the public art commission did call a special meeting, for Aug. 15 at 4:30 p.m. in the basement of city hall.

Taylor’s remarks also included the standard arguments for using public money to pay for art.

Public Art Millage: Council Deliberations

After Taylor’s immediate move to postpone the issue, councilmembers weighed in with generally supportive comments. Stephen Kunselman (Ward 3) told his colleagues that he’d already submitted his request for co-sponsorship as soon as he’d found out about the resolution. “Kudos to councilmember Taylor, I’m so, so, so pleased that you have taken the lead on this.” Kunselman said he’d support the resolution, saying it’s exactly what the community needs to move forward with public art.

Mayor John Hieftje followed up on Taylor’s attempt to portray the effort as “collective,” pointing out that several other councilmembers had previously floated the idea. He noted that the restrictions that are placed on the funding due to their source make it difficult to fund the kind of art that people would like to – and that’s the fundamental reason why the millage is needed.

Tony Derezinski (Ward 2), who serves on the public art commission, noted that the commission had bemoaned the restrictions on the use of funding. The restrictions are onerous, he said, but the millage is a good alternative to that. He felt that the public art commission would want to understand the reasons for the proposal.

Sandi Smith (Ward 1) appreciated the postponement, because she wanted the public art commission to have a chance to weigh in on it – to be consistent with the council’s approach to the parks charter amendment, when the council had sought input from PAC before voting. Hieftje assured Smith that the public art commission would be able to meet, saying that the commission was going to meet anyway to talk about something else. [It's not clear what he was referring to, as there had not been any special meeting scheduled at that point.]

Sabra Briere (Ward 1) supported the postponement, because the council had not had a chance to look at the proposal, and the public needed to weigh in as well. It’s not desirable for the council to look like the proposal was being rushed onto the ballot.

Jane Lumm (Ward 2) supported the postponement, as well as the resolution. But she complained about the lack of a heads up about the proposal. She told Taylor it would have been a nice gesture to have included those councilmembers who also had been interested in the topic.

She called Taylor’s announcement the “most surprising thing” she has seen since she has returned to the council [following her election in November 2011, after having served in the mid-1990s]. She wanted to see the council work in a more open, collaborative, cohesive fashion. Analyzing the resolution as partially a response to the Aug. 7 primary elections, Lumm concluded, “It’s truly amazing what a few elections will do.”

Carsten Hohnke (Ward 5) indicated support for the postponement. He felt the point of introducing it and then postponing it was to seek the kind of collaboration that Lumm had mentioned. So rather than having the resolution on the agenda on the Wednesday before the next council meeting, it would be available to the public sooner. He looked forward to the conversation over the next couple of weeks and hearing from residents about what they thought.

Outcome: The council voted unanimously to postpone action on the public art millage resolution until Aug. 20.

Contractual Powers: Sale, Leasing of Parkland

Two other ballot-related issues were on the Aug.9 city council agenda, including a possible ballot proposal to amend the city charter with respect to the leasing of parkland.

Concerns about parkland sale are not peculiar to Ann Arbor. Michigan state law addresses the question of parkland sale; and other communities in Michigan have their own recent history with controversial parkland sales. The question of amending the parkland protection clause in Ann Arbor’s city charter dates back to at least 2006.

So this section begins with some general historical background, continues with Ann Arbor’s specific history, before characterizing the public commentary and council deliberations at the Aug. 9 meeting.

Sale, Leasing of Parkland: General Background

Michigan’s Home Rule City Act addresses the question of parkland sale by stipulating that cities don’t have the power to sell parkland, except under certain conditions [emphasis added]:

117.5 Prohibited powers.
Sec. 5. (1) A city does not have power to do any of the following: … to sell a park, cemetery, or any part of a park or cemetery, except where the park is not required under an official master plan of the city; [Home Rule City Act, Act 279 of 1909]

Before November 2008, the charter of the city of Ann Arbor mirrored that statutory language as follows:

Limitations on Contractual Power
SECTION 14.3
(b) The city shall not sell any park or cemetery, or any part thereof except in accordance with restrictions imposed by law. [Pre-2008 Ann Arbor city charter]

The idea that city parkland could be sold by a city – by first removing it from the official master plan – was tested (successfully) by the city of Novi around a decade ago in connection with the settlement of a legal dispute. The city owed a developer a considerable sum, and sought to meet that financial obligation by transferring 95 acres of parkland to the developer. The Oakland County circuit court ruled that the transfer could only meet the statutory requirement if the 95 acres were first re-designated in the city’s master plan as not parkland.

So that’s what the city of Novi did, beginning the process with review by its planning commission:

After a full hearing, the Court entered an Order on December 11, 2001, which held that, while most aspects of the settlement concept were approved, in order to provide the full approval of the Court, the following action could be taken: If the city’s Master Plan is amended so as to reflect a designation of the property to be transferred in a manner other than “park” . . . it is the determination of this Court that, without further action on the part of any party, the land in question may be transferred as contemplated in the [city council Resolution of October 15, 2001] in conformance with MCL 117.5(e) [the Home Rule Cities Act]. [Excerpt from Jan. 9, 2002 city of Novi planning commission minutes]

Sale, Leasing of Parkland: Ann Arbor’s Background – 2006-2007

In 2006, Ann Arbor’s park advisory commission (PAC) passed a resolution recommending to the city council that a charter amendment be placed before voters, asking them to change the city charter’s clause on parkland sale. The resolution contemplated by PAC offered the potential for some confusion, because the text includes not only the clause to be changed, section 14.3(b), but also section 14.3(a) – even though no change was proposed to 14.3(a).

Section 14.3(a) imposes a requirement that real estate transactions – generally, not just related to parks – require an eight-vote majority on the 11-member council. Leases are among the real estate transactions that require the eight-vote majority . So glancing quickly at the 2006 PAC resolution might lead to the unwarranted conclusion that the PAC resolution proposed some change in the charter with regard to leasing of parkland.

Here’s the language that PAC, in its Aug. 15, 2006 resolution, recommended that the council add to the city charter [added text in italics]:

Limitations on Contractual Power
SECTION 14.3.
(a) The city shall not purchase, sell, or lease any real estate or any interest therein except by resolution concurred in by at least eight members of the council.
(b) The city shall not sell any park, cemetery, or any part thereof except in accordance with restrictions imposed by law and with the approval of a majority of the electors voting in a regular or special election. No park, or any part thereof, identified in the official master plan of the city, or any subsequent acquisition to the park system, or any part thereof, identified as part of the official master plan of the city after January 23, 2006, shall be severable from the city park system and the official master plan of the city. [PAC resolution from Aug. 15, 2006]

A year later, the city council considered placing a ballot question in front of voters. The text of the charter initially considered by the city council at its Aug. 20, 2007 meeting was more succinct than the language recommended by PAC, did not include the issue of severability and underwent some further refinement at the meeting, which resulted in the following:

Limitations on Contractual Power
SECTION 14.3.
(a) The city shall not purchase, sell, or lease any real estate or any interest therein except by resolution concurred in by at least eight members of the council.
(b) The city shall not sell without the approval, by a majority vote of the electors of the city voting on the question at a regular or special election, any city park or land acquired by the city for park purposes (whether or not currently designated as a park), cemetery, or any part thereof. [Amended language considered in city council resolution from Aug. 20, 2007]

The council then rejected placing the question before voters – on 2-7 vote. The two yes votes were from then Ward 1 councilmembers Ron Suarez and Bob Johnson.

Sale, Leasing of Parkland: Ann Arbor’s Background – 2008

A year later, the council again considered that kind of ballot question on a charter amendment protecting parks. This time, the text of the resolution included just section 14.3(b) – because 14.3(a), which involves general real estate transactions (like leasing), had never been at issue. The council considered the following text for the charter on Aug. 7, 2008.

Limitations on Contractual Power
SECTION 14.3.
(b) The city shall not sell, without the approval by a majority vote of the electors of the city voting on the question at a regular or special election, any city park or land in the city acquired for park purposes, (whether or not currently designated as a park), cemetery, or any part thereof. [Initial resolution considered by the city council on Aug. 7, 2008]

The council postponed until Aug. 18, 2008 a vote to place the question on the ballot. And on Aug. 18 the council amended that text as follows:

Limitations on Contractual Power
SECTION 14.3.
(b) The city shall not sell, without the approval by a majority vote of the electors of the city voting on the question at a regular or special election, any city park or land in the city acquired for park purposes, (whether or not currently designated as a park), cemetery, or any part thereof. [Final resolution considered by the city council on Aug. 18, 2008]

The council voted to place a question on the ballot for November 2008. Voters in November that year decisively approved the change to the charter – 80% voted yes.

Compared to the pre-2008 version of the charter, here’s how the current (2012) language stacks up [added text in italics and deleted text in strikethrough]:

Limitations on Contractual Power
SECTION 14.3.
(b) The city shall not sell, without the approval by a majority vote of the electors of the city voting on the question at a regular or special election, any city park or land in the city acquired for park, cemetery, or any part thereof , except in accordance with restrictions imposed by law.

Sale, Leasing of Parkland: Ann Arbor’s Background – 2012

The city council formally considered a resolution at its July 16, 2012 to place a question on the Nov. 6, 2012 ballot, asking voters if they would like to revise the city charter further [proposed additions indicated in italics]:

Limitations on Contractual Power
SECTION 14.3.
(b) The city shall not sell, lease, license or contract for any non-park or non-recreational long term use, without the approval, by a majority vote of the electors of the city voting on the question at a regular or special election, any city park, or land in the city acquired for park, cemetery, or any part thereof. For purposes of this subsection long-term shall be defined as a period greater than 5 years.

Two weeks before the July 16 meeting, one of the resolution’s sponsors, Jane Lumm (Ward 2), had alerted her council colleagues that she was intending to bring the question forward. At that point, she’d been working with Mike Anglin (Ward 5) on the resolution. At the PAC meeting held on Aug. 8, Sabra Briere (Ward 1) told commissioners that when she saw a draft of the resolution, she was interested in supporting it, but wanted some “whereas” clauses deleted. Briere felt those “whereas” clauses introduced needless contentiousness. The clauses in question included these:

Whereas, subsequent to the November 2008 passage of the amended section 14.3(b) section of the Ann Arbor City Charter the City has proposed that alternative long-term uses for parkland would be considered and issued an initial RFP for Huron Hills that included the phrase, “at the time of execution of the SALES contract” in the letter to respondents, and the final RFP did not use the words “sale” or “lease”, but “agreement” and “contract for services”, and
Whereas, a sale, lease, agreement, or contract for services are not dissimilar to the extent that they essentially permit the City to enter into a long term arrangement that potentially involves development at a city park and, in so doing, violates the spirit and intent of the voter approval requirement, and
Whereas, the voter approval requirement was not intended to permit the City to utilize alternative terminology to avoid the requirement to present a parkland sale question to voters, but was intended to provide the necessary protection for parkland, and
Whereas, the City continues to utilize language other than the words “sale” or “sell” to permit long-term leases and alternative uses of parkland to avoid the voter approval and referendum requirement,

When the “whereas” clauses were deleted, Briere told PAC, she added herself as a sponsor to the resolution that came forward on July 16, 2012. The council voted to postpone its vote until Aug. 9, amid questions that Briere had raised about interpretation, as well as a desire to have PAC weigh in on the issue.

At PAC’s Aug. 8 meeting, commissioners voted unanimously not to recommend that the council pursue the charter amendment that would require a popular referendum on long-term leasing of parkland for non-park uses.

Sale, Leasing of Parkland: Public Commentary

Public commentary at the Aug. 9 city council meeting featured many of the same speakers who’d addressed PAC the previous day.

Rita Mitchell asked the council to join her as park stewards – and in that capacity, she asked for their continued support for parkland as “a treasured resource in our community.” Parks are valuable to future generations, she said. That’s why the resolution is important. She reminded councilmembers that she’s appeared before them in the past – because she’s concerned about the potential precedent that various projects might set. Parkland has been targeted for permanent transformation, she said – as a parking structure or a train station [at Fuller Road] and to allow a private management group to use parkland for private profit [an allusion to the Miles of Golf proposal for operation of Huron Hills golf course]. Memoranda of understanding (MOUs), long-term leases and various legal agreements other than a direct sale set a precedent to circumvent the referendum requirement in the event that the city desired to sell city parkland, she said.

Dark green patches indicate city of Ann Arbor parkland.

That allows the city to dispose of parkland using a more casual method of transfer. She believes that the council should consult the public regarding the initial basic question of whether to change the ownership or the use of parkland to something else. If the council wants to consider a change in the use of parkland, she suggested, the council should make a good case for it and convince voters.

The point of the resolution, Mitchell said, is to reinforce the public nature of park ownership. She ventured that referenda would come into play only rarely, as part of the routine management of city parkland. The resolution was initiated due to specific projects, she allowed – and that’s how she knew that such protection was needed for all of the city’s parkland. Members of PAC had raised good questions, she said, about what would constitute a park use versus a non-park use of land as specified in the proposed charter amendment.

Diane Giannola told the council she had two things to say about the proposed charter amendment. First, she said, there is “nothing wrong, improper, devious, unethical or inappropriate” about using parkland for a public purpose that benefits the rest of the city. Parks are not just about nature – they’re also about recreation, athletics, entertainment and community.

She contended that the local chapter of the Sierra Club would like to convince residents that parkland should be exclusively nature areas. But that’s not been the intent of residents, Giannola said. She called that an overreach by a private group with its own agenda. She would welcome some repurposing of parkland as long as it benefits residents. She would not welcome a vote on decisions about every change in use. She felt that a train station built on top of an already paved parking lot that lies between a road and the University of Michigan hospital is in the best interests of the residents of the city.

She called it patently false that the intent of voters in 2008 was to prevent the city council from repurposing or leasing parkland. She had voted for the 2008 charter amendment because she thought she was preventing the balancing of the city budget through parkland sale. She did not think it was about changing the definition of a sale. She objected to the idea that anyone should be able to interpret the intent of voters in a way that was false.

Alan Jackson introduced himself as a park advisory commissioner. [He was recently appointed to replace Sam Offen, who was term limited.] He had been asked to summarize PAC’s conclusions from the previous day’s meeting of the commission.

PAC had voted unanimously against that resolution, he reported. That’s not to say that the commissioners are not passionate about the parks, he said, and they felt that stricter restrictions on the use of parkland is worth careful consideration. PAC felt that the drafting of the ballot language was unnecessarily hasty, he said. PAC felt that a more careful process would yield more predictable results, and would allow citizens to understand the implications better and to develop better informed opinions. Some commissioners also questioned the need for a remedy, given that none of the “egregious transfers” – which people have been concerned about – have actually occurred. There are a number of gray areas, regarding the definition of non-park and non-recreational uses of land. Who would arbitrate the definition of those terms?

There are also a number of unintended consequences, Jackson said, with regard to some institutions that are near and dear to him, giving the example of Leslie Science and Nature Center and other groups that have arrangements with the city. The charter amendment could have a chilling effect. PAC feels that the city’s exposure to litigation could be increased by this charter amendment, he said. PAC wondered what the charter amendment would accomplish, given that the city council would be the arbiter of what constituted park and non-park use.

Nancy Shiffler introduced herself as chair of the Sierra Club Huron Valley Group. She began by responding implicitly to remarks from Diane Giannola, whose public commentary had come a couple of turns earlier. For the last 30 years – during the time Shiffler has been involved with the group – the local Sierra Club has been engaged in protecting the park system, both natural areas and recreational areas. A fundamental question raised by the Fuller Road parking structure and now the rail station is this, she said: Does the city council have the authority to change the use of city parkland to some other use, through lease agreements, contracts or some re-designation?

The council has not sought to answer that question as it has discussed the Fuller Road site, Shiffler said. Instead, the city has been “backing in” to setting a precedent that has the potential to subvert the assumption that voters make when they vote to support parks millages – that the parks they voted to support will continue to be parks. The charter amendment would establish a process by which the council would be forced to answer that fundamental question. The language of the charter can’t anticipate every proposal that might come before the council, she allowed, but she encouraged the council to put the question before the voters.

Sale, Leasing of Parkland: Council Deliberations – Initial Round

Jane Lumm (Ward 2) introduced the resolution, stressing that it was unchanged from the version she’d provided to the rest of the city council on July 9. She reviewed much of the historical context and the intent of resolution. She noted that the previous day, the city’s park advisory commission had met and voted not to recommend its support.

Councilmembers Jane Lumm (Ward 2) and Christopher Taylor (Ward 3).

The 2008 change was a solid step forward in strengthening protection for parks, she said. But since that time, it’s become apparent that “loopholes” still exist that need to be closed in order to ensure that the clear intent of the voters in 2008 is to be realized. The 2008 charter amendment addressed only the sale of parkland, but did not address other mechanisms, such as leasing or long-term contracts. That could result in the outcome that the 2008 amendment was trying to prevent, she contended – conversion of parkland to a non-park or non-recreational use without the approval of residents. The goal of the current amendment, she said, is to close that loophole.

She pointed out that the five-year span that defines “long-term” in the proposed amendment corresponds to the parks planning cycle. She stressed that the proposed amendment doesn’t mean that no city park could ever have its use changed, but rather that voters would need to decide the question.

The intent, she said, is not to require the shorter-term arrangements the city has with various organizations to be subjected to voter approval – as those arrangements are part of ongoing management of the parks system.

Mike Anglin (Ward 5) described PAC as the protectors of the parks. He described the previous day’s discussion as lively and diverse. But with any piece of legislation, he said, there are uncertainties. He contended that the intent of the legislation back in 2008 was to make the restrictions tighter [than just "sale" of parkland], but he said there was concern that the tighter restrictions would not have been approved for the ballot by the city council.

Anglin described the amount of energy and money that had been invested by citizens to oppose different proposals that have come forward, citing the Miles of Golf proposal for the operation of Huron Hills golf course as an example.

The choice is between having a law that has a high standard, or whether the council says to voters that they have to come together, get organized, and “fight your city.” The council should be fair with the citizens and be fair with the proposals. As a hypothetical, he suggested that perhaps he wanted to donate a merry-go-round to Veterans Memorial Park and it would cost $2 million – he’d pay for all of it. Would that be supported? The charter amendment would help us understand that, he said. He ventured that parks uses continually change.

He suggested that the charter amendment was not perfect, and alluded to the medical marijuana ordinance, which was not perfect, describing that situation as “total chaos.” Based on the charter amendment, Anglin said, if the city chooses to go ahead with locating a rail station at Fuller Road, then the charter amendment would require asking voters. It might be that voters approve it, he said. He also contended that the proposed charter amendment would require a proposal like Miles of Golf had made for operation of Huron Hills to get voter approval. He also maintained that a possible removal of Argo Dam would also require voter approval.

Sabra Briere (Ward 1) followed up on Anglin’s statements about different projects that would and would not require a voter referendum, and ventured that some councilmembers have different understandings of what the proposed resolution would accomplish. She asked assistant city attorney Mary Fales, who had helped draft the language, how the proposed charter amendment would have applied to various past proposals, or hypothetical future proposals, if it had then been in place. In bulleted list form, here are responses by Fales to the topics Briere asked her about:

• Building Argo Cascades: The proposed charter amendment would not have applied, because it’s a recreational use.
• Removing Argo Dam: If the purpose of removing it was to improve the waterway for recreational purposes, then the proposed charter amendment would not apply, because the use would be recreational.
• Ice Cube operation of Veterans Memorial Park ice rink or Miles of Golf operation of Huron Hills golf course: Because those parks would still be used for ice rink and golf course services, the proposed charter amendment would not apply.
• Closing Huron Hills golf course and using it for wild land and sledding: The proposed charter amendment would have no bearing on closing a city park – because it affects only the contractual powers of the city. If the city administration or park advisory commission recommended that a golf course be used in a different recreational format, then that could be done without a voter referendum – even under the proposed charter amendment.
• Building a parking structure on a park: A surface lot or a structure could be incidental to the customary use of the land as a park – because it creates a place for people to be able to use the park safely, so no referendum would necessarily be required.
• A 15-year lease with University of Michigan for a parking structure at Fuller Road: If the purpose is to commercialize the property or for some other purpose that is not for park or recreational use, and the contract is longer than five years, then it would require a vote of the people.

Both mayor John Hieftje and Margie Teall (Ward 4) appeared to want to explore the idea that if the commercial purpose of a parking facility would generate revenue supporting the parks [as is the case with the current arrangement between UM and the city for the surface parking lot at Fuller Road], then that arrangement might be construed as a park purpose. But the question was never framed clearly enough to get a specific response from Fales.

Assistant city attorney Mary Fales.

Stephen Kunselman (Ward 3) indicated that he’d be supporting the proposal. A 99-year lease for the Fuller Road parking structure would be outrageous, he said. That went beyond any reasonable expectation about the use of the city’s parkland. [.pdf of MOU with University of Michigan. It does not appear to stipulate any term lengths, but rather an intent to develop some kind of agreement.]

Kunselman felt that the five-year period was reasonable, based on the park planning cycle. There could be multiple renewals of shorter arrangements, so he did not see that as a problem. He did see a problem with a 99-year lease.

Kunselman allowed that they’d been hearing things about voter intent in 2008 – from both sides of the debate. He was not looking at it from a past perspective, but rather was looking toward the future. He did not want to see a future council trying to lease parkland for 99 years. One attempt had been seen, he said, and he doubted it would be tried again anytime soon. But because it has happened once, it could happen again, because it’s a typical response, he contended.

Responding to a standard argument that the Fuller Road site is currently a paved parking lot, he pointed out that it had not always been a parking lot – as he’d played soccer there as a kid back in the 1980s. In the past, Hieftje had made campaign pledges to add additional soccer fields, Kunselman contended – and this was a chance to do that, if the city wanted to convert the Fuller Road parking lot to a soccer field. That would take away the “piddly” amount of money that the lease arrangement with UM generates – about $30,000 he said. That’s small compared to what UM charges its employees for parking passes, he said, and he ventured that UM is making money off the city’s parking lot.

Kunselman figured that if the voter intent wasn’t there, they would vote down the charter amendment: “Let’s just give them that opportunity.” He didn’t think the city would harm itself, the public or the relationship with UM by doing that.

Responding implicitly to remarks from Diane Giannola about repurposing parkland – as long as it benefits the residents – Kunselman asked: Did a 1,000 car parking garage at Fuller Road offer a benefit to residents or rather to UM?

Sale, Leasing of Parkland: Council Deliberations – Amendment

Sabra Briere (Ward 1) told her colleagues that she’d sent around a draft of a proposed amendment. She said she did not think the charter amendment is a terrible thing to put on the ballot – but we have to be honest about what it accomplishes, she said. She felt like there was confusion in the public about whether a proposal like the one that Miles of Golf had made to operate Huron Hills would require a voter referendum. [Anglin and Lumm feel it would require a referendum; assistant city attorney Mary Fales indicated it would not.]

A very informal poll of Briere’s constituents showed that more than 37% believe the proposed amendment would protect parks from bad decisions by the city council, she said. “But I have to tell you, it wouldn’t, as drafted,” she cautioned.

She did not think there’s any way to amend the charter to prevent the council from making a mistake.

She then proposed a substitute amendment for the charter language:

Limitations on Contractual Power
SECTION 14.3(b)
The city shall not, without the approval by a majority vote of the electors of the city voting on the question at a regular or special election, do any or all of the following with any city park or land in the city acquired for a park or cemetery or with any part thereof: (1) sell any such land; (2) lease, license or contract for any non-park or non-recreational use any such land for a period longer than 5 years; (3) contract for the operation of any such land for non-park or non-recreational use for a period longer than 5 years; (4) contract for the construction of any building on any such land, except as is customarily incidental to the principal use and enjoyment of such land.

Briere said that in her personal view, this was a legitimate effort to look at what the city could do and to worry about whether the city could contract for recreational services and what the implications of that would be. The answer is that the city could maintain its current relationships with vendors at the farmers market, and also with Project Grow, the Leslie Science and Nature Center, and Community Action Network, she said. But it means there could not be automatic renewals. Leases for non-park use would have to come back to the council at least every five years, she said.

The text about customarily incidental use, Briere said, she’d taken from the allowable uses of parks as public land, as described in the city’s zoning ordinance.

She noted that it meant that the city council could still contract with a builder to construct a new swimming pool or a skatepark or a new ice rink, without having a referendum on it. But the city might have a problem if the city wanted to build a new senior center on a park, she ventured. And the city might have a problem, she said, if it wanted to contract to build a train station on parkland. She indicated that with all the additional language, she had wanted to make the language accomplish what people thought it already did.

Sandi Smith (Ward 1) expressed the view that even with Briere’s changes, there are still some unclear issues, and she didn’t think that’s a good way to dive into something. At the PAC meeting the previous day [which Smith attended], she observed that at least two people spoke about the Leslie Science and Nature Center. For an organization of that small size, running a campaign to make sure an arrangement for use of the parkland is approved by voters takes away from the core mission of the center, she said – which is about educating young citizens about nature. And if the voters didn’t approve it, then what?

Smith also pointed to the possibilities for things we haven’t thought about – like new land that the city is thinking about developing along the Huron River. If the city had the opportunity to develop a restaurant, there’s no way a small-business owner would make that kind of investment on a five-year basis. She allowed that Briere’s amendment made things slightly clearer, but didn’t feel she could support the amendment.

Hieftje picked up on Smith’s point about a restaurant. He reported that he’d talked to three restaurateurs about it in the last couple of weeks. He asked them to consider the possibility that the city could make some land available for a restaurant in the Huron River corridor. They said: Great! And they said they could imagine that people would come from a long way away to eat at such a restaurant. The restaurateurs indicated that for them to bring a development proposal would cost hundreds of thousands of dollars – and that would be necessary, because people won’t vote based just on a concept. They would not be willing to risk that on a vote of the people, or base it on a five-year arrangement – which depending on the city council might not be renewed. At some point, he said, folks around this table are elected to make decisions. He appreciated Briere’s amendment but did not see that it achieved enough clarity.

Lumm felt that the example of a restaurant had been floated before at the Huron Parkway bridge near the golf course, and that residents had said that that’s the kind of repurposing that they opposed. She felt that it’s important to know from voters what they think about such a proposal. Lumm then responded implicitly to Smith’s description of the PAC meeting, saying she [Lumm] was there for the duration. [Her point appeared to be that Smith had left a bit before the conclusion of the meeting.]

Lumm did not understand what is so difficult to understand about the proposal. It does restrict what can be done with parks, she allowed, but not if it stays within what any reasonable human being would say is an acceptable parks and recreation use. She felt that the changes proposed by Briere were redundant and unnecessarily complicating. She felt the original language was clear, concise and had the right level of detail.

Carsten Hohnke (Ward 5)

Kunselman responded to comments from Smith and Hieftje about efforts to commercialize parks along the river. He pointed out that the national park system has concessionaires for many of the national parks. The city could own the building and then contract out the operation, if you want to have a restaurant down on the riverfront. That reduces the risk to the vendor, he pointed out. So those goals can be accomplished, he said.

Carsten Hohnke (Ward 5) said he appreciated Briere’s efforts with the amendment – but for him, it made an unclear bad policy a much more clear worse policy. He felt that asking PAC to look at the proposal was exactly the right thing to do. The discussion by PAC highlighted that the language in the amendment was not capturing what we’re trying to capture. He called it a classic example of “hard cases making bad law.”

Hohnke also suggested that all the significant decisions take time – and each year it’s possible to turn over half the council, so voters have had the chance to turn over this council three times over since the Fuller Road memorandum of understanding was signed. So he did not support the amendment or the underlying resolution.

Anglin described the amendments as covering a lot of “what-ifs.” It’s not possible to build in language that covers every possible situation, he said. But it’s possible to start a process for how to treat the city parks. He reminded his council colleagues that he had voted against the PROS plan [the city's Parks and Recreation Open Space plan], because he did not think that the city was protecting its own land as well as it was protecting private investments.

Margie Teall (Ward 4) felt that the system of representative democracy has worked – it worked with the Huron Hills proposal from Miles of Golf. Staff had been asked to bring ideas to the table and they had brought ideas to the table. The golf course has never made any money, she said. The process worked for the people who wanted that land to be protected. She didn’t feel there was a need for Briere’s amendment or the charter amendment, so she’d be voting against both of them, she said.

Briere said her efforts to go through the hypotheticals was an effort to make sure she’d considered as many possibilities as she could. The real question, she said, is whether you view this an improvement of the city charter, and whether the language belongs in the city charter. It’s not just whether the council reassures residents that the council values parks by giving them an opportunity to affirm that they value parks. She believed that we all value parks.

If you feel it’s not an improvement to the city charter, she said, she respected that viewpoint. If you feel it’s an improvement because it clarifies things about the contractual limits on the council, that’s also fine, she said. She’d heard that PAC’s concern was not whether the city could contract, or whether the city could lease, or even whether the city could use parkland for non-park purposes. Their concern was to have a coherent process to follow that would put PAC’s considerations before other considerations. The idea would be that when someone had an idea about how parkland would be used, then that would go to PAC first.

Kunselman addressed the issue of representative democracy. He gave the example of Sylvan Township – a legislative body that moved ahead with a project that put the community into an extreme amount of debt. None of the members of the township board are still on the board. The charter amendment, he said, was to protect citizens from “representative democracy gone awry.”

“It’s important that we protect our parks from ourselves as councilmembers,” he said. He called the 2008 charter amendment redundant, given the Home Rule City Act, but Ann Arbor had gone ahead with that amendment because other communities had found a way around the state statute.

Christopher Taylor (Ward 3) allowed that the amendment increases the specificity and scope of the provided language. He shared PAC’s concerns, and the amendment creates opportunities for those concerns to be exacerbated. So he’d decline to support the amendment, he said.

Outcome: Briere’s amendment failed, with support only from Briere herself and Kunselman.

Sale, Leasing of Parkland: Council Deliberations – Final

Back on the discussion on the main motion, Lumm asked assistant city attorney Mary Fales if the charter amendment would allow renewal of leases in 5-year increments. Fales essentially confirmed that was the case. Lumm also got Fales to confirm that she’d looked at all the various existing contractual arrangements the city had with different groups, related to the parks – like the rowers at Bandemer, the farmers market, Leslie Science Center and the like.

Lumm returned to her basic point – that even though some interpretation is required, the language is clear, straightforward and focused on how parkland is used. The leases that arise in the course of normal operations, she said, would not trigger a vote. She did not feel the standard is hard to apply.

Responding to the idea that the ultimate rejection of the Miles of Golf proposal showed there was no reason for the charter amendment, Lumm contended that it had been rejected only because it wasn’t a good financial deal for the city. She contended that a proposal like Miles of Golf’s could not have been accepted without prior approval of the voters – based on the language of her proposed charter amendment. [However, Fales had indicated that it would not have triggered a referendum, based on the fact that it would have maintained a recreational use.]

Lumm raised an implicit specter that voters might not approve the parks maintenance and capital millage [which the council placed on the ballot later that evening], if the council did not place the charter amendment before voters. She saw no better way to complement that “ask” than by reassuring voters that the city would be good stewards of the “precious assets of the parks.”

Anglin allowed that the council has discussed the issues and they’re well understood. He described Ann Arbor as a place where people have the free time and expertise to participate in the community, and it makes the community better. The park system is the envy of many towns, he said. In other communities, they’re taking little bits of green away, which Ann Arbor has not yet begun to do. He ventured that in a poorer community, parkland would have already been lost.

Mike Anglin (Ward 5)

In light of Lumm’s statement about Miles of Golf, Briere came back to the past Miles of Golf proposal by asking Fales again to confirm that if the city had contracted for management of the existing course, or a converted 9-hole course with a driving range, the proposed charter amendment would not have triggered a popular vote – Fales confirmed that was the case.

Sandi Smith noted that the council postponed a vote on July 16 in order for PAC to be consulted. That body of citizen volunteers had voted unanimously against placing the ballot question before voters, she said, so she wanted to honor that group by following their advice.

She’d heard terms like “steward” and “sacred trust” and she had faith that future councils will also be good park stewards. She noted that since 2000 Ann Arbor has added 151 acres to the park system and no parkland has been lost or repurposed. Since 2007, she said, 44.5 acres have been added. And just this year 10 acres have been added to the park system. That’s a pretty good record, she said. Since 2007 the acreage added represents almost $1 million in taxable value, and that’s about $45,000 in general fund revenue that the city is forgoing. She asked, “Who is the park steward?” She did not want to tie the hands of future councils on ways the city can grow the park system, or find a way to maintain the parks. She pointed to the longer mowing cycle the city had to use last year (19 days), noting that the grass was knee-deep in some places. The city was not able to maintain the soccer fields it has, she contended.

Smith did not want a future council to be in a situation where it could work with a commercial entity to solve a problem, but could not do that without taking it to the voters. The amendment would not allow the city to be as “nimble” as it needs to be. And if it’s a non-presidential election, she wondered how many people might get to the polls to make these decisions. She would trust future councils, she said.

Christopher Taylor began by saying that the Fuller Road Station was never contemplated as a “lease” but rather as a “use agreement.” That’s an important legal distinction, he contended. [In the context of standard principles of statutory interpretation that would apply to a city charter – namely, their ordinary and plain meaning as would have been understood by the electorate, not the way a real estate attorney would understand them – it's not obvious that the distinction Taylor is drawing between a lease and a use agreement would be relevant.]

He addressed the suggestion that the charter amendment is necessary in order to save residents from the need to advocate for their positions. He felt that it is completely appropriate that residents gather on questions of public interest – and it’s not something to be “feared or bemoaned or coddled.” He didn’t think the language of the resolution, if passed, would be a disaster, but did not feel it would be good policy or good for parks. He called it a “solution in search of a problem.” So he opposed the resolution for the reasons cited by PAC – reviewing each of them.

Taylor then turned his attention to the idea that this charter amendment would finally redeem the intent of the voters in 2008. Aside from the fact that the word “sale” could not be more plain, he contended, and that voters are presumed to have read the ballot language that they passed, he reported that he’d learned at PAC’s meeting the previous day that the council specifically removed the word “lease” from the ballot language that went before the voters in 2008. In light of this specific and intentional deletion of “lease” from the 2008 ballot language, he said, the continued assertion that “lease” was part of the initiative’s intent is “demonstrably false.” Its knowing repetition, he claimed, is “simply shocking.” It may be a good idea or a bad idea, he said, but to suggest that opposition to the current proposal is contrary to the demonstrated will of the people is patently false.

Councilmembers Sabra Briere (Ward 1) and Christopher Taylor (Ward 3).

By way of additional background, Taylor did not make clear at the council table how he reasoned from the city council’s reported action of deleting the word “lease” back in 2008 to conclusions about what some voters wanted out of the initiative. Responding to an email query from The Chronicle, Taylor identified Rita Mitchell’s remarks to PAC on Aug. 8 as the source of his contention that the council had consciously acted to delete “lease” from the charter amendment proposal – and conceded he could not cite “chapter and verse” of relevant documents. However, The Chronicle did not discern in Mitchell’s remarks any claims about deletion of the word “lease.” In her remarks, Mitchell’s mention of the 2008 proposal included the outcome of the vote – which was 80% in favor – and her statement that: “The value of adding the terminology that we’re talking about today will provide that extra protection that I believe voters did want.”

Taylor might have confused Mitchell’s comments with those of Jane Lumm – whose remarks at the Aug. 8 PAC meeting included the following: “The language that was brought forward in 2008 and approved by PAC included ‘lease.’ Council chose to amend it and remove that language.”

However, based on The Chronicle’s review of meeting minutes from PAC and the city council during the relevant time frame, it does not appear that the council ever had before it a proposal that included the word lease in Section 14.3(b) – despite Lumm’s characterization. [See the background subsection earlier in this report for the possible source of the confusion.] Taylor maintained in his emailed response to The Chronicle that in his remarks made at the council table he did not draw a negative inference about residents themselves, but rather their tactics.

Taylor also contended that his conclusion that residents’ claims are demonstrably false – about the intent of voters in 2008 – could be derived from the plain meaning of “sale” alone. Taylor did not respond to a follow-up question about the possibility that voters in 2008 might have included a 99-year lease as part of their notion of sale.

At the council’s Aug. 9 meeting, Hieftje wrapped up the deliberations by contending that the council is sometimes punished even for considering options. He would put his record on parks up against any elected official in the state, he said.

Outcome: The resolution received support only from Marcia Higgins, Mike Anglin, Jane Lumm and Stephen Kunselman. Sabra Briere, who pointedly paused when the roll call came to her turn, voted no.

The vote eliminated the chance of placing that type of ballot question before voters on Nov. 6. There have been some smattering of conversations about the possibility of placing the charter amendment before the voters, perhaps in May, through a petition drive, which would require around 4,000 signatures.

However, an easier path to another consideration of the issue might result from the new composition of the city council that will result from the Aug. 7 primary election and subsequent Nov. 6 general election. Democratic primary winners Sally Petersen in Ward 2 and Sumi Kailasapathy in Ward 1, assuming they win the general election, would almost certainly replace no votes with yes votes. And the version that Briere proposed might win her vote. That would give the council the seven votes it needs to put the measure on a future ballot.

Parks Maintenance, Capital Improvements Millage

The council also considered placing a question on the Nov. 6 ballot that would renew the parks maintenance and capital improvements millage at the rate of 1.1 mills.

The city’s park advisory commission had voted at its June 19, 2012 meeting to recommend that the council put the millage renewal on the ballot. The current 1.1 mill tax expires this year. A renewal would run from 2013-2018 and raise about $5 million next year. The recommended allocation of revenues is 70% for park maintenance activities, and 30% for park capital improvement projects. Of that allocation, up to 10% can be shifted between the two categories as needed.

Examples of park maintenance activities include “forestry and horticulture, natural area preservation, park operations, recreation facilities, and targets of opportunity,” according to a staff memo. Capital improvement projects would cover parks, forestry and horticulture, historic preservation, neighborhood parks and urban plazas, park operations, pathways, trails, boardwalks, greenways and watersheds, and recreation facilities.

PAC was first briefed about the millage renewal at its March 22, 2012 meeting. At the time, PAC chair Julie Grand – who served on a working group to strategize about the renewal – said concerns about the economic climate were a major reason why an increase wasn’t being recommended. City parks staff and PAC members subsequently held several public forums about the renewal that were sparsely attended. Technically, the rate of 1.1 is an “increase” inasmuch as the currently authorized millage rate has been reduced from 1.1 mills to 1.0969 by the Headlee Amendment.

The proposed ballot language reads as follows: “Shall the Charter be amended to authorize a tax up to 1.10 mills for park maintenance and capital improvements for 2013 through 2018 to replace the previously authorized tax for park maintenance and capital improvements for 2007 through 2012, which will raise in the first year of the levy the estimated total revenue of $5,052,000.”

Deliberations were brief at the Aug. 9 council meeting, as Christopher Taylor (Ward 3) gave the background on the millage. He’s one of two council representatives to the park advisory commission. Sabra Briere (Ward 1) noted that it’s a “frugal” millage in that it does not ask for an increase above the originally approved amount – but she noted that costs have increased.

Outcome: The council voted unanimously to place the parks maintenance and capital improvements millage on the Nov. 6 ballot.

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

Next council meeting: Monday, Aug. 20, 2012 at 7 p.m. in the council chambers at 301 E. Huron. [Check Chronicle event listings to confirm date]

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The additional time would allow for greater clarity on an issue related to the tax increment finance (TIF) capture for the Ann Arbor Downtown Development Authority. The city brought to light last week that in passing captured tax revenue to the DDA, the city’s financial office has in recent years not factored in a provision of the city’s DDA ordinance that requires excess TIF capture to be divided proportionally among the taxing entities whose taxes are captured. The excess is defined in terms of the actual increase in the tax base, as compared to the increase in the tax base that is anticipated in the DDA’s TIF plan. [Previous Chronicle coverage: "DDA Delays Parking Vote Amid TIF Questions"]

At Monday’s work session, the city’s CFO and interim city administrator Tom Crawford estimated the “rebate” to the city of DDA tax capture for FY 2012 at around $450,000.

Part of the context of the TIF issue is a contract with the city of Ann Arbor, under which the DDA operates the city’s public parking system. That contract is currently being renegotiated. Under the current contract, with runs through 2015 with a three-year option to renew, the city would receive about $2 million less in public parking revenues in FY 2012 than the new contract calls for. But the exact financial terms of that contract are still being worked out.

Under Michigan’s Open Meetings Act, a meeting that is recessed for more than 36 hours can be reconvened only after posting public notice at least 18 hours before reconvening the recessed meeting.

Steve Bean obtains nominating petitions as an independent candidate for mayor of the city of Ann Arbor. Behind the glass in the city clerk's office is Lyn Badalamenti. (Photos by the writer.)

It’s a five-minute session at the city clerk’s office.

This brief background piece covers some of the nuts and bolts of that process, based on Steve Bean’s Tuesday afternoon appearance on the second floor of city hall at the city clerk’s office. As a bonus, there’s a bit of city history thrown in.

After Bean told Lyn Badalamenti in the city clerk’s office that he was there to pick up nominating petitions, she set to work assembling a sheaf of papers. The spelling of Bean’s family name was the first order of business: “Like the vegetable,” he offered. Next up: A choice between “Steve” versus “Steven.”

The name that potential signatories of Bean’s petitions will see – as well as voters looking at November’s ballot – is “Steve.”

His name will be recognizable to some readers from his service on the city’s environmental commission. He now chairs that body. Before that, he served for nine years on the city’s energy commission. Some city records, especially older documents like city council minutes from April 9, 1992 – which contain the record of his appointment to the energy commission – show Bean’s name as “Steven.”

But the choice for the shortened variant was one he’d thought through before Badalamenti asked him: “That’s how people know me,” Bean explained to The Chronicle.

In the category of “the more things change,” those April 9, 1992 minutes indicate a discussion of over-exuberant University of Michigan basketball fans who apparently aroused concerns about public safety. They were celebrating the team’s advancement to the Final Four in the NCAA tournament. [The Wolverines lost in the final game that year to Duke University.]

In the category of “the more they stay the same,” the minutes indicate that one of Bean’s fellow energy commission appointees was Weston Vivian. Vivian, like Bean, goes by the shortened version of his name – that’s “Wes.” And Vivian spoke this past Monday to the city council during a public hearing on the Google Fiber initiative. Vivian told councilmembers that if Google doesn’t choose Ann Arbor as a location to install a fiber network, the city needs to figure out another way to make it happen.

Also in the category of things that stay the same are the petition requirements that Badalamenti handed to Bean as part of the sheaf of papers that all candidates receive. That packet includes:

• 400 lines worth of qualifying petitions – 20 pages with 20 lines apiece
• a sheet of rules for candidates who are circulating nominating petitions for city offices
• a message from Washtenaw County clerk Larry Kestenbaum, outlining the campaign finance reporting requirements
• the statement of organization form for candidate committees from the Michigan Department of the State Bureau of Elections
• the form for the post-election campaign finance compliance statement
• an affidavit of identity and receipt of filing

The qualifying petitions were copied with Bean’s name already filled in. That’s why Badalamenti needed it – to comply with the city charter requirement that petitions specify the person on whose behalf the petitions are to be circulated:

13.8 (b) Before the Clerk furnishes petition forms to any person, the Clerk shall enter thereon, in ink or by typewriter, the name of the person in whose behalf the petition is to be circulated and the name of the office for which the person is a candidate. No petition form which has been altered with respect to such entries shall be received by the Clerk for filing.

It’s not illegal to obtain and circulate petitions on behalf of someone else. But it’s not possible to place someone’s name on the ballot against their will:

13.10 (a) When petitions are filed by persons other than the person whose name appears as a candidate, they may be accepted for filing only when accompanied by the written consent of the person in whose behalf the petition was circulated.

Bean will need to collect at least 50 signatures from each of the city’s five wards for a total of at least 250. It’s not possible to engage in the intimidation tactic of collecting a number of petitions massively in excess of the minimum [emphasis added]:

13.8 (a) [...] Each petition filed by or on behalf of a person seeking nomination to the offices of Mayor shall be signed by not less than 250 nor more than 350 registered electors including at least 50 signatures of residents of each ward. [...]

The petition filing deadline for independent candidates like Bean – those without a party affiliation – is different from the deadline for candidates contesting one of the party’s primaries:

Act 116 168.590c Sec. 590c.
(1) A qualifying petition for an office shall be filed with the filing officer authorized to receive a partisan nominating petition or a certificate of nomination for that office.
(2) A qualifying petition for an office elected at the general November election shall be filed not later than 4 p.m. of the one hundred-tenth day before the general election. A qualifying petition for an official elected at an election other than the general November election shall be filed not later than the deadline established by statute or charter for filing a partisan petition or certificate of nomination for the office or at least 90 days before that election, whichever is later.

This year, 110 days before the Nov. 2, 2010 general election translates to July 15, 2010.

After filing petitions, it’s possible to change your mind and not have your name appear on the ballot. But it’s a narrow window:

(3) A candidate who files a qualifying petition shall not be permitted to withdraw his or her candidacy unless a written notice of withdrawal is filed with the filing officer who received the petition. The notice shall be filed not later than 4 p.m. of the third day after the last day for filing a qualifying petition.

For candidates contesting either the Republican or Democratic primary, the deadline for filing petitions is determined by the 12th Tuesday before the Aug. 3, 2010 primary – May 11 this year.

Finally, for citizens who are asked by prospective candidates for office to sign their nominating petitions, signing does not represent an obligation to vote for that person come election day. But there is a kind of obligation attached – signing nominating petitions for different candidates for the same office results in the disqualification of both signatures:

13.9 (b) If any person signs a greater number of petitions for any office than there will be persons elected to that office, that person’s signature shall be disregarded on all petitions for that office.

The city of Ann Arbor website has additional information on filing petitions for Ann Arbor city office on the city clerk’s page.

Steve Bean, 46, is vice president of Berg & Associates, Inc. He designs database management systems for Berg clients. Peter Schermerhorn will serve as Bean’s campaign treasurer.

Ann Arbor police service calls for Jan. 3, 2010. This map was built by The Chronicle in about 15 minutes using data from the city's online catalog. (Image links to fully interactive map hosted at http://www.batchgeocode.com)

At the same meeting, the budget committee also continued its discussion about the content of the monthly financial reports that the city charter requires the city administrator to provide to the council.

What ties these issues together is the idea that there’s information the city will be routinely pushing out, without anyone needing to make a special request for it.

In the case of the data catalog, it appears at first glance that the project is a kind of bonus for the citizens of Ann Arbor. That is, it could be thought of as something the city is not required by law to do, but which it’s doing anyway in the interest of transparent government.

That’s different from the monthly financial statement, which the charter explicitly requires. That issue came to the surface during the budget committee meeting, during a verbal exchange between Christopher Taylor (Ward 3) and the city’s chief financial officer, Tom Crawford. The exchange found Taylor appealing to an English word only rarely deployed as a verb: “I guess I’d stickle.”

On Stickling

CFO Tom Crawford is required by the city charter to provide to the council a monthly statement via the city administrator, Roger Fraser:

SECTION 5.6. The Controller shall be the chief accounting officer of the City. The Controller shall:

(6) Submit to the Council, through the City Administrator, by the tenth working day of each month, a statement showing the balances at the close of the preceding month, in all funds and budget items, the amount of the City’s known liabilities and budget items to which the same are to be charged, and all other information necessary to show the City’s financial condition;

After a period during which the city council apparently did not expect such a monthly report, the council’s budget committee has now begun to talk about what information should be contained in the monthly financial statement.

At the Feb. 16 budget committee meeting, Crawford said that he’d provided to councilmembers in that month’s statement the information that he interpreted the charter to require. It included encumbrances – funds that are committed for a specific use. But Crawford suggested not including encumbrances in future statements. In context it was clear that the concern was based on clean formatting and readability of the document, not a desire to shield that information from the public.

Christopher Taylor (Ward 3), however, wanted to know on what basis that information could be stricken from the monthly statement. Hadn’t Crawford just told the committee that he interpreted the charter to require its inclusion? Crawford suggested that the content of the report could reflect a consensus from council about what they wanted to see in the report: “It depends on how much of a stickler you’ll be.”

And at that, Taylor allowed: “I guess I’d stickle.” And Taylor is right to stickle. As I wrote in a previous  column on the city charter:

That is, the city council cannot waive a charter requirement. And any citizen has legal standing to file suit on a charter violation to demand relief.

The ensuing discussion among the budget committee touched on the idea that the monthly statements would be made available online. Perhaps formatting and readability issues could be addressed through linking to a separate document – as opposed to embedding the information on encumbrances directly in a document.

That seems like a practical approach to take: Focus on providing the information underpinning the statement, not so much on the formatting of the statement document. Can the statement “show” the encumbrances, if there is only a link from the statement to a separate document containing the encumbrances? Probably so – that’s the kind of issue the council can work out with city staff.

But it’s not up to city staff and the council to agree to strike the encumbrances from the set of information that’s required by the charter to be provided.

Data Catalog: Records and the City Charter

At the Feb. 16 meeting, the budget committee agreed that once they are satisfied with the format of the monthly statement, the statement will be conveyed directly to councilmembers, without intermediation by the committee. Conveying it to the council – and the public – by posting it online would be a good approach.

It’s a good approach because it would easily satisfy a charter requirement that all city records, like the monthly financial statement, be public:

City Records to be Public
SECTION 18.2. All records of the City shall be public, shall be kept in City offices except when required for official reasons or for purposes of safekeeping to be elsewhere, and shall be available for inspection at all reasonable times. No person shall dispose of, mutilate, or destroy any record of the City, except as provided by law, and any person who shall do so contrary to law shall be guilty of a violation of this charter.

Of course, the city could also be compelled to produce those monthly financial statements under the Freedom of Information Act (FOIA) to anyone who asks.

By posting the monthly financial statements online, the city reduces the resources that would otherwise be required to respond to requests under the FOIA, or the city charter, that those records be produced.

The same principle applies to the information the city is providing as part of its new data catalog.

Last month, the city council’s budget committee had been told the data catalog would be coming online soon.  [Chronicle coverage: "Ann Arbor's Budget Data to Go Online"] So last week’s implementation of this first draft of the data catalog – which contains much more than just financial transactional data – was expected and welcome news. In addition to financial data, for example, the catalog also contains mapping data and public safety information.

Washtenaw County government is moving toward a similar goal. Commissioners discussed their “transparency of government initiative” at a Feb. 18 working session.

The city’s data catalog is a tremendous stride forward for transparency of our local government – but it should not be analyzed as an “extra” or a “bonus” for citizens. The FOIA requires that city documents – with few exceptions – be produced on request. And independently of the FOIA, the city charter requires that city records be available for inspection at all reasonable times.

By providing availability 24/7 on the Internet, the city would certainly cover “all reasonable times.”

The data catalog, then, should be seen as a way for the city to use technology efficiently to respond globally to potential requests for access to information under the FOIA or the city charter – which citizens could already legally demand on an individual basis.

As the city looks to add to the data catalog, then, one guiding question should be: Is this information record required to be public under the charter or the FOIA? If the answer is yes, then the information is a candidate for inclusion in the data catalog. Otherwise put, everything is fair game for inclusion in the data catalog.

Is there any reason why some city records shouldn’t be prioritized for inclusion in the data catalog? Absolutely. Those data sets that would require intensive ongoing staff resources for production of the data should be a lower priority.

As head of the city’s information technology, Dan Rainey, told the budget committee on Feb. 16, the data sets that are included in this initial phase are those that can be produced in automated fashion. They’ll be on a production schedule, with no human intervention required beyond the initial setup.

Data versus Records/Reports

What’s included in the data catalog are data sets, not reports/records. The idea is that by providing information in a relatively raw state, individuals – citizens or councilmembers – who are interested in building their own reports can do so fairly easily, without introducing an additional burden to city staff.

Kevin Eyer, senior applications specialists in the IT department with the city of Ann Arbor, gives the city council budget committee a quick tour through the data catalog. (Photo by the writer.)

For example, the city’s data catalog includes a comma-delimited file containing police service calls. There are data fields for date, location, type of call, and the street address.

Why don’t they provide that data presented as a map? It’s partly because you can make your own map out of the data, if you need a map. Besides, whatever kind of map the city might create, there will always be someone who’d prefer a different kind of map – maybe someone  wants to see the police calls for a specific day, like Jan. 3, 2010.

That’s what I wanted – for demonstration purposes – so I took the city’s data, and headed over to http://www.batchgeocode.com and within about 15 minutes generated the map shown at the top of this column. A few tips on preparing the police call data for mapping at batchgeocode.com:

• Add columns for city and state and fill each cell with “Ann Arbor” and “MI,” respectively
• In the street address field, replace the word “block” with a blank – the city provides the address information by block, not the specific address.
• In the street address field, insert spaces around the “&” for addresses specified by intersection.
• The batchgeocode.com process takes whatever column you name “group” and assigns the colors of the map push pins based on that. Clicking on the pushpins in the map legend causes just those color push pins to appear.
• Read through the documentation at batchgeocode.com
• If you’ve never done this before, it’ll take longer than 15 minutes.

It’s not that the city doesn’t like maps, though. Among the data sets in the catalog are various KML files that open in Google Earth. For example, there’s a perfectly drawn map of Ann Arbor’s city boundaries, which can be used as a layer in other maps that people might be interested in creating.

The demonstration of the data catalog at the budget committee meeting prompted an exclamation from Marcia Higgins (Ward 4): “It seems really user friendly!”

It is.

But the city will be looking for feedback on the data catalog – the email address DataCatalog@A2gov.org is one way to do that. And as Chronicle readers provide that feedback, I’d encourage you to bear in mind the difference between data and reports – as well as the idea that the data catalog provides information that could legally already be demanded from the city.

Dave Askins is editor of the Ann Arbor Chronicle.

Nearly escaping notice at that meeting was an exchange between Stephen Rapundalo, who chairs the committee, and senior assistant city attorney Kevin McDonald. The brief interaction came towards the end of the meeting’s work, as the next set of tasks for specific committee members was formulated. Rapundalo asked that McDonald provide a legal opinion. McDonald replied politely, but pointedly, that he’d provide advice, not an opinion.

Why does McDonald care about the difference between providing advice versus an opinion?

McDonald’s concern is based on a fundamental misunderstanding on the part of the city attorney’s office, led by Stephen Postema, about what Ann Arbor’s city charter requires of its city attorney. 

Charter Requirements on Opinions

In listing out the duties of the city attorney, Ann Arbor’s city charter states [emphasis added]:

The Attorney shall: (1) Advise the heads of administrative units in matters relating to their official duties, when so requested, and shall file with the Clerk a copy of all the Attorney’s written opinions;

But since Postema took over the city attorney’s office in 2003, no written opinions have been filed with the city clerk’s office – an act which would effectively make them public records.

The view of the attorney’s office, as reflected in Kevin McDonald’s conversational reply to Rapundalo, is that calling written opinions “advice” allows the public servants who work in the city attorney’s office to assert attorney-client or attorney work-product privilege with respect to any and all of their work, and that this adequately shields them from the charter requirement.

The city attorney is wrong about that.

Opinion on Percent for Art

The issue could now be coming to a head in the wake of a request made of the attorney’s office by  councilmember Stephen Kunselman (Ward 3) for an opinion on the legal foundations of the city’s Percent for Art program. That program specifies that 1% of the cost of capital improvement projects be allocated for public art and that the public art commission make recommendations for the expenditure of those funds.

The art program appears to fly in the face of a precedent set in a legal case, Bolt v. Lansing, but we leave aside for current purposes an analysis of that as it relates to the city’s art program.

What Kunselman wanted to know was this: What’s the legal foundation of the art program?

It is, of course, a question that Kunselman might have posed in a more timely fashion – back in November 2007, when he served on the city council and he voted with the rest of his council colleagues to authorize the art program. Kunselman had to take a year hiatus from the city council, after losing the 2008 Democratic primary to Christopher Taylor, but he regained a seat after defeating Leigh Greden in the 2009 primary.

Timing issues aside, Kunselman made the request for the opinion about the Percent for Art program opinion by attaching it to the agenda of the council’s Nov. 16, 2009 meeting.

Kunselman, along with the rest of his council colleagues, received a reply to his publicly made request.  But the reply was marked as follows:

Privileged and Confidential Attorney-Client Communication Exempt from Disclosure under the Michigan Freedom of Information Act and Basis for Closed Session under the Michigan Open Meetings Act

So that reply has not been filed with the city clerk’s office. Kunselman followed up the matter at the next council meeting on Dec. 7, 2009, expressing his discontent that no opinion had been made public. At that meeting, he successfully elicited from Sue McCormick, public services area administrator, that she had asked the city attorney’s office for an opinion when the ordinance was being developed.

The small “victory” for Kunselman was that McCormick is clearly an administrative head, which should have triggered the charter requirement that an opinion be filed. But when McCormick deferred the question to Postema at the Dec. 7 meeting, he offered that he’d sent an advice memo to council.

Given that Kunselman now has the response from the city attorney’s office, why doesn’t he just make it public himself? That likely is rooted in the Standards Of Conduct For Public Officers And Employees (Excerpt), Act 196 of 1973, which states:

15.342 Public officer or employee; prohibited conduct.
Sec. 2. (1) A public officer or employee shall not divulge to an unauthorized person, confidential information acquired in the course of employment in advance of the time prescribed for its authorized release to the public.

The Chronicle thus requested under the Freedom of Information Act (FOIA) the opinion given by the city attorney’s office to Kunselman, on the argument that it was required by the city charter to be a public document.

The city produced the memo sent by the city attorney’s office to Kunselman and the rest of his council colleagues, but redacted the parts related to Kunselman’s request for a legal opinion [emphasis added]:

The remainder of the response is redacted because it consists of privileged attorney-client communications that are exempt from release under MCL 15.243(1)(g).

An advice memorandum from the City Attorney’s Office in response to the request of a single Councilmember is not an opinion that is required by the City Charter to be filed with the City Clerk’s Office.

One option available under the FOIA is to request an appeal from the city administrator, which The Chronicle undertook as follows:

We note first that the city’s rejection of our charter obligation argument is based on the idea that the request from Kunselman was from a single councilmember, thus not subject to the charter requirement to file the written opinion with the city clerk.

On the other hand, the city asserts attorney-client privilege that it contends may only be waived by a majority of the city council. We argue that the city attorney takes direction not from individual councilmembers, but rather from the council as a body. The fact that the city attorney provided a response to Kunselman’s request per se supports our contention that the city attorney understood Kunselman’s request to be made on behalf of the council, not just on Kunselman’s own behalf.

The fact that the response from the city attorney was sent to all members of the council further supports our contention that Kunselman’s request was understood by the city attorney to be the direction of the council as a body.

Finally, the city’s own claim that the asserted attorney-client privilege can be waived only by majority of the council supports our contention that the city attorney agrees that the request for a legal opinion came from council as a body, even if communicated via Kunselman. The city council as a body includes the mayor, who is the chief executive officer of the city, thus the head of an administrative unit. The request for a legal opinion communicated via Kunselman thus satisfies the charter criterion for filing with the city clerk’s office.

Note that this argument does not entail in general that the city attorney file a written opinion with the clerk in response to any request from a single councilmember. On such request, the city attorney may clarify with the council as a group whether it is their direction to undertake the analysis requested. If a majority of the council do not agree that this is their direction, then no opinion need be written. In the case at hand, the city attorney did not seek to clarify, but rather took Kunselman’s request to be the direction of the council as a body.

The appeal was denied by city administrator Roger Fraser, who simply re-asserted the attorney-client privilege as the basis of denial, and introduced the additional concept – not originally cited in the city’s denial – of attorney work-product privilege. He further explicitly denied any obligation to respond to our argument based on the requirements of the city charter:

The information that was withheld consisted of confidential communications between the City Attorney’s Office and City staff and/or Council members. This information is clearly subject to the attorney-client privilege and/or work product privilege. MCL 15.243(1)(g)

Based on the foregoing, I deny your appeal of December 22, 2009. Because the privileged nature of the communications in question resolves this appeal, it is not necessary for me to address further the statements in your appeal letter.

Why The Chronicle Will Persist

The Chronicle is not content to let the matter rest there. Here’s why not.

The Matter of Law

First, the city charter defines what the job obligations are for the city attorney. And the city charter is not a set of loose guidelines, but rather our city’s basic law. So a document that is required to be public under the law cannot be subject to attorney-client privilege or attorney work-product privilege. It’s as simple as that. Asserting such privilege about a document required to be public under the law is improper.

In the past few years, the working majority on the city council has been led by members who are also attorneys. And there seems to have been a tacit understanding between the city attorney and the city council that the council would not expect the city attorney’s office to file written opinions with the clerk.

As the body to which the city attorney directly reports, the council might, for example, say something like: “Look, we do your performance evaluation and set your pay, and we don’t care if you file those opinions or not.”

But even if the city council were to express that sentiment in the form of a unanimously approved resolution, the city attorney would still be required by the charter to file his opinions. That is, the city council cannot waive a charter requirement. And any citizen has legal standing to file suit on a charter violation to demand relief.

On a similar charter requirement issue, the city is making progress in bringing a different operational practice into conformity with the city charter – after apparently having lapsed for a time, with the city council’s apparent indifference. That similar circumstance is related to a charter requirement that the city’s controller provide the city council with monthly reports on the city’s finances:

SECTION 5.6. The Controller shall be the chief accounting officer of the City. The Controller shall:

(6) Submit to the Council, through the City Administrator, by the tenth working day of each month, a statement showing the balances at the close of the preceding month, in all funds and budget items, the amount of the City’s known liabilities and budget items to which the same are to be charged, and all other information necessary to show the City’s financial condition;

[See Chronicle coverage: "Ann Arbor’s Budget Data to Go Online"]

The Matter of Semantics

Instead of looking to the city charter as a law to be followed, Ann Arbor’s city attorney seems to take the document as a starting point for making sure that day-to-day operational vocabulary is chosen to shield him and his office staff from the force of the law. Calling written opinions “advice” is one example.  Calling some meetings of the city council “workshops” or “work sessions” is another. The city charter requires the city attorney to attend the meetings of the council. If they’re called “work sessions,” however,  the attorney apparently thinks that these are not “meetings” and therefore he’s not required to attend them under the charter.

The city, in fact, does not treat “work sessions” as meetings under the Open Meeting Act (OMA) – evidence of this is the city’s failure to allow anyone to address the council as a body at “work sessions.” Meetings of a body under the OMA are required to allow anyone to address the body under its rules of address.

The city attorney seems to think that receiving informational presentations and asking questions does not count as a “deliberation” under the OMA. By calling these events mere “informational exchanges” he apparently believes he could argue that these events are not meetings and not subject to the requirement under the OMA that the public be allowed to address the body at a meeting of the council. But work sessions, workshops, information sessions – it doesn’t matter what you call them: They’re meetings.

As I have written in an earlier column, the Open Meetings Act and the Freedom of Information Act should not be seen as lists of exceptions – tools to keep the workings of government shielded from public view – but rather as lists of requirements, with the over-arching principle being this: Government should be open.

Similarly, the city charter should not be seen as a vocabulary list – with words on the list to be avoided lest some charter requirement be triggered.

The Practical Matter

If an attorney has no prior experience in the practice of public sector law, it might strike him as surprising and counter-intuitive that one’s legal opinions are required to be public. What purpose does that serve? Is that even the intent of the city charter – that legal opinions be made public? For god’s sake, isn’t that just stupid from a practical point of view?

In the case at hand, for example, perhaps the city attorney’s opinion would provide a roadmap for filing a successful lawsuit against the city of Ann Arbor over the Percent for Art program. Why on earth would an attorney provide a potential adverse party to his client an advantage like that?

One reason is straightforward: That’s what public service in the city attorney’s office requires. But here’s why it’s a good idea: If the city attorney’s opinion actually does provide a roadmap for a successful lawsuit against the city, then why did the city council enact the ordinance enabling it? Are we really going to gamble that no one else in the city of Ann Arbor is going to figure out that roadmap to a successful lawsuit?

Rather than keep the city attorney’s opinion shielded from view, the city council should bring it out in the open, and act appropriately. Maybe that will entail no action at all. Maybe it will entail repeal of the Percent for Art program. It depends on what that opinion is.

In any case, there are currently two paths the city council could take: (i) Hope that their city attorney can stave off a potential legal fight over the general issue of the charter requirement; (ii) Pass a resolution that would make public the city attorney’s opinion on the legal basis for the Percent for Art program.

There are five councilmembers plus the mayor, all Democrats, who need to stand for re-election in 2010 if they wish to continue to serve on the council: Sandi Smith (Ward 1), Tony Derezinski (Ward 2), Christopher Taylor (Ward 3), Margie Teall (Ward 4), Carsten Hohnke (Ward 5), and John Hieftje (mayor).

Will any of the six demonstrate leadership by getting a city council resolution introduced that would make public the city attorney’s opinion on the legal basis of the Percent for Art program? It’s a harder kind of leadership to demonstrate than writing a symbolic check. But I think at least one of them might pull it off.

And I think that could lead to the development of a healthy habit for the city attorney – filing opinions with the city clerk, without trying to shield them from public view by calling them “advice.”

Because the charter is the law, not just good advice.

Dave Askins is the editor of The Ann Arbor Chronicle.