The word on the button is bigger than it appears.

At last Thursday night’s work session, city council members reached a consensus on a city income tax proposal. Their consensus was this: They did not want city staff to place on their Monday agenda an item that, if passed, would have put a city income tax question on November’s ballot.

So based on the agenda posted on the city of Ann Arbor website, and in light of the Sunday night caucus discussion among council members, it appeared there would not be any really substantive issues before that body at its Monday night meeting.

Yet council ended up voting on three substantive items – all introduced late in the day on Monday. One was a reconsideration of a historic district study committee resolution passed at the council’s previous meeting – it  amounts to a wording change. But it’s a wording change that has a material affect on what projects homeowners in the district can undertake on their properties during the study period. The original resolution at the previous council meeting had also been introduced late in the day, with no public discussion beforehand surrounding the resolution.

A second item introduced late Monday concerned a new transit center on Fuller Road. It entailed the authorization of around $200,000 – about half of that from the city’s economic development fund, which was originally established to pay for parking spaces that Google had demanded as a part of its decision to locate offices in downtown Ann Arbor.

And finally – even though councilmembers had decided at their work session they didn’t want to contemplate putting an income tax before the voters – they decided to put something else before the voters: a charter amendment that would give council the authority to decide how certain notifications are published.

The amendment would change current requirements that certain items are printed in a newspaper, instead allowing for a broader range of options, including online publications.

How could an online enthusiast like me, the editor of an online publication, be against this move? Easy.

Background

Printed agendas are provided to audience members at Ann Arbor city council meetings. They’re similar in function to church bulletins that I recall from the Methodist upbringing of my youth – for many attendees they’re just a way to track how much time is left in the purgatory of public policy discussion. In other ways, of course, those agendas are different from church bulletins – for one thing, they don’t give hymn numbers for the musical elements that have become familiar over the last few council meetings, including last night.

Musical elements aside, the timing of last night’s ballot resolution was ironic. The resolution to put a charter amendment before voters – one that would change the newspaper publication of council’s ordinances – was added so late that it could not be included in the printed agendas at council chambers on Monday evening. Not even in the section labeled “Added After Newspaper Deadline.”

That deadline comes not from the city charter, but rather from the council’s own set of rules:

3F – Publication of Agenda: The approved agenda for all meetings of Council, including Work Sessions, shall be published in a newspaper of general circulation in the City no later than the Sunday prior to each meeting, except those meetings called less than six days prior to a meeting. All meetings of the Council will be posted in the lobby of City Hall and on the City Website.

As we reported in our summary of Sunday night’s caucus, one resident there addressed councilmembers on the issue of newspaper publication of various notices. One of her points was that the city council agenda had not been printed in the print edition of AnnArbor.com, and that was where she and many other residents expected it to appear – printed in a newspaper.

The FY 2010 budget (the current budget year), which was adopted by the city council in the spring, includes an assumption that the city council agenda will no longer be printed in a newspaper – at a cost savings of around $15,000.

But this is a council rule, not a part of the city charter. As such, it needs to be changed by the council to conform with the current practice of non-publication.  Editor’s note: As clarified in comment [6] below by the city clerk, and the contentions at caucus notwithstanding, the agendas do continue to be published – in AnnArbor.com, which The Chronicle has verified [photo]. Such a change is likely to be included in the raft of rule changes that are expected to be considered at council’s Sept. 8 meeting – along with rules governing email exchanges.

What, then, has city council decided to put before voters on the November ballot?

What the City Charter Says Now

There are two parts of Chapter 7, “City Legislation” of Ann Arbor’s city charter that voters will be asked to amend. Here’s what they say now:

7.3 (d) A zoning ordinance or an amendment or revision thereof shall be published in one or more newspapers of general circulation in the City, and opportunity for a public hearing allowed thereon before final action is taken by the Council.

7.4 (a) Each ordinance shall be published within ten days after its enactment in one of the following two methods:

(1) The full text thereof may be published in a newspaper of general circulation in the City of Ann Arbor, or

(2) In cases of ordinances over five hundred words in length, a digest, summary or statement of the purpose of the ordinance, approved by the Council, may be published in a newspaper of general circulation in the City of Ann Arbor, including with such newspaper publication, a notice that printed copies of the full text of the ordinance are available for inspection by, and distribution to, the public, at the office of the City Clerk. If Method (2) is used, then printed copies shall promptly be so made available, as stated in such notice.

What the Amended City Charter Would Say

As the “Whereas” clauses to the resolution make clear, the city council is asking voters to change the city charter because we live in a different world than when the city charter was first adopted – in 1956. This was a point that city attorney Stephen Postema made in his remarks to the city council that introduced the resolution. From the resolution: “Methods of communication and forms of media have altered materially since the adoption of these provisions and similar provisions in State law; …”

The amended versions of 7.3 (d) and 7.4 (a) in the city charter would change the requirement of newspaper publication to simply one of many unspecified options (additions are indicated in blue):

7.3 (d) A zoning ordinance or an amendment or revision thereof shall be published in one or more newspapers of general circulation in the City or any other media otherwise permitted by law, and opportunity for a public hearing allowed thereon before final action is taken by the Council.

7.4 (a) Each ordinance shall be published within ten days after its enactment in one of the following two methods:

1. The full text thereof may be published in a newspaper of general circulation in the City of Ann Arbor or by posting to the City’s website or by any other means or method determined by City Council appropriate to properly inform the general public in matters of municipal concerns, or

2. In cases of ordinances over five hundred words in length, a digest, summary or statement of the purpose of the ordinance, approved by the Council, may be published in a newspaper of general circulation in the City of Ann Arbor or by posting to the City’s website or by any other means or methods determined by City Council appropriate to properly inform the general public in matters of municipal concerns, including with such publication, a notice that printed copies of the full text of the ordinance are available for inspection by, and distribution to, the public, at the office of the City Clerk. If Method (2) is used, then printed copies shall promptly be so made available, as stated in such notice.

Public Policy Considerations: Beyond Dissemination

It was good public policy back in 1956 for the city charter to require publication of these items in a newspaper of general circulation – newspapers were an effective way of disseminating information about the actions of the city council. This public policy concern is reflected in the resolution passed on Monday night: “… the original intent of these provisions was to provide notice of Council actions by the most effective means available; …”

Given that there are now other ways to disseminate textual information that are arguably at least as effective as newspapers – direct mail from the U.S. Postal Service, email list-serves, RSS feeds, text messaging services, websites – it’s reasonable to contemplate adding other options to printed publication in newspapers.

But it’s not merely the effective dissemination of information that made printed publication of notices in newspapers good public policy in 1956. The merit of that public policy also stemmed in part from the fact that a third party – a newspaper – was involved. That third party, which stood outside of the government agency whose actions were to be documented, acted as some sort of external check on the government agency – in this case, the city council.

Publishing versus Posting

How does a requirement for publication of notices in newspapers provide a check on government agencies? This check does not stem from the fact that newspapers print information on paper. There’s nothing magical about the paper and ink. Rather, this check stems from the fact that newspapers publish information. Otherwise put, newspapers have editors.

Web-based publications can have editors, too. So, it’s possible to publish information on the Web as well as in print, and we prove that every day here at The Ann Arbor Chronicle. But our claim to the act of publishing does not rest on the label of the blue button in our software, which reads “Publish.” Clicking on that button makes an article accessible to the public, but making it accessible to the public is not the same as publishing it.

What makes this column you’re reading published as opposed to just posted is that someone else besides me looked at it, evaluated it, made some changes, discussed with me various issues, and ultimately decided whether to press that publish button. So not everything that appears on The Chronicle’s website is published. Comments that readers leave at the end of articles, for example, are merely posted. It makes no sense to say, “The Chronicle published my comment.” We did not publish your comment – we gave you a tool to post your comment.

Why is this distinction between publishing and posting a big deal? It’s not that we imagine that there would be editing to do for an ordinance that’s been passed by city council. Quite the opposite. If the city clerk, Jackie Beaudry, were to send along an ordinance for publication in The Chronicle, it would not be my editor’s role to examine the text and suggest that she use “will” instead of “shall” or perhaps rethink the “Whereas” clauses in terms of providing more dramatic tension for the reader.

Rather, it would be my role to ensure that what appeared on The Chronicle’s website matched exactly what she gave me. So what’s the benefit of adding this third-party editorial process that allows us to call it publishing an ordinance?  How does publishing serve as check on government? Isn’t this really just an argument that government should write a check – to publishers? No.

Benefits of Publishing

Here’s where I see the check. Attached to publishing is a cultural understanding that publishers archive what they publish. Part of the reason The Chronicle keeps all of its old articles online is that they’re useful as archival reference – for readers and for us as well. Part of the reason I write articles in the amount of detail I do is that I want to use those detailed accounts myself – to write additional detailed articles in the future. This is not idiosyncratic to The Chronicle. That’s what publishers do.

So when a question arises as to what was published and how it was published, you can appeal to the publisher’s archives. Why is that important? Because if there’s a question about whether the government met its 10-day deadline requirement of the city charter, it should not be the government itself that adjudicates the question of whether it has met its obligation. Rather it should be the third-party publisher’s archives.

Similarly, what if there’s a question about whether the wording of an approved ordinance that first appeared on a website matched the wording that currently is displayed in the archives? Or what if there’s a question about whether the currently displayed archives match the wording deliberated on and approved by the city council? These questions, too, should be settled not by asking the government itself whether it has created an accurate record, but by appeal to the third-party publisher’s archives.

Posting on the City’s Website?

The charter amendment that city council is asking voters to approve in November states that a sufficient means to disseminate the content of its passed ordinances is to post them on the city’s website.

As I’ve laid out, there’s no built-in external check, if the city itself – through posting as opposed to publishing – disseminates the content of its own ordinances. Certainly it’s a good idea if the city posts the content of its passed ordinances on its website. The question, however, is whether the city charter should require anything more than that.  What the city council is asking voters to approve is a measure that would allow the city to satisfy the charter by posting ordinances to the city website – and nothing more.

The Flexibility Afforded to City Council

In the amendment to 7.4(a), the city council is also asking voters to give the council the broad discretion to use “any other means or method determined by city council appropriate” to disseminate the content of its ordinances.

A future city council could thus determine that spray-chalking ordinances on the sidewalks around city hall is appropriate for dissemination of this information. Were it to decide such a thing were appropriate, it’s not clear from the proposed charter amendment how the council might express its desire that this count as an appropriate method.  Would a resolution be required? Would that resolution need to be passed before the method were deployed?  Could “no means at all” count as “any other means” in terms of the amended charter language?

According to Ann Arbor’s city attorney’s office, no other municipality in Michigan affords its city council the kind of latitude that this charter amendment does to determine compliance with requirements of dissemination.

Ballot Language: Copy Editor Needed

The ballot language accompanying one of the proposed charter amendments is as problematic as its content. That’s important, because it’s the ballot language that voters will confront in their voting booths, and it’s the language that is likely to be used as a briefer, more efficient version of the proposal in various publications that cover this issue leading up to the November election.

First, given the broad latitude that is afforded to the city council by the proposed charter amendment to 7.4(a), it’s unfortunate that the ballot language puts unneeded grammatical distance between the council and its role as the determining agent. Here’s how the ballot language reads:

Shall Sections 7.4(a) (1) and (2) of the Ann Arbor City Charter be amended to permit the current requirement of newspaper publication of City ordinances to be satisfied also by posting to the City website, any media permitted by law or determined appropriate to inform the general public by City Council? [emphasis added]

As written, it’s not immediately clear that it’s the city council that is determining the appropriate means of communication. The “by” phrase would be better placed immediately after “determined” – like this: “… or determined by City Council to be appropriate to inform the general public?”

The more serious problem with the ballot language is that the “any media permitted by law” phrasing is not a part of the proposed amendment for 7.4(a), but is included in its ballot language. However, the “any media permitted by law” phrasing is a part of the 7.3(d) amendment. I would conclude that this is sloppiness on the part of the city attorney’s office and/or the resolution’s sponsor, Marcia Higgins.

To  reflect the proposed amendment accurately, the ballot language should instead use the “any other means or methods” phrasing of the 7.4(a) amendment.

In sum, the ballot language that council approved probably should have read:

Shall Sections 7.4(a) (1) and (2) of the Ann Arbor City Charter be amended to permit the current requirement of newspaper publication of City ordinances to be satisfied also by posting to the City website, or also by any other means or methods determined by City Council to be appropriate to inform the general public?

Conclusion: I’m Voting No

At the council’s Monday meeting – when councilmembers approved the ballot question for the charter amendments on newspaper publication – Tony Derezinski (Ward 2) was spot-on when he lambasted his colleagues for failing to support his motion to postpone the historic district study committee appointment at the council’s previous meeting.  He’d asked for 12 days, he said, arguing that something so controversial – which had in one form or another been discussed over multiple months and multiple meetings – should not be introduced for consideration late in the very day of a council meeting.

As it turned out, the language of the resolution on the historic district had to be brought back before council for reconsideration to get the difference straightened out between “demolition” and “all construction, addition, alteration, repair, moving, excavation, or demolition.” A postponement might have avoided the glitch.

Some city council members seemed to think it did not matter about the late timing of the charter amendment – because they assumed it wouldn’t be controversial. The problem with that assumption is that it’s impossible to know if a proposal is controversial until it’s made public.

Now that it’s been made public and approved, here’s a news flash for Ann Arbor’s city council: Asking voters to give you charter authority to do anything you didn’t already have authority to do – that’s going to be controversial.

There are problems with the ballot language as well as with the basic premise of these charter amendments. They could have probably been altered in a way that would have made the proposal truly uncontroversial – if the city council had publicly discussed the possibility of putting such an amendment forward before it suddenly appeared on its agenda.

There is no particular urgency here, and once the charter amendment and accompanying ballot language are revised appropriately, it could be passed in spring of 2010.

But as the charter amendment stands, I find it impossible to support and I’ll be voting no.