City administrator Steve Powers and Jane Lumm (Ward 2) just before the Nov. 18, 2013 council meeting started – a conversation Lumm wrote about after the meeting in an email thread to other councilmembers.

The special meeting will include a closed session – based on written attorney-client privileged communication and land acquisition. The land acquisition 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 Nov. 27 press release. The business had signaled its intent to put the property on the market in late July.

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. Purchase by the university would remove the property from the tax rolls. Washtenaw County records show the taxable value of the property at just over $3 million.

The closed session to be held on Dec. 9 follows some friction among councilmembers about the way information was shared with the council about the sale. That friction resulted from comments overheard by Jane Lumm (Ward 2) just before the council’s Nov. 18 meeting started, which prompted her to email her council colleagues expressing her dissatisfaction that not all councilmembers had been kept in the loop.

The email thread, provided to The Chronicle in response to a Freedom of Information Act request, goes on to include a query by Lumm to UM director of community relations Jim Kosteva for information about the status of the Edwards Brothers property, followed by an admonishment to Lumm from Christopher Taylor (Ward 3) that there were scenarios under which Lumm’s inquiry could potentially be detrimental to the city’s interest. The thread includes a note from Chuck Warpehoski (Ward 5) that indicates concern that the issue should appropriately be discussed in a closed session under the state’s Open Meetings Act, not in an email thread among all councilmembers.

The email thread includes a clarificational inquiry to Taylor from Jack Eaton (Ward 4), as well as a note from Sabra Briere (Ward 1) about news coverage of the Edwards Brothers property sale. Eaton, Briere and Lumm signed the call to the Dec. 9 special meeting, which any three councilmembers can do under the city charter.

After the special meeting and its closed session, the council will move to the jury assembly room at the adjoining Justice Center for its annual budget planning session. That session could include an airing out of the issue of shared information – under an agenda item labeled “Articulating Mutual Expectations.” More specifically, the item indicates that the council will “identify and discuss mutual expectations for governing together” with the following desired outcome: “Articulate and agree on mutual expectations for members of the governing body.”

The background materials that have been provided to the council in preparation for the planning session include draft copies of reports with results from the National Citizens Survey that was conducted in the fall of 2013 by mailing a questionnaire to a random sample of 3,000 city residents, 778 of whom completed surveys. [.pdf of draft Ann Arbor National Citizens Survey report] [.pdf of responses, benchmarks, methodology and questionnaire]

The survey covered a broad range of topics. For example, 55% of survey respondents indicated that they rely at least somewhat for their news and information on online newspapers and media. That compares to 37% who said they rely some for news on printed newspapers. More respondents than that said they rely on news from the city website specifically (44%) or on radio stations (41%).

But questions about public safety – one of the top three priorities identified at last year’s planning session – will likely be of greater interest for councilmembers who will be weighing budget decisions at this year’s session. In general, under the community characteristics portion of the survey, 89% of Ann Arbor survey respondents rated their overall feeling of safety as good or excellent, with ratings for neighborhood safety at 97% and for downtown/commercial area safety at 92%. Those numbers are similar to the set of benchmarked communities that participated in the survey. The council’s measure of success for public safety includes the idea that residents should perceive the community as safe.

For the open-ended response survey item, which asked respondents to identify the city leaders’ top three priorities to maximize the quality of life in Ann Arbor, public safety was one of the top three items, with 19% of the open-ended responses identifying safety, crime and police as a concern. Also cited in 19% of responses were government, taxes and communication. However, the dominant concern in the open-ended responses was mobility issues – as 57% of responses were coded as related to roads, transportation, traffic, traffic enforcement, bikes and pedestrians.

That survey result mirrors the wide participation by the community in the recent debate about the repeal of the city’s crosswalk law. That debate ended in a city council vote on Dec. 2, 2013 to modify significantly the existing ordinance. But mayor John Hieftje announced immediately following the vote that he intended to exercise his power of veto.

The priority placed on the topic by the public and by councilmembers will also be reflected in two anticipated agenda items for the council’s Dec. 16 meeting. Christopher Taylor (Ward 3) is expected to bring forward a resolution directing the city administrator to present a plan for funding elements of the recently adopted update to the city’s non-motorized transportation plan. And Stephen Kunselman (Ward 3) has told The Chronicle he expects to bring forward a resolution on Dec. 16 that would allocate $500,000 from the general fund reserve this year to pay for police overtime to conduct traffic enforcement.

How police officers use their time while on duty is part of a report the council has been provided in preparation for the Dec. 9 budget planning session. Initial results from a newly implemented (Jan. 1, 2013) electronic timesheet logging system appear to indicate that police officers have at least 40% of their time that’s either unassigned or dedicated to proactive policing and community engagement. At last year’s planning session, the council had defined a success statement for public safety that included a goal of 25-30% time available for proactive policing.

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.

Material presented in this article includes an annotated email thread about the Edwards Brothers property sale – which started in the Nov. 19 early morning hours, after the council meeting ended.

Annotated Email Thread

Chronicle annotations below are indicated in bracketed italics.

From: Lumm, Jane
Sent: Tuesday, November 19, 2013 3:40 AM
[The council meeting that started on Nov. 18, 2013 did not conclude until 1:45 a.m.]
To: Powers, Steve
CC: Hieftje, John; Kailasapathy, Sumi; Briere, Sabra; Petersen, Sally; Taylor, Christopher (Council); Kunselman, Stephen; Teall, Margie; Eaton, Jack; Warpehoski, Chuck; Anglin, Mike
Subject: Edwards Brothers’ Property on State Street

Dear Steve,

This evening I tangentially and inadvertently became aware of a proposal that has been offered by the UM for the Edwards Brothers’ property. I’ll be perfectly honest, I overheard Mayor Hieftje share this news with Councilmember Petersen, and hence my inquiry. In the interest of providing all councilmembers with helpful information regarding this development, could you please share what you know about this matter with all of council? Please also provide your counsel on options that we may consider (timing, proposals, strategy, etc.) given the City’s right of first refusal position. 

[The Edwards Brothers press release issued on Nov. 27 named Sally Petersen (Ward 2) as a councilmember with whom Edwards Brothers leadership had met that same day – along with mayor John Hieftje. Petersen responded to an emailed Chronicle query about the rationale for her inclusion in the talks. Petersen gave two reasons: "1. The Mayor knows that I am interested in forging an improved town-gown relationship with U of M, their offer for the Edwards property, despite previous denial of affirmative interest, signals a step back in relationship building. 2. John and Susan Edwards used to live across the street from us on Devonshire and our daughters were best friends when they were at Angell Elementary. Joe and Sue Upton are friends from Church. It was natural for me to be involved from a personal relationship perspective."]

I sense that, if what I overheard is accurate, and I very much regret that this is how I was “informed”, we obviously do not all have the benefit of being provided the information necessary to adequately contemplate and respond to any strategy you may recommend or seek input on developing.

Thank you for assisting us in understanding our options, and for extending us all the courtesy of receiving this information in a timely, helpful, meaningful and equitable way. Aside from this specific request, I think my request for the equitable dissemination of information is so fundamental, so obviously the right and proper thing to do. We’re all just trying to do our jobs, and, obviously, in order to do that, information must be provided all councilmembers.

Jane

Sent from my iPhone

From: Briere, Sabra
Sent: Tuesday, November 19, 2013 7:38 AM
To: Lumm, Jane; Powers, Steve
CC: Hieftje, John; Kailasapathy, Sumi; Petersen, Sally; Taylor, Christopher (Council); Kunselman,
Stephen; Teall, Margie; Eaton, Jack; Warpehoski, Chuck; Anglin, Mike
Subject: RE: Edwards Brothers’ Property on State Street

Dear colleagues,

Of course, I didn’t overhear the conversation between Mayor Hieftje and Council member Petersen. But this article identifies the City’s right of first refusal and the UM’s desire to expand the athletic campus: http://www.mlive.com/business/ann-arbor/index.ssf/2013/11/city_of_ann_arbor_has_first_cl.html

Sabra Briere
First Ward Councilmember
(734) 995-3518 (home)
(734) 277-6578 (cell)

Emails received and sent to me as a Councilmember regarding City matters are generally subject to disclosure under the Freedom of Information Act.

From: Lumm, Jane
Sent: Tuesday, November 19, 2013 8:26 AM
To: Briere, Sabra
CC: Powers, Steve; Hieftje, John; Kailasapathy, Sumi; Petersen, Sally; Taylor, Christopher
(Council); Kunselman, Stephen; Teall, Margie; Eaton, Jack; Warpehoski, Chuck; Anglin, Mike
Subject: Re: Edwards Brothers’ Property on State Street

Sabra,

I saw this article. Please note what the Mayor states, WE will need to have a serious conversation. I’ve come to appreciate, sadly, after getting my news from news sources rather than the City (this has occurred frequently, on important matters!, since I’ve been on council), that information is not shared or disseminated even-handedly or fairly, and last night’s discovery was another unfortunate case in point.

After John’s aside to Sally sunk in, the magnitude, the significance, the way in which this was shared … , I asked Steve Powers if and what he knew about this. Had less than a minute b/c the mtg. was about to start. In that brief exchange, Steve confirmed, the UM made an offer, and seemed to imply (reading his “body language”) it wasn’t a positive development. I said this was a big deal, and would have said more, much more, but the council mtg. was now about to start. Council members should be treated even-handedly, and information should be provided ALL. I have made this request on innumerable occasions.

[When asked by The Chronicle for an example of another occasion on which she did not perceive that information was shared even-handedly, Lumm cited the news that the University of Michigan had ended its participation in the now demised Fuller Road Station project.]

Jane

Sent from my iPhone

From: Briere, Sabra
Sent: Tuesday, November 19, 2013 8:29 AM
To: Lumm, Jane
CC: Powers, Steve; Hieftje, John; Kailasapathy, Sumi; Petersen, Sally; Taylor, Christopher (Council); Kunselman, Stephen; Teall, Margie; Eaton, Jack; Warpehoski, Chuck; Anglin, Mike
Subject: Re: Edwards Brothers’ Property on State Street

Thank you for the clarification, Jane.

I guess, reading between the lines in the media coverage, that I had assumed the UM made a bid for the property. So that doesn’t seem like new information. I want to hear more about the City’s options.

Sabra Briere
First Ward City Council
Ann Arbor
734-995-3518
734-277-6578 (cell)

Sent from my iPad

From: Lumm, Jane
Sent: Tuesday, November 19, 2013 8:52 AM
To: Briere, Sabra
CC: Powers, Steve; Hieftje, John; Kailasapathy, Sumi; Petersen, Sally; Taylor, Christopher (Council); Kunselman, Stephen; Teall, Margie; Eaton, Jack; Warpehoski. Chuck; Anglin, Mike
Subject: Re: Edwards Brothers’ Property on State Street

The article was speculative, and how I learned, when the reporter called to ask me about this, the City had a right of first refusal. Nothing in the article about the UM making an offer. Perhaps, prior to my note, you were made aware of this as well? It should be clear, I am advocating on EVERYONE’S behalf. Not shouting, emphasizing so it’s understood why I think this is so important, speaks more about us, how we should treat our colleagues. Pretty basic, pretty essential, decent, common courtesy.

Jane

Sent from my iPhone

From: Powers, Steve
Sent: Tuesday, November 19, 2013 9:52 AM
To: Lumm, Jane
CC: Hieftje, John; Kailasapathy, Sumi; Briere, Sabra; Petersen, Sally; Taylor, Christopher
(Council); Kunselman, Stephen; Teall, Margie; Eaton, Jack; Warpehoski, Chuck; Anglin, Mike
Subject: RE: Edwards Brothers’ Property on State Street

The tax abatement agreement between City Council and Edwards Brothers gives the City (City Council) 60 days to exercise its right of first refusal. The 60 days is triggered by a formal notification from Edwards Brothers. No such notice has been received by the City. The property is surrounded on three sides by the UM Athletic Department. The UM Athletic Department has acquisition of the property included in its master development plan. The University recently received a $100 million dollar donation for the Stephen Ross Athletic Department. I don’t know if the University has made an offer or not, but I assume they will.

SP

From: Lumm, Jane
Sent: Tuesday, November 19,2013 10:21 AM
To: Powers, Steve
CC: Hieftje, John; Kailasapathy, Sumi; Briere, Sabra; Petersen, Sally; Taylor, Christopher (Council); Kunselman, Stephen; Teall, Margie; Eaton, Jack; Warpehoski, Chuck; Anglin, Mike
Subject: Re: Edwards Brothers’ Property on State Street

Steve, last night you told me that they did make an offer. Sally confirmed that John told her the UM made an offer.

[It's possible that the apparent miscommunication here is a function of the fact that the University and Edwards Brothers had agreed to terms, but that the event triggering the city's 60-day right-of-first refusal window had not (and as far as The Chronicle's understanding goes, still has not) taken place. According to the tax abatement agreement, that event is a formal notification of Edwards Brothers to the city.]

Just the facts.

-Jane

Sent from my iPhone

From: Lumm, Jane
Sent: Tuesday, November 19, 2013 10:34 AM
To: Kosteva, Jim
CC: Powers, Steve; Hieftje, John; Kailasapathy, Sumi; Briere, Sabra; Petersen, Sally; Taylor, Christopher (Council); Kunselman, Stephen; Teall, Margie; Eaton, Jack; Warpehoski, Chuck; Anglin, Mike
Subject: UM Offer for Edwards Brothers Property

Jim, Last evening Mayor Hieftje shared with one of our councilmembers that the UM has made an offer to Edwards Brothers for the State Street property. I don’t know how Mayor Hieftje received this information or from whom, but any enlightenment on the University’s part would be welcome. The City apparently has, as stipulated in the right of first refusal provision, 60 days to respond, and the City Administrator indicates he is unaware of an offer and no notice has been received. Yet, the speculation, prompted by the Mayor’s “announcement” is heightened given the potential and significant impact on the City were such an offer to be presented. Any information you can provide in this regard would be welcome.

Thank you, Jane

Sent from my iPhone

From: Taylor, Christopher (Council)
Sent: Tue 11/19/2013 10:50 AM
To: Lumm, Jane
CC: Powers, Steve; Hieftje, John; Kailasapathy, Sumi; Briere, Sabra; Petersen, Sally; Kunselman, Stephen; Teall, Margie; Eaton, Jack; Warpehoski, Chuck; Anglin, Mike
Subject: RE: UM Offer for Edwards Brothers Property

Jane,

Without myself having any personal knowledge of the situation, there are several reasonable scenarios under which this communication would be substantially detrimental to the best interest of the City. 

[Subsequent inquiry and response by Taylor indicates that by "this communication" Taylor meant Lumm's inquiry of Kosteva.]

Christopher

Christopher Taylor Member Ann Arbor City Council (Third Ward)

734-834-3600 (c) [New Number]
734-531-1331 (w) [New Number]
734-213-6223 (h)
Like me on Facebook at: http://tinyurl.com/a2jsvpa <http://tinyurl.com/a2jsvpa>

From: Eaton, Jack
Sent: Tuesday, November 19, 2013 2:21 PM
To: Taylor, Christopher (Council); Lumm, Jane
CC: Powers, Steve; Hieftje, John; Kailasapathy, Sumi; Briere, Sabra; Petersen, Sally; Kunselman,
Stephen; Teall, Margie; Warpehoski, Chuck; Anglin, Mike
Subject: RE: UM Offer for Edwards Brothers Property

Christopher,

Being the new member on Council I want to be very careful not to harm the best interests of the City. Hopefully I can learn from the actions of others. So, please indulge my desire to understand the caution you are trying to communicate to CM Lumm.

When you say “there are several reasonable scenarios under which this communication would be substantially detrimental to the best interest of the City”, what do you mean by the use of the terms “this communication”. Do you mean:

(1) the communication between the Mayor and the unidentified third person;
(2) the communication from Ms. Lumm disclosing that overheard conversation to other members of Council;
(3) CM Lumm’s email inquiry to Kosteva asking about the status of the property;
(4) something else?

Thanks in advance,

Jack

On Nov 19, 2013, at 2:31 PM, “Taylor, Christopher (Council)” <CTaylor@a2gov.org> wrote:

Hi Jack,

Thanks for asking: #3.

Christopher Taylor Member Ann Arbor City Council (Third Ward)

734-834-3600 (c) [New Number]
734-531-1331 (w) [New Number]
734-213-6223 (h)

Like me on Facebook at: http://tinyurl.com/a2jsvpa

From: Warpehoski, Chuck
Sent: Wednesday, November 20, 2013 10:43 AM
To: Lumm, Jane
CC: Powers, Steve; Hieftje, John; Kailasapathy, Sumi; Briere, Sabra; Petersen, Sally; Taylor, Christopher (Council); Kunselman, Stephen; Teall, Margie; Eaton, Jack; Anglin, Mike; Postema, Stephen
Subject: Re: Edwards Brothers’ Property on State Street

Two points:

1. I believe that consideration of this particular issues should best be taken under closed section “To consider the purchase or lease of real property up to the time an option to purchase or lease that real property is obtained.” I do not believe this should be addressed through email.

2. Also related to OMA, I am concerned about deliberations not be conducted outside of public view, so I ask that colleagues take care with emails to all and reply all messages.

[The point that Warpehoski is making is that if at least a quorum of councilmembers were to engage in deliberative back-and-forth which purpose was ultimately to effect public policy, then this would constitute a "meeting" under Michigan's Open Meetings Act. That would be a violation of the OMA, because it's difficult to imagine how an email conversation could be noticed to the public or be made accessible to the public.]

-Chuck

Chuck Warpehoski
Ann Arbor City Council, Ward 5
cwarpehoski@a2gov.org
c: 734-972-8304

Visit www.chuckwarpehoski.org for Ward 5 updates and to sign up for a Ward 5 email newsletter. Emails received and sent to me as a Councilmember regarding City matters are generally subject to disclosure under the Freedom of Information Act.

From: Lumm, Jane
Sent: Friday, November 22, 2013 2:14 PM
To: Taylor, Christopher (Council); Eaton, Jack
CC: Postema, Stephen; Powers, Steve
Subject: Re: UM Offer for Edwards Brothers Property

Christopher and Jack, Thanks. Heeding your admonition, after I sent the inquiry to Kosteva, obviously, and wondering why this poses a problem to ask the University for clarification. Honestly don’t know why it’s detrimental since the City has a potential interest.

[On the question of what Taylor had in mind when he described "several reasonable scenarios under which this communication would be substantially detrimental to the best interest of the City" Taylor answered an emailed query from The Chronicle by indicating he would decline to respond. The Chronicle followed up by asking if Taylor's reason for not wishing to comment was based on the idea that explaining the kind of scenario he had in mind would itself increase the likelihood of having a scenario unfold that was detrimental to the city. Taylor indicated that was not the reason. Instead he indicated that he was declining to comment out of "comity." ]

Think there needs to be a council mtg. to discuss. This all seems to be unfolding quickly.

Thanks, Jane

Sent from my iPad

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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.

The purpose of the special meeting is to go into closed session to discuss written attorney-client privileged communication. One possibility for the topic the council will cover in the closed session relates to a possible moratorium on site plan review for D1-zoned areas of the downtown, which the council has considered but postponed at its two most recent meetings.

The council already had a budget work session scheduled for the same time. So the budget work session will start at 7 p.m. instead.

Jane Lumm (Ward 2) made air quotes around the word "approaching" as the council discussed the city's ordinance on crosswalks. (Photos by the writer.)

The current ordinance amendment maintains an existing requirement that motorists accommodate not just pedestrians who are “within” a crosswalk, but also those who are verging on entering a crosswalk. What’s different is the way the concept is expressed. In July 2010, the council chose to describe pedestrians who are about to enter a crosswalk as “approaching” the crosswalk. The version of the ordinance finalized on Dec. 19 requires motorists to accommodate “… a pedestrian stopped at the curb, curb line or ramp leading to a crosswalk and to every pedestrian within a crosswalk …”

As part of the previous amendments made in 2010, the council also had removed language that specified a half of the roadway where drivers needed to accommodate pedestrians. This time around, the council restored similar language, which reads, “… when the pedestrian is on the half of the roadway on which the vehicle is traveling or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.”

In other crosswalk-related business, the council approved an expenditure of $81,000 to install five rectangular rapid flashing beacons (RRFB) on existing pedestrian islands in the city. Four of the locations are along Plymouth Road, at Georgetown, Traver Village, Beal and Bishop. The fifth location is at Seventh and Washington.

Also at the Dec. 19 meeting, the council ended a long process of review by the city and negotiation with neighbors by approving a change to the zoning of the Hoover Mansion property on Washtenaw Avenue, which University Bank uses as its headquarters. The change will allow University Bank to build 13 new parking spaces on the east side – behind the main building, allowing the bank in accommodate expanded employment.

Towards the end of the council’s meeting, a relatively rare debate unfolded about a mayoral nomination to a city board. At issue was the nomination of a city employee – transportation program manager Eli Cooper – to the board of the Ann Arbor Transportation Authority. He’s replacing another city employee on the board, public services area administrator Sue McCormick, who left her position with the city in mid-December. In the end, Cooper’s nomination was confirmed with dissent from two councilmembers. A separate vote on a general policy opposing nominations of city employees to boards and commissions received only four votes of support.

The council considered two compensation-related issues – one for its city attorney, Stephen Postema, and another for election workers who staff the polls. After a closed session to discuss Postema’s performance review, the council voted with dissent from one councilmember to award Postema the ability to cash out 250 hours of banked time. The council delayed its vote on pay increases for election workers, on the possibility that their pay could be increased more than what’s proposed, to match the amount specified in the city’s living wage ordinance.

In other business, the council approved a bond re-funding, authorized reimbursement for a broken electromagnet at the materials recovery facility, accepted additional federal money for solar projects, and heard about a possible strategy for addressing vacant and dilapidated properties.

Crosswalks

Two pedestrian-safety-related items were on the Dec. 19 agenda. The first was final consideration of a change to the city’s crosswalk ordinance. The second was authorization of $81,000 for installation of flashing pedestrian crossing beacons at five different locations in the city, four of them on Plymouth Road.

Crosswalks: Ordinance Revision – Background

The section of the crosswalk ordinance given final approval now reads: ”… the driver of a vehicle shall stop before entering a crosswalk and yield the right-of-way to a pedestrian stopped at the curb, curb line or ramp leading to a crosswalk and to every pedestrian within a crosswalk, when the pedestrian is on the half of the roadway on which the vehicle is traveling or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.”

The council struck from the ordinance an addition to which it had given initial approval on Nov. 10, 2011 that required motorists to stop for pedestrians “without regard to which portion of the roadway the pedestrian is using.”

This recent round of revisions to the ordinance comes after the council modified the pedestrian safety ordinance on July 19, 2010 to include an expansion of the conditions under which motorists must take action to accommodate pedestrians. Specifically, the 2010 amendments required accommodation of pedestrians not just “within a crosswalk” but also “approaching or within a crosswalk.” The modification approved on Dec. 19 was intended to address a perceived ambiguity of the word “approaching.”

Besides the “approaching” phrase, the 2010 amendments also included two other key elements. The 2010 amendments included a requirement that motorists “stop” and not merely “slow as to yield.” And the 2010 amendments also eliminated reference to which half of the roadway is relevant to the responsibility placed on motorists for accommodating pedestrians. That eliminated phrase was restored in the version approved by the council on Dec. 19.

Crosswalks: Public Commentary

Kathy Griswold spoke during general public commentary as well as during the formal public hearing. She described the tremendous engagement of the community and the city council in the discussion of pedestrian safety. Now is the time for the community to come together, she said. She described how Boulder, Colorado’s sight distance ordinance supports pedestrian safety, by regulating vegetation along roadways, not just at intersections. Also, in 2009 Boulder had a full-time employee to make sure utility boxes are not placed to restrict sight distances, she contended. She questioned whether the goal in Ann Arbor is to try to improve safety, or rather to do something else.

During the public hearing, Griswold complained that the word “safety” doesn’t appear anywhere in the brochures the city uses to tout Ann Arbor’s walkability. She contended that passing this ordinance seemed like an attempt to be “cool” – but that’s not how safety works, she said. The local community is good at advocating for pedestrian “rights,” Griswold said, but she suggested that pedestrian “rights” are a different issue from pedestrian safety.

Griswold expressed frustration that the signage the city is using refers only to “within” a crosswalk when the ordinance includes additional conditions for stopping. To get alternate signage, she’d learned from city staff, would require submitting a request to “experiment” with alternate wording. She objected to the idea of experimenting with the lives of young children. She said we should not expect that young people who are not drivers to determine if it’s safe or unsafe to cross. “We can do better than this,” she said, and she hoped the focus could change to improving safety.

Tim Hull said he thought that defining stop conditions on the local level is a bad idea – it will result in an ordinance that is not recommended by the Uniform Traffic Code (UTC). People will see it as a revenue generation scheme, he feared. And pedestrians don’t feel more safe because of the ordinance – they don’t know if cars will stop. At Plymouth and Beal, Hull said he never knows if cars will stop. What’s safest for pedestrians is to use the UTC recommended standard, even if that code is not actually the state law. He suggested lobbying Ann Arbor’s representatives to the state legislature.

At the left is Larry Deck, who spoke about the pedestrian ordinance on behalf of the Washtenaw Bicycling and Walking Coalition. He was chatting with the city's transportation program manager, Eli Cooper.

Larry Deck of the Washtenaw Bicycling and Walking Coalition told the council that change has to start somewhere. He agreed it’d be nice to see that change happen statewide. The WBWC supports the wording that the council approved at its first reading, he said. A transitional phase is needed in order to make the cultural change, he said. Of the principles of engineering, education, and enforcement, the initial step should be educational, he said. For the engineering step, the WBWC is starting to have a discussion about crosswalk design guidelines that would include advance stop bars and flashing beacons. On Plymouth Road, the beacons would help clarify the situation, Deck said.

Michael Benson introduced himself as a Ward 2 resident, speaking on behalf of the graduate student body at the University of Michigan. The changes to the crosswalk ordinance are a step in the right direction. Even though it’s not perfect, it’s a good start, he said. The proposed wording still leaves an incongruity between the city of Ann Arbor and the rest of the state. For a student who comes to study at UM from outside the city, what do the flashes mean on the proposed new signs? Benson suggested approving the changes and forming a working group to continue to review the ordinance.

An unidentified man spoke during the public hearing and made remarks couched in a general complaint that the city did not do a very good job of helping people who have problems – he’d spent three years trying to get help with Social Security and said he had called every information number that exists. The city should give serious thought to helping the elderly before coming up with an idea that will risk lives, he concluded.

Thomas Partridge introduced himself as a disabled senior citizen who had experienced near-accidents as a pedestrian. The city needs an effort involving driver education and a much more full and comprehensive approach to crosswalks and other areas of pedestrian safety, he said.

Stephen Ranzini introduced himself as a resident of downtown Ann Arbor. He drew the council’s attention to a poll that had run on AnnArbor.com about the pedestrian ordinance. He said he’d written a comment suggesting that one of the choices in the poll should have been the repeal of an ordinance that is incompatible with state law. He indicated that his comment had been well-received by other readers of AnnArbor.com.

Crosswalks: Ordinance Revision – Council Deliberations

Mayor John Hieftje led off deliberations by saying that awareness of the issue had been the result of enforcement, not the specific language of the ordinance. As to the idea that the ordinance put young people in danger, Hieftje said that the previous version of the ordinance asked pedestrians to put themselves in danger in order to trigger the condition under which drivers should stop. The negative outcomes the city has experienced would have been the same if tickets had been written for drivers, based on the previously existing traffic code.

Carsten Hohnke (Ward 5) echoed the comments made by Hieftje. Hohnke said it was important to understand the status of the Uniform Traffic Code (UTC), which people sometimes referred to as a state law or recommended ordinance. There is no state law, or a particular recommendation for a local ordinance, he said. Independent of the changes Ann Arbor adopts, he said, there will be a variety of ordinances in place across the state and the country.

Some mild confusion then resulted concerning what Sabra Briere (Ward 1) wanted to propose as an amendment to the language already initially approved on Nov. 10. Compared to the initially-approved language, what was eventually settled on in the way of amendments was as follows [added words in italics, deleted words in strike-through]:

”… the driver of a vehicle shall stop before entering a crosswalk and yield the right-of-way to a pedestrian stopped at the curb, curb line or ramp leading to a crosswalk and to every pedestrian within a crosswalk, without regard to which portion of the roadway the pedestrian is using. when the pedestrian is on the half of the roadway on which the vehicle is traveling or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.”

Some of the confusion, which was resolved between Sandi Smith (Ward 1), Christopher Taylor (Ward 3) and Briere, stemmed from Briere’s initial reluctance to revise the phrasing involving the roadway half. She’d been hesitant because the flashing beacons the city plans to install will alert drivers in both directions, yet the existence of the beacons did not make the crosswalk a signalized crosswalk in terms of the traffic ordinance. She had contemplated just eliminating the “without regard” language addressing the roadway half, and not adding the “half of the roadway” phrasing.

What helped the council settle on the language above as the amendment to consider were remarks from transportation manager Eli Cooper, who indicated there were two reasons why the staff recommended the “half of the roadway” phrasing. As part of the UTC, it would help ensure consistency with other communities, he said. Also, the language is straightforward to understand as far as what constitutes a “stop condition.”

The issue relates to what a driver can readily see – that’s really what is along side of you, said Cooper. It’s not really possible to see what’s happening possibly five lanes away on the other side of the road. It was felt that it’s too onerous on the driver, Cooper said.

Responding to a question from Briere about the impact of leaving out all reference to a part of the roadway, Cooper said he would recommend specificity, because staff can “amplify that specificity.”

Tony Derezinski (Ward 2) got confirmation from Cooper that what was proposed is consistent with traffic engineering. Cooper allowed that he is not a licensed engineer, but he said the staff working group is supported by traffic engineers, who supported the proposal.

With the proposed amendment in front of the council, Hohnke observed that he’d been comfortable with folks having to grapple with the word “approaching” in the phrase describing pedestrians who were verging on entering a crosswalk. Now, the word “approaching” has been eliminated in that place, but introduced elsewhere. With some hesitation, he said, he would support the change.

Jane Lumm (Ward 2) said she appreciated the inclusion of the phrase that divides the roadway into halves. Motorists need to focus on the roadway in their immediate view, she said. No amount of education, she believed, would have helped the situation if motorists had been required to stop without regard to which half of the roadway a pedestrian was using.

Outcome on amendment: The council unanimously approved the addition of “curb line” and the re-introduction of roadway halves as pertinent to defining the stop conditions for motorists.

Lumm made a motion to strike language in the ordinance defining stop conditions for motorists as anything except “within a crosswalk.” The motion died for lack of a seconding motion. When the motion died, Lumm mused, “That’s what I thought.”

Left to right: Sandi Smith (Ward 1), Sabra Briere (Ward 1) and Tony Derezinski (Ward 2). Briere is demonstrating that councilmembers wait to be recognized before speaking during their meetings – they don't just blurt things out.

Smith felt that previously the problem had been that the council had approved changes to the ordinance, then let it sit. There’d been some education, she allowed, but then the city began with what some might say was “radical enforcement.” That’s what created the turmoil, she said. She asked that the city administrator talk with the police chief to take a softer approach to helping the community learn how to adapt to the ordnance.

Briere offered her own experience with a change in traffic rules – the installation of a new stop sign on Madison Street, when she previously lived in Ward 5. She said it’s a tough adjustment. Drivers are used to driving the way they’re used to driving. Briere advised that the council would continue to hear from people about the ordinance. She said she thinks more people are becoming aware of pedestrians.

Stephen Kunselman (Ward 3) got clarification from assistant city attorney Kristen Larcom that ordinance infractions would not result in points on driver’s licenses.

Lumm said she wants to protect pedestrians, but not at the expense of creating traffic hazards. So she said she supported the ordinance amendment, but looks forward to follow-up on appropriate signage to make sure it comports with the ordinance.

Cooper responded to Lumm’s concern about the signs used by the city, saying that they are in the Manual on Uniform Traffic Control Devices (MUTCD) – he emphasized the word “uniform.” The phrase “within a crosswalk” is not the full body of the ordinance, just as the speed limit sign is not the full text of the law, explained Cooper. Briere ventured that the signs “say what they need to say.”

Lumm still wondered how you enforce the ordinance, if the sign doesn’t say the exact same thing. City attorney Stephen Postema explained that the city would move to enforce it, but then then it’s up to a judge.

Outcome: The council unanimously approved changes to the crosswalk ordinance.

Crosswalks: Flashing Beacons – Background

The council was asked to authorize a budget modification, drawing on its major street fund to allow an expenditure of $81,000. The funds would be used to install five rectangular rapid flashing beacons (RRFB) on existing pedestrian islands in the city. Four of the locations are along Plymouth Road – at Georgetown, Traver Village, Beal and Bishop. The fifth location is at Seventh and Washington. [.pdf with schematic of intersections and an RRFB] [.pdf of map depicting locations]

The flashing function of an RRFB would not be continuous – it would be activated by a pedestrian pushing a button. The staff memo accompanying the resolution describes an RRFB as “similar in nature to the light bars on the top of emergency vehicles.” The flashing beacons do not count as traffic control signals for the purposes of the city’s pedestrian safety ordinance, which addresses motorist behavior “[w]hen traffic-control signals are not in place or are not in operation …” Otherwise put, the pedestrian safety ordinance will still apply at those crosswalks where RRFBs are installed.

Annual costs for operation and maintenance of the RRFBs are estimated at $160 per crossing. Installation of the new signs is scheduled to begin in February 2012, and to be completed by April 2012.

Crosswalks: Flashing Beacons – Council Deliberations

Sabra Briere (Ward 1) led off deliberations saying that she’d heard concern expressed about the possible triggering of seizures and migraines by the flashing beacons. She explained that the flashes are random, not rhythmic, thus less likely to trigger those problems.

Jane Lumm (Ward 2) questioned why the city’s alternative transportation fund was not being tapped instead of its major street fund. The city’s head of project management, Homayoon Pirooz, told Lumm the two funds have the same source of money – the state’s Act 51 appropriation, which is based on gas and vehicle taxes.

Lumm then proposed an amendment to remove from the proposal the two “low volume” crosswalks of the four on Plymouth – near Traver Village and Georgetown Boulevard. She contended that there are signalized intersections near enough to those locations that pedestrians could cross there.

Pirooz responded to Lumm by explaining that typical distances for which pedestrians are willing to walk in order to cross, based on the length of city blocks, are 500-700 feet. Based on that, the crosswalk locations for which the flashing beacons are proposed are in exactly right spots, Pirooz said. It’s not an excessive number, and he would probably recommend more, Pirooz concluded.

Briere clarified with Pirooz that two of the crosswalks where beacons are proposed are adjacent to bus stops. She noted that she’d seen Plymouth Road in action for years and years. The city had made some improvements to signage seven years ago and had used the best technology at the time – there’s better technology now, she said. Responding implicitly to Lumm’s concern about the relatively fewer number of pedestrians at two of the crosswalks, Briere ventured that instead of counting pedestrians, they should count the number of lanes a pedestrian has to cross.

Queried by Stephen Kunselman (Ward 3), Craig Hupy, the city’s head of systems planning, said the city would likely use a combination of solar-powered and hard-wired beacons. Kunselman sought and received assurance that pedestrians who activated the beacons would not be blinded by them.

Lumm observed that nothing had happened as a result of the motion she’d made to eliminate two of the proposed beacons. She said she thinks the beacons seem like a reasonable solution – because they generate 75-80% compliance from motorists. Her issue, she said, is with the number of the beacons. It’s about balancing the safety of pedestrians and motorists, she said.

Outcome: The council unanimously approved $81,000 for flashing beacons.

University Bank, Hoover Mansion Rezoning

Before the council for its consideration was final approval to alter the University Bank PUD (planned unit development) and site plan for the bank’s property at 2015 Washtenaw Ave., known as the Hoover Mansion. The bank wanted to revise the site’s existing PUD – originally approved in 1978 – to allow for an increase in the total number of employees and parking spaces permitted on the parcel. The site serves as the bank’s headquarters.

The change will allow University Bank to build 13 new parking spaces on the east side – behind the main building – for a total of 52 spaces on the site. The city planning commission unanimously recommended approval of the change at its Oct. 4, 2011 meeting, after the proposal had been submitted to the city at least a year earlier. The council gave its initial approval to the change in the PUD at its Nov. 21, 2011 meeting.

The long approval process could in part be attributed to opposition from immediate neighbors to specific elements of the plan, which was to some degree modified in response. A letter of opposition, attached to the council’s Dec. 19 agenda packet, made a more general objection to “the likelihood of further commercialization of the residential neighborhood.” [.pdf of letter of opposition][.jpg of aerial view with parcels]

Because the proposal was a change to the city’s zoning, it was a change to the city’s ordinances – a process that required a second approval by the council at a separate meeting, preceded by a public hearing.

Hoover Mansion: Public Hearing

Two separate public hearings were held – one for the zoning and the other for the site plan.

At the zoning hearing, Thomas Partridge complained that such agenda items are predetermined for approvals by the planning staff. All such items should recognize the need for civil rights, he said. At the public hearing on the site plan, he called for increased access to affordable housing and transportation.

Also speaking at both public hearings was the president of University Bank, Stephen Ranzini, who introduced himself as a downtown resident of Ann Arbor. He sketched the history of the bank now named University Bank, explaining that it was founded in 1890. After he led a investment group that bought the bank 23 years ago, its assets under management have grown from $35 million to $10.3 billion, he said. Today the bank has 280 employees, making it the 11th largest bank with its headquarters in Michigan, he said. In the last 90 days, the bank has hired 60 employees – all but five outside Ann Arbor. [More hires were not made in Ann Arbor, he indicated, because of the limited parking at the Hoover Mansion.] The bank has been a good neighbor, he said, and has won all the major awards a community bank can win.

Stephen Ranzini, president of University Bank, in his Milford Track jacket. He compared the difficulty of completing the New Zealand hiking trail to the city of Ann Arbor's approval process.

Ranzini calculated the value of the land on which the Hoover Mansion stands at $3.6 million. The cost of operating the 10,000-square-foot mansion is around $200,000 annually, he said. And its appraised value is only $2 million, due to its high cost of operation. Given the capital tied up in the building and its more than $20 per-square-foot operating cost, office space available elsewhere was actually cheaper, Ranzini said.

On-site parking is currently limited to 39 spaces, he said, and that limits the number of employees – especially because a certain number of the spots have to be set aside for the public. University Bank stepped up and bought the property in 2005, he said. To be sustainable in the long term [regardless of who owns the property], the parking needs to expand to accommodate something in the range of 60 employees. If the value of the building is not increased from $2 million, he warned, some future owner will pursue a different course. He said that if University Bank had not fought an intense legal battle, the mansion would not be standing today.

At the second public hearing, Ranzini laid out a complaint about the length of the approval process with the city, which he contended began 39 months ago, with a request for 28 additional parking spots. The result of that long process, which had included two neighborhood charrettes, would result in perhaps 13 additional spaces. Of the 19 adjacent property owners, 16 had supported the proposal from the very beginning, he said. The remaining three were now on board, he thought. However, he’d heard that two neighbors still have some concerns about lighting. Ranzini expressed some frustration that they would raise these concerns on the last day. In any case, he felt the concerns about lighting were not valid – the proposal met and exceeded lighting requirements. If the neighbors with objections based on lighting were present that night, Ranzini said, he could put their fears to rest.

Ranzini said that University Bank had committed to $150,000 in extra amenities for the site and $50,000 in engineering expenses. The public transportation benefits of the site, which he said his fellow citizen Thomas Partridge could use, included a bus stop in front, a walking path and new bike racks. Due to the delays in getting the plan approved, the bank relocated one of its divisions and eight jobs to Farmington Hills – those jobs will never come back, he said. Ranzini told the council he was wearing his jacket from the Milford Track because he wanted to compare that hike in New Zealand – which he’d enjoyed with his wife on their honeymoon – with the city’s approval process. It made completing the Milford Track seem easy, he said.

Hoover Mansion: Council Deliberations

City planner Chris Chang Cheng took the podium at the request of Tony Derezinski (Ward 2). Cheng responded implicitly to Ranzini’s description of the process as taking 39 months by saying that he’d seen a submission made in December 2009, with revised plans submitted in July 2010. Cheng said that it had been around for approximately two years. About six months had elapsed between submission and revision. The original recommendation of the planning staff would have been to deny the approval, but the staff worked its way through it, and the eventual proposal had a smaller parking area.

The issue of lighting did come up, he said, in meetings with neighbors held over the last two years. University Bank has indicated that there are zero foot candles emitted from the property, he said, and if it turns out that there’s any light spillage, the bank has agreed to shield the lights and reduce the wattage.

Derezinski said that from his recollection seeing the project come before the planning commission, a lot of give-and-take was involved in the project. [Derezinski serves as the city council representative to the city planning commission.] Cheng confirmed for Derezinski that no parking would be allowed on the circular drive. He told Derezinski that he personally attended two meetings with neighbors and that there were other meetings. Cheng confirmed for Derezinski that the result of those meeting was a consensus on proposed solutions.

Jane Lumm (Ward 2) indicated that over the weekend she’d fielded some questions about expanded commercial uses in a residential area. But she got clarification from Cheng that future alterations from current use would require approval. Lumm said she was impressed by how people had worked on the issues.

Carsten Hohnke (Ward 5) noted that the Hoover Mansion is a unique property, and that it shows what PUDs are about. His understanding of the purported public benefits to the alteration of the PUD were: (1) expanded employment, (2) an additional walkway to the bicycle parking spaces, and (3) a greater-than-required mitigation of the loss of trees due to creating more parking spaces.

Hohnke wanted to know if there was any contingency related to the first benefit. Cheng allowed that there’s nothing that forces University Bank to hire 10 additional employees. Hohnke got clarification that the walking path and the bicycle parking spots would be used by both employees and visitors. Hohnke wanted to know how the city planning staff evaluated the mitigation of any impact on the tree loss, if the impact wouldn’t have existed without the requested change. Cheng explained that the proposal made the least impact on woodland and natural features as possible.

Derezinski described the process that lasted over the course of a couple of years as the result of good people working on both sides. Obviously, he said, the bank wanted more parking spots and the neighbors wanted fewer. He called it a “grudging consensus.” He felt it was the best possible solution, given the circumstances.

Outcome: The council voted unanimously to approve the Hoover Mansion PUD and site plan.

Mayoral Appointments of City Employees

The council’s meeting was bookended by discussion of mayoral appointments of various sorts. In Ann Arbor’s council-manager form of government, the mayor is also a member of the city council. One basic difference between the mayor and other city councilmembers is that the mayor is elected on a vote of citywide electors, whereas councilmembers represent just one of five wards.

But another key difference between the mayor and other city councilmembers is this: The mayor has the responsibility of making nominations to boards and commissions. [The other differences include the power of veto, status as the ceremonial head of the city, and responsibility for city management in states of emergency.]

Mayoral Nominations: Meeting Bookends

On the council’s agenda for its consideration were a number of mayoral appointments, as well as a resolution that opposed the appointment of city employees to city boards and commissions. When the agenda was approved at the start of the meeting, Sabra Briere (Ward 1) got support from her council colleagues to move a resolution about mayoral appointments to the end of the meeting, to the slot after votes to confirm mayoral nominations from the previous meeting. Briere had co-sponsored the resolution.

So the vote on the general policy was set to come after the vote on the appointment that prompted the policy – city transportation program manager Eli Cooper’s nomination to the board of the Ann Arbor Transportation Authority.

During public commentary at the start of the meeting, Cooper’s nomination was opposed by Tim Hull, who introduced himself as a recent candidate for Ward 2 in the August 2011 Democratic primary. [The primary race was won by incumbent Stephen Rapundalo, who was then defeated in the November general election by Jane Lumm.] Hull also spoke in favor of the resolution that opposed the nomination by the mayor of city employees to serve on boards and commissions.

Hull said such appointments raise questions about conflict of interest, and he failed to see the benefit of adding a “city insider” to the AATA, especially someone who doesn’t live in the city itself. The AATA needs someone who has a stake in the community, Hull said, and the AATA board needs outside voices to ensure that the implementation of the AATA’s transportation master plan (TMP) will succeed. Hull also questioned the “haste” with which the appointment was made. He called for a transparent approach to appointments. Hull noted that he had nothing against Cooper, and that Cooper had helped him with a project when Hull was a student at the University of Michigan school of information.

Related to the general issue of appointments and vacancies on boards, during his communications early in the meeting Stephen Kunselman (Ward 3) announced that the taxicab board had met recently and the board had been informed that it’s short one member. So the taxicab board is looking for someone to step up and serve, Kunselman said.

During public commentary at the end of the meeting, after the council deliberated and voted on all specific appointments and the general policy, Michael Benson thanked the council for adjusting its agenda at the start of the meeting to move the item on mayoral appointments. That way all councilmembers could be present. [Carsten Hohnke (Ward 5) and Tony Derezinski (Ward 2) arrived late.] Benson noted that the city’s online Legistar system lists current vacancies. And earlier in the meeting, it had been announced that there’s a vacancy on the taxicab board, Benson said. But that vacancy is not listed, he noted – the only open spots listed are some for the housing and human services advisory board. Benson requested that vacancies on other boards and commissions be added.

Mayor John Hieftje responded to Benson’s request by venturing that the reason vacancies are not listed is simply because the appointments are made before the terms actually expire, so that the spots don’t ever technically become vacant. Hieftje offered the replacement of Margaret Parker with John Kotarski on the public art commission as an example, contending that her term was up at the end of 2011. Kotarski’s appointment was confirmed by nomination was presented to the council that night.

By way of background, Parker was actually appointed through 2012, so her departure was a year earlier than expected. As for the idea that vacancies are not listed only because the appointments are made before terms expire, it’s not uncommon that a mayoral appointment is made only after a term has expired, without a vacancy ever being listed on Legistar. For example, three vacancies currently exist on the seven-member local officers compensation commission, two of which have persisted for over a year – but those vacancies are not currently listed on Legistar.

Mayoral Nominations: Miscellaneous

Before the controversial AATA board appointment and the resolution on the general policy issue of appointing city employees to boards and commissions, the council handled some somewhat less controversial appointments.

Nominated to replace Margaret Parker on the Ann Arbor public art commission (AAPAC) was John Kotarski. Kotarski has been a media consultant who previously worked for the Mount Clemens Schools.

Parker served for several years on the commission on art in public places (CAPP), the precursor to AAPAC. She was last re-appointed to AAPAC on June 15, 2009 for a three-year term, which would have ended Dec. 31, 2012. Parker served as chair of AAPAC from the enactment of the city’s Percent for Art ordinance in 2007 until the end of 2010. Marsha Chamberlin agreed to assume responsibility as chair in April this year.

Nominated to replace Dave Gregorka on the zoning board of appeals (ZBA) was Ben Carlisle. Sabra Briere (Ward 1), who serves as the city council representative to the ZBA, said she would miss Gregorka, saying he was a ZBA member with some of the most knowledge about that body. She said she was also looking forward to working with Carlisle.

Outcome: The council voted unanimously to confirm Kotarski’s nomination to serve on AAPAC and Carlisle’s nomination to serve on the ZBA. The vote on Kostarski’s confirmation is scheduled for the council’s January 9 meeting.

Mayoral Nominations: Economic Development Board

Two nominations to the city’s economic development board touched on the issue that would be discussed in more detail in connection with Eli Cooper’s appointment to the AATA board.

The EDB is a body that is meant to assist the economic development of the city, and it enjoys the ability to issues tax-exempt bonds on behalf of private projects. Such a body is enabled by state statute – Act 338 of 1974. Nominated for the EDB were the city’s chief financial officer, Tom Crawford (a re-appointment), and the city administrator, Steve Powers (to fill the vacancy left by former city administrator Roger Fraser).

The state statute explicitly contemplates the possibility of city employees serving on the EDB, but places a limit on their number at three:

(2) The board of directors of the corporation shall consist of not less than 9 persons, not more than 3 of whom shall be an officer or employee of the municipality. The chief executive officer and any member of the governing body of the municipality may serve on the board of directors. … [.pdf of Act 338 of 1974, Economic Development Corporations Act]

Outcome: The council voted to approve Crawford and Powers as members of the city’s economic development board, with dissent from Stephen Kunselman (Ward 3).

Mayoral Nominations: Eli Cooper to AATA Board

The council considered the nomination of the city’s transportation program manager, Eli Cooper, to serve on the board of the Ann Arbor Transportation Authority. Cooper is filling the vacancy on the AATA board left by Sue McCormick.

McCormick has left her post at the city of Ann Arbor as public services area administrator to take a job as head of the Detroit water and sewerage department. McCormick’s last day on the job was Dec. 16. City administrator Steve Powers announced at the council’s Dec. 5 meeting that the city’s head of systems planning, Craig Hupy, will fill in for McCormick on an interim basis. Powers reported that Hupy had no interest in the permanent position.

McCormick’s last AATA board meeting was Dec. 15. On that occasion, she was presented the AATA’s traditional token of appreciation for board service: a mailbox marked up to resemble an AATA bus.

Cooper’s city position as transportation program manager falls under the city’s systems planning unit. The council previously appointed Cooper to serve on the AATA board on June 20, 2005. He served through June 2008, and was replaced on the board by current board chair Jesse Bernstein.

When Cooper previously served on the AATA board, his and McCormick’s service prompted an op-ed in The Ann Arbor News criticizing the appointment of city employees to citizen boards. [.pdf of "Let's Stick With Autonomous Appointees for Citizen Boards"]

Mayor John Hiefjte led off deliberations on Cooper’s appointment by noting that it’s preferred that members of city boards and commissions be city residents – but sometimes people have unique expertise, and he cited a member of the city’s energy commission as an example of that.

Hieftje said he believed Cooper fits that additional requirement – he doesn’t know of anybody who has a better understanding of mass transit than Cooper. He said he hoped councilmembers would look on the nomination favorably.

By way of background, the city charter stipulates the residency requirement for all city officers, but allows for the waiver of the requirement with a seven-vote majority on the 11-member city council [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.

Though the charter stipulates a seven-vote requirement, it’s commonly believed throughout the city’s organization to be an eight-vote requirement. For example, Hieftje noted that the outcome on Cooper’s vote had satisfied the “eight-vote requirement,” even with two dissenting votes and the early departure from the meeting of Marcia Higgins (Ward 4).

Outcome: The council voted 8-2 for Cooper’s nomination to the AATA board, with Jane Lumm (Ward 2) and Stephen Kunselman (Ward 3) dissenting, and Marcia Higgins (Ward 4) absent from the table.

Mayoral Nominations: Opposing City Employee Nominations

The council was asked to consider a resolution opposing the nomination of city employees to serve on boards and commissions. Stephen Kunselman (Ward 3) led off deliberations by saying he wanted to bring forward the resolution as a separate policy issue from Eli Cooper’s nomination to the AATA board. Kunselman offered his perspective as a former township administrator – in Wayne County’s Sumpter Township from 1998 to 2003 – noting that he served as the employee of seven elected officials.

Kunselman noted that the definition of “office” includes the idea of a special duty, charge, or a position conferred for a public purpose. The AATA board appointment, he said, was not just any sort of appointment – members of that board vote on the hiring and firing of the AATA’s CEO.

Kunselman cited a city charter provision that appears to define what an employee is: “The personnel of the City, other than the elective and appointive officers, shall be deemed City employees.” For an employee who is also an appointed official, Kunselman wondered – if he wanted to communicate with that person – whether that person was a political appointee or an employee.

Kunselman said it was important because of an administrative policy signed back in 1993 by then-assistant city administrator Robert Bauman, which addresses the issue of employee contact with elected officials. The point of the policy, Kunselman said, is: “To ensure accountability, consistency and accuracy of information provided to elected officials.” Kunselman read aloud most of the document, which addresses how responses to requests for information from elected officials to city employees should follow the chain of command:

4. Procedure
…
4.4 Requests for policy-related information from elected officials or their staff should be submitted through the City Administrator’s Office.

Kunselman then read the resolution in its entirety. [.pdf of resolution as presented on Dec. 19, 2011]

When Kunselman, as an elected official, wanted to communicate with Eli Cooper, wondered Kunselman, would Kunselman interact with him in Cooper’s guise as a “political appointee” or as a city employee? Kunselman wanted to know if he would need to go through the city administrator in order to talk to Cooper. Kunselman then caught himself, and recalled that he had not wanted to talk about Cooper’s appointment specifically.

Kunselman noted that previously there’d been a city employee [Sue McCormick] who served on the AATA board when six feet of land was purchased from the city by the AATA. He wondered if that employee had recused themselves from the discussion – Kunselman said he didn’t know because he wasn’t there and didn’t know if it was reported on. He wondered if the employee had insider information on the purchase price? [It does not appear that the AATA board actually voted on the land acquisition. The Chronicle has no record of it in its reporting and a vote is not reflected in a search of the AATA website for all board resolutions. The cost of the strip of land was $90,000, which falls under the $100,000 amount that the board is required to vote on.]

At the left is Eli Cooper, the city of Ann Arbor transportation program manager, seated next to Craig Hupy, head of systems planning and interim public services area administrator. Obscured behind the two men is Tom McMurtrie, the city's solid waste manager.

Kunselman acknowledged there are certain positions that allow for staff to be appointed – as with the economic development board. He said he was willing to amend the resolved clause to read, “except where authorized by statute.”

Carsten Hohnke (Ward 5) wanted to know why Kunselman had read aloud the entire resolution. Kunselman explained that he’d read the most recent version – it had been changed since its initial online publication.

Jane Lumm (Ward 2), who co-sponsored the resolution, expressed the concern that this type of appointment is not sound government practice. The basis of the objection, she said, is similar to the concern that a blue ribbon commission had expressed about the makeup of the city’s pension board. Employee members, the blue ribbon commission had concluded, had undue influence on the pension board. [Ann Arbor voters approved a charter amendment this past November altering the composition of that board in response to the recommendation of the blue ribbon commission made six years ago.]

Lumm allowed that there could be instances where having a staff member with relevant expertise could be beneficial to a board – she wouldn’t be opposed to having such a person as an ex officio non-voting member. But when someone opines on an issue, that’s advocacy, and that poses a potential conflict of interest, she said.

But the bottom line for Lumm was that for every city employee who is appointed to a board or commission, that’s one less citizen who’s engaged. The city should be trying to create more engagement, more independence, a “fresh-eyes” approach. Appointing city employees fosters a like-minded group think, she said.

Sandi Smith (Ward 1) said she couldn’t support the resolution. She couldn’t see the conflict of interest or even an appearance of one. She questioned the last “whereas” clause – “Whereas, Mayoral nominated City of Ann Arbor employees serving as appointive officers are not granted the same rights, privileges, and protections as their co-workers;” – and wondered how the concern could be wrapped in the guise of protecting the employees who might be appointed. She asked Kunselman to explain that, but was emphatic about the fact that she was not relinquishing the floor – rather just allowing Kunselman to comment.

Kunselman explained that elected officials are supposed to work with staff through a chain of command. When an employee is taken out of that chain of command, Kunselman wondered if the employee could be subject to disciplinary action. Kunselman noted the council-manager form of government under which the city is run by a city administrator, not the mayor. Kunselman said he’d been challenged in the past as an elected official – a city councilmember – about whether he was telling a staff member what to do. He contended he had not told a staff member what to do, but wondered if an employee would enjoy protection from the direction of elected officials if they were an appointee to a board or commission. Smith did not seem impressed, telling Kunselman, “That’ll do.” She said she didn’t find Kunselman’s explanation convincing.

Smith also wondered how many such appointments – of city employees to boards – were actually made. Alluding to the appointment of CFO Tom Crawford and city administrator Steve Powers to the economic development board and to Eli Cooper’s appointment to the AATA board, Hieftje said he thought the council had just voted for all three such appointments. From the audience, Craig Hupy – head of systems planning for the city, and interim public services area administrator – noted that he’d sat as treasurer on the board of the Huron River Watershed Council as a mayoral appointment.

Smith noted that the resolution was written to apply to all boards and commissions, so it would in any case need to be modified. There are good opportunities that would otherwise be lost to have expertise added to a board. She didn’t want to lose that opportunity through the resolution. Smith concluded that she couldn’t even begin to think about supporting the resolution.

Tony Derezinski (Ward 2) said the resolution raises some interesting issues. He contended that “conflict of interest” is a loaded phrase – that’s a term of art in the law. The word “office” is also an important term, he said. For the first term, the state has a conflict of interest statute and for the second the state has an incompatibility of public office statute, he noted. Derezinski said he’d like to have an opinion from the city attorney on the question of whether either statute is applicable – the council should comply with state law, he said. [.pdf of conflict of interest statute] [.pdf of incompatible public offices statute]

City attorney Stephen Postema was not able to provide a view on the matter at the meeting, and said he would have to review it further.

Derezinki noted that there are also hundreds of attorney general opinions on the subject, and it would be worth looking at those opinions. He reiterated his view that “conflict of interest” is a loaded term, saying it’s pejorative. For that reason, he said, he wanted to be very careful in using that term, and he couldn’t vote for the resolution.

Kunselman responded to Derezinski by citing a book chapter on the subject written by some local Ann Arbor attorneys. Kunselman ventured that the council would never get a straight answer right now about whether there is a conflict of interest, and he noted that the phrasing of the resolution uses “appearance” of a conflict. Kunselman then read aloud the passage from Chapter 52 of “Michigan Public Employment and Labor Relations Law.”

Public officials and employees are often faced with competing demands for their time and energy. Regardless of the number of directions in which such individuals are pulled, however, it is crucial that they strive to maintain high ethical standards when carrying out the duties of their offices. … Because each situation is unique, however, it is impossible to provide specific guidance for every possible situation that may arise, and it is important to consult with a knowledgeable and experienced attorney if it appears that the potential for a conflict of interest exists. [.pdf of Chapter 52]

Based on his experience working in Wayne County, Kunselman said, what is unethical isn’t always illegal. Kunselman said he’s specifically concerned about appointments to the Ann Arbor Downtown Development Authority, the Ann Arbor Housing Commission, and the Ann Arbor Transportation Authority, because they’re taxing authorities or receive federal funds. [The DDA is not technically a taxing authority, but rather is enabled to capture a portion of the taxes of other taxing authorities. The transportation millage that benefits the AATA is levied by the city of Ann Arbor and is "passed through" to the AATA.]

Kunselman wondered what would happen if there’s a labor disagreement – what if a city employee is a member of the AATA, and there’s a disagreement with the director of the AATA? Will an employee of the city be allowed to vote on the four-party agreement, to which the city and the AATA are both parties? Kunselman said these issues require serious review so that there are no concerns. The best way to have no concerns is to have arms-length nominations, he said. Kunselman said he was risk averse and therefore he opposed city employees as nominees to boards and commissions.

Mike Anglin (Ward 5) said he was supportive of the resolution because of the term “appearance” of a conflict of interest. He noted that he’d voted for Cooper’s appointment, because he knows Cooper personally. If it had been someone else, he said, he may not have voted that way. He observed that he serves on the city’s park advisory commission (PAC) but that his position is non-voting. Still, he said, he thinks he influences people in that ex officio capacity.

Sabra Briere (Ward 1) noted that she’d previously opposed the appointment of a country transportation planner to the AATA board. [She voted against the appointment of Anya Dale on May 17, 2010.] Briere explained that she’d voted that way because she believed it would be difficult to wear multiple hats – as a member of the AATA board and as a member of the county planning staff. It’s difficult not to want to appoint qualified people, she said, but she concluded that to her it was clear that at least four members of the council [those who'd co-sponsored the resolution] would like the mayor to broaden his scope in selecting nominees.

Christoper Taylor (Ward 3) was visibly annoyed during remarks made by Stephen Kunselman (Ward 3) about the possible appearance of a conflict of interest.

Lumm again noted that the conflict of interest issue is a concern, but for her it’s about engaging more citizens. During her election campaign, she said, she spent a lot of time knocking on doors and she was asked about the AATA board at a fair number of residences. Lumm said she was not sure that residents know how to apply for boards or commissions.

Christopher Taylor (Ward 3), who had shown outward signs of irritation as his wardmate Kunselman had spoken earlier, then began to deliver some prepared remarks of his own. The best that can be said about the resolution, Taylor contended, is that it’s a solution in search of a problem. The resolution speaks of conflicts of interest, but does not identify any, he said.

Each nomination deserves to be considered on its own merits, Taylor said. There’d been an effort to extricate this policy issue from Cooper’s nomination, but Taylor contended it’s inappropriate to do so. Cooper’s nomination is what puts it into focus, he said, and the effect of the resolution would have meant the loss of Cooper to AATA board and that loss would have been substantial. In the era of government cooperation, someone with subject matter expertise is not just good for AATA, he said, it’s good for the city of Ann Arbor. Cross-pollination, Taylor said, is good.

While all that is the best that can be said about the resolution, continued Taylor, that’s not all that should be said. Taylor claimed there’s a tendency in Ann Arbor to make vague and false assertions of unethical behavior. That discourages participation and cheapens public discourse, he said. It causes us to focus on false issues – on hypothetical failings. Instead, he said, we should focus on our challenges and fulfilling our aspirations. He concluded that it’s a misguided resolution and said he’d be voting no.

Hieftje took exception to Kunselman’s characterization of the appointment to the AATA board as a “political appointment.” Hieftje stated that this is just the way the city charter reads and that the appointment to the AATA is no more a political appointment than an appointment to the ZBA.

Hieftje said he doesn’t see the difference between the appointment of a city employee to the AATA, and other appointments where a statute might explicitly allow an employee to serve. As an example, he noted that the state enabling legislation for downtown development authorities requires the mayor or city administrator to serve on the DDA board. [Hieftje serves on the DDA board.]

At the May 5, 2010 Ann Arbor Downtown Development Authority board meeting, because of the opinion rendered by DDA legal counsel Jerry Lax, mayor John Hieftje took a seat in the audience between former DDA board member Bob Gillette and Adrian Iraola, of Park Avenue Consulting.

Last spring, Hieftje said, as the city and the DDA went though protracted negotiations, he had voted a couple of times on issues involving the city’s finances as well as the DDA’s. Hieftje then claimed that at no time was he determined by the city attorney or the DDA attorney to have a conflict of interest – because he was required to be on the board by state statute.

By way of background, Hieftje did participate in all the votes in the spring of 2011. However, a year earlier he was recused for one vote – against his own wishes. While Hieftje accurately depicted the opinion of the Ann Arbor city attorney for the votes in 2010, the opinion expressed at the May 5, 2010 DDA board meeting by the DDA’s legal counsel, Jerry Lax, was that for one particular vote, Hieftje needed to recuse himself. And Hiefjte left the board table to sit out that one vote as a member of the audience.

Outcome: The resolution failed, with support only from Lumm, Kunselman, Anglin and Briere.

Pay Increase for Poll Workers

On the agenda was a resolution to increase the pay for election inspectors – those who work at the polls on election day to verify the registration of voters and to handle all other duties associated with ensuring compliance with election laws at each precinct.

The proposed increases are as follows: election inspector from $8 to $9/hour; floater from $8.50 to $9.50/hour; chairperson from $11.25 to $12/hour; and absent voter count board supervisor from $14 to $14.50/hour. According to a staff memo accompanying the resolution, prepared by the city clerk’s office, the increase in pay is expected to cost $2,000 in a local election and $8,000 in a presidential election. For the upcoming 2012 presidential election, the increase would total $5,000 – a cost that will be reimbursed by the state.

The justification for the increase in pay for Ann Arbor’s election inspectors was based on comparative pay with other nearby jurisdictions. For example, the raise for election inspectors from $8 to $9 now matches what the city of Ypsilanti pays.

After the raise, however, the proposed compensation for election inspectors would still fall short of the amount set forth in Ann Arbor’s living wage policy, which the city itself is not obliged to follow. By ordinance, the wages paid by city contractors to their workers must meet minimum thresholds that are adjusted each year, based on federal poverty guidelines. In May of 2011, the new living wage minimums were set at $11.83/hour for those employers paying health insurance, and $13.19/hour for those employers not paying health insurance.

When the council deliberated on the issue, the living wage factored into the council’s decision to postpone the election inspectors’ pay raise.

When the council came to the item on its agenda, Sabra Briere (Ward 1) wondered why the increase did not go all the way to the level of the living wage? The microphone-less city clerk’s comments in response to Briere weren’t easily audible, but seemed to address the issue of why any increase was being proposed at all – it had been several years since one had been given.

Briere first suggested that the resolution be altered to reflect the living wage. At mayor John Hieftje’s suggestion, she agreed to change her motion to a postponement. The council will receive a budget impact calculation for the additional increase to the living wage level before it votes.

Outcome: The council unanimously postponed the vote on the increase in poll worker compensation.

City Attorney Performance Review, Contract Amendment

In a closed session held toward the end of the meeting, the council reviewed the purchase of land and conducted a performance review for 2011 for the city attorney, Stephen Postema.

From the left: Tony Derezinski (Ward 2) chats with city attorney Stephen Postema.

Personnel evaluations and the purchase of land are each permissible reasons for a closed session under under Michigan’s Open Meetings Act. The position of city attorney is one of two positions that report directly to the council – the other is the city administrator. Under Michigan’s OMA, reviews of personnel are allowed to be conducted in a closed session on request from the employee, but are not required to be. However, Postema’s contract contains a clause specifying that: “The results of the evaluation shall be in writing and shall be discussed with the Employee in closed session.”

Around 10 minutes into the closed session, Sabra Briere (Ward 1) emerged from the council workroom adjoining the chambers where the council holds such sessions, and took her seat at the council table. Asked by The Chronicle if the session was done, she indicated that she was done, but the other councilmembers were not – she had felt “blindsided” by what she was asked to consider and did not choose to participate in the closed session discussion.

When the rest of the councilmembers eventually emerged from the closed session, Margie Teall (Ward 4) read a resolution amending the city’s contract with Postema, which allows him to cash-in up to 250 hours of accrued banked time before June 30, 2012.

Briere asked how the resolution differed from the one approved by the council just two months previously, when the council also held a closed session to review Postema’s performance. The explanation offered to Briere was that the performance review conducted at the Oct. 24, 2011 meeting had been just for 2009-10. That review also did not result in any adjustment to Postema’s base salary, but also allowed him to cash-in up to 250 hours of accrued banked time before the end of 2011.

Briere then questioned whether the council’s administration committee had provided other councilmembers with an opportunity to offer feedback on Postema’s performance since the Oct. 24 review. [The council's administration committee, which by custom reviews the input of other councilmembers on personnel evaluations, met earlier that day. The committee consists of Tony Derezinski (Ward 2), mayor John Hieftje, Marcia Higgins (Ward 4), Margie Teall (Ward 4) and Christopher Taylor (Ward 3).]

Sabra Briere (Ward 1) sat alone at the council table as her colleagues conducted a closed session on the review of the city attorney's performance. The door to the workroom where the council conducts its closed sessions is visible behind her.

Briere noted that councilmembers not on the administration committee had been given an opportunity to provide their view on Postema’s performance before the Oct. 24 review, but that review had specifically been just through 2010. And Briere did not recall being given an opportunity to provide additional feedback since October for the current review – which included 2011. When Briere asked if she had simply not seen the solicitation for feedback, none of the members of the council’s administration committee could point to an occasion when feedback had been solicited during that time period. Hieftje offered that sometimes all the forms are confusing.

Jane Lumm (Ward 2) wondered whether she should participate in the vote, given that she was newly elected to the council in November – she had not been a part of the council for much of the period of Postema’s review. Postema told her that the vote was on his contract going forward. Lumm participated in the vote.

Outcome: The council voted, with dissent from Briere, to approve the contract amendment for Postema, which allows him to cash in 250 hours of banked leave time before June 30, 2012.

Drop-Off Recycling Contract

The council was asked to consider approval of a contract with Recycle Ann Arbor to continue the operation of the drop-off recycling center on the city-owned property at 2950 E. Ellsworth Road, with no financial support from the city.

Previously, the drop-off station was supported by three municipalities: the city of Ann Arbor ($30,000), Washtenaw County ($50,000) and Pittsfield Township ($7,500).

According to a staff memo accompanying the resolution, when Washtenaw County withdrew its support in 2009, Recycle Ann Arbor declined support from the other governmental units – because it would have required tracking where users lived in order to determine the appropriate use charge. Roughly 60% of the users of the facility live outside Ann Arbor. Recycle Ann Arbor now charges a $3 entry fee, in addition to the specific drop-off charges for specific kinds of items. For example, the charge for dropping off a car tire is $5 – with the $3 entry fee, it would total $8.

The previous contract with Recycle Ann Arbor to operate the drop-off facility expired nearly two years ago, on Jan. 1, 2010. The new contract is retroactive to that date.

The staff memo for the agenda item notes some significant sinking of the southeast corner of the building at the facility, but indicates there is no immediate danger. Still, building repairs are recommended.

During the brief council deliberations, Jane Lumm (Ward 2) said the contract sounds fine, but contended that the city is subsidizing other municipalities. She asked for cost estimates for the recommended building repair – less than $10,000, said Tom McMurtrie, the city’s solid waste manager. McMurtrie said he was not aware of any other needed capital repair expenses associated with the drop-off station.

Outcome: The council voted unanimously to approve the contract with Recycle Ann Arbor to operate the drop-off station.

Solar Money

The council was asked to vote on a resolution accepting an additional $20,000 in federal funds from the U.S. Department of Energy (USDOE). Of that amount, $17,500 will be applied to a contract with the Clean Energy Coalition for its XSeed Energy community solar program. The remaining $2,500 will go to the city of Ann Arbor to cover grant administration and oversight costs.

The original grant from the USDOE, as part of the Solar America Cities Project, was made in July 2007 for $200,000. According to a staff memo, Ann Arbor has secured commitments from 11 local organizations for various matching funds for an additional $355,008.

The city’s energy coordinator, Andrew Brix, was invited to the podium to give a brief overview. He highlighted the solar panels on top of city hall and the justice center, as well as the solar thermal hot water units, which he said a lot of people are not aware of.

Outcome: The council unanimously approved the acceptance of the additional grant money.

Reimbursement for MRF Magnet

Before the council for its consideration was authorization of a reimbursement of $94,788 to the company that operates its materials recovery facility (MRF) for costs of replacing an electromagnet that failed back in February 2011.

RRS Inc. made the request for reimbursement in September. The electromagnet is used to separate metal from other material. The reimbursement will be made from the city’s MRF capitalized renewal and replacement account.

During deliberations, Jane Lumm (Ward 2) got clarification from the city’s solid waste manager, Tom McMurtrie, that of the $230,000 in the MRF capital fund, the city had contributed $22,000 and RRS had put in $207,000. He explained that the contributions are based on a per-ton basis for material brought into the center. The city contributes $2/ton for its material, and RRS puts in $4/ton for the non-city material that it brings in.

Lumm wanted to know if the $230,000 will be sufficient for the coming year. Yes, said McMurtrie. Lumm said she applauds trying to save money by using the old magnet in the new single-stream system. McMurtrie said that when the switch was made to the single-stream system, extensive testing of the magnet had been done, but it developed a leak from a weld that was not visible during testing. Once the magnet was installed, it was expensive to get it out of the building – it had to be lifted through the roof with a crane, McMurtrie said.

Bond Re-Funding

The council was asked to consider approval of issuance by the city of re-funding bonds in the amount of $2,400,000 in order to refinancing the $2,230,000 outstanding principal amount on bonds issued to pay for the Fourth and William parking structure project. The refinancing is estimated to yield a savings of approximately $195,000 over the next 10 years.

Sabra Briere (Ward 1) indicated that she’d support the resolution but asked that the word “refund” be spelled with a hyphen.

City treasurer Matt Horning explained that the reason the resolution had to come quickly was that municipal bond interest rates had fallen, and the city needed to initiate the 45-day referendum period. The process was compared to refinancing a mortgage on a house.

Jane Lumm (Ward 2) confirmed with Horning that the city is not extending the maturities of the bonds. Said Horning, “That’s against the law.” Lumm thanked Horning for identifying the opportunity to save the city some money.

Outcome: The council unanimously approved the re-funding of the bonds.

Communications and Comment

Every city council agenda contains multiple slots for city councilmembers and the city administrator to give updates or make announcements about important issues that are coming before the city council. And every meeting typically includes public commentary on subjects not necessarily on the agenda.

Comm/Comm: Vacant Properties

Mayor John Hieftje reported that he’d had a meeting with Stephen Kunselman (Ward 3) and they’d be bringing legislation forward in January to address some of the frustration with abandoned and boarded-up properties. One problem is that the city needs a funding source, in order to take action. In October of 2012, Hieftje said, it was expected that a fund could be established as a result of the resolution of the Michigan Inn situation. Hieftje said he expected to bring a resolution to front load a fund to take care of dilapidated properties, and then pay the general fund back in October. Hieftje said he expected it would be enough to deal with 8-10 problem properties.

Comm/Comm: Property Tax

Jane Lumm (Ward 2) said she wanted to plant the seed of changing the requirement of when residents must pay their property taxes. In other communities, there’s usually an option to do it at the end of a year or early the following year. City treasurer Matt Horning and the city’s CFO Tom Crawford discovered that there’s really no downside for the city to allow people to pay their taxes early in the following year – the only loser on this is the IRS, Lumm said. However, she said it would require a charter amendment to change the requirement. Nevertheless, she said, she’d be pursuing it.

City administrator Steve Powers, left, and Christopher Taylor (Ward 3) shared a light moment before the Dec. 19 meeting started.

During his communications, city administrator Steve Powers noted that this year, because Dec. 31 falls on a Saturday, the deadline for winter taxes is Tuesday, Jan. 3, 2012.

Comm/Comm: Immigration

Lourdes Salazar Bautista appeared before the council to thank councilmembers for their support in her fight to stay in the U.S. She had faced deportation on Dec. 27. She reported that on Dec. 13 she’d received word that her deportation had been delayed for one year. Laura Sanders of the Washtenaw Interfaith Coalition for Immigrant Rights (WICIR) also spoke in to the council on the issue.

Sanders told the council that it was not clear what action had been persuasive enough to achieve the delay, but so many pancakes were thrown against the wall that one finally stuck, she said. Sanders said she was pleased that Bautista’s case has spurred further action to oppose trumped-up immigration charges. Ann Arbor’s close proximity to Canada means that the immigrant population is vulnerable, she said. However, she ventured that “we can be a very sticky syrupy pancake and throw ourselves against the wall of injustice.” Ann Arbor can repeatedly send Washington D.C. the message that it opposes excessive enforcement. She asked the council over the holidays to look at a draft of a resolution that they’ll be asked to support related to this issue.

Mary Anne Perrone introduced herself as a longtime resident of Ann Arbor. She noted that she’d addressed the council before opposing Arizona’s immigration law. As a member of her worshiping community, she thanked the council for its support. She attributed the problem not to any failure to secure U.S borders, but to an insatiable demand for drugs in the U.S.

Comm/Comm: Spirit of Christmas

Thomas Partridge told the council to let the spirit of Christmas give rise to responsive government. There are too many residents without housing, transportation, healthcare and jobs – the things that make life rewarding and give it purpose. He called on everyone to put forward good will and eradicate discrimination.

At the end of the meeting, Partridge returned to the podium to deliver a general rebuke of the council, saying there is the appearance of corruption and evil.

Comm/Comm: Coordinated Funding

Lily Au introduced herself as an Ann Arbor resident. She asked the council two questions: (1) Is government a business or a mission? (2) Do we live only for ourselves or do we also give back? Au said that it is possible to do more than we are. She criticized the coordinated funding approach for human services that the city uses, saying that Washtenaw County, which is a partner in coordinated funding, shortchanges the city.

During her communications time, Sandi Smith (Ward 1) noted that the council had heard a number of times from Au about coordinated funding and Au’s contention that the city might be getting the short end. Smith said she’d worked with Margie Teall (Ward 4) on the coordinated funding process. Smith said it’s allowed the strongest nonprofits to do capacity-building and she characterized it as a “wild success.”

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, Jan. 9, 2012 at 7 p.m. in the council chambers at 301 E. Huron. [confirm date]

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The lawsuit alleged that during a July 19, 2010 session held by the city council, the council had violated the Michigan Open Meetings Act – by voting to enter into a closed session to discuss written attorney-client privileged communication, but instead straying from that narrow purpose to reach a public policy decision about medical marijuana businesses.

It’s uncontroversial that the council did make a decision in an open session on Aug. 5, 2010 to develop an ordinance that would ensconce medical marijuana businesses in local zoning regulations, by first establishing a moratorium on establishing additional medical marijuana businesses. What The Chronicle essentially alleged was that the Aug. 5 decision to develop local legislation on medical marijuana businesses had already been determined at the July 19 closed session.

The first motion by the city of Ann Arbor was rejected by Judge Morris. The city had asked her to find that The Chronicle’s suit was frivolous, not managing even to state a claim, and further asked that sanctions and fines be imposed.

However, on the city’s second motion – which asked Morris to find that there was insufficient evidence of an OMA violation to warrant subjecting councilmembers and the city attorney to depositions, and that she should dismiss the claim – Morris ruled in favor of the city of Ann Arbor.

In reaching the conclusion that additional discovery of facts should not be allowed, Morris appeared to give significant weight to councilmember depositions affidavits, which they all signed, asserting that they had voted to go into the closed session on July 19, 2010 in part to discuss a May 28, 2010 legal advice memo written by the city attorney, Stephen Postema. All the affidavits further asserted that the council had not made any decision during the July 19 closed session. Morris also appeared to give significant weight to the idea that even if an OMA violation occurred on July 19, then it would have been “cured” by the council’s deliberations and decision made during their open session at the Aug. 5, 2010 meeting.

In this report, we will review some points of legal interpretation on which we disagree with Judge Morris, including the significance of a surprising omission in the affidavits signed by the city attorney and the mayor.

But we begin with the observation that since being served The Chronicle’s lawsuit six months ago – about a closed session conducted on the claimed basis of attorney-client privilege – the city council has not held a single closed session of that kind. That’s easily the longest closed-session-free span the council has achieved for attorney-client privileged-based sessions in more than two years.

That seems to reflect an implicit acknowledgment by the city attorney and the council that they’d been holding more of these kinds of closed sessions than were actually warranted. We gave serious consideration to filing an appeal in this case. The council’s apparent change in behavior has convinced us that our decision not to allocate additional financial resources to an appeal was the right one. Part of our goal was to rectify a specific pattern of inappropriate behavior on the council’s part, and we appear to have achieved that.

Compared to the possibility of establishing new case law on a specific point, we think a more general approach to reform of the Michigan Open Meetings Act and the Freedom of Information Act, through legislative efforts, is likely to yield stronger and longer-lasting improvements in these open government laws.

The Pattern of Closed Sessions

By way of review, the basic requirement of the Open Meetings Act (OMA) is that all deliberations and decisions of a public body are supposed to be held at meetings that are open and accessible to the public. But the OMA also allows a public body, for a limited set of very narrowly-defined purposes, to conduct a session out of view of the public. Some of the more frequently used purposes for justification of Ann Arbor city council closed sessions include the following, from the statute:

15.268 Closed sessions; permissible purposes.
…
(c) For strategy and negotiation sessions connected with the negotiation of a collective bargaining agreement if either negotiating party requests a closed hearing.
(d) To consider the purchase or lease of real property up to the time an option to purchase or lease that real property is obtained.
(e) To consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body
…
(h) To consider material exempt from discussion or disclosure by state or federal statute.

In layman’s terms, these exceptions can be summarized as involving labor negotiations, land acquisition, pending litigation, or discussion of attorney-client privileged information.

The closed session that was the subject of The Chronicle’s lawsuit was one for which the city relied on the exception specified in 15.268(h). Specifically, in its response to the lawsuit, the city defended the closed session under 15.268(h) by claiming that it had been held to discuss documents that were subject to the attorney-client privilege.

In reviewing the council minutes for more than two calendar years, we were able to identify an apparent change in the pattern of closed sessions held by the council since The Chronicle’s lawsuit was served on Sept. 24, 2010. Before that time, the council routinely held closed sessions based on discussion of attorney-client privileged material. Since our lawsuit was served, not one session of this type has been held. Further, it appears that the overall pattern of closed sessions based on other reasons has also decreased.

In the timeline representation below – of closed sessions held between January 2009 and March 2011 – bright green dots represent occasions when there was a city council meeting, but no closed session held. Light blue dots were closed sessions based only on some reason other than consideration of attorney-client privileged communication. Dark blue dots represent closed sessions that were based on reasons that included attorney-client privileged communication. The heavy vertical bar marks the date that The Chronicle lawsuit was served – Sept. 24, 2010.

Left to right is a timeline starting in January 2009, going through March 2011. Bright green dots represent occasions when there was a city council meeting, but no closed session held. Light blue dots were closed sessions based only on some reason other than attorney-client privileged communication. Dark blue dots represent closed sessions that were based on reasons that included attorney-client privileged communication. The heavy vertical bar marks the date when The Chronicle's lawsuit against the city was served. (Image links to higher resolution file.)

Legal Issues

But just because the Ann Arbor city council appears to have stopped holding closed sessions with their city attorney based on attorney-client privileged communications is not an explicit admission they did anything wrong. It does, however, suggest that the city council and the city attorney are finally treating the attorney-client privileged closed sessions with the rigor they deserve.

The Chronicle never challenged the right of the city council, based on the OMA statute, to enter into a closed session to discuss attorney-client privileged information – it would be absurd to do so, because a public body clearly has that right. Yet city attorney Stephen Postema attempted to portray the controversy, in court briefs and to the media, as one about the right of the city council to hold a closed session. In refusing The Chronicle an interview after the hearing, Postema offered only the following written statement:

The Circuit Court properly dismissed this case and recognized that the Ann Arbor City Council did nothing improper in attending a closed session on July 19th, 2010. The Michigan Open Meetings Act specifically authorizes the City Council to attend such closed sessions to discuss attorney client communications.

By setting up a straw man about whether the council had a right to hold a closed session, Postema’s statement distracts from the actual controversy, which was this: Did the council use its July 19 closed session for its stated purpose, or did it instead stray from that purpose in a way that violated the OMA? Postema’s characterization notwithstanding, Judge Morris simply was not convinced that there was sufficient evidence to proceed with discovery, which would have included interviewing councilmembers and the city attorney under oath, and collecting documents that the city attorney may have shared with parties other than the city council, like the Michigan Association of Municipal Attorneys. Lack of discovery will leave history to wonder whether the council actually used that closed session in the manner allowed by the OMA statute.

What counts as the proper use of a closed session?

The OMA statute is clear about the limited set of reasons that can justify a closed session. Postema’s choice of the word “attend” to describe the council’s relationship to a closed session suggests that his concept of an appropriate use of a closed session is still flawed.

So in laying out why we still disagree with the conclusion reached by Judge Morris, we begin by asking: Whose closed session is it?

Legal Issues: Whose Closed Session Is It?

Postema’s description of the city council’s “attendance” at a closed session is somewhat odd, because it suggests that he and the council treat closed sessions as an event that someone other than the council itself convenes. That is, Postema’s phrasing suggests that council may decide to attend a closed session that exists apart from their own decision to vote to hold a closed session during one of their regular open meetings.

This concept of a closed session as an event that is conceived somehow external to the council – which someone else besides the council convenes and invites the council to attend – possibly stems from the practicalities of allowable closed session subject matter, as we’ve already listed out.

For example, an opportunity to sell or buy land might not be conveyed by a real estate professional directly to city council members. It’s reasonable to contemplate that the city administrator might receive an inquiry about real estate and then ask the council to convene a closed session so councilmembers can discuss it. The impetus to discuss pending litigation in a closed session logically originates with the city attorney, not the city council. Of course, by statute it’s the city council that must convene a closed session – by taking a roll call vote to do so.

So what about closed sessions based on discussion of attorney-client privileged communication – what should the impetus logically be for that kind of session? Based on prior court decisions, it’s clear that the impetus for an attorney-client privileged-based closed session should most naturally come from councilmembers, not from the city attorney. To see this, consider that:

• An attorney-client privileged-based closed session cannot be used just to hear oral advice from legal counsel. (Booth Newspapers v. Wyoming City Council)
• An attorney-client privileged-based closed session must be based on written material that is attorney-client privileged. (Booth Newspapers v. Wyoming City Council)
• The discussion in an attorney-client privileged-based closed session must be strictly related to the meaning of legal advice in the written communication. (State of Michigan v. Whitney)

Based strictly on the case law then, the only legitimate use by a public body of a closed session based on attorney-client privileged communication is for members of the body to discuss the meaning of legal advice in a written document.

As the affidavit of mayor John Hieftje makes clear, the impetus for holding a closed session on July 19 did not stem from a desire on the part of the mayor and other city councilmembers to discuss the meaning of legal advice in the May 28, 2010 memo, but rather was prompted by citizen complaints about medical marijuana businesses in their neighborhood:

4. On July 14, 2010 I received a complaint from a resident about medical marijuana dispensaries and forwarded it to staff at the City and Councilmembers Teall and Higgins. (attached)

5. On or about July 15, 2010, I requested that the City Attorney discuss with the City Council his prior legal advice memorandum dated May 28, 2010 concerning medical marijuana dispensaries and related legal issues in a closed session on July 19, 2010. (I had also initially requested the City Attorney prepare this legal advice memorandum at some point in the spring, 2010.)

Hieftje’s affidavit does not indicate that there was any lack of clarity on his or any city councilmember’s part about the meaning of the legal advice in the May 28 memo. The affidavits of councilmembers show that only two councilmembers spoke during the July 19 closed session – Sabra Briere (Ward 1) and Marcia Higgins (Ward 2) – and that they’d made comments in response to the city attorney, not asked questions. The rest of the time was taken up with the city attorney talking.

But a closed session is not a time for a city attorney to simply recapitulate orally what he’s already written. Assistant city attorney Abigail Elias acknowledged this in her remarks before the court on Jan. 18:

It is not a time for an attorney to read what he or she has written to the council.

And based on prior case law (Booth Newspapers v. Wyoming City Council ), a closed session is also not a time for the city attorney to render oral advice. Based on State of Michigan v. Whitney, a closed session is a time for councilmembers to discuss the meaning of the legal advice contained in a written communication. Indeed, as Elias put it during the Jan. 18 hearing [emphasis added]:

It is a time when there can be consideration and discussion of that written advice and as we all know, discussion requires some give and take, questions, answers. If there are none then there are none.

But if there were no questions from councilmembers, it’s not clear why the city attorney was talking at all. On entering the closed session, if it was apparent that councilmembers had no questions or uncertainties about the meaning of the legal advice contained in the May 28 memo, then the closed session should have ended – it should not have lasted even seven minutes. The council conducted a closed session on May 4, 2009 that lasted only two minutes.

Legal Issues: Was a Decision Made?

Instead of ending, the closed session continued, with the city attorney apparently using the opportunity to ask for and receive direction from the council to proceed down a path that would include developing local legislation regulating medical marijuana businesses. We base that assertion on the statement of Stephen Rapundalo (Ward 2) made at the Aug. 5, 2010 council meeting:

In fact, this was discussed at our last meeting and a directive was given to the city attorney at that time to bring this forward to this meeting tonight and I believe everybody was in the room when that was indicated.

Later, at the Sept. 7, 2010 council meeting, Rapundalo claimed that his original statement was a misrepresentation. But at the time of his statement on Aug. 5, no councilmember objected to Rapundalo’s characterization – nor did city attorney Postema. Only when threatened with a lawsuit did Rapundalo’s story change, leaving several questions unanswered.

At the Jan. 18 hearing, Elias tried to brush off Rapundalo’s original statement as simple misspeaking in the spontaneity of the moment:

They often have to be much more spontaneous at a council table. So we cannot hold them to every, single minutia of every statement, and if they want to correct a statement, that’s fine. It does not make them a liar. It does not make them untrustworthy. It does not make them an exaggerator or a falsifier.

We have no way of knowing if Judge Morris reviewed the video record we provided for her consideration. But if she did, we don’t think she could have found Elias’ suggestion plausible that Rapundalo appeared to be only guilty of spontaneous misspeaking.

Rapundalo made his remarks not in the context of a spontaneous back-and-forth interaction, but rather in the carefully controlled environment of the council’s parliamentary procedure. Remarks from Carsten Hohnke (Ward 5) and Margie Teall (Ward 4), to which Rapundalo was clearly responding, had come several minutes prior to the mayor’s giving Rapundalo the floor to speak. So there was adequate time for Rapundalo to weigh his remarks well in advance. He had additional time to reconsider the accuracy of what he said between the time he made his remarks and when the council later recessed, during which time he told The Chronicle he’d been talking about the July 19 closed session.

Postema told our legal counsel before we filed the lawsuit that we would have no way of proving that Postema or anyone on the council had even heard what Rapundalo had said on Aug. 5, 2010, or had understood what Rapundalo had meant, even if they’d heard it.

But in fact, the Community Television Network (CTN) local cable footage of that meeting shows Rapundalo’s Ward 2 colleague Tony Derezinski, seated to Rapundalo’s right, clearly nodding along to Rapundalo’s remarks.

Derezinski attended the Jan. 18 hearing. After the judge had ruled, The Chronicle asked Derezinski why he’d nodded in agreement with Rapundalo at the Aug. 5 meeting, if Rapundalo himself had later claimed his own remarks had been a misrepresentation. Derezinski replied, while still standing in the courtroom: “I wasn’t nodding.” Here’s the footage:

Further, after the Jan. 18 hearing, a council source told us that their recollection was that Postema had, in fact, used the July 19 closed session to ask for direction from the council; that he received that direction from Marcia Higgins (Ward 4), who told him she wanted a proposal for an ordinance drafted; and that she said wanted it to come before the council at the earliest possible occasion – the next meeting.

So, more plausible than councilmembers’ conclusory statements that there was no decision made at the closed session is our theory that a decision was made to proceed with a legislative strategy of developing local legislation to regulate, not ban, medical marijuana businesses.

We imagine it was similar to the interaction Postema and Derezinski had during the open session of the council’s Oct. 18, 2010 meeting, when Postema asked for direction on developing a licensing scheme for medical marijuana businesses, and Derezinski gave it to him. The step of getting direction is not a formality – it’s a requirement of the council’s rules, which state [emphasis added]:

RULE 13 – Ordinances, How Introduced
Proposed ordinances shall be introduced by one or more individual members of Council. Ordinances may be referred to any or all of the following: the City Attorney, the City Administrator, appropriate agencies, and Council committees, for study and recommendation.

The council’s apparent consensus, which we believe was reached at the July 19 closed session, thus effectuated the public policy that the city would enact some kind of ordinance to ensconce medical marijuana businesses in a local regulatory framework. In reviewing our arguments made to the court, we think we could have done a better job of identifying this as the public policy that the council effectuated during the July 19 closed session. An alternative policy the council could have effectuated would have been to acknowledge the supremacy of federal law in matters related to marijuana, as some communities in Michigan have done.

We think that decision, made out of public view, was a violation of the OMA.

At the Aug. 5, 2010 open session, the council then took a vote to carry that already-established public policy forward – using the mechanism of a moratorium on establishing additional medical marijuana businesses and a directive to the planning commission to develop zoning regulations for such businesses.

Elias argued before Judge Morris that even if there was an OMA violation at the July 19 closed session, the open discussions at the Aug. 5 meeting would have cured that violation:

… that was fully cured by the full open discussion of every possible aspect of the moratorium at the following council meeting.

The Chronicle’s legal counsel argued that subsequent action could not be curative, unless it were acknowledged to be a reenactment of a prior decision, in the context of the lawsuit. The actual paragraph from the OMA statute reads:

15.270 Sec. 10.(5) In any case where an action has been initiated to invalidate a decision of a public body on the ground that it was not taken in conformity with the requirements of this act, the public body may, without being deemed to make any admission contrary to its interest, reenact the disputed decision in conformity with this act. A decision reenacted in this manner shall be effective from the date of reenactment and shall not be declared invalid by reason of a deficiency in the procedure used for its initial enactment.

On the city of Ann Arbor’s interpretation of 15.270 Sec. 10.(5), a public body could routinely enter into a closed session at the start of each meeting, deliberate and vote on each item in a kind of dress rehearsal, then emerge from the closed session and conduct an open session in which all of the closed session violations would be cured, without mentioning that there was any connection at all to the activity in the closed session. That, we think, would an absurd interpretation of the statute.

Judge Morris seemed to be unaware of the existence of 15.270 Sec. 10.(5) when she asked Elias: “Under the statute a violation can be cured by such a subsequent event?” So to the extent that Morris even weighed the possible curative powers of the council’s Aug. 5, 2010 open session decision, she obviously disagreed with our interpretation of the statute.

Legal Issues: Purpose for Closed Session

Morris also apparently disagreed with our position that a closed session must be limited to the purpose that is declared when a public body votes to go into the closed session – even if the way that the closed session activity strays from its purpose might not constitute an OMA violation on its own. For example, all 11 councilmembers might decide they want to plan a birthday party together – they could meet out of view of the public to do that without posting any notice or announcement, or keeping any minutes.

But it’s our contention that planning a birthday party could not legally take place in a closed session of the city council – even though birthday party planning itself, when undertaken by a quorum of the council, would not constitute a violation of the OMA. Birthday party planning is simply not within the set of narrowly prescribed activities that are allowable during a closed session. So if a city council wants to plan a birthday party at one of its meetings, then it must do so during the open session of a meeting.

Morris clearly disagreed with us on that point, by saying she felt agenda setting, for example, would be allowable in a closed session without violating the OMA, even though agenda setting is not delineated in the statute among the set of allowable activities in a closed session. Morris stated at the Jan 18 hearing:

But if it was a resolution or bringing it forward sounds to me like putting it on the agenda. In this Court’s opinion … that by itself is not a violation of the Open Meetings Act …

Legal Issues: Statement of Purpose a Closed Session

If there’s been some improvement in the city council’s conduct regarding closed sessions, then it could be due to the fact that city attorney Stephen Postema might finally be starting to take seriously the idea that the council should at least have a clear understanding of what the purpose of a closed session is planned to be, before voting to go into closed session.

But based on an exchange between mayor John Hieftje and the city attorney at the council’s Dec. 4, 2010 meeting, Hieftje at that point didn’t quite seem to grasp the statutory requirement of stating exactly what the purpose of the closed session will be. A transcription from that meeting:

Hieftje: Are there communications from the city attorney?
Postema: No, mayor.
Hieftje: Other than that we have a closed session.
Postema: Yes, we do.
Hieftje: I was afraid of that.
[clerk's report accepted; opportunity for public commentary offered]
Hieftje: Seeing no one, would someone please move to go to closed session under the Michigan Open Meetings Act including, but not limited to labor neg…
Postema: … Nuh wait, this is on uhhh, pending litigation only, which is the middle one.
Hieftje: Limited to pending litigation. And attorney-client privileged communication.
Postema: No, it’s only under pending litigation, which is under the Open Meetings Act uh 15.268(e).
Hieftje: I was just trying to cover them all there.
Postema: Alright.

For Hieftje, the stated reason to go into a closed session can apparently include whatever grab-bag of reasons is allowable under the statute – without attention to what the actual purpose of the closed session is planned to be. If you “cover them all,” there’s less clarity for everyone about what the actual purpose of the closed session is, and that set of circumstances is more likely to result in violations of the OMA like the one that we believe occurred on July 19.

Legal Issues: Requirement of Written Communication

If the stated purpose of a closed session is to discuss attorney-client privileged communication, then based on Booth Newspapers v. Wyoming City Council, together with State of Michigan v. Whitney, the closed session discussion must pertain only to the meaning of specific legal advice contained in written communication.

So any councilmember voting to enter such a closed session could and should reasonably wonder: What written document will form the basis of our discussion, and do I have a copy of that document that I can refer to during that discussion? Of course, the statute does not explicitly require that members of a public body must be staring intently at a copy of the written communication during the closed session.

But based on the councilmember affidavits, plus statements made to The Chronicle by more than one councilmember, no one at the July 19 closed session had any written documents that were visually accessible to them. Indeed, it’s reportedly never the case that anyone ever has any written material in front of them for Ann Arbor city council closed sessions. Postema’s affidavit claims: “As is my practice, I had in my possession the attorney-client communications provided to the City Council …”

Having communications in your possession is a fairly capacious concept, ranging from (1) having a smart phone in your pocket through which you could download the documents, to (2) clutching a sheaf of papers and referring to them visually while you are speaking.

The fact that Postema had an opportunity to describe specifically how he visually appealed to the communications he was purportedly discussing with the council, but did not offer such a description, we conclude that perhaps he simply had the documents in his briefcase. It strikes us as absurd to think that a group of people could claim to be discussing a complex legal document without anyone in the room having an easily viewable copy of the document.

Of course, neither the statute itself, nor subsequent court cases, demand that a physical copy of the document be present in a closed session based on discussion of attorney-client privileged communication. Elias put it this way, in arguing before Judge Morris at the Jan. 18 hearing:

… there is nothing in any of the cases that says every member of the council must be clutching that written communication in their hands throughout the closed session … I don’t know what law he thinks he’s relying on that says they have to have written communication in front of them while it’s being discussed. It frankly isn’t there, and that is not a requirement of the Open Meetings Act.

While it’s not an explicitly stated requirement to have the document under discussion visible, it’s certainly hard to see how the spirit of the statute is served by members of a public body who use the existence of a written document – somewhere or anywhere in time and place – as a justification to have a closed session conversation based on that document.

We see this situation as analogous to public notice posting requirements of special meetings, as specified in the OMA. The statute only requires that a public notice exist somewhere at a public body’s principal offices. But the Attorney General’s Opinion 5724 introduces a notion of “accessibility” that requires the posting be accessible for the entire 18-hour posting period. It’s not enough for the posting to exist somewhere in the building – especially if the building could be locked. That would not serve the spirit and purpose of the statute.

Extending the reasoning in Opinion 5724 only slightly, we think it does not serve the spirit and purpose of the statute for a public body to be able to hold a discussion in a closed session about the meaning of legal advice contained in written communication, without that communication being accessible to members of the body. So while there’s no “clutching requirement,” any reasonable interpretation of the law and subsequent court cases would suggest there is an accessibility requirement – which the Ann Arbor city council did not meet on July 19. Obviously, Judge Morris did not agree with us on this point.

Legal Issues: Completeness of Affidavits

Because Judge Morris did not grant us reasonable discovery in this case, we did not learn until a few weeks after the hearing that the affidavits submitted by the city did not tell us or Judge Morris the complete story of the May 28 memo.

It had struck us as odd that in the course of communications between our counsel and the city attorney’s office, the May 28 memo was not ever mentioned as the basis of discussion for the July 19 closed session. The time lag between May 28 and July 19 also struck us as odd. And by late January, after the hearing, we’d pieced together substantial evidence that the July 19 closed session was not the first occasion on which the city council used a closed session to discuss the May 28 memo. Confronted with a specific question from our legal counsel on that issue, assistant city attorney Abigail Elias admitted:

… the May 28, 2010, privileged memorandum that was identified in the course of the recent litigation, was discussed at the second of two closed sessions on June 7, 2010;

The narratives in affidavits by mayor John Hieftje and city attorney Stephen Postema mention a specific request made by Hieftje to Postema a few days before July 19 to discuss the May 28 memo at a closed session on July 19. But neither of them mention the fact that the council had already discussed the May 28 memo at the June 7 closed session – for 13 minutes.

Certainly the existence of that previous closed session was relevant for the court’s understanding and evaluation of the issues and claims involved in our lawsuit. For example, Elias could not have made the same argument she made to Judge Morris against allowing depositions to proceed, if Hieftje and Postema had provided affidavits that included the relevant fact of the June 7 closed session. Responding to our legal counsel’s argument that the requested depositions would be short – only 45 minutes – Elias stated:

… he claims that they’re in theory short because they’re only 45 minutes. In this case where the only issue is what happened during the course of seven minutes, forty-five minutes seems to be nine times too long for each of those depositions.

Certainly Elias and Postema might try to argue that the only issue before the court was what happened on July 19, not any other closed session, and that’s why they were not required – by the ethics of their profession and Postema’s sworn statement that his affidavit was complete – to disclose the fact of the June 7 closed session about medical marijuana policy, based also on the May 28 memo, just as the July 19 closed session was purported to be.

For us, however, that argument would not survive a basic straight-face test. We think Judge Morris allowed her court to be misled by Postema and Elias.

Legislative Remedies

One possible path forward would have been to appeal Judge Morris’ ruling in the hope that we could establish as a matter of legal precedent that the way the Ann Arbor city council conducted its July 19 closed session violated the OMA. We ultimately decided that the narrow range of improvements in the behavior of public officials that are achievable with such a strategy would be fairly limited.

Based on a conversation we’ve had with Jeff Irwin – who was elected in November 2010 as state representative for District 53, which covers most of Ann Arbor – we think our best shot to achieve meaningful and lasting reform is to change the way the law is written with updated legislation.

That is, instead of trying to change the law by setting legal precedents in court, we will place our faith in the possibility of legislative change. One could imagine an OMA statute, for example, that simply did not include the attorney-client privileged communication exemption at all.

Irwin has already taken a first step. In his first month in office he sent a bill request to the Legislative Services Bureau (LSB) for legislation that would update the Freedom of Information Act. Each representative is allowed to make 10 bill requests in the first month of a term and five each month after that. So reform of open government laws is high on Irwin’s list of priorities.

Irwin reported that the LSB had advised that what he had in mind would likely need two bill requests – one for the Freedom of Information Act and one for the Open Meetings Act. He indicated that the legislature’s agenda will first handle the budget as a top priority – that’s fitting and proper – but reform in open government laws will get their due later in the year.

We’re counting on Irwin to generate some good news about open government in Michigan, so that we can report about progress in this area. We’ll sure be watching for it.