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

Sunshine Week is an occasion to remind ourselves that open government is good government.

Michigan has two laws that are key to open government: the Open Meetings Act (OMA) and the Freedom of Information Act (FOIA). Both of these laws rely crucially on good faith. For example, the FOIA allows a public body to deny access to certain public records – like those that are protected by the attorney-client privilege.

If a record is requested and then denied based on the attorney-client privilege, a requester has no way of judging whether the assertion of privilege is appropriate. A requester relies on the good faith of government officials that privilege is not inappropriately extended to records that are not in fact protected by privilege. A requester can resort to a lawsuit, which under Michigan case law can result in the review of the records by a judge to confirm – or refute – the public body’s assertion of privilege. But few requesters have the wherewithal to file a lawsuit over a FOIA denial.

Here at The Ann Arbor Chronicle, we’re celebrating Sunshine Week by laying out a recent occasion when we requested records under the FOIA, were denied the records, appealed to the city administrator, were denied under the appeal, but then were able to obtain some of the records by other means. The record in question is an email written by Ann Arbor city attorney Stephen Postema. This provides an opportunity to evaluate independently, without filing a lawsuit, whether the city inappropriately asserted attorney-client privilege in denying access to a record.

We consulted on the matter with an attorney, Marcia Proctor, who agreed to analyze the relevant factors in a hypothetical scenario. Proctor is former general counsel of the Michigan Bar Association, a specialist in legal ethics, whose practice specializes in professional responsibility for lawyers and judges.

We first present the hypothetical scenario, followed by a brief discussion of the relevant factors in the scenario identified by Proctor. We then present the text of the email and apply the various tests outlined by Proctor. We reach the conclusion that the city inappropriately asserted attorney-privilege to the document.

We then evaluate whether a different exemption provided by the FOIA might apply. That exemption allows a public body to withhold communications internal to the body – to the extent that they are non-factual and preliminary to a final decision by the body. In the balancing test prescribed by the state statute, we reach a different conclusion than the city did: We think the public interest in disclosure outweighed any interest the city had in shielding this frank internal communication from public view.

Finally, we urge the city council to weigh in on the city’s administrative policy on FOIA response, which is currently being revised. It’s important for councilmembers to set the overarching principle that guides the city’s FOIA responses. And we think that guidance should be biased in favor of disclosure.

The Hypothetical

Here’s the hypothetical scenario we outlined for Proctor:

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

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

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

Factors to Consider

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

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

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

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

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

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

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

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

City Attorney’s Email

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

City Attorney’s Email: Full Text

We’ve numbered the paragraphs for ease of reference.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17. Stephen K. Postema
Ann Arbor City Attorney

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Frank Communication

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion: More Sunshine, Please

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

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

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

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

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

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

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

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

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

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Jack Eaton and Margie Teall, candidates for the Ward 4 city council seat, engage in the subtleties of negotiation over who would deliver their opening remarks first. (Photos by the writer.)

City council representatives are elected for two-year terms and each of the city’s five wards has two seats on the council, one of which is elected each year. Also in attendance at Tuesday’s forum was Marcia Higgins, the Ward 4 council representative who won re-election in November 2009, defeating independent challenger Hatim Elhady.

Besides Higgins, other elected officials and candidates for office who were introduced at the forum included: LuAnne Bullington (candidate for the 11th District county board of commissioners seat), Ned Staebler (candidate for the 53rd District state Representative seat), Leah Gunn (county commissioner representing the 9th District of the county and seeking re-election), Patricia Lesko (candidate for Ann Arbor mayor). All the candidates are Democrats.

Eaton’s main theme was a need to focus more on infrastructure – those things we need, not the things that might be nice to have. Eaton was keen to establish that his candidacy was not meant as a personal attack on Teall, saying that he expected his supporters to focus on the issues and to conduct themselves in a civil way. His opening remarks were heavy on thanks and appreciation for Teall’s long service on council, particularly with regard to the creation of Dicken Woods, which is now a city-owned nature area.

In the course of the forum, a pointed question to Teall on her biggest regret while serving on the council elicited an acknowledgment from her that she regretted her contribution to the problem last year with city councilmembers emailing each other during council meetings. Eaton was quick to give Teall credit for publicly apologizing in a timely way for her role in the scandal.

For her part, Teall focused on setting forth accomplishments while serving on the council. Those ranged from the longer-term budgeting strategies that she said had helped ensure that Ann Arbor was weathering the economic crisis better than other Michigan cities, to the budget amendment she introduced and the council passed in May, which proposed using $2 million from the Downtown Development Authority, plus more optimistic estimates for state revenue sharing, to eliminate the need to lay off some police and firefighters.

The candidates exchanged different views on basic infrastructure issues like the Stadium Boulevard bridges and stormwater management, to single-stream recycling and leaf collection, to Georgetown Mall, and the transparency of government.

The candidate responses are ordered largely in the order in which they were made. But in some cases, questions of similar theme are grouped in a way not consistent with their chronological order.

Opening Statement

Each candidate gave an opening statement.

Eaton’s Opening Statement

Eaton began by thanking everyone for taking time out of their busy lives to come listen to the candidates and to “ponder the future of our city.” He specifically thanked Tom Johnson and Greg Hebert, co-chairs of the Ward 4 Democratic Party, for organizing the forum. He also thanked Teall for her many years of service on the city council – he thought many people did not understand how much time and effort serving on the city council actually takes.

Jack Eaton, candidate for Ann Arbor city council Ward 4, gives his opening statement during the candidate forum sponsored by the Democratic Party.

He also said that he wanted to thank Teall on behalf of his neighborhood for helping to protect Dicken Woods – they’d stopped a developer and managed to turn it into a park. He said he wanted to make clear that he was not running against Teall for any personal reasons – he does not dislike her, he said, and he would “not say mean things about her.” He and Teall “simply disagree about some issues.”

Addressing his supporters, he asked them to conduct themselves in a civil way – that they discuss the issues and not the people, that they make it a campaign they could be proud of organizing together.

“I am running for city council because I disagree with the current council’s vision for our city.” He went on to say that he disagreed with the current city council’s budget priorities.

Ann Arbor is a great town, he said, that is unique and special – we have fabulously talented people, and live with Midwestern values. Michigan, he said, is facing difficult economic times, as is Ann Arbor, but not to the extent that Detroit, or Flint, or Battle Creek are facing them. Nonetheless, he said, we will have a difficult budget to manage in the near future. The Southeast Michigan Council of Governments (SEMCOG), he said, had estimated that 69% of Ann Arbor residents over the age of 25 have at least a bachelor’s degree. So Ann Arbor has a highly educated workforce that is prepared for the modern economy, he said. As result, Ann Arbor has a lower unemployment rate than other areas in Michigan, and our property values have declined less than other areas of the state. Nevertheless, he cautioned, we will see a decline in property tax revenues, as well as a decrease in state revenue sharing.

During the next two years, he said, we need to focus on our core public services – public safety, roads, bridges and infrastructure, and maintenance of our parks and recreation program. We especially need to pay attention to human services, he said, and to help those who are least able to help themselves.

During these difficult economic times, he said, the city needs to withdraw from real estate speculation and projects that are not necessary but merely desirable. If we take care of core services, he suggested, the highly educated population would draw employers, the economy will stabilize, property tax revenues will stabilize, and we can move on to pursue a different vision. In the short term, however, we have to focus on those things that are absolutely necessary, and put aside the things that are merely desirable.

Eaton promised that as a city councilmember, he would support citizens’ needs and desires for fundamental services.

Teall’s Opening Statement

Teall also began by thanking everyone, including the organizers of the forum, Tom Johnson and Greg Hebert, the co-chairs of the Ward 4 Democratic Party. She also thanked Eaton for his kind comments – she confirmed that it is a lot of hard work serving on the city council.

Margie Teall, Ward 4 city council incumbent, responds to questions during the candidate forum.

Since 2002, she said, the council had been able to accomplish some “pretty amazing things.” What makes that significant, she said, was that the challenges have and continue to be significant. We currently face the most severe economic downturn since the Great Depression, she said, and sources of state and federal funds that cities have counted on for decades have been drying up. Funding that was previously available in the ’80s and ’90s and also in the early part of the current decade was no longer available, she said. Across the state, she said, cities are seeing their budgets stretched past the limits.

Some other cities were letting their fund reserve balances get dangerously low and have put their bond ratings at risk. Ann Arbor, however, has been very careful to protect its bond rating, said Teall. Royal Oak, she reported, was looking at 43 layoffs in July – including 14 firefighter positions and 16 police officers. Grand Rapids is asking voters to increase their income tax rate and they are looking at 14 more layoffs on top of the 125 positions that were eliminated this past cycle.

Teall stated that Ann Arbor was fortunate to have a mayor and city council who had the foresight to make necessary structural budget changes early on. When she was first elected in 2002, she said, the council had prioritized the budget at its first goal-setting session. They had focused on the basics of city government and operation. As a result, she said, Ann Arbor was weathering the economic storm as well or better than any other city in the state. Despite the fact that Ann Arbor had lost up to 5% of its property tax revenues due to the sale of the Pfizer property to the University of Michigan, Ann Arbor was still answering the demands that decades of neglect of roads, water treatment, and sewer infrastructure had left them, she said.

Ann Arbor is still not raising taxes and the fund reserve balance is healthy enough to maintain a very high bond rating, Teall said. That had been the result of very careful planning and decision-making, she said. She herself had accomplished a great deal for Ward 4 residents, she said, as well as for the city as a whole. The very first neighborhood meeting she attended in November of 2002, she said, was in the same room as the forum that evening – and the topic of the meeting had been the threat to the area that is now Dicken Woods.

Teall worked with many of the residents to stop the sale of the land to the developer and to work out a plan to arrange for the city itself to purchase the land, she said. She gave credit to the neighborhood for making the area what it is today, saying that they had taken a “diamond in the rough and polished it.” She thanked the neighbors for “taking the ball and running really hard with it.” She reported that last week the city council had voted to make Dicken Woods officially city of Ann Arbor parkland.

Two years ago, she said, she had worked with her colleague from Ward 4, Marcia Higgins, to rezone part of Lower Burns Park to prevent more single-family residences from being broken up into multiple rental units. More recently, she said she had written and co-sponsored a resolution to create a neighborhood task force to work with the city attorneys and planning staff to provide oversight and input into the redevelopment of the vacant Georgetown Mall and to address concerns about its current security.

Last month, she said, she had sponsored a budget amendment to prevent football-Saturday parking in Allmendinger and Frisinger parks. A year ago, she continued, the Ann Arbor Senior Center had been slated to close two days after the candidate forum was being held – July 1, 2010. She said she had taken the lead during last year’s budget process to reverse that decision – she wrote the resolution creating the senior center task force and had chaired that task force over the last year. The task force had made dozens of recommendations and the city staff had subsequently implemented them to make the senior center sustainable in the future, she said.

On the city’s environmental commission, she said, she had worked on the ordinance that restricts the use of phosphorus in lawn fertilizer. She also cited her role in helping to convert Ann Arbor’s recycling system from a dual-stream to a single-stream system – that would help to establish Ann Arbor as the leader that it previously was in the field of recycling, she said, stating that it would save the city about $650,000 a year in labor and tipping fees.

She concluded her list of accomplishments by saying that she had taken the lead on an amendment to the budget this last spring that prevented the layoff of police officers and had kept all of the fire stations opened. The fire chief had assured the council that response times and staffing levels would not be adversely impacted, and neither would residents’ insurance rates. She said she looked forward to serving the city for another two years – the turbulent economic times required the kind of continuity that only the current leadership could offer, she concluded.

Georgetown Mall

Question: Please comment on the future of the Georgetown Mall. [The property, now a vacant strip mall, is located on Packard Road, between Pine Valley and King George boulevards.]

Teall on Georgetown Mall

Teall indicated that she had been working with a citizens group to follow closely what the current owner is doing – they had taken a tour of the property last month and they have another meeting on July 15. The city attorney and city planning staff are working with the group. They are optimistic that the owner will take the group’s suggestions and input, Teall reported.

Eaton on Georgetown Mall

Eaton said that Georgetown Mall represents an unfortunate failure of the city council to act, based on its first lesson on urban blight. Out on Jackson Road, he said, the old Michigan Inn was allowed to “waste away for years” without any response in the form of legislation that addresses urban blight. The same thing appears to be happening with Georgetown Mall, he cautioned.

There are no ordinances, he contended, that address responsibilities of landowners with regard to abandoned property – the site is a magnet for vagrants and crime. The issue needs to be addressed on a broader level than just the one site, he contended. That’s because apparently the city will face more of this kind of thing, he said. There is an abandoned site at the bottom of Broadway Hill that used to be a neighborhood shopping center – Kroger – that is now just a field of weeds, and there’s an abandoned site at Washtenaw and Platt across the street from the Whole Foods store with a few abandoned buildings – it’s also filled with weeds, he said.

In a best case scenario, Eaton said, Georgetown Mall would be demolished and become a field of weeds. It is important, he said, to assign responsibility to landowners with respect to abandoned property so that properties don’t just “fester” in the neighborhoods as urban blight.

State of the City

Question: How is the city better than it was 10 years ago?

Teall on State of the City

Teall said that the most basic way she felt the city was better is the fact that the budget is much more solid than it was previously. The city is addressing infrastructure needs that had been neglected 10 years ago, she said. When the city was flush and the city had the money to do a lot of things, the city didn’t do them. As examples of projects the city is now undertaking, she pointed to the storm water project at Pioneer High School and the renovations to the water treatment plant. In addition, the greenbelt, she said, was enhancing the quality of life in the whole city.

Eaton on State of the City

Eaton said he’s running for city council because he thinks that in some ways the city is not better than it was 10 years ago. But he said that he did believe there were wonderful things that have happened in the last 10 years. As examples, he said the city has added to its park system, Adopt-a-Park has been implemented, neighborhoods have been activated to become more involved in politics – there are a lot of exciting things happening in town. What’s better now, he said, is that the town has a robust sense of community and continues to improve it.

The Democratic Party

One question was directed only to Eaton.

Question: Can you tell us what you have done for the Ann Arbor Democratic Party in the last few years?

Eaton on Democratic Party

Eaton began by saying that he voted regularly. He also contributed to Democratic candidates, he said. He also said he had helped organize neighborhood organizations in town that focus around Democratic-based issues.

Malletts Creek and Drainage Issues

Question: As a long-time resident of Lansdowne I have witnessed the deterioration of Malletts Creek as an asset of Ward 4. Unfortunately, stormwater and silt from the new developments west of Ward 4 and from within Ward 4 have been directed into the creek. When is the city council going to review the work of the drain commissioner?

Eaton on Drainage Issues

Eaton began by saying he did not think it was the work of the city council to direct the county drain commissioner [now called the water resources commissioner]. But he noted that the city has flooding problems in a variety of areas – not just Malletts Creek. A couple of years ago, the city council had commissioned and paid for a study on flooding, but had refused the results, he contended. It’s becoming a more and more important issue, he said.

Eaton said he was not living in Ann Arbor in 1968 when the city had experienced a huge flood, but he noted that there was an increasing frequency of floods. He said he had visited Lansdowne to look at the problem that they are having with Malletts Creek. It would require a joint effort on the part of the neighborhood, which owns some of the infrastructure, and the city, which owns the bridge. But the flooding problem needs a city response, he said. We can’t allow development to proceed, he said, without gauging impact on drainage and surface water.

Referring to a heavy-rain-related incident that was reported to the city council at a recent meeting, Eaton said that no one should wake up and find 70,000 gallons of water in their basement. It’s not an individual’s problem that happens, he said, but rather a failure of the city to address its fundamental stormwater problems and to address them in a broad-based manner.

Teall on Drainage Issues

Teall said the flood map that she thought Eaton had referred to was expected to be ready in the fall. She said that she and the other Ward 4 representative, Marcia Higgins, had visited the location where a resident had had their basement flooded with 70,000 gallons of water, and toured the entire area with city staff – Cresson Slotten, a senior project manager, and Craig Hupy, who is head of systems planning. She characterized the failure as a failure of the system that had been installed – it had been designed to take the stormwater and treat it in a certain way and the system had failed for that specific heavy rain event.

Teall indicated that the neighborhood association has ownership of some of the infrastructure for a bridge between two ponds.

Malletts Creek Bridge

Question: What about the bridge that goes across Malletts Creek between Morehead and Delaware? It’s been out of service for two years and is getting to be a nuisance.

Teall on Malletts Creek Bridge

Teall indicated it was the same bridge that she was talking about before – it’s a pedestrian bridge. The footings on the bridge are not in good shape, she said, so the city could not simply go in and replace the bridge above the footings. With respect to the ownership of the bridge, Teall was uncertain which parts were privately owned and which parts were owned by the city.

Eaton on Malletts Creek Bridge

Eaton chimed in to say that the structures under the bridge were owned by the neighborhood association, but the bridge itself is a park bridge, built and owned by the city. The neighborhood, Eaton said, was complaining because they’d been trying to work with the city to find a resolution to the problem that has persisted for a couple of years and they have become frustrated.

Eaton indicated that he was uncertain what the city had done or not done, but that he understood that there could be frustration when a process took a couple of years. Given the recent flooding issues during a major rainstorm, he said, now was perhaps the time to take responsibility for Malletts Creek and the bridge.

Stadium Bridges

Question: What could you do to prevent the Stadium bridges fiasco?

[For background on the Stadium bridges, including a timeline of events related to the bridges see Chronicle coverage: "Budget Round 6: Bridges, Safety Services" ]

Teall on Stadium Bridges

Teall began by reviewing some of the history of the issue. The railroad bridge had been at 61.5 out of 100 on the Federal Sufficiency Rating (FSR) scale and the State Street bridge had been at 21.2. She said that they’d begun meeting with the public back in 2007 – there’d been a plan developed by city engineers and staff which had included various efficiencies that come from combining multiple projects.

The project at that point included lowering State Street to allow for trucks to go under the bridge, and was to include construction of non-motorized amenities on Main Street and on Stadium Boulevard. Opposite Pioneer High School, on the east side of Main, she said, sidewalks and bike lanes were to be installed, as well as from White Street to Main Street along the south side of Stadium Boulevard. The proposal would have required land from the Ann Arbor Golf and Outing Club, she said, and residents were incensed. She said she’d received numerous handwritten letters from people upset about it.

At that point, she said, the city had decided to take a step back to reduce the scale of the project. In 2009, she said, there were two additional public meetings asking for input on the design. Within that timeframe, the rating on the State Street bridge had fallen to 2 out of 100. Beams were removed from the south side of the bridge.

The current rating, she said, was 23.5. She indicated that she did not consider it to be a “fiasco” but rather a “long process” which she looked forward to seeing completed. She characterized as “foolish” the idea of going ahead with reconstruction of the bridges this fall – that is, using the road millage dollars for the next few years. The city’s strategy was to see if they could get funding from the federal government and the state government. She said she felt the city had a good chance of getting that funding – it’s what other cities do as a funding strategy.

Eaton on Stadium Bridges

Eaton said that in 2007 the spans were already rated at 21-22 out of 100 – where a score of 50 or less out of 100 means that you need to consider repairing or replacing the bridge. As currently proposed, the project does not include the intersection of Main and Stadium – a plan that does not include the controversial aspects involving the sidewalks that required land from the Ann Arbor Golf and Outing Club. But when the Obama administration offered stimulus money for this very kind of project, Eaton said, the city did not have a “shovel-ready” plan – the city had lost out on the chance at that point in time.

Now, he continued, the city was counting on much smaller sums of money that are distributed much more widely. The city had not received TIGER I money [the federal Transportation Investment Generating Economic Recovery grant] and would likely not receive TIGER II money either, Eaton said. Given that a score of 50 out of 100 meant that the bridge should be considered for repair or replacement, Eaton said, the bridge, with its history of FSR scores under that number, meant that the problem had been ignored for too long.

He suggested that bonds should be floated if necessary to reconstruct the bridge and that road millage dollars be used to retire those bonds over time. We need to take care of the problem and not just let it linger, he said, hoping that “free money” would come to town. It’s ridiculous to continue to put it off, he concluded.

Airport Runway

Question: Are you for or against the airport runway extension project?

[For background on a possible airport runway extension see Chronicle coverage: "Ann Arbor Airport Study Gets Public Hearing"]

Eaton on the Airport Runway

Eaton said that he was against the extension, citing a variety of other airports in the area that can handle larger aircraft. It’s important to maintain the municipal airport for enthusiasts who fly, but there are other facilities available for heavier aircraft carrying heavier loads. He understood, he said, that pilots always prefer a longer runway, but the concerns of the surrounding neighborhood need to be respected.

Teall on the Airport Runway

Teall indicated she did not have much to add – she is not in favor of a runway extension. She’d been in favor of the environmental assessment [conducted in connection with a possible extension project] because of the drinking water wells that are located on the airport property – the wells were important to protect, she said.

Single-Stream Recycling

Question: What is your position on single-stream recycling?

[For an opinion piece covering much of the background material on single-stream recycling, see: "Column: Recycling Virtues and MORE"]

Teall on Single-Stream Recycling

Teall began by describing the process as one that we’d all be getting more familiar with starting next week, when we begin putting all recycling materials in one cart [instead of the two different totes that the city now uses]. Chicago, as well as many other cities, are now using that approach, she said. She described it as a money-saver for the city as well as an opportunity to increase the city’s recycling performance.

Teall described the participation rate in recycling as high, but said that as a city, not as much material was being recovered as the city could achieve. She cited a view that had been expressed by Dan Ezekiel [who serves on the city's greenbelt advisory commission (GAC)], who has said that recycling won’t be really successful until it’s as easy to recycle as it is to throw something away.

She said she looked forward to being issued her new cart and being able to throw everything – paper, plastic, and the rest – into the same cart. It also would keep the streets cleaner, she said.

Eaton on Single-Stream Recycling

Eaton began by contrasting dual-stream with the single-stream system. Under the current dual-stream system, he began, you put your paper in one bin and the bottles and cans in another bin. Under the new system, he continued, we’ll be issued “another one of those carts that we all love so much.” [The reference there is to the wheeled carts that the city has issued for trash collection (blue) and compost/leaf collection (brown).]

The purpose of recycling is not to see how much you can get people to put in the bin, he said, but rather to see how much of the material can be put into recycled products. The problem with single-stream recycling, he cautioned, is that it all goes in together – it would be cross-contaminated. There would be broken glass and tomato sauce amongst the paper – it would be a mess, he warned, and would result in less material available to go into products made from recycled material.

The solid waste millage, he said, had accumulated a $6 million surplus, which the city was now going to use to convert to a single-stream recycling process. He said he would have preferred to reduce taxes instead of creating a new system. The new system would provide a new cart, he said, which could be used to recycle margarine and yogurt cups, but it would no longer be possible to put motor oil out for curbside pickup. And when people go to the drop-off center, they’ll have to pay a new $3 entry fee to drop off items they used to put out at the curb.

The $6 million surplus was being spent on the new single-stream recycling system, he said, but the city was discontinuing the loose leaf collection program where residents could sweep their leaves into the street. They’d have to be put into a compost cart, he said. You could put your cart out once a week through the fall, and after that, if you had more leaves, you’d be stuck. In addition, he said, we’d be employing low-wage workers to separate the materials – people we don’t currently have to employ because residents separate the materials when they fill their bins.

Leaf Collection

There was a specific question on leaf collection, tacked on to a question about the “bucket system” of budgeting, which is presented here separately.

Question: “… without cutting popular services like leaf collection?”

Eaton on Leaf Collection

On leaf collection, Eaton said he was going to miss the leaf collection. “I have lot of leaves!” he said. The idea of dragging his compost cart repeatedly through the fall out to the curb, instead of having two mass leaf collections, does not appeal to him.

Teall on Leaf Collection

Teall said that the leaf collection issue had been looked at for a long time – Ann Arbor is the only city of similar size that still collects leaves by having people sweep them into the street and then using bulldozers and dump trucks to haul them away. The new approach would keep the streets and the stormwater system cleaner and she’d been encouraging the change to happen for some time.

Teall pointed out that paper bags could be used in addition to the compost carts. She also pointed out that bicyclists would be a lot happier [to not have leaves dumped where they ride in the street], especially in the colder months after the snow falls and the leaves freeze.

Bucket System of Accounting

Question: How do you feel about the current “bucket system” of budgeting? Shouldn’t a program with a surplus be allowed to help fund programs with a shortfall …?

Eaton on Bucket Accounting

Eaton addressed the issue of the “bucket method” by saying that it was simply fund allocation budgeting – there are certain funds that have limited uses. So, for example, when we tax ourselves with a solid waste millage, we can only use that money to address solid waste issues. Monies collected for the water system can only be used for the water system.

But the city takes this one step further, Eaton explained. Within the general fund, the city allocates to specific funds – like the attorney’s office, or the IT department or the mayor’s office – and they refer to those funds as “buckets” as well. The implication, he said, is that it’s not possible to take money out of the legal department and use it to pay for police or to take money out of the IT department and use it to pay for firefighters. And that, he said, is not true.

To the extent that the term “bucket” is misleading, he said, he is against that. But fund allocation of budgeting is an accepted method of budgeting, he pointed out. It is important to understand which funds have actual restrictions on them and which ones are fungible. You can choose to shift money among funds that don’t have legal restrictions on them, he said.

He pointed out that the federal government does not accept the fund allocation method of budgeting for their annual reporting. The city needs to produce a separate Comprehensive Annual Financial Report, which is filed with the IRS, and which he characterized as a more reliable way of looking at how the city uses its money.

To the extent that it’s just an analogy, he said, he had no objection to the “bucket” method.

Teall on Bucket Accounting

With respect to fund allocations, Teall said that Eaton was correct about the fact that there are certain millages that by state law cannot be moved into other funds. When voters tax themselves for a service, you can’t just move it to a different fund for another kind of operation.

In terms of fund allocations within the city, she pointed out that for the legal and IT funds, those departments support other operations. The legal and IT departments do not just work for themselves independently, she said – they support other departments, like safety services. She summarized by saying that “We can’t starve one area in order to feed another area.”

Street Lighting

Questions: Are you in favor of special assessment districts [to fund street lights]? How do you feel about the city turning off street lights in certain areas?

[Special assessment districts and other options for reducing city expenses for streetlights were discussed at a spring budget meeting: "Budget Round 4: Lights, Streets, Grass"]

Teall on Street Lighting

Teall said that special assessment districts for lighting are something that should be considered. The street lights that are being turned off, she said, would save money by reducing lighting in areas that are “overlit,” according to federal and state standards. The initiative to turn off street lights, she said, was something that had been passed as part of the budget in May. She stressed that the light posts are not being removed. The city would evaluate the results of the program, she said, as it was implemented. [The city describes the current program as a "pilot."]

Eaton on Street Lighting

Eaton stated that he was against special assessment districts for street lighting – he could not imagine taxing people on the basis of how many street lights are in their neighborhood. He is also opposed to turning off street lights.

He noted that the police force had been reduced significantly over the course of the last six to eight years, and said that the state is releasing criminals they can no longer afford to imprison. “And now we are going to darken our streets?” he asked. We pay a lot of taxes, he said. If we don’t build underground parking lots, if we don’t spend $0.5 million planning “a train station that may or may not be necessary,” if we don’t do the things that we just want to do, then we would not have to turn off street lights, he concluded. [Eaton's reference to a "train station" is to Fuller Road Station. Most recent Chronicle coverage: "PAC Softens Stance on Fuller Road Station" ]

City Worker Pay and Benefits

Question: How do pay and benefits for the private sector compare to city workers?

Eaton on City Worker Pay and Benefits

Eaton began by saying that as Michigan’s economy has declined, it’s become more obvious that public employees are relatively highly paid and may have higher benefits than a lot of people in the private sector.

A few years ago, the mayor commissioned a blue-ribbon panel, he said, to study city benefits and retirement policy, but had acted on none of the findings of that committee. We need to work with city unions, to address the problem, Eaton suggested.

He reported that he’d received the endorsement of the firefighters union and the way he’d done that was to restore trust and honesty at the bargaining table. He’d told them that the city needed to cut employee costs, but he also told them that he wanted the bargaining to be honest and trustworthy.

They’re willing to work with the city, he reported, but they believe that they’re being lied to. In Ann Arbor, Eaton said, there are a large number of public sector employees that can be used as comparatives – there are a large number of such employees at the University of Michigan, he said. So it’s not just a private-public comparison, he noted. It was important to find a way to work with employees, he concluded.

Teall on City Worker Pay and Benefits

Teall said that the city’s employees are “decently compensated” but said it was not her place as a councilmember to bargain with unions. That’s something that the city administrator and the labor attorneys did, and it was their job to do. If she were to step into that, it would make impossible the job the city administrator had been hired to do. The city’s bargaining side comes back and checks with the council to see if it’s okay to move forward and that’s a councilmember’s role. On the whole, she said, the city was encouraging its employees to take on a lot more in terms of paying for health care and benefits.

Regrets

One question was addressed specifically to Teall.

Question: What has been your greatest regret serving on council?

Teall on Regret

Teall said that her greatest regret was contributing to the problem that the council had last year when councilmembers were sending emails back and forth to each other during city council meetings.

She said the result was that the council had quickly changed the council rules so that emails between councilmembers during meetings are restricted. She said it was a mistake for councilmembers to have done that and that she had said so last year.

Eaton weighed in by saying that he felt Teall deserved credit for promptly making a public apology over the “email brouhaha.”

Email Policy

Question: What will be your policy/practice regarding constituent emails – will you respond to them?

Eaton on Email Policy

Eaton said that, yes, he would respond to emails. He said it would be his intention to respond promptly. He also said he would favor adopting a council rule that all council business with their constituents be conducted through a councilmember’s official government email address, so that requests under the Freedom of Information Act can be easily met by the city. He said he would not conduct city business through his private email account – he believes in transparency and responsiveness. He said he believed that the council needed rules to govern this.

Teall on Email Policy

Teall indicated that she did try to respond to emails from constituents – she allowed that she did not always do so quickly. She said if she went out of town she might not necessarily take her computer with her. But she said that it was certainly her intent to respond to emails in some fashion.

With respect to transparency, she said she agreed with Eaton. In her experience, she said, constituents emailed her on her government account and receiving emails on a private account had not been an issue.

Transparency in Government

Question: If elected or re-elected, what would you do to create transparency in government?

Teall on Transparency

Teall began by saying that she didn’t think there was a more transparent municipal government in the state than Ann Arbor’s. She pointed to the numerous boards and commissions that the city had, which had meetings that were posted and open to anybody to attend. The city had high ratings – the top 10% – for the transparency of its budget. In her estimation, Teall said, they did everything they could to communicate openly. She told the audience that she knew they had come to a lot of those meetings and they were welcome to come to a lot more.

Eaton on Transparency

[Eaton discusses various aspects of the city charter, which are laid out in some detail in this opinion piece: "Getting Smarter About the City Charter"]

Eaton began by reacting to Teall’s contention that Ann Arbor’s government was transparent by saying cheerily, “I disagree!” He noted that the city charter mandates that city documents are to be available to the public – we have a right to see what goes on. Specifically, he said, when the city attorney renders an opinion, those documents are to be made public so that we can see what the legal advice is on which the council is acting.

On an ongoing basis, Eaton said, you have to file a request under the Freedom of Information Act (FOIA) to find out why a police officer is patrolling your neighborhood with unusual frequency. You have to file a FOIA request to obtain documents that should be readily available.

Even filing a FOIA request will not cause the city to produce any opinion that the city attorney has rendered, Eaton said. Instead, the city attorney has taken the position that his opinions are attorney-client privileged information between him and the council. Eaton said he would, therefore, propose a resolution that would waive attorney-client privilege for opinions of the city attorney that do not relate to ongoing litigation. We have a right to know what advice council is being given and how they are acting on that advice, Eaton said.

As someone who attends many council meetings, Eaton said that many times councilmembers will indicate that an issue is going to be decided in a particular way – before the public hearing and the vote. The decision has already been made, he said, and they know how the vote is going to go, before members of the public take the podium and tell councilmembers what they want them to do. That’s not transparent government, but rather “pro forma” government – they go through the motions of committee meetings and public hearings and responding to FOIA requests, but decisions are made before that input.

As an example of the kind of change he would seek, Easton suggested that a council “committee of the whole” would meet during the off weeks between regular meetings, so that they would have open discussions in front of the public about what they were thinking.

Summary

Both candidates gave closing statements.

Eaton Sums Up

Eaton began by saying that Ann Arbor does not need dramatic change – we don’t need to demolish sections of neighborhoods in order to make “shiny new towers,” he said. What we need to do is maintain what we have. Ann Arbor has the third-worst roads in the state of Michigan, he said, but we have several million dollars in the road repair budget – it may go to the bridge or some other project. In any event, he said, the city has not been spending enough money in the last few years on road repair, and it showed.

The Allen’s Creek Watershed Group had reported that the water system was at near capacity, Eaton said– so if we continue to encourage more development, we will extend past the city’s ability to provide water and wastewater services. Instead of going on a “building binge” that would add to the already-high vacancy rate that the city has in rental and residential properties, we need to take care of our streets and bridges, our water system – the infrastructure that we can’t see. When the economy turns around, he suggested, we will then have the capacity to handle the new building that will take place.

We can’t build all of these projects and take care of our infrastructure – the state of the city now demonstrates, he said, that we can’t do both. He promised that he would focus on essential services during tight budget times, so that Ann Arbor would be in a position to grow when the time is right.

He concluded by asking audience members for their vote.

Teall Sums Up

Teall used her summary time to address some of the statements that Eaton had made through the forum.

First, she stressed that when a development goes into downtown Ann Arbor, the developer pays for any necessary capacity increases in the water and sewer systems that result.

On the subject of single-stream recycling and possible cross-contamination of material, she allowed that 10 years ago, when it was first introduced, the contamination issue was valid. Now, however, in the last few years, with improved technology, it was not. Environmental groups in the city supported the switch, she said.

As far as comparing Georgetown Mall to Michigan Inn, she said, Michigan Inn had been a huge problem for the city and for the city’s attorney, because the owner had not been at all cooperative. She said she was confident that the owner of Georgetown Mall would be cooperative.

On street lights, there would be no streets darkened as a result of the “downlighting” and noted that crime rates were down quite a bit in the last decade.

She thanked everyone for attending and thanked those who had supported her in elections and during her time in office. She said she’d worked hard with her Ward 4 colleague Marcia Higgins and with mayor John Hieftje “to create a solid foundation for the city – economically, socially, and environmentally.” It was essential, she said, to keep the leadership that would keep the city on course. She said that she hoped voters would “hire” her for two more years to keep the city’s ship sailing steady and strong as the flagship of the state of Michigan. We need the continuity that only the current leadership could provide, Teall said, and she asked the audience for their vote on Aug. 3.

Editor’s note: Tuesday, July 6 is the last day for residents to register to vote in the Aug. 3 primary. For information about your registration status or how to register, contact the city clerk at 734-794-6140 or cityclerk@a2gov.org, or go to the city clerk’s election website.

What amended rules? At its previous meeting on Sept. 8, the council had amended its rules to restrict emails sent by its members during meetings to two kinds: (i) messages to city staff, and (ii) messages to other councilmembers that propose language for resolutions or amendments to resolutions. No restrictions were put in place on reading emails received during city council meetings.

In adopting the Sept. 21 resolution – but at the same time rejecting a proposal to release council meeting emails dating back to 2002 – councilmembers emphasized the need to look to the future and not dwell on the past.

However, the rule changes, together with the resolution passed on Sept. 21, suggest that Ann Arbor’s city council has fundamentally failed to give adequate thought to the future of open government in Ann Arbor. Instead, we appear to be moving into the future in a way that formally ensconces a flawed understanding of the letter and spirit of the Open Meetings Act.

Why the Obsession with City Council Emails?

As a result of Freedom of Information Act requests made initially by the Great Lakes Environmental Law Center – and followed with requests by The Ann Arbor News, The Ann Arbor Chronicle and other Ann Arbor citizens – it was revealed that city councilmembers had a history dating back to at least 2007 of using their city-issued laptop computers and city-issued email accounts during meetings to engage in juvenile banter back and forth.

Partly as a result of an editorial cartoon published by The Ann Arbor News depicting Christopher Taylor (Ward 3), Leigh Greden (Ward 3), Margie Teall (Ward 4) and Carsten Hohnke (Ward 5) as little kids, one impression that threatens to linger is this: The controversy has to do with bad manners and insults.

That impression has deepened, I think, as a result of emails written by Mayor John Hieftje to constituents dismissing the problem as involving emails that are “stupid and juvenile.”

The possible historical understanding of this episode as an issue of inappropriate decorum has been further solidified by members of the community who have rallied around the emailed insults. For example, the printing of T-shirts adorned with the “dim lights” reference emailed by Taylor means that coinage that will likely remain a part of his permanent legacy of service on city council. Deserved or not, if that’s this episode’s only legacy, it would distract from a more serious issue.

For The Chronicle, this issue has never been about the fact that city councilmembers were revealed to be almost as rude, petty, and cleverly mean as many of the rest of us.

Looking past the stupid and juvenile, what the FOIA-ed email corpus reveals is that city councilmembers engaged in email communications – unseen during meetings – that related to the content of their deliberations. These emails involved communications among councilmembers that were unseen by the public, as well as unseen communications to councilmembers from constituents.

The first reference that The Chronicle published about city council meeting emails goes back to a spoken reference during a meeting nearly nine months ago.

At the city council’s Jan. 5, 2009 meeting, Greden announced, somewhat triumphantly with no apparent misgivings, that he’d just then received an email that factored into the ongoing council discussion, and he then proceeded to adduce an argument based on it. From The Chronicle’s coverage of deliberations on the City Place residential housing project:

Greden indicated that his reasons for postponing had gone from two to three in light of an email he’d just received. Reviewing the first two reasons, he began by asking his colleagues to consider a hypothetical: the staff review had determined the protest petition had fallen short. He was quite confident, Greden said, that neighbors would dispute that. They’d disagree with the staff conclusion and on that basis would ask for a postponement. “That’s the argument we’d hear and I would support it,” Greden said.

Reiterating his second reason for postponement, he said that the public benefit of affordable housing is not in the development agreement, and that if the developer is dragging his feet about putting it in writing, we’ll know that in two weeks and he would vote no at that time. Greden’s third reason also related to the development agreement: there was currently nothing in the agreement that says the developer can’t build 6-bedroom units [a unit size typically associated with student housing].

The Chronicle continues to highlight the email issue, because it affects whether our city council engages in substantive open deliberations during open meetings, or rather conducts these deliberations someplace else.

What OMA Requires: Deliberations Among Members

What does the Michigan Open Meetings Act require of public bodies? There are any number of requirements – many of them involving proper notice and access – but the core principle at stake in the case of Ann Arbor’s city council is this one:

15.263 Sec. 3.(3) All deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public except as provided in this section and sections 7 and 8.

It’s easy to misread this requirement as being mostly about whether a quorum is present. In fact, it’s where we focused our attention first, and it’s what led us initially to the erroneous conclusion that the emails provided to the Great Lakes Environmental Law Center under their FOIA request were inconclusive with respect to OMA violations.

What leads so easily to this misreading? I think it’s the inclination on the part of public bodies – and even people like us, who measure the behavior of public bodies against the standard of the OMA – to see the OMA primarily as a list of exceptions, instead of a list of requirements. That is, if you see the OMA primarily as a list of legal ways you can conduct unseen deliberations, then you’re likely to interpret 15.263 Sec. 3.(3) in a way that can be paraphrased like this:

Broad Exception: If there’s less than a quorum of members who are party to a deliberative conversation, that conversation need not be open to the public – no matter what the physical context of the conversation.

On this Broad Exception interpretation, during a regular meeting of the city council, it would be legal for deliberative emails between members of a public body to be exchanged, as well as whispered deliberations to take place – just as long as these communications did not involve  a quorum of members.

But courts have consistently ruled for narrow interpretation of exceptions. And in this case, I think it was clearly not the legislative intent of the OMA to allow some of the deliberations during a meeting of a quorum of members to be shielded from public sight and hearing.

So it’s easy to reject the Broad Exception interpretation of 15.263 Sec. 3.(3). If, on the other hand, you see the OMA as a law that is primarily a list of requirements, as opposed to exceptions, then you’re likely to interpret the clause this way:

Narrow Exception: If a quorum of members is present at a meeting, and there are deliberations among its members, then those deliberations must be open to the public.

On the Narrow Exception interpretation, it’s the quorum that establishes the physical context – but then within that context, deliberations must be open to the public. On the correct interpretation of the OMA, therefore, unseen emails addressing the subject matter of the meeting are not permissible between councilmembers – regardless of how many councilmembers are involved in those emails. Moreover, from the perspective of OMA, it’s not permissible for one councilmember to lean over and whisper a deliberative comment into the ear of another.

It’s interesting that the city council’s rules – in the form of Robert’s Rules of Order, to which the council’s rules appeal for all aspects of meetings not otherwise addressed – proscribe such whispering. However, Hieftje has never enforced that rule in the time The Chronicle has covered the city council’s meetings, though ample opportunity for enforcement has presented itself.

In any case, on examination of the FOIAed corpus of email exchanges between city councilmembers during meetings, it is clear that many of these exchanges augmented the open deliberations as viewed by a public observer, thus effectively shielding a portion of the council’s deliberation from public view, which is counter to the OMA.

Because the city council has insisted that it’s important to look to the future and not to the past, we focus next on whether the council’s new rule, plus its resolution to append email communications, effectively curbs future OMA violations.

How to Tell If a Meeting Conforms with OMA

We begin by considering a reasonable monitoring standard for open meetings. Let’s say a citizen attends a meeting of a public body, and pays attention to what’s going on during the meeting. It’s our contention that during the meeting itself, it should be readily apparent to an attendee whether there are potentially violations of OMA 15.263 Sec. 3.(3):

Basic Monitoring Principle: Violations of OMA during a meeting of a public body should be readily apparent at the time of the meeting to any observer physically present at the meeting.

That is to say, if citizens take the trouble to go in person to watch the deliberations of a public body, then they should be able to size up the scene as it unfolds before them and be satisfied at every moment during the meeting that they’re seeing and hearing all the deliberations of that body.

But if members of the body operate their laptop computers throughout the meeting, it’s impossible to ascertain during the meeting whether there are unseen deliberations.

So here’s what we’ve proposed via the city attorney to the city council – a proposal they’ve steadfastly resisted.

Proposal: Prohibit use of laptop computers (and other electronic communication devices) by councilmembers during their meetings, instead providing access to electronic materials during the meeting via public technologies like projectors linked to a city staffer’s laptop.

Prohibiting the use of laptop computers and other electronic communication devices during meetings – or restricting their use by councilmembers to the time of their speaking turns – would be a straightforward step that would satisfy the Basic Monitoring Principle. Access to the contents of the electronic meeting packet could be provided during a meeting by projecting it onto the wall through a laptop computer operated by city clerk staff. Any councilmember could request the projection of specific elements of the packet at any time during the meeting. The city’s planning commission and the historic district commission meetings already function quite effectively in this way. It’s a way that ensures that members of the public body and the public are quite literally “on the same page.”

Such a council custom of not allowing the use of electronic communication devices during its meetings would thus not impose an unreasonable burden on councilmembers, while at the same time satisfying the Basic Monitoring Principle. In fact, I would argue that this custom would promote more thorough preparation in advance of the meetings – such preparation as could be accomplished through interaction with fellow councilmembers at Sunday night caucus, for example.

Our proposal contrasts with the approach to the future taken by the city council, which is now by rule prohibited from engaging in violations of OMA 15.263 Sec. 3.(3), and which by resolution provides a delayed mechanism that the public can use to monitor compliance with OMA.

We leave aside the fact that the monitoring mechanism itself is incomplete – we don’t believe it’s the intention of the city to attach to the minutes emails sent from personal accounts, or web browser history files that would reflect internet activity like Facebook page updates, or the data from any keystroke loggers installed on city-issued laptops.

The larger point is that it’s unreasonable to expect citizens who attend a meeting to wait any period of time after the meeting to find out whether the meeting they attended included deliberations that were unseen at the time. Yet this is what the city council is asking Ann Arbor citizens to accept. Otherwise put, citizens attending an open meeting can’t tell at the time if it’s actually open.

Worse still, suppose the email communications appended to the official minutes show that deliberations took place via email? What then? There’s no remedy specified in the new council rules to handle that eventuality. That again suggests that this new rule on electronic communication does not serve council’s stated goal of looking to the future – because at some point they’re going to violate that rule.

Why do I think so? As Sandi Smith (Ward 1) pointed out during deliberations at the city council’s Sept. 14 meeting, Mike Anglin (Ward 5) had sent her an email during a previous meeting – not long after holding forth on the virtues of keeping everything at meetings transparent.

Communications Addressing Members: A Hypothetical

The Open Meetings Act also speaks to the fact that members of the public are entitled to address a public body:

(5) A person shall be permitted to address a meeting of a public body under rules established and recorded by the public body. The legislature or a house of the legislature may provide by rule that the right to address may be limited to prescribed times at hearings and committee meetings only.

Under Ann Arbor’s city council rules, there are basically three different times for the public to address councilmembers during their meetings: at the start, at the end, and at any public hearings that might be scheduled.

What makes a meeting orderly is that the times when councilmembers can be addressed are set forth in the council rules. And orderliness is important because some basic principle of fairness should prevail – everyone who wishes to address councilmembers during their meetings and thereby influence their decision-making on the matters before the council should conform to the same set of rules. For example, it would be unfair if some members of the public were given only three minutes of speaking time, but others were given 10 minutes.

Rules on public speaking are unflinchingly enforced by Hieftje. If you have not seen him bring Thomas Partridge’s speaking turn to a halt with a curt “Thank you,” then you have not attended many city council meetings.

Likewise, when members of the public recently joined in the chorus of a song performed by a public speaker, the mayor threatened to clear the room. The principle he adduced was one of fairness, based on the idea that only one person is allowed to speak at a time.

In that context, I posed the following hypothetical question to city council’s caucus on Sunday, Sept. 20.

Hypothetical Address of Council: Suppose all 11 councilmembers are fluent in American Sign Language.  Suppose a deaf citizen attends a meeting of the council, sits in the back row, and begins to sign throughout the entire meeting, directing his remarks to city councilmembers. Is that signer out of order?

It’s fair to say that the three councilmembers present at caucus were flummoxed. For his part Hieftje initially wanted to know if the signer was saying derogatory things about councilmembers. Sabra Briere (Ward 1) zeroed in on the question of whether the signing from the back row was distracting to either councilmembers or the other public in attendance.  And Mike Anglin (Ward 5) mused that if someone were to start addressing the council in French, he figured they’d be asked to stop, on account of people not being able to understand what they were saying.

When directed to focus specifically on the possibility that the ASL signer was lobbying councilmembers throughout the meeting – outside of the prescribed times allotted for people to address them – at least Briere came to the clear conclusion: That signer would need to be ruled out of order.

What the hypothetical example illustrates is that the question of the ASL signer being out of order in addressing the council does not depend on whether the communication physically disrupts the meeting. It depends solely on whether the ASL signer is unfairly given an opportunity to address the councilmembers in a way that is not available to just anyone, and in a way that ultimately violates the Open Meetings Act, which requires that people be permitted to address councilmembers under rules of the council.

By extension, if someone were to send an email to councilmembers during a meeting, and any of them had an opportunity to read it during the meeting, that way of addressing councilmembers during a meeting would violate the council rules on address, and thus violate the OMA.

The newly enacted rules of Ann Arbor’s city council do not specifically proscribe receipt and reading of emails by councilmembers in the first place. And even if they did, it would not be possible for the attendees of the meeting to ascertain during the meeting if a violation of the council rules on address – hence the OMA – had been committed.

In contrast, what we have proposed – banning the use of laptops by councilmembers during their meetings – eliminates the possibility of OMA violations caused by people addressing the councilmembers out of order.

Conclusion

Our proposal to eliminate use of laptop computers by city councilmembers during their meetings eliminates the possibility of two kinds of OMA violations: (i) deliberations that are not open to the public, and (ii) violations of rules governing how public bodies may be addressed. The proposal thus ensures that citizens who attend city council meetings need not wonder if the meeting they’re watching includes such violations.

Given that the council’s rule-plus-resolution approach affords no such assurance against future OMA violations and additionally encumbers city staff with the attachment of email communications to meeting minutes, it would make the most sense for the city council to revisit its rules and incorporate our proposal into them.

At the podium, Bill Godfrey of Three Oaks Group and Tom Fitzsimmons of the North Central Property Owners Association both express their support of the Near North housing project on North Main. In the background, Christopher Taylor (Ward 3). (Photo by the writer.)

Ann Arbor City Council meeting (Sept. 21, 2009): Ann Arbor’s city council approved both major development projects on its agenda, one of them enthusiastically, the other only reluctantly.

Although there was a smattering of opposition expressed to the Near North affordable housing development during the public hearing on the matter, the 39-unit project on North Main Street ultimately won the support of its closest neighbors. That support was reflected symbolically when developer Bill Godfrey and neighbor Tom Fitzsimmons stood side-by-side at the podium as they each addressed the council, which gave the project its unanimous approval.

The “matter of right” City Place project proposed for the block of South Fifth Avenue just south of William was also unanimously approved by the council, but councilmembers took turns criticizing both the project and the developer, Alex de Parry. The council had previously established a historic district study committee and enacted an associated moratorium on demolition and work in the area where the proposed project is located. Carsten Hohnke (Ward 5) compared de Parry’s decision to bring the project forward despite the moratorium to “stamping feet, being upset you didn’t get what you wanted.”

Many members of the audience held yellow 8×11 paper signs calling on councilmembers to support a resolution that would have released council emails sent during their meetings dating back to 2002. However, council rejected that resolution except for a resolved clause that would in the future provide the public with copies of electronic communications among councilmembers during its meetings – by appending them to the official minutes of the meeting that are eventually posted on the city’s website.

The council also put looming financial issues on the radar by passing a resolution that opposes a recent Michigan budget proposal that would cut state shared revenues to the city of Ann Arbor by about $1.2 million. At the council’s budget and labor committee meeting that was held Monday – before the regular council meeting – Tom Crawford, the city’s chief financial officer, floated some possible ideas for meeting that shortfall.

Near North

Near North is an affordable housing project of 39 units proposed for North Main Street. The nonprofit Avalon Housing and the developer Three Oaks are working on the project together. The project is a planned unit development (PUD), which by definition asks for a rezoning of the property to accommodate the project. As a PUD, it is evaluated by the city council in terms of whether its public benefit is adequate to justify the rezoning that is requested. It therefore differs from the City Place project, which is a “matter of right” proposal and does not ask for a rezoning of the property.

Public Comment on Near North

Close to a dozen people spoke in favor of the Near North project, most of them citing the affordable housing benefit provided by its 14 supportive housing units as well as the remaining units that target incomes at up to 50% of the area’s median income.

Dave DeVarti stressed that the project was important as a step in the direction of replacing the 100 units of affordable housing lost at the location of the old YMCA building at the corner of Fifth and William, when the city acquired the property and subsequent mechanical failures led to its demolition. The need for affordable units would, said DeVarti, become more acute as federally funded co-op housing was converted to market-rate condos. The benefit of the affordable units offered by Near North, he said, was that the affordability of the units was built into the zoning, which meant that their lower cost would extend beyond a 20- to 30-year horizon.

Tim Colenback immediately followed DeVarti, saying that he agreed with everything DeVarti had said, describing him as a “great and wise man.” The remark drew a laugh. Colenback went on to enumerate some of the city’s parking structures, saying how pleased he was to have so many great places in the city where he could “house his car.” He asked that the city think of making the same commitment to housing people has it does to housing cars.

Ray Detter took up Colenback’s comedic gambit, by declaring, “I am not a great and wise man!” But he then actually went on to disagree with Colenback and DeVarti’s conclusion about supporting the project. He noted that many of the same arguments against City Place also applied to Near North: It’s not consistent with the Central Area Plan and it’s too dense. Further, said Detter, it did not represent a significant increase in affordable housing – especially when weighed against the removal of the existing houses on the parcels where Near North would be built. Where, Detter wondered, would the people in the 27 bedrooms in the five existing houses go?

John Floyd argued against the project in two ways. First, he said, it would be healthier if the city attempted to surround downtown with neighborhoods similar to the Old West Side. And second, the fact of a PUD proposal – which by definition means that a variance to the existing zoning is requested – seemed to undermine the idea that the city was currently engaged in a process to reevaluate the zoning of the entire city.

Several speakers emphasized the positive benefit that had come from the collaboration between the North Central Property Owners Association and the developer. Architect Damian Farrell said that the collaboration had resulted in “a better design.”

That collaboration was reflected when Three Oaks Group developer Bill Godfrey and North Central Property Owners Association planning committee member Tom Fitzsimmons made their respective remarks standing jointly at the podium.

But the collaboration was hedged with some remaining serious concerns. They were expressed clearly by John Hilton, who first made clear what crucial point had finally won the neighborhood’s support: the revision in design that allowed for the planting of larger trees, which could develop into a mature landscaping. That, he said, was the key difference between near-downtown and downtown neighborhoods. He then expressed concern for a planning process that led from a project that was, five years ago, “laughed out of city hall,” to something seen in a completely different light when the phrase “affordable housing” had been attached to it.

Hilton singled out Tony Derezinski (Ward 2), who is the council’s representative to the planning commission, for particular criticism. Hilton criticized Derezinski for being “too tired” to deliberate on the project at a planning commission meeting, moving to postpone those deliberations, then “skipping” the meeting when the deliberations took place. Derezinski later contended that he would have voted yes on the project. [The planning commission vote was 5-2 in favor of the project, but did not reach the 6-vote majority needed for recommendation to the city council.] Derezinski, Hilton said, had “crossed the line to dishonesty.”

Hilton also singled out Sabra Briere (Ward 1) for special praise, saying that he had not imagined that a councilmember could be so resourceful.

Council Deliberations on Near North

In expressing his support of the project, Carsten Hohnke (Ward 5) said that the approval of a PUD required demonstration of “a bold benefit to the community.” Near North offered that, he said, in the form of 39 units of affordable housing, and the removal of three houses from the floodway. Massing of the building was, he said, a concern for a near-downtown neighborhood. But it represented a step forward in the drive for as many as 500 units of affordable housing.

Notes taken during city council deliberations on Near North by Michael Appel, executive director of Avalon Housing, which is collaborating on the project with Three Oaks Group. (Photo by the writer.)

Stephen Rapundalo (Ward 2) said that Near North set “a new standard for how developments should be collaboratively worked upon.” He stressed that the replacement of the 100 units of housing from the old YMCA site had not fallen off the radar.

Mike Anglin (Ward 5) said that he was at first disappointed in the project, due to the amount of opposition in the neighborhood, but felt that now it was a model that could be expanded throughout the city.

Sandi Smith (Ward 1) brought up the issue of LEED certification, which she has previously emphasized in connection with Near North. The project earned her support, despite the fact that she wanted a stronger commitment at this stage to LEED certification at a level as high as possible.

Sabra Briere (Ward 1) sought clarification on the side agreement reached between the developer and the neighborhood association regarding Phase Two of the project, which governed how and when the retail space in the project could be filled. Kevin McDonald, with the city attorney’s office, explained that it essentially was in the same spirit as what had been built into the supplemental regulations. The idea was to not allow use of the retail portion of the project until the existing retail store on the southeast corner of Main and Summit was no longer a commercial property.

Briere, though she ultimately supported the project, expressed the kind of reservations that Ray Detter had outlined in his public commentary. She was concerned about the construction of a building with a “factory-loft look” getting built in a near-downtown neighborhood. She said she would have had fewer reservations if the project had all 39 of its units reserved for supportive [not just affordable] housing and if it did not require removal of any houses.

Mayor John Hieftje expressed his support for the project by citing the opportunity to create greenspace on that corner, and the possibility that the retail space could become the equivalent of a Jefferson Market for this area.

Outcome: The council approved unanimously the PUD proposal for Near North.

City Place

The proposal before city council on Monday was a “matter of right” project with 24 total units, each with six bedrooms. There would be two buildings, separated by a parking lot. Currently there are seven houses standing on the parcels where the project is proposed. The project’s history includes the following dates:

• Jan. 15, 2008: Conditional rezoning – Ann Arbor Planning Commission recommended denial.
  YES: None. NO: Bonnie Bona, Craig Borum, Jean Carlberg, Ron Emaus, Joan Lowenstein, Eric Mahler, Ethel Potts, Evan Pratt, Kirk Westphal.
• May 20, 2008: PUD (planned unit development) – Planning Commission recommended denial.
  YES: Emaus. NO: Bona, Borum, Carlberg, Lowenstein, Mahler, Potts, Westphal. ABSENT: Pratt.
• Sept. 4, 2008: PUD – Ann Arbor Planning Commission recommended denial.
  YES: Borum, Lowenstein. NO: Bona, Carlberg, Potts, Pratt, Westphal, Woods.
• Dec. 15, 2008: City Council rejects resolution to establish a Historic District Study Committee for Germantown.
• Jan. 5, 2009: PUD – City Council denied on a unanimous 0-10 vote.
  NO: John Hieftje, Sabra Briere, Tony Derezinski, Stephen Rapundalo, Leigh Greden, Christopher Taylor, Margie Teall, Marcia Higgins, Carsten Hohnke, Mike Anglin. ABSENT: Sandi Smith.
• April 21, 2009: MOR (matter of right) – Planning Commission recommends approval on 6-3 vote.
  YES: Bona, Carlberg, Derezinski, Mahler, Westphal, Woods. NO: Potts, Borum, Pratt.
• June 1, 2009: MOR – City Council postponed it due to inconsistencies in drawings provided on website. [Errors attributed to city staff.]
• June 15, 2009: MOR – City Council sent it back to Planning Commission due to technical errors with drawings provided at the Planning Commission April meeting. [Errors attributed to city staff.]
• July 7, 2009: MOR – Planning Commission recommended denial on 5-1 vote to approve (needed 6).
• July 20, 2009: MOR – City Council postpones until January 2010, to give the developer the opportunity to pursue a revised PUD. A condition was that the developer could bring back the matter of right project with 35-days notice.
• Aug. 9, 2009: City Council establishes a Historic District Study Committee and moratorium on demolition for two-block area, including the proposed site of City Place.
• Aug. 11, 2009: “Streetscape PUD” receives planning staff initial review.
• Aug. 12, 2009: “Streetscape PUD” introduced to neighbors to comply with the neighbor participation ordinance.
• Aug. 17, 2009: City Council revises language of moratorium to include all forms of work, including demolition.
• Aug. 30, 2009: Application for “Streetscape PUD” was not at accepted by city planning staff.

Public Commentary on City Place

At least two dozen people spoke against the project during the public hearing.

Some argued that the council should deny the project on the basis that it did not actually meet the zoning code as contended by the city planning staff. Specifically, they said, the height of the building exceeded the allowable 30 feet, because what the staff was analyzing as a dormer was actually the roof. In addition, they contended that the building did not meet setback requirements, because the rule applied by city planning staff was intended for irregularly-shaped lots, not rectangular lots.

Others argued against approval of the project based on the contention that it jeopardized health, safety and welfare. The health claim was based on increased load to sewer and water systems, while the safety claim was based on increased vehicular traffic in the area.

Still others pointed to the value of the existing seven houses that would be torn down in order to build the project. That value was expressed both in terms of historic worth as well as the labor of the workers who had built the homes – labor should be honored.

Speaking in favor of the project was the developer, Alex de Parry, as well as the architect, Bradley Moore, and consultants David Birchler and Jamie Gorenflo. De Parry ticked through the key dates of the time line, including July 20, when he said the city was encouraging him to bring forward a “Streetscape PUD” as an alternative to the original PUD that had been rejected by the council on Jan. 5, 2009. The “Streetscape PUD” would have preserved the front part of six out of the seven houses, linking them with a structure at the rear of the property.

Believing that the city was acting in good faith, he said, they had asked the council to table the “matter of right” project in order to be able to comply with the city’s request to pursue the “Streetscape PUD” instead.

Moore cited his more than 20 years of experience working and designing buildings in Ann Arbor in every different zoning district in the city. He said that he’d always worked with the planning staff to follow their interpretation of the zoning codes and that this project should be approved based on the fact that it met the zoning codes. For Birchler’s part, he walked the council through the four relevant chapters of the city code – Chapter 55, 59, 62, 57 – concluding that for each chapter, the project conformed to the code requirements. Gorenflo attested to the adequacy of the sewer and water utilities for the project.

Council Deliberations on City Place

Carsten Hohnke (Ward 5) began deliberations by saying that there had been very little support for the project, pointing to the unanimous rejection by the council of the earlier PUD proposal in January. [Although the vote for the record was unanimous, the project enjoyed support from at least six, possibly seven, councilmembers. They  did not vote for the project after neighbors who were opposed to the project successfully filed a protest petition just before the January 5, 2009 vote – that petition raised the standard for approval to an eight-vote majority.]

Hohnke went on to say that while de Parry claimed there was no other choice for him but to submit the matter of right project, there was another choice that was represented by the outcome of the Near North project, that had seen a more collaborative approach. He said that de Parry had used “every tool in his tool box” and that the city council had merely used the tools it had in putting a powerful moratorium in place. He said he would support the outcome of the historic district study committee if the establishment of a district was recommended, which was a reasonable expectation, he said. Earlier during the evening in his communications to council, Mayor John Hieftje also had indicated he planned to vote for the establishment of a historic district.

Hohnke then compared the idea of bringing the matter of right project before the council in the face of the moratorium to “stamping feet, being upset you didn’t get what you wanted.”

Nevertheless, Hohnke said, he was going to “hold his nose” and vote for approval because the project met the zoning code, despite diligent attempts to find any possible violation.

Mike Anglin (Ward 5) said he felt that there might be some basis for denying the project based on the height and setback issues.

Stephen Rapundalo (Ward 2) indicated that he had preferred the original PUD proposal. He was not as sanguine about the historic district as Hohnke and Hieftje had been, saying that the process of the establishment of a historic district would need to be evaluated at the point the committee made a recommendation. Margie Teall (Ward 4) declared that she absolutely didn’t like this project and said she was looking forward to the historic district study committee report.

Sabra Briere (Ward 1) began her remarks by describing the developer as wanting to “have it all.” She contended that he had not given the city the best product he could, but rather something that they had to approve – which was, she said, a “creative way of using our own rules against us.”

However, there were some positive effects from the developer’s tactic, she said, which were that (i) it had caused the R4C zoning study committee to take a slightly different focus, and (ii) that she felt the council might be less reluctant to consider a historic district study committee in the future. [This was an allusion to the council's rejection in December 2008 of the establishment of a historic district study committee for the area. On that occasion, Christopher Taylor (Ward 3) had said he'd need to see a pile of additional data to support formation of a committee, and Leigh Greden (Ward 3) explained that he would not vote for a study committee, because he predicted he would vote against a district, even if one was recommended.]

On Monday, Taylor rejected the contention that the vote on the matter of right project was a matter of “standing up to them” or “having some fortitude.” It was, he said, simply a matter of following the law.

In his communications to council earlier in the meeting, Hieftje indicated that legal jeopardy was attached to not approving the project. And the council avoided that kind of legal jeopardy by voting unanimously to approve it.

The council thereby established what would have happened at either the June 1 or the June 15 meetings of council, when the council failed to vote on the matter of right project – due to errors made by city planning staff in preparation of the materials for the council.

Outcome: The council approved unanimously the matter of right City Place proposal.

Council Electronic Communications

Mike Anglin (Ward 5) had indicated at two prior council meetings his intention of bringing forward a resolution that would (i) release city council emails sent during past meetings – dating back to 2002, when laptop computers were first used by the council, and (ii) make public as an attachment to the meeting minutes the emails sent by councilmembers during future meetings .

Hatim Elhady, left, holds two yellow signs expressing support for Mike Anglin's email resolution. Elhady is an independent candidate for the city council's Ward 4 seat, challenging Marcia Higgins. To Elhady's right is Yousef Rabhi, who is the Ann Arbor Democratic Party's vice-chair of campus relations. (Photo by the writer.)

The resolution evolved from the release of emails by the city in response to FOIA requests made initially by the Great Lakes Environmental Law Center for emails sent during a meeting in February in which an underground parking structure was approved. That request was followed up with others by The Ann Arbor News, The Ann Arbor Chronicle and other citizens. The emails ranged from juvenile horseplay to  violations of the Open Meetings Act, which requires that deliberations of a public body be made at an open meeting.

Public Commentary on Council Email Resolution

Three people spoke during public commentary reserved time at the start of the meeting on the email resolution.

Andrew Ryder: After reading a brief poem, Dryer suggested that “people who don’t have anything to hide don’t hide it.” He asked those in the audience who supported the resolution – many of whom were already holding yellow signs with a statement of support – to stand. Something like thirty or so people stood.

Tim Colenback: Colenback thanked Sabra Briere (Ward 1) and Mike Anglin (Ward 5) for putting the resolution together, saying that it represented an important step to restore trust. He suggested that there was a stigma attached to the council itself and to the community as a whole as a result of the emails that had been made public. That harm could be repaired partly through Anglin’s resolution, he contended. He also argued that the release of past emails could properly inform future city councils of the basis for decision-making by past councils.

Jack Eaton: Eaton urged the council to pass Anglin’s proposed measure, saying there was no question that the councilmembers had engaged in improper email exchanges. He characterized the measures taken by councilmembers to date as half-hearted, saying that only some councilmembers had offered apologies, and that they had been only partial apologies. [To date, no councilmembers have made apologies in the council chambers during a council meeting.] With regard to a new council rule that restricts the sending of emails by councilmembers, Eaton noted that even the Open Meetings Act had not prevented councilmembers from sending emails to each other. If money was really a concern, he suggested, then councilmembers should dig into their own pockets – pointing out that the meeting in December of 2007 when council had considered its own pay raise [it's actually required to do so] was “tainted” by exchanges of emails that arranged the sequence and nature of deliberations.

Council Deliberations on Council Email Resolution

Mike Anglin (Ward 5) led off deliberations by making essentially the same case that the public speakers had made: it was an effort to increase transparency. The emails were subject to the Freedom of Information Act in any case, Anglin said, but requesting the emails under FOIA would cost the requesters money. The idea behind his resolution, which set out a timetable for release of all council emails during meetings dating back to 2002, was to relieve individual citizens of that financial burden.

With respect to the financial cost to the city, city administrator Roger Fraser said that the “worst case scenario” was around $45,000.

Sabra Briere (Ward 1), who’d worked with Anglin to craft the language of his resolution, said that some of the changes had been to address concerns of staff by lengthening and structuring the timetable for release of the documents. She said she’d read every word of the emails that had been requested to date under the FOIA, and that it had been a revelation – not always in a good way. She said that there would likely be a brief embarrassment to some councilmembers – present and past – when additional emails were released, but that it was a good move for all of council. She characterized it as “an ethical move.”

Sandi Smith (Ward 1) allowed that the changes that had been undertaken “make it begin to be palatable,” but she quickly dashed any hope she’d be supporting the resolution as it stood, saying “I can’t be shamed into doing this.” Her point was that the majority of her emails had already been made public, having just been elected to the city council in November 2008.

Smith said she agreed with the idea of attaching future emails during meetings to the meeting minutes. For the past emails, however, she said, “There’s a mechanism in place called FOIA. It is not a roadblock.”

Smith then attacked the proposal on grounds of its cost, saying that it reflected 6-7 years of Project Grow funding. [For FY 2010, the council did not approve the $7,000 that had been allocated to the gardening nonprofit in past years.] Or, she said, the $45,000 could fund six individuals for supportive services. Later in deliberations, Smith said she’d been turning over every stone in the budget trying to find a way to save $380,000 so that parking meters would not need to be installed in residential neighborhoods near downtown – she’d come up $90,000 short. In that context, she couldn’t support an expenditure on past emails.

She concluded her second speaking turn by addressing Anglin directly concerning his remarks about his intention to bring the proposal forward at a previous council meeting [presumably the Aug. 17 meeting]: “You emailed me not 30 minutes after you proposed this! I don’t take that lightly.”

Other councilmembers picked up on the cost issue, which Smith had introduced, with several of them characterizing the proposal as simply a shifting of the cost from individual requesters to the city – not something they were willing to contemplate in the current economic climate.

Tony Derezinski (Ward 2) related his recollection of his time in the state legislature in 1976 when the FOIA was being debated, saying that the debate at the time centered then, as now, on the question of full-disclosure versus reasonableness of cost.

Another theme identified by councilmembers in arguing against the original resolution was the need to look forward instead of backward. Margie Teall (Ward 4) said that everyone she’d talked to was supportive of the council looking ahead. In weighing the harm that the already-released emails had caused the council, Mayor John Hieftje said that he’d much rather see the council looking forward.

Only Carsten Hohnke (Ward 5) joined Anglin and Briere in supporting the idea of the city systematically releasing past city council emails.

So an amendment proposed by Smith – to eliminate from the resolution all but the part that would attach future emails during meetings to the official minutes – passed with dissent from Anglin, Briere, and Hohnke.

The resolution as amended passed with dissent only from Anglin, who told The Chronicle after the meeting that it had been “gutted” to the point that he couldn’t support it. [In that respect, the resolution thus played out in similar fashion to a recent moratorium on development in R4C zoning districts that Anglin had proposed. After substantial amendment to that resolution, Anglin voted against it.]

Outcome: With dissent from Anglin, council approved a resolution that will see electronic communications exchanged among its members during its meetings attached to the official minutes of meetings.

Analysis of Cost-Shift Argument

The “cost-shift” analysis that led many councilmembers to conclude that it was not fiscally responsible to voluntarily release past emails could be based on an incomplete understanding of who bears the actual cost of the effort in responding to a FOIA request.

The city’s policy is that the first four hours of labor required per request to separate and redact material is not charged to requesters. As a consequence, by making separate requests for material, requesters can virtually eliminate the cost to themselves of obtaining records.

Further, the FOIA carries a three-week time period for compliance, as contrasted with the comparatively relaxed, several-month time frame proposed by Anglin’s resolution. So if the city is forced to provide the material under FOIA, the fees the city could collect would (i) likely fall well short of covering the city’s cost, and (ii) require the city’s staff to do a large volume of work in a constrained time frame.

Budget Projections

Already at its Aug. 6 meeting, the city council had heard a slightly revised forecast from Tom Crawford, the city’s chief financial officer, that included possible shortfalls for FY 2010, which is the current fiscal year. The range for projected shortfalls was $2.4 to $3.3 million.

Ideas for covering that shortfall were floated at the council’s budget and labor committee meeting that was held at 5 p.m. this past Monday before the whole council met at 7 p.m. Councilmembers Mike Anglin (Ward 5), Sabra Briere (Ward 1), Stephen Rapundalo (Ward 2), Marcia Higgins (Ward 4) and Mayor John Hieftje constitute the council’s membership on the committee.

Also at the committee meeting were city administrator Roger Fraser, plus heads of all the city departments, including: Sue McCormick, director of public services; Jayne Miller, director of community services; Barnett Jones, director of safety services; Robyn Wilkerson, head of human resources; and  Stephen Postema, city attorney.

Among the ideas being considered in a preliminary fashion by staff to account for the FY 2010 shortfall is an extension of the mowing cycle for parks. Higgins was concerned that it was the previously longer mowing cycles that had led to complaints from the public about the upkeep in parks, and she noted that the idea of increasing from a 14-day to a 19-day cycle would mean that the city would be incrementing back up to a longer cycle. Hieftje wondered why in some cases an entire field needed to be mowed when simply carving a mowed path might suffice. Miller explained that much of the expense of mowing involved getting staff and equipment to the place to do the mowing. At the same time, McCormick said that staff always looked at the possibility of “naturalizing” areas.

Rapundalo drew out the fact that “savings from golf course losses” meant that losses for the golf fund were $130,000 less than anticipated – the measures put in place by the golf course task force and city parks staff to increase revenues were having an effect.

Briere asked about the idea that stump removal be eliminated from the general fund and assigned to the stormwater fund. “How does that save money?” she asked. Answer: It doesn’t, but it’s paid for out of a different revenue stream. The connection of stump removal to stormwater is this: To replant trees, which help reduce stormwater runoff, it’s necessary to remove stumps.

There’s been some stormwater funds freed up, explained McCormick, because stimulus funds have been used to reduce the debt service on some projects the city is doing through the office of the county’s water resources commissioner, Janis Bobrin.

Another idea to increase revenues is to look at the rates for expired parking meter fines.

The discussion was not exhaustive of all the various ideas, and it was stressed: They’re just ideas at this point.

There are enough ideas, however, that if implemented, the shortfall for FY 2010 could be mostly covered. The projected shortfall of $4 million to $5.8 million for FY 2011, said Crawford, still had a lot of “heavy lifting” to go. About $1.6 million in possible savings ideas had been identified, with another $2.1 million that might work, Crawford said.

One of the unknowns, and the factor that accounts for the range in the shortfall projections, involves the amount of statutory state shared revenue the city will receive. A budget proposed by state house speaker Andy Dillon would reduce statutory state shared revenue by 30%, which translates into a $1.2 million reduction for the city of Ann Arbor.

It’s in that context that Leigh Greden (Ward 3) brought forward a resolution at the council’s meeting that expressed opposition to that state budget proposal. The resolution urges state Sen. Liz Brater, and state Reps. Pam Byrnes and Rebekah Warren – all legislators representing the Ann Arbor area – to vote against that budget, and asks Gov. Jennifer Granholm to veto any budget that would cut statutory state revenues.

Outcome: The resolution opposing cuts to state shared revenue passed unanimously.

Publishing

During public commentary on the need to adopt a sense of “diminished astonishment” when trying to follow public events, Jim Mogensen mentioned the fact that the public hearing on City Place had been published in the Detroit Free Press, but not in AnnArbor.com’s print edition.

It’s worth noting that the state statute requires that a newspaper be in publication for a year before it meets the legal requirement for publication of legal notices – so AnnArbor.com, which started publishing in July 2009, doesn’t qualify.

During a break in council’s meeting, city clerk Jackie Beaudry clarified for The Chronicle that from the point of view of cost, the Washtenaw Legal News is the city’s preferred choice, but that sometimes the timing of the once-a-week Legal News publication schedule forces the city to resort to the more expensive Detroit Free Press. Compared to the old Ann Arbor News, Beaudry said, the Free Press notices cost 10 times as much.

The issue of legal notices came up on another occasion during the council’s meeting when Marcia Higgins (Ward 4) asked for clarification on the status of the ballot language for the proposed charter amendments on the publication of the city’s new ordinances.

At its Aug. 17 meeting, the city council had passed a resolution to place two charter amendments on the ballot, each related to the publication of ordinances after being approved by the city council. Then, at its Sept. 8 meeting, the city council revised the ballot language – at the suggestion of the state attorney general’s office and parallel with the suggestion already made by The Chronicle on Aug. 18.

County Clerk Larry Kestenbaum sent a letter dated Sept. 10 to the city of Ann Arbor’s clerk, to the effect that the ballot language revision made by city council could not be accepted, because it came after the deadline of Aug. 25, which is set by the state.

Kestenbaum followed up with a letter dated Sept. 17, which relaxed the clerk’s position: the ballot language revision could be accepted, with the provision that the city accepted any liability and financial implications that might attach to changing the language after the deadline. [See also Kestenbaum's comment written on The Chronicle's Sept. 20 caucus report.]

At council’s Monday meeting, the explanation offered to Higgins by city attorney Stephen Postema did not address the issue of the city’s possible liability and financial implications.

Plastic Bags

Before the council was a resolution that would restrict the use of plastic bags at retail establishments. Since its first introduction more than a year ago on July 21, 2008, the resolution had been postponed at the request of the resolution’s sponsor, Stephen Rapudalo (Ward 2), on four different occasions. On Monday it was a different story: no postponement. Instead, Rapundalo asked his colleagues to table the resolution. That means it will need six out of 11 votes to be brought back off the table for consideration.

Rapundalo acknowledged right out of the gate that he might be “incurring the wrath” of his colleagues in asking for another delay. He offered a kind of status report on the work, however, saying that the work was about 3/4 done, pointing to focus groups that had been conducted, as well as a comprehensive survey.

In response to a request from Mayor John Hieftje for some kind of timetable, Rapundalo said that before the end of the year, it would be ready.

Outcome: The council voted unanimously to table the resolution on plastic bags.

Applications Requested

Mayor John Hieftje announced that there were vacancies on several boards and commissions for which applications were being sought: the cable commission, the taxicab board, the board of review, and the sign board of appeals.

Descriptions of these bodies are from the city’s website.

Cable Commission

How Established: Section 2:128, Chapter 32, Title II of the Ann Arbor City Code. Purpose: To advise Council, City Administrator and Director of Cable Communications on all matters pertaining to the implementation of the provisions of the City’s Cable T.V. Ordinance and Franchise Agreement with the cable company; review and make recommendations on the general direction of Community Access Television. Special Qualifications for Appointment: Ability to interpret financial and other reports; time to be involved in committee work over and above regular monthly meetings; enthusiastic advocate of both Cable T.V. and local community television. Length of Terms: 5 years – However, with the approval of Council, the Mayor shall fix initial terms at 1, 2, 3, 4 and 5 years so that no more than 2 appointments expire in 1 year. Any vacancy in office shall be filled by the Mayor for the remainder of the term. Meeting Times and Frequency: This is a permanent commission that meets the 4th Tuesday of the month at 7:00 pm, at Community Television Network, 2805 S. Industrial. The meetings are telecast live and taped for replay. Member / Committee Composition: 7 members – maximum.

Taxicab Board

How Established: Section 1:207, Chapter 8, Title I of the Ann Arbor City Code. Purpose: The purpose of the Taxicab Board is to enforce the Taxicab Ordinance, hear appeals of those who are aggrieved by any decision made by the Administrator and adopt regulations to facilitate the administration of the Taxicab Ordinance. Length of Terms: Councilmember 1 year, other members 3 years. All terms expire the 2nd Monday in April. Members continue to serve after date of term expiration until a successor is appointed. Meeting Times and Frequency: This is a permanent committee that meets the last Thursday of every month at 8:30 a.m. in the 4th floor conference room. Membership / Committee Composition: 8 members: 5 voting members including 1 Councilmember, the CFO (non-voting), and the Chief of Police (non-voting).

Sign Board of Appeals

How Established: Section 5:517, Chapter 61, Title V of the Ann Arbor City Code. Purpose: To hear and decide appeals where the appellant alleges that the Administrator has made an error in the enforcement of the Code regarding signs and outdoor advertising. The Board can authorize a variance from the strict application of the Code if it involves practical difficulties of unnecessary hardships. Special Qualifications for Appointment: None. However, professional and business persons are recommended. Length of Terms: 3 year terms which continue until a successor is appointed. Meeting Times and Frequency: This is a permanent Board that meets the 2nd Tuesday of each month at 3 p.m. This Board meets only when an appeal has been submitted. Membership / Committee Composition: 7 members.

Board of Review

How Established: Section 9:10(a) of the City Charter – Chapter 8, Section 1:188 of the City Code. Second Board of Review Committee eliminated on March 3, 2003. Purpose: Examines and reviews the assessment roll of the City. Special Qualification for Appointment: Knowledge of taxation and of property values. Length of Terms: 3 years. Appointment in January to a term beginning in February. A member whose term has expired may not continue to serve. However, there is no limit to the number of consecutive terms a member may serve. Meeeting Times and Frequency: This is a permanent Board that meets at 9 a.m. beginning the 3rd Monday in March; 6 hours each day for 4 consecutive days. In addition, the Board meets on the Tuesday (for 1 day) following the 3rd Monday of July for correction of errors only and the Tuesday (for 1 day) after the 2nd Monday of December for correction of errors only. Membership / Committee Composition: 3 members – Number established by Charter. A second Board of Review was appointed by Mayor and Council on March 5, 1990 at the request of the City Assessor. The second Board of Review has been eliminated since the passage of Proposal A establishing limits on taxable values has reduced the number of appeals received from local residents and businesses and it is anticipated that the number of appeals will continue at this reduced level.

Other Business

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Public Comment

Among the topics addressed by speakers at public comment were the creation of the Ann Arbor Tree Conservancy . In a somewhat related theme, one person spoke to the importance of maintaining good sight-lines at intersections not obstructed by tree-limbs or other foliage.

Two speakers addressed the issue of homelessness in connection with Camp Take Notice.

One speaker addressed the importance of preserving the diverse and distinctive character of Ann Arbor’s neighborhoods.

Other Council Business

The city council approved a new historic district application fee schedule.

It also authorized application for funding of storm water improvements in the West Park area through the office of the county’s water resources commissioner. [See previous Chronicle coverage in "West Park Renovations Get Fast-Tracked."]

The council also approved an agreement with MDOT, that will see a start this fall to a project that will:

… replace the existing southbound US-23 ramp with a new “loop” ramp in the northwest interchange quadrant, construction of three roundabouts in place of the current traffic signals, constructing a new pedestrian bridge spanning US-23 along the south side of Geddes Rd and non-motorized multiuse asphalt path connecting Earhart Road to Dixboro Road, and reconstructing Geddes Road from the Bridge over US-23 west of Earhart Rd

The council also approved street closures necessary for the Big Heart Big House Run, on Oct. 4, 2009, which is a 5K/10K run that gives entrants a chance to finish their race by running down the tunnel of Michigan Stadium onto the football field, where the finish line is located. Marcia Higgins (Ward 4) got assurances from Jayne Miller, community services director with the city, that neighbors in the areas of the street closures had been adequately notified.

Present: Stephen Rapundalo, Mike Anglin, Margie Teall, Sabra Briere, Sandi Smith, Tony Derezinski, Leigh Greden, Marcia Higgins, John Hieftje, Christopher Taylor, Carsten Hohnke.

Next council meeting: Monday, Oct. 5, 2009 at 7 p.m. in council chambers, 2nd floor of the Guy C. Larcom, Jr. Municipal Building, 100 N. Fifth Ave. [confirm date]

But the city council’s Sunday night caucus again found Mayor John Hieftje offering what’s become a customary explanation to the public for the absence of the majority of council members: many of them have family obligations, and it’s not a required meeting of council.

So along with Hieftje, it was only Sabra Briere (Ward 1) and Mike Anglin (Ward 2 Ward 5) who heard brief remarks from residents and the development team on the subject of the Near North affordable housing development on North Main Street. The City Place development team – which is bringing its “matter of right” proposal for housing on South Fifth Avenue back to council – also made themselves available for questions from councilmembers.

Council received an update from Alan Haber, who reported that a group of citizens had met and resolved to respond to the city’s request for proposals for development on top of the underground parking structure to be built along Fifth Avenue.

Finally, the council had no further updates on the communication the city clerk has received from her counterpart with the county, to the effect that revisions to the charter amendment ballot language they approved at their last meeting could not be accommodated – they missed the Aug. 25 deadline.

Near North

Near North is an affordable housing project of around 40 units proposed for North Main Street. The nonprofit Avalon Housing and the developer Three Oaks are working on the project together. The project is a planned unit development (PUD), which by definition asks for a rezoning of the property to accommodate the project. As a PUD, it is evaluated by the city council in terms of whether its public benefit is adequate to justify the rezoning that is requested. It therefore differs from the City Place project coming before the council at Monday’s meeting as well – City Place is a “matter of right” proposal, which does not ask for a rezoning of the property.

Bill Godfrey of Three Oaks Group, together with Michael Appel, executive director of Avalon Housing, attended the caucus along with other members of the development team. At Briere’s request, Godfrey gave a brief synopsis of the design changes that had been undertaken. There are nine changes, Godfrey said, including an elimination of the fifth floor and more separation between the two buildings. He described how the collaboration between the design team’s architect, Damian Farrell, and Peter Pollack, a local architect who’d worked with the neighborhood group, had resulted in a design with “more horizontal feel.” The horizontal feel had been achieved, he said, by making the living rooms back-to-back.

There would be a side agreement, Godfrey reported, with the North Central Property Owners Association concerning the retail space designed for the structure.

John Hilton, whose house abuts the proposed development, reported that the neighborhood group, while not happy, was still “accepting of the outcome.”

Two members of the public expressed their continued concerns about the project, however. One cited the removal of the houses and the sacrifice of open space, and another criticized the $250,000 construction cost for each unit.

City Place

The City Place project on South Fifth Avenue has a long history. The proposal coming before city council on Monday is a “matter of right” project with 24 total units, each with six bedrooms. There are two buildings, separated by a parking lot. Currently there are seven houses standing on the parcels where the project is proposed. Here’s a timeline of the project:

• Jan. 15, 2008: Conditional rezoning – Ann Arbor Planning Commission recommended denial.
  YES: None. NO: Bonnie Bona, Craig Borum, Jean Carlberg, Ron Emaus, Joan Lowenstein, Eric Mahler, Ethel Potts, Evan Pratt, Kirk Westphal.
• May 20, 2008: PUD (planned unit development) – Planning Commission recommended denial.
  YES: Emaus. NO: Bona, Borum, Carlberg, Lowenstein, Mahler, Potts, Westphal. ABSENT: Pratt.
• Sept. 4, 2008: PUD – Ann Arbor Planning Commission recommended denial.
  YES: Borum, Lowenstein. NO: Bona, Carlberg, Potts, Pratt, Westphal, Woods.
• Dec. 15, 2009 2008: City Council rejects resolution to establish a Historic District Study Committee for Germantown.
• Jan. 5, 2009: PUD – City Council denied on a unanimous 0-10 vote.
  NO: John Hieftje, Sabra Briere, Tony Derezinski, Stephen Rapundalo, Leigh Greden, Christopher Taylor, Margie Teall, Marcia Higgins, Carsten Hohnke, Mike Anglin. ABSENT: Sandi Smith.
• April 21, 2009: MOR (matter of right) – Planning Commission recommends approval on 6-3 vote.
  YES: Bona, Carlberg, Derezinski, Mahler, Westphal, Woods. NO: Potts, Borum, Pratt.
• June 1, 2009: MOR – City Council postponed it due to inconsistencies in drawings provided on website. [Errors  attributed to city staff.]
• June 15, 2009: MOR – City Council sent it back to Planning Commission due to technical errors with drawings provided at the Planning Commission April meeting. [Errors attributed to city staff.]
• July 7, 2009: MOR – Planning Commission recommended denial on 5-1 vote to approve (needed 6).
• July 20, 2009: MOR – City Council postpones until January 2010, to give the developer the opportunity to pursue a revised PUD. A condition was that the developer could bring back the matter of right project with 35-days notice.
• Aug. 9, 2009: City Council establishes a Historic District Study Committee and moratorium on demolition for two-block area, including proposed site of City Place.
• Aug. 17, 2009: City Council revises language of moratorium to include all forms of work, including demolition.

Developer Alex de Parry and attorney Scott Munzel attended caucus and made themselves available to answer questions. Councilmembers Carsten Hohnke (Ward 5), Leigh Greden (Ward 3), and Christopher Taylor (Ward 3) were quoted in a Sept. 18  AnnArbor.com article as professing confusion about why the project was being brought back before them. So Munzel was there to provide any clarification that councilmembers might be seeking.

The resolution passed by the city council on July 20 provided an opportunity for the matter of right project to be brought back before the council with 35-days notification. As the notification letter dated Aug. 20, 2009 from the developer’s legal counsel states, the point of bringing the project back is to exhaust “administrative remedies.”

Councilmembers at caucus did not have any questions for Munzel or de Parry.

Library Lot Request for Proposals

Alan Haber reported that a gathering of residents had determined to offer a proposal in response to the city’s RFP (request for proposals) for development on top of the underground parking garage to be built at what’s known as the Library Lot. Their concept was to retain public ownership of the land as a commons. The citizen-owners of the place would determine the function of the space, he said. Haber reported that the basic concept involved a mixture of art and something park-like, so he anticipated that the public art commission and the park advisory commission would be asked to play a role.

Ballot Proposal Language

The city council passed a resolution at its Aug. 17 meeting that placed a charter amendment on the ballot that would allow it to publish its newly passed ordinances on its own website or any other means the city council determined was adequate – as opposed to current requirements that stipulate publication in a newspaper. Then at its Sept. 8 meeting, council approved a revision to the ballot language. Attached to the city clerk’s report of communications on council’s Monday agenda is a letter from Washtenaw County clerk Larry Kestenbaum, which states that the ballot language revision could not be accommodated, because it came after the statutory deadline of Aug. 25.

It’s The Chronicle’s understanding that the county clerk’s office may offer the city the possibility of changing the ballot language, if the city accepts the legal responsibility for any litigation that might result.

Crime

Sabra Briere reminded caucus attendees of the fact that a neighborhood meeting would be held to discuss a spate of recent break-ins on the west side of the city and to advise residents on ways to “harden their houses.” The meeting will be held Tuesday, Sept. 22, from 5-7 p.m. at the Ann Arbor Community Center, 625 N. Main Street.

On the subject of measures one could take not to broadcast to everyone that one was away for an extended period, Peter Pollack pointed out that some things – like stopping one’s mail and suspending a newspaper subscription – were within one’s control. Other things were not: for example, door hangers left by advertisers, and copies of the A2Journal, which are thrown onto people’s lawns on a non-subscription basis.

John Hilton, editor of the Ann Arbor Observer, advised Bill Godfrey that one of Godfrey’s properties near Hilton’s house had been broken into. Hilton had noticed the break-in because the burglar had left behind a guitar in his backyard.

The Email Resolution

Though not specifically addressed at caucus, on the city council’s agenda for Monday will be a resolution sponsored by Mike Anglin (Ward 5) asking for publication of past council emails and for communications during future meetings to be made available two weeks after meetings take place.

There’s been considerable back-and-forth discussion about the nature of the language of the resolution. As of Monday morning, it’s The Chronicle’s understanding that Mike Anglin (Ward 5) will propose the following language as a replacement for the resolution that is currently on the agenda:

Resolution to Disclose Council Electronic Communications without Charge to the Public

Whereas, on September 8, 2009, City Council amended its rules to place limitations on electronic communications during Council meetings, and the routine disclosure of such communications in the future will help the public monitor compliance with the amended rules; and

Whereas, over the past several months a large volume of Council electronic communications has been disclosed to the public in response to a variety of Freedom of Information Act requests, and therefore has already been subject to deletions by the staff authorized by that Act; and

Whereas, it is in the public interest to disclose all electronic communications to and/or from Council members during Council meetings for as far back as records of these communications still exist; and

Whereas, many members of the community want to view these electronic communications and rapid disclosure of all the electronic communications will help restore public confidence in City Government; and

Whereas, the disclosure of such communications should be done in an orderly way so as to minimize staff time and costs; and

Whereas, it is more cost-effective that the disclosure of such communications be done systematically, rather than in response to Freedom of Information Act requests that may be made by the public in the future;

RESOLVED, that effective immediately, the City Clerk shall append copies of all electronic communications defined as public records under the Freedom of Information Act sent to and/or from members of Council during a City Council meeting, with deletions authorized by that Act, to the official minutes of that meeting when published on the City’s website.

RESOLVED, that by November 1, 2009, the City shall post on its website copies of all electronic communications to and/or from Council members that have already been disclosed to the public in response to Freedom of Information Act requests made on or after March 27, 2009 to this date.

RESOLVED, that by December 1, 2009, the City shall post on its website copies of all electronic communications to and/or from Council members during Council meetings, with deletions authorized by that Act, from January 1, 2008 to this date that have not already been disclosed as above.

RESOLVED, that by January 1, 2010, the City shall post on its website copies of all electronic communications to and/or from Council members during Council meetings, with deletions authorized by that Act, from January 1, 2007 through December 31, 2007 that have not already been disclosed as above.

RESOLVED, that by the first day of each succeeding month, the same procedure shall be followed for each prior calendar year of such electronic communications until all such communications have been disclosed.

RESOLVED:  That City Council directs the City Administrator to provide an explanation of the basis under the Michigan Freedom of Information Act or other statute for the determination that the electronic communication or a portion thereof, is exempt from disclosure, including the statutory provision authorizing the withholding information from the public. If the City Administrator determines that the contents of an electronic communication, in whole or in part, is subject to a disclosure exemption under the Act, the email, including the header information, will be included in the materials disclosed with the exempt portions redacted.

Sandi Smith (Ward 1) indicated early in the meeting that action on the Near North development would be postponed. A speaker during public commentary noted that a controversial resolution affecting the municipal airport had been yanked from the meeting’s agenda. And Mike Anglin (Ward 5) announced a delay in his intention to bring a resolution that would make publicly available numerous city council emails dating to the early 2000s. Council did not contemplate any resolutions in connection with the Argo Dam. [The Chronicle will report separately on the work session held immediately prior to the council meeting, which focused on Argo Dam.]

But as it turned out, on Tuesday night a lot happened: Ann Arbor’s city council began a transition – to what will perhaps be a different way of doing business and to a new set of leaders.

That transition was reflected overtly when the announcement came at the end of the meeting that Margie Teall (Ward 4) and Leigh Greden (Ward 3) were stepping down from the Budget and Labor Committee to be replaced by Mike Anglin (Ward 5) and Sabra Briere Ward (Ward 1).

But it was also reflected in the deliberative dynamic when a resolution on toy guns was considered, and ultimately postponed. Marcia Higgins (Ward 4) and Stephen Rapundalo (Ward 2) found themselves playing “outsiders” to Sabra Briere’s “insider” position with the city attorney’s office – a complete role reversal.

Later, Briere relayed a key message on the toy guns ordinance to her colleagues by email. That action became an example when council discussed new rules regarding electronic communication. The rules take a “thou shalt not” approach to the kinds of emails that councilmembers are supposed to exchange during council meetings.

In other business, council revised the ballot language of a charter amendment that it had approved at its previous meeting. The impact of that revision is not clear in light of county clerk deadlines, which have already passed.

Transitioning Council Leadership

At the end of the night, Mayor John Hieftje announced that Leigh Greden would be stepping down from the Budget and Labor Committee. Hieftje said he thought that Greden was looking forward to his departure from council. [Greden lost the August Democratic primary election in Ward 3 to Stephen Kunselman]. Hieftje followed that announcement with the news that Margie Teall (Ward 4) would also be stepping down from Budget and Labor. She found herself very well occupied with her other committee work, Hieftje said. Teall currently serves on the Administration Committee, the Community Events Funds Committee, and as one of two council representatives to the Environmental Commission. She also serves on the recently formed Senior Center Task Force.

Replacing Greden and Teall on Budget and Labor will be Sabra Briere (Ward 1) and Mike Anglin (Ward 5).

Their first meeting on the Budget and Labor committee will be on Sept. 14 starting at 5:30 p.m. at the Ann Arbor Transportation Authority board room [confirm time and date]. On the same evening, the city council has a joint working session with the Downtown Development Authority and the planning commission, which will be held at the Community Television Network studios starting at 7 p.m. City administrator Roger Fraser explained that the AATA, which is located directly across South Industrial Avenue from CTN, had offered the location for Budget and Labor. They’d need to go into closed session at some point, and the CTN studio was not suitable for that, Fraser explained.

Toy Guns

At its Aug. 6 meeting, the council had approved on first reading a revision to the city’s ordinances that would make it possible to take enforcement action on people who are carrying realistic look-alike toy guns. At that meeting there had been scant discussion from councilmembers, except a brief indication from Sabra Briere (Ward 1) that she had several questions she wished to get clarified before the revision came before council for its second reading.

Analysis

The ordinance change came at the request of the Ann Arbor Police Department. What was the rationale for the ordinance change? From the memo accompanying the ordinance change:

The current provisions of Chapter 115 of the Ann Arbor City Code covering weapons and explosives do not allow for any enforcement action on subjects carrying realistic, look-alike toy handguns unless some other crime has been committed. On several occasions, subjects have been in possession of these types of toy handguns in public, sometimes concealed. Because the subjects were not in violation of any law or ordinance, there was no crime or violation with which to charge them.

Because these look-alike weapons pose a real threat to the public, law enforcement, and those in possession on many levels, Ann Arbor Police Services believes our City Code needs to address this issue and ban the possession of such items in public places and limit the discharge of them.

The ordinance change intends to accomplish its goal in two ways. The first is to make precise the definition of “weapon.”

A suitable definition of “weapon,” coupled with the general prohibition on possession of weapons in any public place (and suitably defined exceptions) would allow AAPD to take enforcement actions on people carrying look-alike toy handguns.

Old language: (7) Weapon means any air pistol, air rifle, slingshot, crossbow, bow, firebomb, bomb, nun-chuk, or throwing star, but shall not include antique guns not in operating condition.

New language: (7) Weapon means any air pistol, air gun, air rifle, BB gun, any type of gun that is discharged by air, gas, or a spring, slingshot, crossbow, bow, firebomb, bomb, nun-chuk, or throwing star, but shall not include antique guns not in operating condition.

The revised definition of “weapon,” however, does not include a notion of a “look-alike gun.” So this part of the ordinance revision does not appear to accomplish its stated goal.

The second way the ordinance change attempts to accomplish its goal is to include look-alike toy guns – and a definition of what they are – in a section on how weapons are allowed to be discharged.

9:263. Discharge of weapons or firearms.

No person shall discharge any weapon or firearm within the city, with the following exceptions:

• in connection with a regularly scheduled educational, recreational, or training program under adequate supervision;
• in connection with the performance of lawful duties of law enforcement;
• in connection with the protection of person or property when confronted with deadly force;
• in connection with the discharge on private property of toy, look-alike, and imitation weapons and firearms, which have the appearance, shape, and/or configuration of a firearm. [emphasis added] This exception does not apply if the toy, look-alike, or imitation weapon or firearm is discharged toward an area within the public right-of-way or the projectile discharged enters into an area within the public right-of-way. This exception also does not apply to BB guns.

It’s not obvious what “configuration” adds to the definition of a look-alike firearm, nor is it clear why it merits the “and/or” conjunction. It’s possible that “appearance” and “shape” are meant to cover two-dimensions, but that “configuration” means that in order to qualify, the object needs to be more than a cardboard cutout.

Further, there’s an unfortunate syntactic consequence of embedding this definition of look-alike guns in a section about the discharge of real guns. This embedding appears to have the unintended consequence of allowing the discharge of a real firearm – if a toy firearm is discharged in connection with the discharge of that real firearm.

Public Commentary on Toy Guns

Two members of the public spoke during the hearing on toy guns.

Lou Glorie: Glorie described the ordinance as “over the top,” saying that the problems with “play weapons” did not rise to the level of criminal activity. She reminded councilmembers that it’s legal to carry a gun in Michigan.

Karen Sidney: Sidney wondered, “Who thinks this stuff up?” She expressed her concern that the ordinance could be used to target specific ethnic groups, and give rise to the firearm equivalent of “driving while black.” She suggested that the Ann Arbor police force would do better to focus on specific crime problems in Ann Arbor like drug dealing in Courthouse Square, break-ins on the west side, theft from downtown offices, and thefts from cars in parking structures.

Council Deliberations on Toy Guns

Right out the gate, Sabra Briere (Ward 1) moved to table the resolution, based on a request from the city attorney’s office. As she’d indicated at the council’s Aug. 6 meeting, she’d had concerns about the ordinance, and had followed up with questions to the city attorney’s office. She had received a reply on Thursday, Sept. 3, that included the request to table it, because the city attorney’s office was not ready to move it forward at this time.

Marcia Higgins (Ward 4) appeared annoyed to not have been in the communication loop, saying, “I wasn’t privy to those conversations.” She asked to what date the resolution would be postponed.

Stephen Rapundalo (Ward 2) seemed to echo Higgins’ annoyance, saying that the postponement was “news to [him].” He asked Abigail Elias, who was representing the city attorney’s office at the council table, to share the content of the communication with the rest of the city council.

Elias indicated that it was “not a change of heart” by either the city attorney’s office or the police department. Rather, it was a matter of cleaning up the language.

Rapundalo asked that in the future, such requests from the city attorney’s office [to postpone a resolution] be made of all councilmembers.

Higgins weighed in again, pointing out that this was the second reading of the proposed ordinance and that this was the second time recently when changes needed to be made at a second reading – she was prepared to vote and didn’t favor postponing.

Asked by Carsten Hohnke (Ward 5) what the concerns were in the language, and what had triggered a review, Elias replied that there had been questions about references to “toy guns” and specific kinds of toy guns – it was a matter of cleaning up the language.

Hohnke pressed Elias: “What prompted the review?” Elias: “Some questions were raised.”

For her part, Briere apologized for the fact that the communication had not been sent earlier. She said she’d had several communications with the city attorney’s office after the first reading and had not received a reply until the previous Thursday.

Higgins attempted to speak again, but Mayor John Hieftje did not allow her to take a third speaking turn, which would have required a suspension of council rules.

Sandi Smith (Ward 1) weighed in for postponement, saying that it was not a pressing issue to resolve.

Higgins’ Ward 4 colleague, Margie Teall, then moved to suspend the council rules on speaking turns to allow Higgins another turn. That motion passed unanimously.

Higgins said that instead of postponing the resolution, they should vote it down. Then, when it came back, it would be a fresh start, and there would not be a need to track what had changed and what had not.

Hieftje expressed his support for postponement.

Outcome: The motion to postpone consideration of the toy guns ordinance until the first meeting in October passed with dissent from Rapundalo and Higgins.

Mail

Council considered two resolution about mail – one related to the potential closing of the post office in the South University area, the other related to new council rules regarding email during council meetings.

South University Post Office

The council considered a resolution co-sponsored by Sabra Briere (Ward 1) and Christopher Taylor (Ward 3) calling on the United States Postal Service to take the South University location off its list of locations targeted for closure. Taylor and Briere both expressed the view that closing the post office would place a heavy burden on those with no motorized transport to get to a different location.

Briere said that they should be encouraging people to get on their feet and walk to the post office with small packages, not drive to the post office. The measure, she said, had support from Senators Carl Levin and Debbie Stabenow, and as well as from Congressman John Dingell.

Outcome: The resolution opposing the closure of the South University post office was unanimously approved.

Council Rules on Electronic Mail

The council began its discussion of revisions to its own rules by suspending its rule on speaking turns. Marcia Higgins (Ward 4) read aloud Rule 8, which now addresses, among other things, electronic communications during meetings:

Electronic communication during Council meetings shall pertain only to City matters. During Council meetings, members shall not send electronic communication to persons other than City Staff; provided however, that members may send draft motions, resolutions, and amendments to all members. Members shall not respond to member-distributed draft language via electronic communication. All draft language sent by electronic communication during Council meetings shall be read into the record prior to discussion by Council.

Briere noted that even with the best of intentions, it’s difficult to adhere to the rules – citing her own email she’d sent to fellow councilmembers earlier, which relayed the communication she’d received from the city attorney’s office. [Under the new rules, such communication would presumably be prohibited, because it was not a motion, resolution, or amendment.] Briere said that there needed to be a middle ground between the need to share information in general versus during a council meeting.

Higgins suggested that the struggle with electronic communication was generation-based (after prompting a round of laughs when she first mis-spoke, saying “gender-based”). She said that you can’t have a rule for every instance.

Higgins went on to describe how the practice of being able to forward email automatically from an a2gov.org account to some other accounts should perhaps be revisited in light of the fact that council email accounts were now accessible via a web-based portal – they can be accessed anywhere.

For her part, Sandi Smith (Ward 1) said that she routinely forwarded email from her a2gov.org account to a different one to facilitate printing – was that what Higgins meant? Higgins clarified that she was only talking about auto-forwarding. Smith said she didn’t see how that related to the conduct issue addressed by the rule.

Christopher Taylor (Ward 3) seemed intrigued that auto-forwarding was even an option, and asked Higgins if she was suggesting an action item. She was not. Taylor then turned the council’s attention to the rules on how the council’s agenda was pushed out to the public, as well as the construction of the agenda. The idea was to eliminate the notion of a “newspaper deadline,” he said.

3B – Review of the Draft Agenda
The City Administrator shall submit the draft agenda and supporting materials to the members of the Council Administration Committee for review and comment 10 days prior to the next Council meeting. Such review and comment shall be made no later than 7 days prior to the next Council meeting. Once reviewed by the Council Administration Committee, no matter from staff shall be placed on the agenda. Council members may add items to the agenda at any time, but will use best efforts to do so prior to the Friday before the next Council meeting.

3F – Publication of Agenda
After review of the agenda under 3B, the agenda for all meetings of Council, including Work Sessions, shall be published by prominent link on the home page of the City’s Website, distributed electronically to each branch of the Ann Arbor District Libraries, and posted in the lobby of City Hall. The Clerk shall use best efforts to promptly disseminate amended agendas by the foregoing distribution channels.

If a councilmember places an item on the agenda after the Friday before the next council meeting, Taylor explained, the idea behind the language of “best efforts” was that the councilmember would “make some species of explanation” as to why it could not be added sooner.

Briere went to considerable lengths to make clear what the proposed rules changes were not about, because of what she said were expectations on the part of the public about what would come out of the rules changes. Rules did not address ethics, for example. Also, the rules did not address how council committees were selected, she stressed. “It’s about council meetings, not about council,” she said.

Higgins pointed out another rule that would help make the agenda understandable:

RULE 10 – Resolutions and Motions To Be Made In Writing
Every resolution and ordinance shall be in writing. Resolution titles shall, unless impractical or required by law, be twenty (20) words or less and describe in plain language the subject matter thereof.

Mayor John Hieftje suggested that an additional slot for communications from council be added immediately following public hearings. Councilmembers agreed to add the slot.

Outcome: The council adopted its revised set of rules on a unanimous vote.

Charter Amendment on Publication of Ordinances

At its last meeting, the council had passed a resolution placing on the November ballot a charter amendment that would change publication requirements for the city’s ordinances. Since that meeting, the state Attorney General’s office had made suggestions for changes in the ballot language that the council had approved, and Tony Derezinski (Ward 2) brought forward the revised versions for council approval.

The Chronicle published a column analyzing the charter amendment in detail, which gives the city council discretion to determine what is an appropriate form of publication for the city’s ordinances: “A Charter Change on Publishing.”

In that column we called attention to the fact that the phrasing “permitted by law” was inaccurately included in the ballot language for one of the amendments, likely due to a copy/paste error. Last week The Chronicle phoned the state Attorney General’s Office to offer our view that because of this error, the ballot language did not meet the standard for ballot language as set forth in the Home Rule City Act:

The purpose of the proposed charter amendment or question shall be designated on the ballot in not more than 100 words, exclusive of caption, that shall consist of a true and impartial statement of the purpose of the amendment or question in language that does not create prejudice for or against the amendment or question [emphasis added].

The AG likely would have make the recommendation for a change on its own. Here’s the contrast between the previously approved version and the version approved at Tuesday’s council meeting:

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

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

In council deliberations, Sandi Smith (Ward 1) asked why the Attorney General’s office had made a suggestion for revision, given that she’d been led to believe that it had already been approved by the Attorney General’s office. [City Attorney Stephen Postema had reported at the council's last meeting that the AG's office had vetted the proposal.]

Abigail Elias, speaking for the city attorney’s office, described the prior process as an “informal review” and that the suggestion now was to prevent an outcome on the formal review that would be either negative or else an opinion with comments.

Outcome: The council unanimously approved the wording changes to the ballot language.

What’s next? That’s not clear. According to deputy county clerk Matt Yankee, who handles elections for the Washtenaw County clerk’s office, the Aug. 25 deadline for submission of ballot language is set by the State of Michigan. In a phone conversation, he told The Chronicle that his office is already in the process of programming the ballots for November.

Chronicle conclusion: It’s not clear if the city of Ann Arbor can get the revised ballot language swapped out.

Near North

In her communications from council towards the beginning of the meeting, Sandi Smith (Ward 1) advised her colleagues that the Near North planned unit development had experienced a “meeting of the minds” and that action on the project was unlikely that evening. Still, she said, it would be important for councilmembers to ask any questions they had of the developer that evening. Mayor John Hieftje echoed the importance of getting questions answered that evening. The public hearing, he said, would be left open for the next meeting.

Several people spoke during the public hearing on Near North, which is an affordable housing project of around 40 units proposed for North Main Street. The nonprofit Avalon Housing and the developer Three Oaks are working on the project together.

Karen Sidney: In an apparent allusion to Lily Au’s speaking turn [see below], and a council chambers filled with residents and supporters of Camp Take Notice, Sidney noted that there’s a homeless epidemic. She expressed her hope that Avalon Housing could work out an acceptable solution to their differences with neighbors about the proposed development. However, she expressed concern about the $270,000 per unit it was going to cost to build the affordable units – that’s not cost effective, she said. She noted that the project was being financed with tax credits – that is, public money – and that public monies should not be used to cover the losses of a bad investment made by the developer [in purchasing the individual lots where the project is situated, at the height of the real estate market]. She suggested focusing on finding money to help with operating costs that Avalon needs to cover in order to finance its services. The $200,000 that the DDA allocates to bricks-and-mortar construction of affordable housing, she suggested, should be considered as possible funding for operating costs.

Tom Fitzsimmons: Fitzsimmons spoke representing the North Central Property Owners Association. He began by asking the council for a two-week postponement of the resolution before them approving the PUD rezoning and the site plan. He reported that the NCPOA had been working with the development team from Three Oaks, and that they’d made significant progress in addressing concerns about massing, height, setbacks, and the appropriate fit for retail in the space. He described the development team as having made “an honest effort,” to the point that “we no longer officially oppose this project.” But he noted that there were remaining concerns about the policy precedents that such a project might set. Tearing down eight houses to build 14 supportive housing units is poor public policy, he said. Further, the acquisition of multiple properties with the intent of building a project that was inconsistent with the master plan for the area was bad neighborhood policy.

Michael Brinkman: Brinkman said he was extremely opposed to building a giant PUD. “The end doesn’t justify the means,” he said. He accused Avalon executive director Michael Appel and the developers of using Avalon as a shield for the developer’s bad real estate investment. Alluding to a comment by Tony Derezinski (Ward 2) at a previous council meeting, Brinkman said there was not 90% agreement about the project. Instead, he said, it was about “minimizing the damage.” He characterized the description that Mayor John Hieftje had used in his communications from council to describe the importance of councilmembers getting their questions answered as a Freudian Slip – Hieftje had said that questions needed to be answered at that night’s meeting, so that council could go ahead and pass the project at its next meeting.

Jeff Jenkins: Jenkins told the council how he’d moved away from being next door to Miller Manor to where he now lives, right next to the Near North proposed project. He described how Miller Manor lacked a sense of community with the surrounding neighborhood. The extent of interactions with that housing project, he said, had been based on complaints from the project about noise caused by him. In contrast to noise issues that had been settled through interpersonal negotiation with his other neighbors, Miller Manor seemed like a “large, looming complaint that doesn’t have a face.” He liked living just outside of downtown, he said, and Near North brought downtown right to him.

Thomas Partridge: Partridge described himself as a progressive Christian Democrat who’d previously been a case worker for social services. He said he supported Near North as a “test of character” for the neighborhood and for the other residents of the city for their commitment to the principle of affordable housing.

Council Deliberations on Near North

At Stephen Rapundalo’s (Ward 2) behest, Bill Godfrey of Three Oaks gave the council a quick synopsis of what had happened since the first reading at council’s Aug. 6 meeting. Godfrey said the design team and the neighbors had worked on an alternative concept that included a work list with nine specific design changes, and that they had found common ground. Among the design changes were a reduction in massing, increased separation between the two buildings, reduction of building height to four stories or less, and a delay in the construction of the neighborhood market.

“We’re thrilled with this design,” Godfrey declared. The design changes meant that the project was left with 39 1-bedroom units with no 2-bedroom units, he said. In response to a question from Mike Anglin, Godfrey said that the $273,000 per unit in construction cost would need to be recalculated – it would be lower.

Sandi Smith (Ward 1) asked about the level of LEED certification. Damian Farrell, the project’s architect, described the building at “comfortably in gold,” based on preliminary worksheets. The outstanding questions concerned big-ticket items like geothermal systems.

Smith said the energy savings that would result from a building that was LEED certified would contribute to the ongoing affordability of the units. Michael Appel, executive director of Avalon, clarified that the reduced utility bills associated with the units would accrue to residents’ benefit. Why? Because credits awarded to cover utilities were geared to traditional utility bills – if the actual cost were less, the difference would go to the resident.

Smith also asked Appel to speak to how competitive the rents would be for the units, which had been described as around $675 per month without utilities. Appel cited the city’s needs assessment for affordable housing indicating the need for additional units in the area of the “rest of Ann Arbor,” which was neither downtown nor in student areas. The rents near downtown, he said, were higher than in other “rest of Ann Arbor” areas – part of the goal of affordable housing was to provide access to higher rent areas as well.

Christopher Taylor (Ward 3) asked Appel to address a concern about possible aggregation of affordable housing on that side of town. Appel acknowledged that such aggregation anywhere would be a concern, but that Avalon wouldn’t be doing the Near North project if they thought they would be contributing to that kind of problem. The project was 40 units, not 100 units, he said.

Outcome: Action on Near North – both the PUD and the site plan – was postponed until Sept. 21 by unanimous vote.

A2D2 Zoning

Two people spoke during the public commentary reserved time about the A2D2 rezoning proposal, which was passed on its first reading – it had been returned to first reading after having been previously passed.

John Etter: Etter introduced himself as the attorney for the Sloan Plaza Condominium Association. He spoke against the rezoning of the East Huron Street corridor as D1 (core downtown) under the A2D2 proposal, arguing that it should be zoned D2 instead. The arguments that he ticked through included: (i) D2 would function better as a transition to the historic neighborhoods abutting Huron, (ii) a D1 designation would disregard the recommendation of the Calthorpe report, (iii) a D1 designation ignored the University of Michigan activity affecting the corridor – construction of North Quad and expansion of the hospital, and (iv) a D1 designation is opposed by the Michigan Department of Transportation.

In his communications from council, Mayor John Hieftje sought to rebut Etter’s contention that MDOT opposed the rezoning of Huron Street as D1, pointing out that Etter had communicated with MDOT’s Brighton office, whereas the city of Ann Arbor had run the zoning by MDOT’s Lansing office – a higher level within MDOT.

Hugh Sonk: Sonk spoke to the character of Ann Arbor as including charming neighborhoods, and said that the design guidelines developed in connection with the A2D2 process were a good effort to reflect the unique and eclectic collection of downtown areas. However, he was disappointed that these design guidelines did not include a means of enforcement. As a Sloan Plaza resident, he said that the Huron Street area was more aligned with D2 zoning as opposed to D1. He asked for side setbacks to be included for Huron Street and suggested that there was no need to rush into adoption of the new zoning.

After brief introductory remarks in which Marcia Higgins – who served as the council’s representative on the A2D2 oversight committee – encouraged her colleagues to pass the rezoning package on its first reading, council did just that. The package had previously been approved on first reading, but was returned because of changes that were substantial enough to warrant an additional first reading. Those changes related in large part to changes in the D1-D2 boundary in the South University area.

Outcome: A2D2 was unanimously approved on first reading.

Historic Districts

The council handled two matters related to historic districts.

Historic District Study Committee

After previously approving the establishment of a historic district study committee for a two-block area south of William Street near downtown, the council appointed the committee’s membership, which Carsten Hohnke (Ward 5) read aloud: Ina Hanel-Gerdenich, Susan Wineberg, Sarah Shotwell, Patrick McCauley, Rebecca Lopez Kriss, Tom Whitaker, Kristi Gilbert.

Outcome: The council unanimously approved the membership of the committee.

Historic District Review Fees

Council considered a resolution to establish fees for historic district review. They’re considerably higher than they’d been previously, and higher than peer communities. One member of the public spoke to the issue during the public hearing.

Lou Glorie: Glorie said that the historic district review fees are “out of whack.” She further characterized the fees as hostile to historic preservation, because it was cost prohibitive to apply for permits.

Sabra Briere (Ward 1) expressed concern to Jayne Miller, director of community services for the city, that the fees were “really rather high.” Reacting to a description by Briere about what constituted a one-story addition and what did not, Christopher Taylor (Ward 3) asked Miller to clarify: Is the addition of a single story upon an existing story an addition that is “taller than a single story”? It’s a difference of $250.

10. Residential Additions: Taller than single story $500.00

11. Residential Additions: Single story $250.00

Miller said she was not sure.

Miller explained to councilmembers that part of the reason fees were higher in Ann Arbor was the higher number of historic districts – whereas communities with a lower number of requests could simply absorb the additional costs, the sheer number of requests meant that Ann Arbor could not use that as a reasonable strategy.

There was enough uncertainly that councilmembers seemed unenthusiastic about approving the higher fees without getting some additional answers.

Outcome: The historic district review fees were postponed until Sept. 21.

Industrial Development District

Council considered a resolution establishing an industrial development district for Anika and Associates, Inc., located at 3885 Research Park Drive. An industrial development district has to be established before receipt of any applications for an industrial facilities exemption certificate within the industrial development district. An industrial facilities exemption falls into the category of what’s commonly known as a tax abatement. One member of the public spoke to the issue

Karen Sidney: Sidney said that she found no justification in the supporting materials for the establishment of the district. Sidney wanted to know what the public benefit was. She suggested that if the public benefit was to be realized in the increased tax revenue from improvements undertaken to the property, then the city should contemplate offering the same kind of tax break to homeowners. If the idea was to bring jobs to the city, then Sidney asked the council to consider how many jobs tax abatements had brought through Google and Pfizer. [Google had said it would be hiring 1,000 workers by 2001, but to date has hired only around 250. Pfizer has left Ann Arbor.] Ann Arbor can’t afford to give away more taxes, she concluded.

Outcome: With no discussion, the council approved the industrial development district.

Municipal Airport

Sol Castell: Castell spoke against the adoption of a resolution that supplemented an agreement between the city of Ann Arbor and Pittsfield Township concerning jurisdictional issues around the municipal airport. [Opponents of the proposed airport runway expansion see the resolution as a way to circumvent public process.] Castell began by acknowledging the item had been stricken from the night’s agenda. He focused his remarks on safety issues – speaking from his perspective as a 747 pilot. He pointed out that extending the runway would have an impact on the risk to areas surrounding the airport, because on takeoff an airplane is heavier (maximum fuel load), slower, and close to the ground.

Andrea Van Houweling: Van Houweling spoke against the resolution supplementing the agreement between the city of Ann Arbor and Pittsfield Township regarding the municipal airport. She said that Ann Arbor residents were “the last to know” about proposed construction and changes to layout. She pointed out that the Ann Arbor city council had historically supported the notion that residents needed to be informed about proposed changes at the airport. She cited a Jan. 22, 2007, council resolution which approved and updated the then-current airport layout plan and called for city staff to bring back a separate proposal about extending the runway. The resolution also stated that notification of the proposal be sent to citizens in the surrounding area. But it was only 18 months later that citizens in the surrounding area were notified, she said. Before the supplemental agreement with Pittsfield was acted on, she suggested, there should be a public hearing on the matter.

Other Public Commentary

Thomas Partridge: Partridge introduced himself as a Washtenaw County Democrat, advocating for those in most need of government services. He called for a new effort to establish countywide regional transportation. He said that the voters must be asked to do their part.

Jeff Deboer: Deboer introduced himself as president of the Pioneer Rowing Club. He commended staff for the clarity of their presentation on Argo Dam, which was presented at a working session immediately preceding the council meeting. He said that he supported the formation of an oversight committee. He weighed in for keeping the dam in place, citing the heavy use of Argo Pond. He also said that it made no ecological sense to remove the dam, and stressed that the concrete and steel dam holding back the Argo impoundment was in good shape. [The Chronicle will provide separate coverage of the working session prior to council's regular meeting, which was devoted solely to discussion of the Argo Dam.]

Lily Au: Lily Au spoke to the issue of homelessness in Ann Arbor. She pointed out that there were hundreds of homeless people, but that the Delonis Shelter had only 50 beds, which resulted in people sleeping in chairs when there was overflow. She described the homeless as an “invisible” population that lived in the woods or under bridges, or in bathrooms. She called the council’s attention to the eviction of Camp Take Notice from their location behind Arborland and the arrest of one of the residents. She called on the community to get together and honor their Christian or other religious commitments to act on behalf of the homeless population. [Many of the supporters and residents of Camp Take Notice attended council's meeting. See "Laws of Physics: Homeless Camp Moves."]

Libby Hunter: Hunter held forth in song, which has become her preferred way to address the city council over the last few months. This time it was a medley, beginning with lyrics sung to the tune of Scarborough Fair and ending with London Bridge is Falling Down. The focus was the poor condition of roads in Ann Arbor and the Stadium Bridge in particular. Her concluding lyric was “Defeat Higgins!” [Marcia Higgins (Ward 4) is opposed in the November general election by independent candidate Hatim Elhady. The Stadium Bridge is in Ward 4.]

In his communications from council, Mayor John Hieftje sought to put into context Hunter’s contention that Ann Arbor had the second-worst roads in the state, saying that it had been a 2007 survey done by the Michigan Road Builders Association. [The Michigan Road Builders Association merged with the Associated Underground Contractors in 2005 to become the Michigan Infrastructure & Transportation Association. MITA issued a press release in October 2008 about their conclusions based on data from the 2007 Michigan Asset Management Council report.] Hieftje said that a 2008 version of the same survey showed that Ann Arbor actually had some of the better roads in the state.  The data in question can be found on the Washtenaw Area Transportation Study (WATS) website. [The 2008 data seem to be problematic in an order-of-magnitude kind of way, compared to previous years.]

Communications from Council

Carsten Hohnke (Ward 5) reported that the Greenbelt Advisory Committee had gone on a field trip to two potential sites that could be acquired through greenbelt millage funds. Both sites, he said, were connected to local food production. He mentioned this, he continued, because it reflected the modification of the overall greenbelt strategy that councilmembers had previously been briefed on.

Mike Anglin (Ward 5) gave councilmembers an update on his request that all city council emails dating back to 2000 be released to the public. He advised his colleagues that a resolution would be brought forward at the Sept. 21 council meeting addressing the issue. The delay, he said, was due to the fact that staff had needed time to compute cost estimates. The question, he said, was whether the council would do this on its own or whether the public would request the records through the Freedom of Information Act.

Sabra Briere (Ward 1) followed up Anglin’s discussion of council emails by alerting her colleagues to an exhibit on 19th century events in Washtenaw County at the Museum on Main Street (500 N. Main at Beakes Street). It was an exhibit, Briere said, that would be an appropriate title for council emails: “Murder, Mayhem, and Mischief.” [The exhibit runs through Nov. 29 – the museum is open from 12-4 p.m. Mondays, Wednesdays, Saturdays and Sundays.]

Sandi Smith (Ward 1) reminded her colleagues that it was Local Food Month and alerted them to the HomeGrown Festival to take place on Sept. 12 at the Ann Arbor Farmers Market from 5-10 p.m.

Present: Stephen Rapundalo, Mike Anglin, Margie Teall, Sabra Briere, Sandi Smith, Tony Derezinski, Leigh Greden, Marcia Higgins, John Hieftje, Christopher Taylor, Carsten Hohnke.

Next council meeting: Tuesday Monday, Sept. 21, 2009 at 7 p.m. in council chambers, 2nd floor of the Guy C. Larcom, Jr. Municipal Building, 100 N. Fifth Ave. [confirm date]

In that article, we indicated that the “the content seems to fall into two categories: (i) adolescent humor, and (ii) apparent ‘backchannel’ discussion of issues before the council, which raises more serious concerns.” The content of some of those emails has now been published in various forms in other media outlets.

We begin our own treatment of this episode in city politics by providing historical context for the Ann Arbor community’s concern about city council email exchanges during council meetings – one that predates the FOIA requests by GLELC.

In that context, we’d like to consider one of the email exchanges in more detail and use it to illuminate ethical issues surrounding the use of electronic communications during official meetings. And on that basis, we’ll explore some possibilities for the use of technology to push information to the public, instead of using it to screen decision-making processes from the public. In addition to the ethical and informational issues, there are legal questions that arise from these FOIA-ed materials. Those legal questions relate to possible  violation of the Michigan Open Meetings Act, as well as the city’s preparedness to meet the requirements of FOIA when electronic records are requested.

Historical Context

The recent publication by The Ann Arbor News of excerpts of the email exchanges between Ann Arbor city councilmembers during their meetings has provoked intense criticism of councilmembers by The News (in a June 7 editorial) and by the newspaper’s readers. The criticism has been appropriately harsh, and some councilmembers have now issued apologies.

In an online comment posted on MLive.com in response to a June 7 Ann Arbor News article, Christopher Taylor (Ward 3) contended he was treated unfairly by The News – a single-word reply he had made was not presented in its accurate context by The News, and he’d been given no opportunity to clarify that context before publication. Apologies from Carsten Hohnke (Ward 5) came on the radio Tuesday morning (June 9, 2009) with Lucy Ann Lance on WLBY 1290AM, and from Leigh Greden (Ward 3) and Margie Teall (Ward 4) via emails sent to some of their constituents.

Criticism of councilmembers for managing email correspondence – or working on their city-issued laptop computers – during their meetings is not new.

On March 29, 2009, LuAnne Bullington (former city council candidate in Ward 3) wrote in a letter to the editor published in The News:

While citizens speak, these council members type away on their computers, whisper to each other and giggle like schoolchildren. Some council members don’t even look at the people speaking to them.

And more than a year ago, on April 8, 2008, Ann K. Dilcher wrote in a letter to The News:

I always question the use of laptops by the council members. They often seem more tuned into their screens than the presentations from the floor. The members may be looking up important documents that relate to the discussion or may be e-mailing family – as an observer, you just don’t know. I think it would be good for them to consider going “topless.”

Councilmembers themselves have historically defended multi-tasking with their laptop computers during meetings as an efficient use of their time, and have not tried to hide the fact that emailing takes place during council meetings. They have also not tried to hide the fact that on occasion this emailing bears in a substantive way on deliberations. As we reported in our Jan. 5, 2009 report on a city council meeting, during deliberations on the postponement of the City Place PUD application, Leigh Greden (Ward 3) announced that the contents of an email he’d received factored into his rationale for a postponement.

Greden indicated that his reasons for postponing had gone from two to three in light of an email he’d just received.

That effort to postpone ultimately failed. In light of The Chronicle’s report of that meeting, some readers inquired with us about Greden’s use of email during the meeting. Here’s my reply to one of those inquiries in excerpted form:

There’s no doubt that the open meetings act and FOIA have not kept pace with current communications technology. I’d note that Greden simply referenced an email – who it was from (a council colleague, a random citizen, the developer, his mom … ) is anybody’s guess. Which, I take it, is part of your point: we shouldn’t have to guess.  … It’s a general issue that I’m attuned to, but would most likely require devotion of considerable resources in order to do it right. I think to take aim at this particular instance of a reference to an email by Greden would come off as a “pot shot.”

Prompted in part by Greden’s announcement about the email at the January meeting, The Chronicle has since then urged the Ann Arbor city council to move its workings more squarely out of the realm of email and into public view. That urging has taken the form of encouraging council members to use their Sunday night caucus in a way that is more constructive than its current use – which can fairly be described as yet another occasion on which to passively entertain input from the public.

And that urging has been coupled with an encouragement by citizens to play a constructive part in a productive Sunday night caucus: one that results in council sharing publicly the way it slogs through its workload. The public’s role in that, we’ve suggested, is to ask “journalist-citizen” questions. In published form, that suggestion was included in our most recent Monthly Milestone, but in draft form, it’s something I’ve conveyed  to several people privately. Here’s a different excerpt from the same reply above to the inquiry about Greden’s email:

Sure, council members sometimes interrupt and ask clarificational questions, but typically the communication is one-way: citizens speak their mind and all council members have to do is sit and listen politely. Imagine, though, a scenario where a citizen had on Sunday asked these questions of councilmembers:

1. What have your conversations (if any) with members of the planning commission focused on?
2. What have your conversations (if any) with the developer focused on?
3. Does the “by right” threat factor into your analysis how to vote? If so, how?
4. What standards should the council apply in not following a recommendation by the planning commission?

The only change I’ve noticed in Sunday night caucus since The Chronicle has made these efforts is that Mayor John Hieftje now introduces the event by stressing that it’s optional for councilmembers to attend and that many of them have family obligations that preclude their attendance.

Efforts by The Chronicle to be included on correspondence from councilmembers to city staff with their “caucus questions” has also met with minimal success. And efforts to be copied in on the staff response to their emailed questions has not yet met with success, despite good faith efforts made by the city attorney to put such a mechanism in place. We’re still optimistic that eventually some kind of mechanism can be established.

It’s in that context that The Chronicle has executed a FOIA request for additional electronic mail records from the city. Factoring in the extension which the city is allowed by law to take, the deadline for compliance with that request is June 15, 2009.

Deliberations on Postponement?

In their public apologies for their emails, some councilmembers have stressed that their future emails during council meetings will not involve the kind of irreverent non-city-related business that has provoked intense criticism from the community. In her emailed apology, for example, Teall wrote: “Any further non-business e-mailing during Council meetings has ceased, and will not continue.”

It is the business-related emailing, however, that warrants our attention, especially because the now-apologetic councilmembers seem to indicate that it will continue unabated.

To illustrate one kind of email exchange that GLELC’s FOIA brought to light, we examine one in which councilmembers – during the Feb. 17, 2009 council meeting – write about the possibility of a postponement of site plan approval and the authorization of bonds for the Fifth Avenue parking garage. For the sake of readability, we’ve excluded some back-and-forth about a “rate-setting meeting” that was included in the message bodies of some exchanges. [The exchanges are in the file "pack5.txt" at the conclusion of the article.]

Sent: Tuesday, February 17, 2009 7:19 PM
From: Hohnke, Carsten
To:  Smith, Sandi

I assume DDA would not be happy with a
postponement of the structure, yes?

----------

Date:  Tue, 17 Feb 2009 19:35:05 -0500
From:  Smith, Sandi
To:    Hohnke

True. But postponing to a date certain
may be palatable...

----------

Sent: Tuesday, February 17, 2009 7:40 PM
From: Hohnke, Carsten
To: Teall, Margie

Are you supportive of postponing the structure?

----------

Sent: Tuesday, February 17, 2009 7:41 PM
From: Teall, Margie
To: Hohnke, Carsten

No. Why is anyone thinking about it?

----------

Sent: Tuesday, February 17, 2009 7:43 PM
From: Hohnke, Carsten
To: Teall, Margie

Marcia!

----------

Sent: Tuesday, February 17, 2009 7:44 PM
From: Teall, Margie
To: Hohnke, Carsten
Cc: Greden, Leigh

But why?

----------

Sent: Tuesday, February 17, 2009 7:46 PM
From: Greden, Leigh
To: Teall, Margie; Hohnke, Carsten

She's against 5th/Division and wants time
to work on excluding that.

----------

Sent: Tuesday, February 17, 2009 7:49 PM
From: Teall, Margie
To: Greden, Leigh; Hohnke, Carsten

Doesn't that put her squarely against Sandi?

----------

Sent: Tuesday, February 17, 2009 7:49 PM
From: Greden, Leigh
To: Teall, Margie; Hohnke, Carsten

Yup. And against Hewitt and maybe Gunn.
I told her that. She doesn't care.

----------

Sent: Tuesday, February 17, 2009 7:50 PM
From: Teall, Margie
To: Greden, Leigh; Hohnke, Carsten

She cares...

----------

Sent: Tuesday, February 17, 2009 7:55 PM
From: Greden, Leigh
To: Teall, Margie; Hohnke, Carsten

She said she doesn't.

----------

Sent: Tuesday, February 17, 2009 7:56 PM
From: Teall, Margie
To: Greden, Leigh; Hohnke, Carsten

She told me what you said, and she was not happy...
I think she does care.
Does Sandi know what's going on?

----------

Date:  Tue, 17 Feb 2009 19:56:33 -0500
From:  Greden, Leigh
To: Teall, Margie; Hohnke, Carsten

I was only telling her the truth.

----------

Sent: Tuesday, February 17, 2009 8:27 PM
From: Higgins, Marcia
To: Briere, Sabra; Smith, Sandi
Subject: I won't be asking for a postponement

[message body was empty as it was conveyed
in the subject line]

----------

Sent: Tue 2/17/2009 8:27 PM
From: Smith, Sandi
To:  Higgins, Marcia
Subject: RE: I won't be asking for a postponement

;-)

-

Other FOIA-ed material by GLELC makes clear that the issue of postponement had been raised by resident Steven Bean with councilmembers up to the day of their meeting. [Bean is also chair of the city's environmental commission, but raised the issue as an ordinary citizen – the environmental commission's input was not sought on the underground parking garage.] Bean’s concern was different from the one attributed by Greden to Higgins in the above email exchange.

In an email addressed to all councilmembers on the day of the meeting, Bean wrote:

I believe that a delay is fully justified given the state of the economy, the upcoming addition of several hundred new parking spaces elsewhere downtown, the incomplete implementation of alternatives for managing peak parking demand, the lack of consideration of environmental impacts (such as greenhouse gas emissions) from increasing parking supply, and the likelihood of a permanent decrease in parking demand early in the lifetime of the proposed structure. (The last two might seem contradictory, but any increase in emissions, no matter how short-lived, would be very detrimental.)

Replying to Bean at one point during their back and forth, Greden wrote: “I enjoy these debates!” Bean responded:

Me too! Why didn’t we (all) have one on this before council decided that the best alternative was an underground structure at the library lot? Or before they asked the DDA to get a design for one? Or before the bond sale was approved? (Okay, we’re a few hours away still.) Or …? Well, at least you and I are having it.

Ethical Issues

John Chamberlin is founder of Center for Ethics in Public Life at the University of Michigan’s Gerald R. Ford School of Public Policy, and spoke with The Chronicle by phone a few weeks ago – but not about the specific emails that have since been published. Reacting to our summary of some of the emails as “adolescent humor,” Chamberlin said at the time, “They ought to know better. There is no public purpose served.”

But emailed communication could serve a public purpose. As for the general question of emailed communication, Chamberlin suggested that one way to frame the issue was by asking if those communications were a substitute for some other mechanism that did serve a public purpose, and asking if that mechanism was something that needed to be brought into the open.

If the communication is a substitute for deliberations on a matter before the council, Chamberlin said, then that communication should obviously be opened up: “You’re acting in your official capacity as a public official. You have hidden part of your commentary.” It’s certainly okay for two members of council to talk, he noted, but the question of whether they should be able to talk privately during a meeting is a different question. You’re permitted to lean over and whisper in someone’s ear, he noted. Such a conversation could be a clarificational matter as simple as “What did he say?” and possibly be more efficient than calling for a recess from the meeting.

But Chamberlin allowed that one of the ways that leaning over and whispering in someone’s ear is different from email is this: It’s readily apparent that some sort of communication is taking place when such whispering occurs – emailed communications are not so readily apparent. Working at a laptop looks much the same to an observer, whether someone is emailing or looking up material on the internet.

In evaluating the ethics of the email exchanges above – about a possible postponement of the parking garage decision – it’s apparent that a postponement was an option that some members of council might have been willing to entertain, even if there were not enough votes to pass a postponement.

There had apparently been conversations before the meeting among various parties on the merits of a postponement. Yet there were no deliberations on the question of a postponement, because no motion to postpone was brought. The emailed exchanges, then, served as a substitute for a conversation at the table about whether a motion to postpone would be brought, as well as a substitute for a conversation at the table about the fact that there had been discussions prior to the council meeting about the possibility of postponement.

If those prior discussions about a postponement had been conducted in a public meeting, then the email exchanges would not necessarily count as a substitute. However, those discussions apparently did not take place in public meetings. One opportunity to talk publicly about the issues related to the postponement would have been the council’s regular Sunday night caucus. However, that meeting was cancelled by Hieftje.

On the standard of whether the above email exchanges were a substitute for communication that should have otherwise been made openly at the council table, I think that they were a substitute. One need not conclude that those actual exchanges qualify as “deliberations” in order to reach that conclusion. And on that basis, I think it’s a fair assessment that the exchanges do not reflect an ethical approach.

Informational and Organizational Issues

If city councilmembers are inclined to use email exchanges as a substitute for communications that should otherwise best be made publicly, then it is worth reflecting on the mechanisms available to the media and the public at large to compel the public availability of those communications.

One obvious tool is to make a request based on the Freedom of Information Act.

Based on the method with which the city of Ann Arbor appears to have complied with GLELC’s FOIA requests, the city does not  seem to be ideally prepared to deal with requests under FOIA for a modest volume of electronic records. In the GLELC corpus, the email exchanges among councilmembers that were provided under FOIA were apparently identified by requesting that councilmembers voluntarily forward them to assistant city attorney Abigail Elias.

Otherwise put, the relevant emails do not appear to have been identified through a computer server-level query, as might be reasonably expected. Even assuming that councilmembers complied in good faith with the request – a fair assumption – human error among 11 councilmembers could result in accidental failure by the city to produce records as required by law.

If the records were identified by both means – voluntary forwarding, plus a server-level request – then it’s fair to ask what purpose the voluntary forwarding served. There have been conflicting reports, but my best current understanding is that The Chronicle’s FOIA request is being completed via a server-level query.

The format of provided documents is another way to evaluate how prepared a public body is to meet FOIA reqeusts. The format of the documents provided to GLELC under FOIA was paper printouts of emails. But the 1994 case “Zeeff v. City of Ann Arbor” makes clear that the original electronic format for FOIA-ed materials can be compelled. Why not provide the format that a requester could compel anyway?

In at least some cases, the city of Ann Arbor seems to opt for needlessly complex solutions to FOIA requests. In an unrelated FOIA request made recently with which The Chronicle is familiar, a request for city staff compensation data was met by the city in the following way: (1) print out the electronic report, (2) physically mask names of personnel, (3) scan the masked document to create electronic images, (4) run an image-to-text program on the scanned image, (5) provide the resulting electronic output as the requested record. As The Chronicle was processing the material, the apparent method came to light due to image-to-text conversion errors, plus an imperfect job done in masking names.

Given the potential need to meet FOIA requests for thousands of email records, it’s thus worth reflecting on the problem from a purely information-technology point of view. Rather than respond to FOIA requests in a reactive way, one could imagine a public body taking the view that any and all records subject to FOIA would be made public as a matter of the usual workflow of that public body.

If all or most of the material that could be requested under FOIA were already publicly accessible, then a public body would be practically immune to any extra work caused by FOIA requests.

It’s worth making the distinction here between “making publicly available” and “publishing.” Take salary information, for example. If there’s a PDF file containing a list of salary information, which citizens can access online if they want to know how much the city administrator is paid, that can fairly be described as “making the information publicly available.” And that’s a reasonable state of affairs to contemplate. Somewhat less reasonable is a “publishing” scenario, where the caption to Roger Fraser’s photograph on the city of Ann Arbor’s website would include his salary.

The University of Michigan is an example of an institution that for years has made its salary information publicly available.

Short of shoving all FOIA-able material into the public realm proactively, one could contemplate a combination of technology and policy that would make compliance with FOIA requests for electronic documents more straightforward than the method apparently employed by the city of Ann Arbor. Until recently, at least, that method seemed to entail voluntary submission of records by councilmembers, printing out the material, inspection of each sheet of paper, redaction with a black marker if necessary, photocopying the stack of paper, then handing it to the requester.

Those redactions reflect exemptions, which an institution may (but is not required to) apply under the law, which include :

15.243 Exemptions from disclosure; withholding of information required by law or in possession of executive office.
Sec. 13. (1) A public body may exempt from disclosure as a public record under this act:

(a) Information of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.

(h) Information or records subject to the attorney-client privilege.

(n) Communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption does not apply unless the public body shows that in the particular instance the public interest in encouraging frank communications between officials and employees of public bodies clearly outweighs the public interest in disclosure.

In the spirit of a desire for a simpler approach to compliance, we posed the following challenge to two faculty members of the University of Michigan School of Information.

Challenge: For an organization subject to FOIA, design a policy standard for use and configuration of email accounts and servers to eliminate the need for any visual/manual inspection of email records in response to FOIA requests.

David Wallace is a lecturer at the school, who focuses on the role of archives in enabling and denying accountability and justice, and the computerization of government records. Professor Virginia Rezmierski’s research interests include institutional norms to address issues of privacy and security of electronic records.

Based on emailed responses from Wallace and Rezmierski, our challenge is phrased in a somewhat extreme way. They both rejected the idea that it was feasible or desirable to provide documents without visual inspection. Wrote Wallace:

… Technologically you could do wide searches but again I cannot imagine any agency releasing records in response to a FOIA request without proper screening. And in fact not screening can lead to improper disclosures of personally identifiable information or sensitive information. To my mind what is needed is a combination of sound records management combined with a transparent and open practices (not rhetoric about transparency – but real efforts at affirmative disclosure in absence of FOIA requests.)

Rezmierski, for her part, said:

… the issue that strikes me is that ALL records need to be visually reviewed before it is possible to identify any exemptions that might apply …

For a long time we have needed email to be configured in such a way that notes and communications preliminary to a decision could be managed by the writer as private, while official responses or decisions could be configured and marked in such a way as to be readily available as records. Even under such a system however, the FOIA request would have to be specific enough that it could be readily identified, and visual inspection for any potential exemptions would still most probably occur.

With respect to Rezmierski’s suggestion of configuration and marking of records “in such a way as to be readily available as records,” the FOIA law itself provides some direction, requiring that agencies subject to FOIA undertake practicable measures to facilitate separation of exempt material from non-exempt material:

15.244 Separation of exempt and nonexempt material; design of public record; description of material exempted.
Sec. 14.
…
(2) When designing a public record, a public body shall, to the extent practicable, facilitate a separation of exempt from nonexempt information. If the separation is readily apparent to a person requesting to inspect or receive copies of the form, the public body shall generally describe the material exempted unless that description would reveal the contents of the exempt information and thus defeat the purpose of the exemption.

In the case of electronic mail, one could imagine a policy, together with a technology, that would prompt the author of an email who hits “send” to flag the correspondence  in an appropriate way – a way of forcing the author of an email to categorize it, say, as “attorney-client privileged” or “personal” or “ready for publication” with a default as “ready for publication.”

Speaking to The Chronicle by phone, Rezmierski told us that she thought exclusive reliance on that approach for release of records wouldn’t work for two reasons. First, the average email author in an agency subject to FOIA would not be familiar enough with FOIA interpretation to make an accurate assessment. Second, the judgment should be based not on an individual’s desire, but rather on the public interest.

Still, Rezmierski points to her own work in this field that calls for a technical solution to allow a distinction to be maintained between “notes,” “preliminary decisions” and “official records.” To designate official records, she has suggested the application of an “electronic letterhead” to documents. One “fly in the ointment” is the reliance on the author of such documents to attach the letterhead.

Rezmierski traces part of the current challenge posed by myriad electronic documents to a historical failure to maintain the proper relationship between policy and technology. When it was recognized that email would be traveling through multiple servers, she said, we too readily accepted that email was not private communication and that there was no reasonable expectation of privacy. Instead of accepting that premise, she suggests, we could have set a policy that electronic communication should be treated just like a sealed letter with the same expectations of privacy associated with a sealed letter. From that policy we could have developed appropriate technologies to ensure that the expectation of privacy was actually met, she says.

In any case, the release of documents without review – that is, based purely on the flags or letterhead attached by document authors – is not something Rezmierski sees as feasible.

In its FOIA request for additional records, The Chronicle has specified the requested records in a way that has a similar effect to a pre-separation of exempt materials from non-exempt materials. Specifically, the way that we specified the request does not target emails to or from constituents of councilmembers (triggering possible redaction due to unwarranted intrusions of privacy). Nor does our request include communications between the city attorney’s office and councilmembers, which we suppose would have a high probability of being exempted due to attorney-client privilege.

Legal Implications: Open Meetings Act

The  Michigan Open Meetings Act provides that the public must be given notice in advance of the meetings of a public body. And the regular meetings of the Ann Arbor city council in council chambers are announced in various ways that fully comply with the act. If councilmembers email each other during such a  meeting – one which has been properly noticed – where does the potential violation of OMA lie?

The potential violation is that the emails themselves could possibly constitute a separate meeting from the one that was properly noticed – a separate meeting that would require its own notice and public access, not to mention its own minutes.

To get a clearer understanding of what it takes to constitute a meeting via email communications, The Chronicle spoke by phone with Lisa Rycus Mikalonis, an attorney with Sommers Schwartz in Southfield, Mich., who specializes in communications law, freedom of information and open meetings acts.

By way of general orientation to the issue, Mikalonis stressed that the basic legislative intent of open meetings acts is to ensure that public work is done in public view. And the spirit of Michigan’s Open Meetings Act, she continued, is “openness.”  Given that emails exchanged between councilmembers are not in public view, isn’t that – on its face – a violation of OMA?

No, says Mikalonis. There are two aspects to determining whether a “meeting” has taken place: (i) whether a quorum was reached (ii) whether the substance of the communications was related to the business of the public body.

In the case of the Ann Arbor city council, for a single email exchange to count as a “meeting” there would need to be six participants in the exchange – the council has 11 members –  and the substance of the communication would need  to be in some sense deliberative. In the  case of some of the emails that have been previously published by The Ann Arbor News – concerning golden vomit and sea turtles, for example – the best defense against a charge of an OMA violation would be to maintain that the communications amounted to horseplay, and were in no way deliberative. In my view, a defense based on the frivolous character of the exchanges is fairly compelling – many of them are uncontroversially frivolous.

However, the example we’ve laid out above – involving the possible postponement of the resolution about the underground parking garage – is less clearly non-deliberative. The communications are gossipy in flavor, to be sure – indeed, Smith’s contribution in its entirety is a winking smiley. Should a winking smiley count as a contribution to a deliberation? On its own, I’d say probably not.

Taken in aggregate, however, all the email exchanges suggest a background in which the merits of postponement were discussed by among multiple parties before the meeting. So it’s those discussions that I think could potentially warrant consideration as an OMA violation.

And it’s worth noting that the number of people involved on any one email exchange or who were a party to any one of those discussions need not necessarily achieve a quorum, in order to count as an OMA violation. Mikalonis pointed us to a 1988 case, “Booth Newspapers v. Wyoming City Council,” in which the court held that serial meetings of sub-quorum groups amounted to a “constructive quorum,” and thus violated the OMA.

But what’s crucial to the question of discussions about the possible postponement of the parking garage resolution, said Mikalonis, is the fact that no motion to postpone was ever brought at the table. If a motion had been brought, and no discussion had taken place at the table on that motion to postpone, it might be possible to argue that the decision against postponement had been made in prior conversations, confirming the nature of those conversations as deliberative, she suggested. But given that no motion to postpone was ever brought at the table, no decision was ever made on that question, so it’s moot to ask when it was made.

I would conclude then, that making a case for an OMA violation based on the exchange we have published above would require more research. That research might well show that no violation took place. On the other hand, it might show definitively that a violation did take place. It’s not an issue that The Chronicle intends to pursue at this time.

If not the letter, then I think the spirit of OMA – openness – is violated when email exchanges take place between councilmembers about matters they could just as well discuss openly at the council table. It’s not particularly important to me whether councilmembers  apologize for the frivolous emails they’ve sent in the past, nor do I attach any particular weight to their apologies – a month went by with no apologies.

What’s important is a recommitment by the Ann Arbor city council to openness and transparency. It’s not a commitment that can be articulated in emailed statement to constituents or in a radio interview. It’s a commitment that will be reflected by conducting public business in public.

Future of Transparency for the City of Ann Arbor

The one example we’ve considered in this column shows that laptop computers – as they’re currently used by councilmembers – can and do serve to screen some of the decision-making process and rationale from the public.

One approach to achieving a city government that is not just transparent, but also illuminates its citizens – so brightly that we might have to contemplate dimming it during certain times of the year to protect migratory birds – is to add even more technology to the equation.

One example: If city council members receive proposed amendment language via email from their colleagues or the city clerk during meetings, it would make sense that council chambers be equipped with wireless internet access so that members of the public can receive the same information if they choose to bring a wifi-ready device to council chambers, or if they’re watching the meeting live on Community Television Network. It would also make sense that the same information be projected on a screen so that members of the public can easily follow along.

The city’s planning commission deals with material on a regular basis that is at least as complex as that handled by the city council. Yet its members are not issued laptop computers by the city, and their meetings are run quite efficiently and transparently with only a single staff member using a laptop computer to project images and text onscreen when necessary.

So it’s not just a matter of adding more technology. It’s a matter of putting aside the use of some “private technology” – like laptop computers – in favor of “public technology” – like projectors.

It’s not a matter of promising to keep laptop computers closed when members of the public are addressing council, or refraining from sending frivolous emails to each other during meetings.

It’s a matter of reflecting continuously on the question:

Is the information on this screen I’m staring at – which by definition is important and relevant to my decision-making … because I’m staring at it during a council meeting – as equally accessible to the public as it is to me?

I think a fair answer to that question is, too often, no.

Email Corpus

The following are raw, uncorrected text files. They are made from the image-to-text processing of digital scans taken of the paper copies provided by the city of Ann Arbor in response to the GLELC FOIA request.

• pack1.txt
• pack2.txt
• pack3.txt
• pack4.txt
• pack5.txt
• pack6a.txt
• pack6b.txt
• pack6c.txt
• pack6d.txt
• pack6e.txt
• pack6f.txt
• pack6g.txt
• pack6h.txt
• pack6i.txt
• pack6j.txt
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I used this canvas bag to deliver the morning paper in Columbus, Indiana, from 1974 to 1980. The circulation area for the Louisville Courier-Journal extended only as far north as Columbus. More people in Columbus subscribed to the Indianapolis Star, or else the local afternoon paper, The Republic. But some people subscribed to all three.

It’s my turn to write the monthly milestone – an update about The Chronicle. Here’s a nuts-and-bolts outline, with a longer version after the break.

• Events: List them yourself on The Chronicle by registering for an account on Upcoming and creating the event listings there. Let us know when you’ve done that, and we’ll add them to our “watch list,” which will make them appear on The Chronicle’s event listing. It’s free.
• Emailed updates: Shoot us an email saying you’d like to receive weekly story summaries, and we’ll send them to you – with links to the complete story.
• Advertising crew: As part of our ongoing effort to increase revenues to support expanded coverage in The Chronicle, there’ll be some folks out there in the community earning commissions by convincing advertisers to place ads in The Chronicle. If you think you’ve got what it takes to sell ads into The Chronicle, let us know.
• Print and thoughts on newspapers: Printing off a page from The Chronicle should look a bit better than it used to. Regarding the contrast between news on-screen versus printed on paper, Del Dunbar’s column that we ran back in September 2008, our first month of publication, is a better read than ever. [Link to Del Dunbar's column.]

Events

Here’s how to set up your own event listings on The Chronicle.

1. Register for an account on Upcoming (http://upcoming.yahoo.com). Some readers might already have an account with Yahoo!
2. Create the event using +Add An Event on Upcoming. It’s a form-filling exercise that asks for what you’d expect: Title, venue, time, date, description, cost (if any). Many if not most of the venues in Ann Arbor are already in the Upcoming system – start typing and the auto-fill will take over. If you wind up needing to add a venue, once you type in the address, a link to a map of that location gets automatically created.
3. Let us know you’ve created the event. Email us the link. Or just tell us the title. We’ll find it. Then we’ll add it to our “watch list” and it will show up on The Chronicle’s event listing. Plus, your event will potentially show up in other places that use Upcoming. ArborUpdate‘s right sidebar is one example.

To  people with events to promote, the advantages of this approach include: total control over accuracy, tone and language of description; total control of any needed revisions (what if the time, date or venue changes due to circumstances beyond your control?); potentially wider distribution across the web.

For us, one advantage is that it saves work – one click adds an event to our “watch list.” Another is that we retain editorial control over which events appear on our website. A final advantage is that Upcoming uses the nomenclature “watch list.” We’re all about watches and clocks here at The Chronicle, for heaven’s sake.

Why events? Our approach to chronicling the community is to show up somewhere and give a first-hand eyewitness account.  That approach doesn’t necessarily serve the promotional interests of people who are holding events. It also doesn’t necessarily directly serve the public interest in knowing when important events are going to take place: “Thanks, Ann Arbor Chronicle, for telling me what happened, but how about telling me next time that it’s going to happen so I can go myself if I want.” A mostly reader-driven event listing allows us to focus resources on reporting and writing, while serving readers’ interest in knowing what’s coming up.

For readers who are familiar with microformats, our event listing has them.

Emailed Updates

We’ve heard from several readers that their preferred way to read The Chronicle is to receive a warm, friendly electronic nuzzle – an email message – with links to stories. So we’ve begun sending out weekly updates (Saturday or Sunday) with short synopses of the main stories from the past week, including links to the whole story. It’s just text, no pretty pictures. We also include in the weekly update a link to our list of advertisers.

If you’d like to be added to the list, shoot us an email at dave.askins@annarborchronicle.com. If you decide, after receiving some of these updates, that this is not what you wanted after all, just send us an email and we’ll take you off the list.

Advertising

It’s always been our intention to expand coverage of The Chronicle as revenues allow. With the recent developments in the local media landscape – most notably, The Ann Arbor News is ceasing publication this summer – expectations from our readers have risen. We’ve heard from several of you that you’d like us to step up and expand the breadth of our coverage. We don’t intend to disappoint.

For a few months now, our efforts to grow revenues have included some other folks who’ve been working with us to increase the number of advertisers in The Chronicle. Readers might have noticed the effect of those efforts. In addition to thanking our long-time advertisers, we’d like to welcome the following advertisers who’ve joined us since our last monthly milestone (and see the full list of all our advertisers here):

• Courtyard Shops
• Downtown Home & Garden
• Emergent Arts
• FestiFools
• Fourth Avenue Birkenstock
• getDowntown
• Legacy Land Conservancy
• Potters Guild
• Real Seafood Co.
• Washington Street Gallery

We’re also ready to add some additional advertising representatives. If you want to take a shot selling ads into The Chronicle on a straight commission basis, send Mary Morgan an email at mary.morgan@annarborchronicle.com.

Additional revenues will support additional reporting and writing. I think there’ll be a variety of local enterprises over the next few months that launch because people see an opportunity to fill a void. I think that The Chronicle and annarbor.com will likely be just two of a host of media alternatives – from other purely online ventures with rolling publication times, to printed weekly publications, to other combined print-web initiatives. It could be that several survive longer term.

Whether one of those is a daily printed publication is possible, I’d say yes, but doubtful. Still, The Republic, which is the local paper in my hometown of Columbus, Indiana (pop. 35,000), seems to be printing a paper every day.

Newspapers and Print

Related to printing is one recent success here at The Chronicle: When you print off a story from The Chronicle, the result now looks pretty close to the way the screen looks. One exception is that the advertisements are lined up along the bottom. So if you know someone who’s just never ever ever going to go online to read local news, and there’s  some Chronicle content you think they’d enjoy, we’d encourage you to print off a page and hand it along to them. Or just post it somewhere prominent.

We know that a sheaf of 8.5 x 11 sheets isn’t going to replace the feel of a newspaper. But it’s better than nothing – which to paraphrase Del Dunbar in the column he wrote for The Chronicle back in September, is exactly what you paid to read this.

In the wake of last  week’s news I found myself re-reading that column. I’d like to invite you to do the same: “I miss my daily newspaper as I remember it.”

After reading Del’s piece, Twitter it, Facebook it, MySpace it, email it.  Or … print it out and staple it to a telephone pole.