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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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From left: Local developer Peter Allen, 624 Church St. project owner Dennis Tice, that project’s architect Brad Moore, and Ward 1 city councilmember Sabra Briere. Briere accepted congratulations on her council re-election win the previous day. (Photos by the writer.)

Both items were approved on unanimous votes at the meeting, which featured perfect attendance by the 11 current members of the board. The following evening, on Nov. 7, the Ann Arbor city council confirmed the appointment of Cyndi Clark, owner of Lily Grace Cosmetics, to fill a vacancy on the 12-member DDA body. At its Nov. 6 meeting, the board did not discuss either Clark’s appointment or the other council agenda item affecting the DDA – a revision to the city ordinance that regulates the DDA TIF (tax increment financing) capture.

The sale of monthly parking permits for the 624 Church St. development was an issue that the DDA board had previously considered – for an earlier version of the project, which had actually completed the city approval process. It had gone through planning commission review and recommendation, with a site plan approved by the city council on March 4, 2013. For that earlier version, the project was required to provide 42 parking spaces for the additional residential square footage it contained beyond the by-right density under the city’s zoning code. Instead of providing the parking spaces on-site, the owner of the project sought to satisfy the requirement through the contribution in lieu (CIL) program – a request that was granted by the DDA.

For this revised and expanded version of the project – made possible through additional land acquisition – a greater number of parking spaces is required. And the project owner again sought to meet that requirement through the CIL program. So at its Nov. 6 meeting, the DDA board granted the project owner the ability to purchase 48 monthly parking permits in the Forest Avenue parking structure.

The DDA board also acted on its streetscape framework project. The contract awarded to SmithGroupJJR and Nelson\Nygaard is meant to provide guidance for developing future streetscape projects, not to design any specific streetscape project. The most recent streetscape improvement undertaken by the DDA was the Fifth and Division project, which included lane reconfigurations and bump-outs.

In addition to its voting items, the board received a raft of updates, which included reports on the first quarter financials. The DDA is essentially on course to realize $4.5 million in TIF capture revenue and about $19 million in parking revenue. Other updates included reports on preparations for the NHL Winter Classic hockey game, debriefing on the International Downtown Association conference attended by some board members and staff, Freedom of Information Act issues, and public commentary.

The board heard from Ray Detter, speaking on behalf of the downtown area citizens advisory council, about the ongoing downtown zoning review. Detter’s remarks were countered by DDA board members. Detter reprised his comments at the city planning commission meeting later that evening. So that back-and-forth will be reported out in more detail as a part of The Chronicle’s Nov. 6, 2013 city planning commission report.

624 Church Street Parking Permits

The board considered a request by the owner of the 624 Church St. project to purchase additional monthly parking permits as a part of the contribution in lieu (CIL) program – up to 48 such permits. The spaces were requested for the Forest Avenue parking structure.

The original proposal for 624 Church St., which received site plan approval from the city council at its March 4, 2013 meeting, was for a 13-story, 83-unit apartment building with approximately 181 beds. And for that version, the Ann Arbor DDA had authorized the project to purchase up to 42 monthly permits through the city’s contribution-in-lieu (CIL) program. The CIL program allows a developer the option of purchasing permits to satisfy a parking requirement that would otherwise be satisfied by providing parking spaces on site as part of the project.

The newly revised 624 Church St. project, which still needs planning commission and city council review, is larger than the original project, with roughly 122 units and 232 beds. [The architect for the project, Brad Moore, attended the Nov. 6 DDA board meeting, as did the owner, Dennis Tice. Neither of them formally addressed the board nor were they asked to respond to any questions. The new version of the project could be coming before the planning commission in later in November or December.]

The parking requirement is a function of the by-right premiums for additional square footage beyond the basic by-right 400% floor area ratio (FAR). So the parking requirement for the revised project is greater than for the original version of the project. That’s why the DDA was asked to increase the number of permits from 42 to 48. The number of required parking spaces for the revised version of the project is actually 53, but five of them will be provided on site.

The DDA makes the decision about whether there’s adequate capacity in the parking system to allow the sale of additional monthly permits – because the DDA that manages the city’s public parking system under a contract with the city.

Ann Arbor’s “contribution in lieu of parking” program was authorized by the city council on April 2, 2012. That program allows essentially two options: (1) purchase monthly parking permits in the public parking system for an extra 20% of the current rate for such permits, with a commitment of 15 years; or (2) make a lump sum payment of $55,000 per space. It’s option (1) that the 624 Church St. project was pursuing.

624 Church Street Parking Permits: Board Deliberations

Roger Hewitt reviewed how the board had previously approved 42 parking spaces. The project had increased in size as a result of the acquisition of a house to the south of the original project site, Hewitt explained. The total amount of required parking is 53 spaces, five of which will be provided on-site, he noted. That would increase the number of spaces needed in the parking system from 42 to 48. Hewitt pointed out that the number still falls within the framework of a pilot project the DDA was working on, based on assigning the ability to purchase monthly parking permits to owners of property, on a square-footage basis. At the July 3, 2013 DDA board meeting, Hewitt had described the pilot allocation as 1 monthly permit per 2,500 square feet.

[The DDA manages the system in a manner that sells monthly parking permits on a first-come-first-serve basis. Subsequently, DDA staff has reported little interest in the pilot program among property owners in the South University area. Executive director Susan Pollay said at the Sept. 4, 2013 board meeting that letters had been sent to property owners, but almost none of the property owners were interested in managing the parking permits on behalf of their tenants.]

Mayor John Hieftje said it’s important to note that the monthly parking permits purchased under the CIL program are 20% more expensive, so the parking system would receive more revenue than for a regular-priced permit. Hieftje also recalled a discussion at a downtown marketing task force meeting – which he invited DDA board members to attend – when a representative of the South University Area Association reported the impact of having more residents in the area had been positive. The Church Street development would increase activity and vibrancy in that area, he said.

Hewitt added that as a business owner in the area [of revive + replenish], that part of town has definitely become more vibrant and more active.

Keith Orr said that the allocation still falls within the pilot project square footage guidelines, so he’d be supporting the proposal, saying it made sense.

Outcome: The DDA board voted unanimously to approve the allocation, under the CIL program, of 48 parking permits in the Forest Avenue structure to the 624 Church St. project.

Award of Streetscape Plan Contract

The board considered awarding a contract to SmithGroupJJR and Nelson\Nygaard to develop a streetscape framework plan for the city’s downtown.

A budget for the project had been authorized by the board at its July 3, 2013 meeting – $200,000 over the next two years. The Nov. 6 resolution set a not-to-exceed amount of $150,000 and indicated that the project scope still requires refinement. The resolution establishing the budget referred in general terms to the DDA’s development plan, which the resolution characterized as including “identity, infrastructure, and transportation as key strategies, and also recognized that an enjoyable pedestrian experience is one of downtown’s principal attractions.”

The downtown streetscape framework plan, according to the July 3 resolution, would “align with these strategies, as it would address quality of place in streetscape design, on-going maintenance, and private development projects.” The July 3 resolution indicated there would be considerable collaboration with other entities like the city of Ann Arbor, the Ann Arbor Area Transportation Authority, and the University of Michigan. The benefit of having a streetscape framework plan, according to the July 3 resolution, would be “shortened planning phases, and thus cost, for future streetscape projects due to the overarching plan guidance.”

The most recent streetscape project undertaken by the DDA related to improvements on Fifth and Division, which included a lane reduction and bump-outs.

SmithGroupJJR provided consulting support for the DDA’s Connecting William Street project. Nelson\Nygaard is the consulting firm the DDA hired to study the parking system, resulting in a 2007 report.

Award of Streetscape Plan Contract: Board Deliberations

John Mouat led off by saying the streetscape framework plan would be a wonderful tool for the city and DDA as well as private developers.

Ann Arbor Downtown Development Authority board: Nov. 6, 2013

It’s a good step, he said. There’d been good cooperation between the DDA and city staff on the project. DDA planner Amber Miller had put in a lot of work, he said. A consultant selection committee consisting of DDA staff, city staff and a DDA board member had put together a request for qualifications sent out in mid-October, Mouat said. Four teams responded. Two of the qualified submissions were selected and then invited for an interview in October.

The selection committee recommended hiring SmithGroupJJR and Nelson\Nygaard, Mouat said. Noting that two firms are being recommended, Mouat said that while SmithGroupJJR will be the lead firm, Nelson\Nygaard will do a bit more of the work. Mouat noted that Nelson\Nygaard had completed similar plans for other cities across the country. SmithGroupJJR brings facilitation skills, engineering and more technical and “nitty gritty” skills, he said.

Mouat noted that the resolution in front of the board is for work not to exceed $150,000. The budget has been approved for up to $200,000 – to add additional services. Two things that might be added, Mouat said, were enhanced civil engineering services that the city staff is interested in. The other thing that might be desirable is to bring in an economist who can analyze the benefits of streetscape projects. Potentially, that work could be extended to gathering base data on what exists now in the downtown.

Roger Hewitt mentioned that the board has worked with Nelson\Nygaard in the past on the parking demand study. The experience with that firm had been very satisfactory, Hewitt said.

Outcome: The board unanimously approved the resolution on the streetscape plan.

Quarterly Financial Statements

Roger Hewitt gave the board an overview of the financial statements for first quarter of the 2014 fiscal year. [.pdf of July-Sept 2013 financial statements] That’s the three months of July through September for a fiscal year that starts on July 1. [The DDA's fiscal year aligns with the city of Ann Arbor's fiscal year.]

TIF (tax increment financing) income is slightly below budget, he reported. There’s still some TIF revenue that’s expected to come in later in the year. That amount is anticipated to be about $4.5 million by the end of the year. Operating expenses are also lower than budgeted, he said, but it’s anticipated that they’ll ultimately be within 3% of what was budgeted. Not a lot of capital expenditures have been incurred so far. Most of construction work occurs during the summer and for much of the construction in the latter part of summer, the DDA hasn’t been billed yet. Overall that number is expected to be close to what was budgeted, Hewitt reported.

Parking revenues for the quarter exceeded budget slightly, and it’s anticipated that the DDA will be close to budgeted gross revenue of a bit over $19 million, Hewitt said. Parking operating expenses are “a little off,” he reported. The costs for the First and Washington structure were budgeted in the previous fiscal year, but the work did not take place in that year. That’s because the private contractor doing the project did not finish the work, and did not have a certificate of occupancy for the parking deck portion of that apartment project [City Apartments] during FY 2013. The certificate of occupancy was the trigger, Hewitt said, for releasing the money. A budget revision would be necessary later in the year, he said.

Direct parking expenses were slightly under budget thanks to Republic Parking manager Art Low, Hewitt said. Overall, the numbers are anticipated to being close to budget by the end of the fiscal year.

A lot of maintenance on the parking structures had been done this summer, Hewitt said, but not many bills have shown up yet. He did anticipate spending the budgeted amount of $2.2 or $2.3 million. The housing fund, Hewitt said, is about where he thought it would be. He offered to answer any questions.

Hewitt then reviewed the unaudited income and balance sheet statements for each of the funds. There’s a bit over $1 million in the housing fund, but Hewitt noted that most of that is committed to projects the board has already authorized. The TIF fund balance is $5.3 million, Hewitt said, and the parking fund balance is $3.3 million. The TIF fund is high because the DDA has received almost all the income for the whole year, but not yet incurred the expenses.

Parking Numbers

Roger Hewitt delivered the parking report. For the first quarter of the fiscal year, revenue is up about 8% and hourly patrons are up about 4% compared to the same quarter in the previous year, Hewitt said. In dollar terms, revenue for the first quarter was about $5 million.

Hewitt noted information about weather and the number of University of Michigan football games that might affect the parking activity. He also said there were fewer spaces in the system than a year ago. [7,804 in 2012 compared to 7,727 in 2013. The difference is primarily in the number of on-street spaces and the number of spaces available in the Fifth and William lot due to construction of the Blake Transit Center.]

Keith Orr got clarification that some of the reduction in on-street spaces is due to the use of meter bags.

Revenue per Space: Structures (Chart by The Chronicle with data from the DDA.)

Ann Arbor Public Parking: Patrons (Chart by The Chronicle with data from the DDA)

Ann Arbor Public Parking: Revenue (Chart by The Chronicle with data from the DDA)

Hewitt reviewed a rough draft of a profit and loss statement on each parking structure for the past year. [.pdf of parking structure profit and loss statement FY 2013] He stressed that the information had not been audited. It illustrates that it is solid when considered as an entire system, he said. Newer structures don’t make money until the bonds that funded those structures are paid off, but they’re supported by revenues from other structures and on-street parking spaces, he explained.

As examples, Hewitt gave the Fourth and Washington and the Forest Avenue structures – both of them have lost money even though they have a high rate of occupancy. That’s because the bond payments on them are not yet paid off. Once the bonds are paid off, those structures are expected to become very profitable, he said. That compares to Liberty Square and Ann Ashley – with their bonds paid off, both are very profitable, Hewitt said. Liberty Square, Hewitt said, makes almost $1 million a year.

Russ Collins ventured that there would always be bond payments because there will always be capital maintenance. The expenses are consistent over time if the parking system is properly maintained, Collins said. Hewitt allowed that bond payments would be required if the system expands or needs major capital work.

Collins allowed that there’s a certain value in tracking the bond payments associated with a particular structure. But Collins didn’t want the public to think that at one point all the bonds would be paid off. It’s the DDA’s job to make sure there’s ongoing capital maintenance and investment, Collins said, to look after this capital asset.

Hewitt said that the structures at Maynard Street and Fourth and William aren’t profitable because both have a huge amount of money that has been spent over the years in major reconstruction and expansion. On Maynard, about 10 years ago roughly $11 million had been spent on major reconstruction. Older structures, even with enhanced maintenance, will need major structural improvements. So Hewitt concluded that Collins was right – that a point will not be reached where everything is paid off. It’s a system that needs both routine and major maintenance. He ventured that some of the DDA board members had been around long enough to know what happens when the parking structures are not properly maintained.

Communications, Committee Reports

The board’s meeting included the usual range of reports from its standing committees and the downtown citizens advisory council.

Comm/Comm: Bike Share

Keith Orr gave an update on the Clean Energy Coalition (CEC) bike share program. CEC will need to request the use of some on-street parking spaces for the bike share stations, Orr reported. A report had been received from B-cycle, the vendor selected for the program, and details are still being worked out. The request will come at the November partnerships committee meeting, with board approval requested in December. He allowed the timeline had slipped a bit. The CEC is still on course for targeting Earth Day in 2014 (April 22) for launch. A name for the bike share program has not yet been decided, Orr said, but a contest to name the program is going on. [The deadline to submit a name is Nov. 15.]

Comm/Comm: Abandoned Bikes

Keith Orr noted that many complaints had been received over the years about abandoned bikes. The DDA has always tried to work with the city on the problem, and now a system has been worked out. A process had been created to identify and remove bikes. Orr described how about 50 junk bikes were removed in October with the help of Republic Parking. There’s now storage for “bikes with value” – so a recovery system is now in place. A “sweep” will likely be conducted on a quarterly basis, Orr said.

Comm/Comm: Connector Study

Roger Hewitt announced the connector study getting closer to the end. [By way of background, the Ann Arbor Area Transportation Authority is currently conducting an alternatives analysis study for the corridor running from US-23 and Plymouth southward along Plymouth to State Street, then further south to I-94. The alternatives analysis phase will result in a preferred choice of transit mode (e.g., bus rapid transit, light rail, etc.) and identification of locations for stations and stops. A previous study established the feasibility of operating some kind of high-capacity transit in that corridor.]

The following week a series of public meetings would be held, Hewitt reported. The possibilities had been narrowed down to six different alignments, he said, but they can be mixed and matched. Meetings on Nov. 14 are scheduled at 9:30 a.m. at the Malletts Creek branch of the Ann Arbor District Library, at 1 p.m. at the downtown AADL and at 6 p.m. at the library’s Traverwood branch.

Mayor John Hieftje inquired if there had been any discussion of gondolas as a possible mode. Hewitt explained to Hieftje that the consultants were not enthusiastic about that option because of limited capacity. The needed capacity equated to that of a light-rail system, Hewitt said, and a system with gondolas wouldn’t have the needed capacity.

Comm/Comm: NHL Winter Classic

Susan Pollay, executive director of the DDA, reminded the board that she’d mentioned the logistical planning that was going in to preparations for the Winter Classic – an NHL hockey game between the Detroit Red Wings and the Toronto Maple Leafs scheduled for Wednesday, Jan. 1, 2014. The game will be played outdoors at the University of Michigan football stadium.

Pollay said she’d been working with city staff and University of Michigan staff on the preparations. She indicated that the Ann Arbor city council would be asked on Nov. 18 to approve a plan to create transit and parking strategies similar to those that are typically in place for a home football game at Michigan Stadium.

The game is scheduled for New Year’s Day, she noted, when AAATA buses and University of Michigan blue buses aren’t running. The plan will involved charging for use of public parking on that day, when typically no charges would be applied. That will allow people to reserve parking in advance, Pollay said. The idea would be to have as many people park away from the stadium as possible. Arrangements are being made with Briarwood Mall to allow people to part there. Shuttles would be running from hotels, and there’d be downtown shuttles that would stop at parking garages.

The Ann Arbor Area Convention and Visitors Bureau is also planning an event – called The Puck Drops Here – for New Year’s Eve, Pollay reported, which is expected to attract around 10,000 people to the downtown area. Michelle Chamuel, who placed second on the most recent season of The Voice, would be performing, Pollay said, well as DJs with a regional draw. Plans are coming together well, Pollay, said, but the city council needs to be comfortable with the logistics decisions.

John Mouat was curious to know how the community has reacted to the upcoming events. Mayor John Hieftje responded to Mouat by saying the downtown marketing task force had received an update from the Ann Arbor Area CVB, and the report was that a lot of people are responding positively, saying that they never really have anything to do on New Year’s Eve. Hieftje noted that Toronto has a population willing to travel, with 45,000 expected to arrive in Ann Arbor on buses. The game is a chance to showcase the city, Hieftje said – and an opportunity for Ann Arbor to really shine. If even 10% of those who attended the game wanted to come back, that would be a really good thing, he said.

Hieftje ventured that Canadians are generally more polite than Americans.

Board chair Sandi Smith asked if the city council needed to pass a resolution to allow for the DDA to charge for parking. Pollay indicated that the Nov. 18 resolution was not about asking permission, but rather just making sure that if there are concerns, those concerns are addressed.

Hieftje felt that the fans who are arriving for the game are paying a whole lot of money for tickets – and they won’t care if they have to pay a bit more for parking. It was important for the DDA to cover its costs, Hieftje said. Keith Orr noted that if the weather is bad for the game, which will be played outdoors at Michigan Stadium, then Jan. 2 would be the back-up date, and it would take place at 7 p.m.

In more detail, the resolution that the Ann Arbor city council will be asked to consider on Nov. 18 will implement many of the conditions that apply during University of Michigan home football games. For example, the newly implemented street closures for home football games would also be authorized for the Winter Classic:

• E. Keech Street between S. Main and Greene streets, limiting access to parking permit holders on Greene Street from E. Hoover to Keech streets
• The westbound right turn lane on E. Stadium Boulevard (onto S. Main Street) just south of the Michigan Stadium
• S. Main Street closed to both local and through traffic from Stadium Boulevard to Pauline

Those closures would be effective three hours before the game until the end of the game – with the exception of southbound S. Main Street, which would be closed beginning one hour before the game until the end of the game.

The council will also be asked to invalidate peddler/solicitor permits and sidewalk occupancy permits in the following areas:

• S. State Street from E. Hoover Street to the Ann Arbor Railroad tracks
• Along the Ann Arbor Railroad tracks from S. State Street to the viaduct on W. Stadium Boulevard
• W. Stadium Boulevard from the viaduct to S. Main Street
• S. Main Street from W. Stadium Boulevard to Hill Street
• Hill Street from S. Main Street to S. Division Street
• S. Division Street from Hill Street to E. Hoover Street
• E. Hoover Street from S. Division Street to S. State Street
• S. Main Street from Scio Church Road to W. Stadium Boulevard
• W. Stadium Boulevard from S. Main Street to Prescott Avenue

The council will be asked to authorize a special temporary outdoor sales area so that the owners of commercially and office-zoned property fronting on the following streets could use their private yard areas for outdoor sales and display:

• West side of S. Main Street between Stadium Blvd. and Hoover Street
• East side of S. Main Street from 1011 S. Main to Hoover Street
• North side of Hoover Street between S. Main and S. State streets
• North side of W. Stadium Blvd. between S. Main and S. State streets

The council would also be asked to designate the Winter Classic game as a date on which the usual front open space parking prohibition does not apply. So residents who customarily offer their lawns for home football game parking would be able to do so for the Winter Classic as well.

Comm/Comm: IDA Conference

Joan Lowenstein reported that the most recent partnerships committee meeting had included a lot of time debriefing from the International Downtown Association Conference in New York City, which took place from Oct. 6-9. Lowenstein said that as usual, the conference was very valuable and attendees had learned a lot from people all over the country.

Ann Arbor DDA board members Joan Lowenstein and Bob Guenzel.

Some of the topics of sessions attended included nurturing downtown streets, the role of arts and culture, and ways to create metrics of success, Lowenstein said. Most of the attendees were members of business improvement districts (BIDs), she noted. Lowenstein described the possibility that the DDA could become a source of statistics. She said there’s evolving technology to capture pedestrian and vehicle traffic – besides hiring interns to stand on a street corner using counters. She ventured that maybe go!pass and Flocktag could be used to gather data.

Lowenstein also mentioned open space management as a topic. She said that New York City had 57 different BIDs throughout the city. Some of those worked with nonprofits to enliven public spaces. Lowenstein stressed that the spaces in New York City exist through the efforts of organizations. The partnerships committee meeting had included the idea of branding downtown as a whole and the possibility of creating a downtown marketing plan.

Sandi Smith talked a lot about metrics, Lowenstein reported. The DDA’s state of the downtown report is a solid base, she said, but there are ways to be more creative.

About the IDA conference, John Mouat said it was interesting to hear about shifting trends in how people shop. He also enjoyed a visit to the High Line – the elevated park on an abandoned rail line. He described how the High Line goes under a building, leading to a big display by Kindle that includes couches and coffee tables.

Smith responded by noting that the High Line is run by a conservancy, which rents out that space and helps fund other nice things, she said.

Comm/Comm: FOIA

During the Nov. 6 meeting, Susan Pollay, the DDA’s executive director of the DDA, reported to the board in her capacity as the DDA’s Freedom of Information Act coordinator. She described receiving a FOIA request from [Ann Arbor Chronicle editor] Dave Askins [this reporter] for which the DDA had produced records, but which included some redacted content.

An appeal had been submitted, Pollay reported, and as a result of that appeal, the DDA would produce a “clean copy” of the records as requested in the appeal. Board chair Sandi Smith then stated that it appeared that the DDA has been inundated with requests made under Michigan’s FOIA. She wanted the executive committee of the board to review the FOIA policy and consider refreshing the FOIA policy.

[The appeal concerned the redaction of items like the government email address of a state university employee, which had been inappropriately redacted by the DDA under the statute's exception for unwarranted intrusion into someone's private life.]

Comm/Comm: 5-Year Transit Update

Nancy Shore, director of the getDowntown program, addressed the board during public commentary at the end of the meeting. She updated board members about a series of public meetings that the Ann Arbor Area Transportation Authority is holding to explain its five-year transit improvement program. Everything is contingent on additional funding, she said.

Comm/Comm: Conquer the Cold

In her remarks to the board during public commentary at the end of the meeting, getDowntown director Nancy Shore plugged the program’s Conquer the Cold commuter workshops and classes. She reported that 80 people had registered for classes this year. Fleeces would be given away for the first 200 people who sign up, she said.

Comm/Comm: Civic Tech Meetup

During public commentary at the end of the meeting, Ed Vielmetti told the board about the Ann Arbor Civic Technology Meetup. It’s an effort he’s started to get citizens involved with technology and the city. The next meeting will take place at Menlo Innovations space on E. Liberty St. on Nov. 25 at 7 p.m. The topic of that meeting would be public data sources, he said.

As an example of using public data sources, Vielmetti reminded the board about an effort that had been made a few years ago to come up with a plan for mobile access to parking availability data. He’d modified that approach and had now developed something for his own use. He said he’d be happy to show everyone. It’s a way to show people which parking facilities are full and which are empty, he said.

Comm/Comm: Former Y Lot

Former DDA board member Dave DeVarti addressed the board during public commentary at the end of the meeting. He told them it was great to see some former colleagues who were still there.

Former DDA board member Dave DeVarti.

He wanted to put forward an idea he’d been thinking about for some time, he said, which he’d already mentioned to some people. He suggested that something might be done in the direction of affordable housing on the former Y lot. [The city-owned parcel is locate on William Street between Fourth and Fifth avenues. The city had hired Colliers International and local broker Jim Chaconas to handle a possible sale, as the city faces a $3.5 million balloon payment this year from the purchase loan it holds on that property. At its Nov. 7, 2013 meeting, the city council directed city administrator Steve Powers to negotiate a sales agreement with Dennis Dahlmann for the purchase of the property.]

DeVarti proposed that the Ann Arbor DDA could ante up the money that’s owed on the city’s loan and remove the need to repay the debt as a consideration. That would give the city a range of options, he said, which would provide some leverage to encourage the development of affordable housing at that site or something else, or the land could be used in other ways. He would be willing to work on a committee to try to flesh out some ideas, he said.

Comm/Comm: Ambassador Program

For several years, the Ann Arbor DDA has had an interest in maintaining some kind of additional patrol presence in the downtown. In the mid-2000s, the DDA entered into a contract with the city of Ann Arbor with the implicit hope that the city would maintain the dedicated downtown beat cops. (That contract was structured at that time to pay the city $1 million a year for 10 years, with the city able to request up to $2 million a year for a maximum of $10 million.)

That hope was not realized, and the DDA has since discussed the idea of providing additional funding for police or for ambassadors. The idea of “ambassadors” was explored in the context of subsequent re-negotiations of the contract between the city and the DDA under which the DDA operates the parking system. The DDA wanted to be assigned responsibility for parking enforcement (a function performed by the city’s community standards officers) and imagined that activity to be performed in an ambassador-like fashion.

At its June 3, 2013 meeting, the city council approved a resolution encouraging the DDA to provide funding for three police officers (a total of $270,000 annually) to be deployed in the DDA district.

During communications time at the start of the DDA board’s Nov. 6 meeting, Roger Hewitt reported that he, John Splitt, Keith Orr and DDA executive director Susan Pollay had made a field trip to Grand Rapids and met with Grand Rapids DDA director Kris Larson about that city’s ambassador program.

Hewitt said the group had received a lot of information about the Grand Rapids downtown ambassador program. The ambassadors provide directions to help locate businesses and services, call for medical assistance, provide information on parking, provide social service information for people in need, identify and report hazards and contact police. What had caught everyone’s attention, Hewitt said, was that they’d observed an ambassador holding an umbrella over a woman putting money in a parking meter. Hewitt said he thought it was an idea worth pursuing, and that the DDA’s operations committee should take a look at.

Splitt confirmed that he was along for the ride and said he was very impressed by the ambassador program in Grand Rapids. He thought the Ann Arbor DDA should take a serious look at implementing it here. Orr called it a very informative trip. He noted that besides the ambassador program, the trip had included a look at the structural relationship between the Grand Rapids DDA and the city. There was an umbrella organization that did the visioning for a variety of organizations, Orr said, including the DDA. He said it was interesting to see that structure and the success that had resulted from that approach.

Sandi Smith asked if the ambassadors work with Grand Rapids police department. Yes, Orr confirmed, there’s a direct contact between ambassadors and the police, but ambassadors are not deputized in any way. They act as “eyes and ears” for the police department, Orr said. They’re trained differently, with a social services component, so that situations can be diffused, before they become “police situations.”

Hewitt added that the ambassadors are “not assistant cops or anything.” Orr noted that Grand Rapids hires a company that specializes in this type of thing [Block by Block]. Ambassadors are there to help, but not to enforce the law and not to perform police functions.

Smith confirmed with Hewitt that he’d bring a proposal forward through the operations committee. Mouat indicated support for the idea that if someone is having a problem and they contact a social services organization, it goes directly to someone who can help solve the problem without having to involve the police.

Orr followed up on Mouat’s observation by saying it was important to select the right person with the “right beat.” In a geographic area where there were a lot of social services agencies, the ambassador is actually a social worker – because he was able to help people find the services they needed instead of treating it as a police problem. Orr noted that while the ambassadors are not deputized, they do wear uniforms so there’s a perception of added security and that the area is being patrolled.

Russ Collins said he was not on trip to Grand Rapids, but reported that he was aware of an ambassador program in Schenectady, New York that works with Schenectady’s equivalent of Ann Arbor’s Delonis Center, a shelter for the homeless. He said that the Schenectady program provided a transitional employment opportunity.

Comm/Comm: Ashley Terrace On-Street Parking

Theodore Marentis addressed the board during public commentary at the start of the meeting on behalf of the 111 N. Ashley Condominium Association. He’s vice president of the board of that group. He described the building as located across from the Ann Arbor Area Convention and Visitors Bureau. He wanted to talk to the board about one or perhaps half a space of on-street parking. He said there’s a parking shortage due to the higher density of the building – with its 100 units of residential space.

It’s hard for people to drop off kids or things they’ve purchased while out shopping during the day or in the evenings, Marentis said. That’s because they don’t have control of the space right by the entrance to the building. They’d be content if even half of the space could be given over to the building for its control. Marentis suggested some system of a windshield card that could control use of the space, and pointed to the residential parking permit areas located to the north of the building as an example of the regulation of on-street parking that already exists in the area. His board had sent him to address the DDA, and he told the board that the condo association was open to discussion.

Present: Al McWilliams, Bob Guenzel, Roger Hewitt, John Hieftje, John Splitt, Sandi Smith, Russ Collins, Keith Orr, Joan Lowenstein, John Mouat.

Next board meeting: Noon on Wednesday, Dec. 4, 2013, at the DDA offices, 150 S. Fifth Ave., Suite 301. [Check Chronicle event listings to confirm date]

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Because the medical marijuana licensing ordinance that received initial approval that same evening ultimately did not include the collection of any personal information, the resolution was withdrawn by its sponsor, Sabra Briere (Ward 1). The non-disclosure policy had been discussed, but postponed, at the council’s March 7, 2011 meeting.

The resolution had originally been introduced by Briere in the context of the council’s current work on zoning and licensing ordinances for medical marijuana businesses – legislation that has not yet been given final approval by the council. [.pdf of original draft resolution]

This brief was filed from the boardroom in the Washtenaw County administration building, where the council is meeting due to renovations in the city hall building. A more detailed report will follow: [link]

The board also voted 5 to 2 to allow themselves access to the full set of candidate applications, ultimately resolving a conflict they have been grappling with for several weeks. While it grants access to applications, the motion passed by the board prohibits individual trustees from directly selecting specific candidates out of the pool for consideration. The motion stipulates that if trustees’ review of the applications leads them to feel that the established search criteria were not well-applied to the candidate pool, a majority of the board may request an additional review of the pool by the search firm.

The meeting also saw less contentious resolutions of the other remaining aspects of the search process, including: the candidate profile, promotional materials, application form, advertising plan, and timeline.

Superintendent Compensation

The board had discussed compensation for the new superintendent at an earlier study session, without resolution. In the interest of reaching a decision, they directed Ray & Associates, the firm hired to assist with the superintendent search, to provide additional comparison data on salaries of superintendents in other university towns. The additional data was reviewed and discussed at Wednesday’s meeting.

Bill Newman of Ray & Associates summarized a table he had e-mailed to the board earlier in the week, which listed the 2010-11 salaries and 2011-12 estimated salaries for nine districts near other large universities – Iowa City, Iowa; Knox County, Tenn.; Lincoln, Neb.; Milwaukee, Wisc.; Seattle, Wash.; Cambridge, Mass.; Socorro ISD, Texas; Albuquerque, New Mexico; and Sacramento, Calif. The average estimated salary of these districts for 2011-12 was $246,001, with a range of $189,520 to $272,950. All of the districts listed had enrollment at least double that of the 16,536 students in Ann Arbor Public Schools, except for Iowa City (12,500 students), and Cambridge (6,500 students).

Newman added that the board should take into account that although a lot of these districts are larger, they might have attracted candidates who might have looked at AAPS. Setting a higher salary attracts better candidates, Newman stated, explaining that each increment of roughly $25,000 would attract a different tier of candidates.

Trustee Glenn Nelson asked if offering the average comparison salary for 2011-12 – $246,001 – was overshooting or undershooting. He also asked Newman how likely it is that a potential candidate who thinks the listed salary is low will inquire how fixed it is – rather than just not apply.

Newman answered that Ray & Associates recommends advertising “in the range of a number,” so the board has some leeway. He added that if a really good candidate questioned the upper limit of the salary, he would tell them it was “narrowly flexible,” and would ask the board for direction on any increase.

Trustee Andy Thomas stated that his understanding of the posted salary benchmark was more of a bottom limit, and that candidates who applied for the position would expect nothing less than that. Mexicotte disagreed, pointing out that adding the phrase “commensurate with current experience or training” would allow the board to depress the salary as well. Newman agreed, saying that a salary offer could drop or rise as much as $10,000 to $12,000 in either direction.

Thomas argued that AAPS should not be paying a superintendent the same as a superintendent would get in a district two to three times larger. Mexicotte retorted that the job is the same, regardless of the number of students.

Trustee Christine Stead and Nelson also argued that the similarities among the districts on the list outweigh their differences in size, saying that opportunities to leverage the university and existing capacity to improve the quality and access of educational services are the key considerations.

Thomas disagreed, saying that having three times the students means having three times the discipline issues, and three times the parents to deal with. He noted that a larger district would also have significantly greater resources to allocate, since revenue is based on enrollment. Finally, Thomas expressed concern that paying the superintendent a higher salary would result in pressure to increase the salaries of other administrators as well.

Trustee Susan Baskett pointed out that the board should keep the public perception, cost of living, and economics of the state of Michigan in mind. She cautioned that when Livonia Public Schools raised the salary of their superintendent by $50,000, it was not well-received, and that poor public perception could impact the passage of the special education millage in the spring.

Trustee Simone Lightfoot asked what former superintendent Todd Roberts’ starting salary had been, and what was included in his compensation package. She also asked whether the board would want to propose a similar package for the incoming superintendent.

Mexicotte answered that Roberts was hired four years ago at $175,000, and his compensation remained at that level each year until he voluntarily took an 8% pay cut during the last school year. Since he was opposed to raising his salary, Mexicotte said, the board rewarded him in other ways. They gave him $5,000 against the $13,000 health insurance plan that he would have received had he not been insured under his wife’s policy, which is a greater amount than teachers receive for forgoing health insurance.

AAPS also offered Roberts a longevity bonus, Mexicotte continued. In the state of Michigan, teachers and administrators can opt to “buy years” of retirement, allowing them to retire with full pension benefits sooner that they could otherwise. Mexicotte explained that Roberts’ longevity bonus was arranged so that for every three years he worked for AAPS, the district would buy him one year of retirement, at a value of approximately $30,000 each year.

Finally, Mexicotte said, Roberts was given a cell phone, laptop, and car for use in his work. She suggested that those amenities would be part of any contract made to the incoming superintendent as well, along with similar health care and retirement plans.

At that point in the conversation, Mexicotte focused the discussion by introducing a motion to pay the incoming superintendent “in the range of $245,000.” She asked for feedback from her colleagues. Trustee Irene Patalan seconded the motion.

Baskett asked for clarification on how the salary range would be presented in the promotional materials and advertisements for the position. Newman explained that the salary benchmark would be presented as a range, and that it would be clear in the materials that the final salary for a successful candidate would be negotiated by the board.

Lightfoot argued that a $70,000 increase in salary from what Roberts had been paid was “in excess.” She suggested she was more in favor of a $220,000 base range.

Newman suggested that the board consider the one longevity bonus year Roberts received as part of his base pay for the purpose of comparison, which would have made his salary $205,000. He also challenged the board to address the public perception directly, and acknowledged that many people in the community will be surprised by the number, thinking, “How can somebody be worth three, four, ten times what I make?”

Still, Newman said, the market for superintendent salaries has held up even though many districts are making significant cuts. He counseled that the public outcry happens in the opposite direction as well, when a really good superintendent leaves the district for a larger salary elsewhere. Mexicotte agreed, saying that she received criticism when Roberts left – because the board had not made a sufficient counter offer, even though his motivation for leaving was purely based on being closer to family.

Stead pointed out that Roberts also incurred no moving costs to work at AAPS, because he was already living in Ann Arbor at the time. She noted that Roberts was not a superintendent when he was hired. He was a deputy superintendent of Birmingham Public Schools before coming to AAPS.  This time around, the district is looking to attract someone who is already a seated superintendent, she said. Stead said $245,000 was higher than she was thinking, but that she would support the motion.

Nelson pointed out that another way for board members to use Roberts as a reference point is to compare their offer to what Roberts is making in his new position in North Carolina. If you add up Roberts’ new salary – $210,000, plus a house at a value of approximately $20,000 annually, plus a 3% cost of living raise – Nelson argued, you’ll get a salary of $237,000. Nelson pointed out that Mexicotte’s motion sets the salary for the incoming superintendent at only $8,000 more than Roberts will be making next year, and that “we know he is the kind of person we want as a superintendent.”

Board president Deb Mexicotte sought a $245,000 salary range for the new superintendent and moved the board to a compromise position on the candidate review process.

Baskett dissented, and referred again to the upcoming special education millage. “I think this is crazy, and this is going to be a hard sell to our community as we go to them to ask for more money,” she said, saying that the $70,000 difference between Roberts’ former salary and the proposed new salary could be put toward other services for students instead.

Mexicotte explained her reasoning for suggesting the motion. She looked at the average, she said, of superintendent salaries at similar university towns, and then considered that Michigan is not a compelling place to move to right now. She also considered, she said, what may need to happen to the salary down the road if the board continues to deal with declining state funding. “[The proposed salary] may seem high and odd to the community at first, but a couple of years down the road, we’ll be in the middle, and then in a couple more years, we’ll be at the bottom again. This would give us some parity in terms of longevity.”

The motion to set the incoming superintendent’s base salary “in the range of $245,000″ was approved 4-3. Mexicotte, Nelson, Patalan, and Stead voted for the motion, and Baskett, Lightfoot, and Thomas voted against it.

Candidate Review Process

Mexicotte opened the discussion on the candidate review process by going over how the board had in recent weeks been questioning how much access to grant to– and to whom–  information about the whole applicant pool. The opinion of the district’s legal counsel, she said, was that under the proper circumstances and control by the search firm, the applications could be available for board member review without being subject to disclosure via the Freedom of Information Act (FOIA).

At the previous board meeting on Oct. 27, the board directed its executive committee to craft a proposal for the board’s consideration. Mexicotte reported that though the committee had enjoyed a “lively, interesting, and civil” discussion, they had not been able to reach consensus on a compromise motion regarding this issue. Therefore, she opened the floor for discussion.

Trustee Christine Stead made a motion to restrict board access to information about the entire candidate pool.

Stead moved that trustees should review only those candidates for the superintendent position who had been thoroughly vetted by Ray & Associates, and who were presented as semi-finalists by the firm. She also noted that Ray & Associates would provide a summary table of candidate characteristics.

Newman added that the summary table would take the board through the process of how the selection of the semi-finalists occurred using the criteria established by the board, and would not contain any candidate names.

Patalan seconded Stead’s motion, and Mexicotte asked that the board use a round robin for each trustee to state his or her position on the motion.

Stead began, saying that the overarching goal for all board members was to end up with the best possible superintendent out of this process. She noted that the board wants the best applicants to apply, and that for people who are not from Michigan, applying to an “open state might already be a struggle” without introducing the additional risk of breaching confidentiality, even though any breach would be unintended. Stead asserted that providing full access to the applications is not typical, does not add value, and would not take advantage of Ray & Associates’ expertise. She summarized by arguing, “This [motion] maintains care of candidates, protects us, leverages Ray, and provides a fair and objective process.”

Nelson argued that the board would be best served by finding the middle road on this issue, and said that while he would not support Stead’s motion, he would also not support his original position of allowing trustees to “cherry pick” candidates. Nelson stressed that board harmony was an important part of his vision, and that board members needed to celebrate difference among trustees, while working together in a cohesive fashion.

Thomas expressed his disappointment that a compromise had not been reached by the executive committee. With the choices at hand, Thomas said, he supported Stead’s motion. “Let Ray & Associates handle what we are hiring them to do, and let’s proceed according to that, without having to go out and rework, redo, or rehash in any way whatsoever the work they have already done, and which they are quite competent and capable to do.”

Baskett said that while she appreciated candidate care, she wanted to emphasize client care. She framed the question in terms of her ability as a trustee to do what the community expects of her. Stead’s motion is too restrictive, she said, in terms of being able to hold the search firm accountable. “There is a trust factor in this community, whether we want to accept it or not,” Baskett asserted, adding that the stated concerns about breaching confidentiality were overblown.

Lightfoot expressed frustration that the fear of breaching trust was even part of the discussion, and cited the fact that there are no cases of that ever happening with this board. The issue, she argued, is being able to do her due diligence as a trustee. “It is important to weigh in on the [candidate] pool,” she said. “We should be able to say where the data came from, and know what we are talking about.”

Patalan began by thanking her colleagues for working so hard to resolve this issue. She asserted that the assurance of confidentiality is important to many good applicants, and expressed concern that if access to applications is allowed, the best candidates would not apply. Noting that Ray & Associates’ vetting process was fair, objective, organized, and successful for 35 years, Patalan said she was comfortable being directed by the consulting firm as to which candidates to review.

Mexicotte wrapped up the round robin, noting that the board was still split three to three, and that she would be the deciding vote. She, like Nelson, said she would vote no on this, as well as the original opposing idea of letting trustees pick candidates out of the pool that Ray & Associates had not recommended.

Saying she had dual goals of securing the best possible superintendent, while also having the board feel that its due diligence was honored, Mexicotte said she would move the board instead toward a compromise path. “I see us moving forward so we don’t have winners and losers on this. Even though there is risk, I think a compromise engenders in us the utmost cleaving of values like confidentiality, trust in each other, and focusing on what is best for students in this district.”

Outcome: The vote on Stead’s motion to allow access only to the applications brought forth by Ray & Associates as semi-finalists for the position failed 4-3. Baskett, Lightfoot, Mexicotte, and Nelson voted against it, and Patalan, Stead, and Thomas voted in favor of it.

On the failure of Stead’s motion, Mexicotte asked for a new motion to come forward. Lightfoot moved that trustees have the option of viewing all applications that come in, ensuring no breach of confidentiality, and without an option of bringing forward additional names for consideration.

Thomas asked whether Lightfoot’s motion contained a way to bring forth general concerns to Ray & Associates or to the board. Mexicotte suggested amending the wording of Lightfoot’s motion to allow for a majority of trustees to request an additional review of the candidate pool by Ray & Associates, while understanding that an additional review like that could jeopardize the search timeline as it’s currently laid out. Lightfoot accepted the amendments to her proposal, and Mexicotte asked the board if anyone had anything else to add to the compromise motion.

Baskett questioned whether Mexicotte’s wording would restrict application viewing to the time before a slate of semifinalists was brought forth by Ray & Associates. Mexicotte clarified that she intended for the applications to be viewable “at any time that is appropriate.”

Lightfoot questioned the emphasis on confidentiality in the discussion. Mexicotte commented that over her years on the board, she has witnessed some mistakes – a casual comment, even an eye roll, she said – that demonstrate how “even a small risk can get away from us.” She reminded the board that any deviation from the agreed-upon process could have severe consequences – the board could lose credibility, the timeline could be jeopardized and Robert Allen might not be willing to stay on as interim superintendent of AAPS for another year, or top candidates might not apply. Mexicotte reiterated that the board needs to do everything it can to “move forward with camaraderie and trust, and get the best candidates.”

Both Stead and Bill Newman from the search firm made final arguments against the motion to allow access. Newman reiterated that preventing trustees from viewing all the applications is a way to protect the board. If there is a leak, he said, and the board does not have access to the full candidate pool, “we can say, ‘It did not come from the board … Perhaps it came from our vetting process of the candidate, or the candidate themselves.’”

Stead restated her concern that a truly excellent candidate – who is doing a great job, loves his or her district, and is well-compensated – might perceive the risk of applying to AAPS as more than he or she is willing to bear. She spoke to Mexicotte directly, saying, “I hear you when you say you want to do everything you can to get the best candidates, but this feels like not doing everything we can.”

Mexicotte responded, “I want the best candidates, and a unified board supporting them.” She then re-read the motion with its amended language, Thomas seconded the proposal, and the board voted.

Outcome: The vote on Lightfoot’s motion to allow trustees to review the entire applicant pool at any time that is appropriate in the process – under the constraints of Ray & Associates maintaining legal ownership of the applications, and while maintaining confidentiality – passed 5 to 2. The motion also prohibits board members from introducing specific names from the candidate pool to the board for consideration, but allows a majority of the board to request an additional review of the candidate pool by Ray & Associates, if it is felt that the selection criteria were misapplied. Baskett, Lightfoot, Mexicotte, Thomas, and Nelson voted in favor of the motion. Patalan and Stead voted against it.

Trustee Simone Lightfoot, during deliberation on the candidate review process. She weighed in for the ability of the board to have access to information about the whole applicant pool.

Mexicotte thanked her colleagues for the thought and care they put into the issue, and acknowledged that “this was difficult.”

Newman asked for clarification about how the board would ask for additional review, and Mexicotte responded, “Based on the application of our criteria, we might send you back to the pool to collect more of a certain kind of candidate, while agreeing to extend the timeline as necessary.”

Nelson added that Mexicotte has been designated Ray & Associates’ contact member on the board, and that the search firm should not respond to requests from individual trustees. Mexicotte concurred, “This motion says we will only send them back to the pool by majority vote, and only based on the criteria.”

Lightfoot closed the discussion by saying that she was frustrated with the conversation that had taken place, in particular the implication that “Simone has this plan to pick her own people.” The board’s discussion had felt “condescending, like there are children being talked to,” she concluded.

Review of Community Input

Newman presented the board with a set of themes that emerged from the public meetings held, and surveys completed to aid in developing the candidate profile.

Community Input: Public Meeting Themes

Newman presented 10 main themes that had emerged in at least three or four of the 12 public meetings held to solicit input for the candidate profile:

• Ann Arbor has excellent resources;
• Schools have strong community support, and the community has high expectations of schools;
• AAPS has a great reputation, though some see the district as “coasting;”
• There is universal concern regarding the budget and possible upcoming cuts;
• The new superintendent will need strong academic credentials, and should be decisive, inclusive, a strong communicator and listener, a visionary, and a risk taker;
• Progress in closing the achievement gap has been too slow, and the focus of efforts too narrow (AAPS should include closing special education disparities as well as those along racial or socioeconomic lines);
• Differentiated instruction and strategic plan initiatives are positive steps in the right direction for the district;
• The new superintendent will need a track record of successful negotiations with organized labor;
• Accountability is highly desired throughout the district, and closer management is welcomed if effective; and
• The new superintendent will need to be visible, accessible, and engaged in the community.

Lightfoot pointed out that some of the characteristics sought by the community that she heard at the community meeting she attended were not represented in this list. Newman responded that specific characteristics recommended by Ray & Associates to be included in the promotional materials would be presented later. Mexicotte also pointed out that some characteristics may be embedded in other themes, such as the idea that differentiated instruction requires that teachers be culturally competent.

Nelson asked if there were other school districts that Newman knew of that operated on a management model like a university, with a president taking care of outside matters, and a provost managing the academic programs. Newman said there are some districts in which superintendents teach, others in which they hire a cabinet to run things and focus on the running the business of keeping the school in the forefront of the community. Newman said there are successful districts at both ends of the spectrum.

Baskett asked how the themes were gleaned from the meetings, and Newman responded that the themes were ideas that came up in more than one community meeting, usually in three or four.

Patalan asked if the survey data was included in the themes, and Newman said it was not.

Community Input: Survey Data

Newman presented a spreadsheet summarizing the results of the survey completed by community members at the forums or online. He noted that the goal of the survey was to whittle down 33 qualities often desired in superintendents to the 10 or so most desired by the AAPS community. The 10 will be included in a promotional flyer advertising the superintendent position.

A total of 257 surveys were completed – 101 at community forums, and 156 online. Newman noted that having the survey online likely contributed to the fact that not everyone who attended a forum completed a survey there.

The surveys had been color-coded by community group, so that the opinions of each set of stakeholders could be more clearly identified during the analysis. Baskett noted that many of the participants at the Black Parents Student Support Group (BPSSG) forum did not want their responses to be identifiable as being from that group and chose instead to complete the survey online to stay anonymous. Mexicotte responded that color-coding the surveys had been done on request of the groups participating, including the BPSSG.

The board reviewed the spreadsheet, and Newman walked them through how to compare the rankings of each characteristic by different groups. For example, the characteristic “Has leadership skills to respond to the challenges of ethnic and cultural diversity” was highly ranked by almost all constituent groups, making it the highest ranked quality overall. Newman noted that this fact “says something unique about this district.”

Nelson expressed relief that most of the characteristics ranked highly by the board were also ranked highly by the community.

Newman suggested that the large volume of comments that people added at the end of their surveys could not be analyzed efficiently enough to be worked into the promotional flyer. He encouraged board members to read all the comments, and to use them to begin crafting interview questions for candidates around specific topics of concern to the community. Mexicotte suggested a question format such as, “How have you responded to this issue in your district, since it’s a big deal here?”

Newman said the board would also receive guidance directly from Ray & Associates on crafting interview questions, and would receive customized questions a couple of weeks before the interviews for review. Any other questions the board crafts in response to the survey comments need to be prepared for the evening that Ray & Associates presents the list of semi-finalists for discussion and review.

Community Input: Recommended Superintendent Profile

Newman then presented a list of the highest-ranked characteristics for board approval, and explained that, once approved, they would be added to the promotional flyer being distributed to advertise the superintendent position. The board suggested a couple of slight wording changes, and then approved the following list of characteristics:

• Inspires trust, has high levels of self-confidence and optimism, and models high standards of integrity and personal performance;
• Possesses the leadership skills required to respond to the challenges presented by an ethnically and culturally diverse community;
• Possesses ability to enhance student performance, especially in identifying and closing or narrowing the gaps in student achievement;
• Is a strong communicator – speaking, listening, and writing – and will listen to input, but is a decision-maker;
• Is strongly committed to a “student-first” philosophy in all decisions;
• Possesses excellent people skills and presents a positive image of the district;
• Has experience in the management of district resources and sound fiscal procedures;
• Has knowledge of emerging research and best practice in the area of curriculum/instructional design and practice;
• Has demonstrated strong leadership skills in previous positions;
• Is able to build consensus and commitment among individuals and groups with emphasis on parent involvement; and
• Is able to delegate authority appropriately while maintaining accountability.

Finalization of Materials, Timeline

Liz Margolis, AAPS director of communications, presented the board with a draft promotional flyer for the superintendent position, and the board took a few minutes to read through it. The one-page, double-sided flyer contained sections on the AAPS mission, schools, staff, budget, and student achievement, as well as a description of the city of Ann Arbor, the superintendent profile as just approved, and information on job requirements, compensation package, and application process.

AAPS director of communications, Liz Margolis, taking notes on recommended changes to the promotional flyer.

Newman suggested that the board consider how much information to include on the flyer versus how much to expect candidates to research the district on their own. In general, board members commented that they were pleased with the amount of background information on the flyer, and felt that it left enough unsaid to be teased out during the interview process.

Trustees suggested a few minor additions, such as highlighting the district’s acknowledgment of gaps in achievement among groups of students, and commitment to closing such gaps. They also suggested giving a more detailed description of the diversity of the student body in multiple dimensions.

Mexicotte moved that the board direct Margolis to make the changes as suggested and then send it out. The flyer as amended was approved unanimously.

The board had few questions or comments on the application form proposed by Ray & Associates before approving it. They asked that the wording being reviewed by legal counsel, and agreed to accept electronic signatures to facilitate ease of applying. The full position posting  on Ray & Associates website includes the application form approved by the board.

Finally, the search timeline was slightly amended to align the final two meetings with the search firm with days when the board was already scheduled to meet. The timeline was then approved.

Items from the Board – Youth Voice

Mexicotte noted that youth who participated in the superintendent candidate profile, as well as other youth with whom she has worked, have expressed interest in having more of a voice in the district. She suggested that one of the committees should consider exploring models for incorporating more of the “youth voice” in the board’s work, such as having a youth advisory council. Baskett noted that some other school boards have a youth member, though she said this would not be the right time to consider such an arrangement in AAPS due to the superintendent search. Patalan added that when she was co-chairing a PTSO, the other co-chair was a student, and it worked well.

Newman confirmed that youth who were part of the community forums consistently expressed wanting to have more access to the superintendent. Mexicotte mentioned that one model would be to direct the superintendent to work directly with a group of students.

Neither standing board committee committed to working on the issue at this meeting.

Present: President Deb Mexicotte, vice president Susan Baskett, secretary Andy Thomas (by speakerphone), treasurer Irene Patalan, and trustees Glenn Nelson, Simone Lightfoot, and Christine Stead. Also present was Robert Allen, interim superintendent of AAPS; Liz Margolis, AAPS director of communications; and Bill Newman of Ray & Associates.

Next regular meeting: Nov. 17, 2010, 7 p.m., at the downtown branch of the Ann Arbor District Library, with an AAPS Education Foundation donor reception held immediately before the meeting at 6:30 p.m. [confirm date]

Now the city of Ann Arbor has settled that lawsuit, accepting a range of requirements under the agreement.

Under terms of the settlement signed on Monday, the city has agreed to comply substantively with a request that one of the plaintiffs – The Great Lakes Environmental Law Center – had originally made over two months before the lawsuit was filed. That request was to conduct a study of environmental impacts associated with construction of the new underground parking structure, which is being built by the Downtown Development Authority.

The lawsuit settlement does not resolve the question of whether city councilmembers committed violations of the Open Meetings Act, when they communicated during their meetings via email about an agenda item related to approval of bonds for the parking structure.

However, the Ann Arbor city council is required by the settlement terms to discuss publicly, at one of their April 2010 meetings, the possibility of establishing a council rule that addresses which email accounts they use to conduct city business.

In the part of the lawsuit settlement that addresses the nuisance claims, the city must make various accommodations to ameliorate the impact of construction on neighboring properties. Those accommodations are primarily focused on providing adequate advance notice about specific construction events, and include 2-hour parking validation stickers for patrons to be provided by the city.

The settlement agreement does not require the city explicitly to make expenditures associated with any of the obligations that the city has agreed to meet, or to compensate any of the parties monetarily.

Backdrop to the settlement is an election-year political dynamic, which includes Steve Bean, chair of the city’s environmental commission, who’s now declared himself as an independent candidate for mayor of Ann Arbor. Bean was not a party to the lawsuit.

However, before the decision to issue bonds for the underground garage construction was made, he had argued unsuccessfully for the city to treat the construction of the parking garage as an environmental issue, calling for an environmental impact study to be completed before a decision was made. Elected officials, including mayor John Hieftje – who has now taken out petitions to run for mayor again – had resisted Bean’s call for an environmental study.

Construction on the underground structure has now begun. In settling the lawsuit, the city has agreed to undertake, after the fact, some of what Bean had asked them to do before they started.

Background material includes:

• the text of the lawsuit’s complaint
• the text of the settlement agreement
• Chronicle coverage: “City to Face Environmental Lawsuit?“
• Chronicle coverage: “Parking Deck Pre-Tensioned with Lawsuit“
• May 14, 2009 Great Lakes Environmental Law Center letter
• May 29, 2009 Great Lakes Environmental Law Center letter

Background: Environmental Issues

Part of the lawsuit and the settlement involve environmental issues. The key piece of legislation is the Michigan Environmental Policy Act (MEPA), which prohibits activity that is “likely to pollute, impair, or destroy” the environment unless “there is no feasible and prudent alternative.”

In its May 14, 2009 letter to the city council, the Great Lakes Environmental Law Center (GLELC) pointed to the MEPA and contended that:

For the City of Ann Arbor to ensure that it is in full compliance with the MEPA and not polluting, impairing, or destroying Michigan’s environment, it must engage in a thorough, thoughtful, and public process to identify and understand any potential environmental impacts of, and alternatives to, the proposed new parking structure.

The letter, sent on behalf of several parties – including the Natural Resources Defense Council – outlined what that public process should look like, from which we extract the bullet points:

• Identification and Evaluation of the Purpose and Need of the Proposed New Parking Structure
• Evaluation and Requirement of Alternatives to the Proposed New Parking Structure
• Evaluation and Requirement of Steps to Minimize the Impacts of the Proposed New Parking Structure
• Open and Public Process

The letter also cites Feb. 16, 2009 email correspondence from Steve Bean to the city council and the mayor. GLELC’s letter points out that Bean was writing as a private citizen, not as chair of the environmental commission, because that body was not asked to evaluate the project from an environmental point of view. In part, that correspondence from Bean reads as follows:

I’m writing to ask that you

- postpone action on the proposed underground parking structure at the “library lot”,

- request a comprehensive presentation by the DDA on its parking availability data for the structures as well as on its parking demand management efforts, and

- perform a more extensive analysis of the presumed need for the structure and possible alternatives before approving its construction.

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.)

In a follow-up letter sent by GLELC to the city attorney and to legal counsel for the DDA on May 29, 2009, also signed by Natural Resources Defense Council, the proposed remedy to address the requirements of the MEPA are listed out as follows:

1. Working with the Ann Arbor Downtown Development Authority (DDA), identify
and inventory all actual and anticipated changes in the City’s public parking in the
downtown area [...]

2. Working with the DDA, implement a “formalized process for determining when new [parking] supply is needed” as recommended in the Ann Arbor Downtown Parking Study [...]

3. Working with the DDA and its consultants (ideally Nelson\Nygaard given their expertise and previous work with Ann Arbor’s downtown parking and transportation data and planning), conduct a preliminary study to predict if the proposed new parking structure will impact VMT in the City of Ann Arbor and southeast Michigan region. [...]

4. Allocate an additional $1.5 million per year for the next 5 fiscal years from the DDA’s parking revenues for alternative transportation and transportation demand management measures, to implement “toolbox” recommendations from the 2007 parking study. [...]

5. Working with the DDA, mitigate to the extent feasible pollution and other environmental impacts during construction using measures that include the use of low sulfur fuels and particulate traps on diesel equipment, storm water management, and dust suppression. [...]

6. To partially address the impact of increased traffic to and from the proposed new parking structure and the impact of significant new parking availability at this location on the environment and character of the nearby Germantown neighborhood, [...]

Settlement: Environmental Issues

The lawsuit’s settlement agreement signed on Monday does not include the allocation of any money for alternative transportation measures as suggested under point (4) of the May 29 letter. However, the settlement agreement requires the city to implement a process that reflects (1) and (3) of that letter and echoes the sentiments expressed by Bean in his attempts to convince the council to delay a decision in order to conduct a study.

The settlement agreement text outlines the requirements the city must meet in undertaking a study:

Step 1. The New Study will list all decisions regarding public parking that have  been made by the DDA or the City after the 2007 Ann Arbor Downtown Parking Study (the  “2007 Study”) data were gathered but on or before January 31, 2010, and determine the difference in the overall number of public parking spaces available in Ann Arbor in 2011  (assuming the new garage is completed in 2011, and without regard to the effect of any decisions  that may be made after January 31, 2010) compared to the 2007 Study level. If the difference is  a net increase of 100 or fewer public parking spaces, then the New Study will be deemed to be complete. If the difference is a net increase exceeding 100 spaces, then the New Study shall continue to Step 2.

Step 2. The New Study shall estimate the expected number of cars seeking public  parking in 2011. If parking demand is expected to decrease from the 2007 Study level, the New  Study will be deemed to be complete.

Step 3. The New Study shall estimate how many of the additional cars could be  accommodated by the net increase in the number of spaces determined in Step 1, except that the maximum number of spaces evaluated shall be the number of spaces in the new parking structure. That figure will then be multiplied by an estimate of the additional vehicle miles traveled (likely from the 2007 Study regarding vehicle miles traveled by users of the parking  system). An emissions factor will then be applied to the number of vehicle miles to estimate the  greenhouse gas emission impact from net additional vehicles that could be accommodated by the  parking structure. It is understood that the 2007 Study’s survey had insufficient sampling and insufficient statistical power to generate the additional vehicle miles traveled, and therefore, the New Study will be an educated guess with significant uncertainty, and not a scientific determination of such emissions. At the sole discretion of the City, the New Study may use an emissions factor that is the same or different from the one used in the 2007 Study, and may consider any new information to supplement the survey data from the 2007 Study regarding vehicle miles traveled by users of the parking system.

Step 4. The New Study will identify new measures, policies, and actions that may  mitigate any estimated greenhouse gas impact (if any) of the additional cars seeking public  parking that can be accommodated by the new parking structure. This may include new  measures, policies, and actions to offset and reduce greenhouse gas emissions in furtherance of the City’s resolution to reduce greenhouse gas emissions 20% from 2000 levels by 2015. However, nothing in this Agreement requires the City or the DDA to implement any measure, policy, or action identified in the New Study or obligates or restricts the City or the DDA in any  manner other than is described in this Settlement Agreement.

Step 5. An opportunity for public participation will occur prior to the New Study being finalized. That participation shall consist of a minimum of one public hearing (which may  be satisfied by a televised public meeting of the Environmental Commission at which there is an  opportunity for public comment), and one opportunity to submit written comments.

If the net increase in parking spaces is less than 100, it would allow for quick dispatch of the study requirement at Step 1. While that would eliminate some subsequent steps, it would call into question the financing plan for the project’s bond repayments, which assumed a combination of increased parking rates and increased parking inventory.

The city council passed a resolution at its July 6, 2009 meeting that commits the city eventually to establish the surface parking lot at First & William, which has 108 spaces, as a park. However, that future reduction will not be countable as a reduction in the net available parking for purposes of the settlement agreement’s “New Study” – unless that conversion of the First & William lot to a park can be shown to be expected by 2011. [Additional Chronicle coverage: "First & William to Become a Greenway?"]

Also part of the assumptions underpinning the financing plan for the bond repayments is the idea that demand for parking will not decrease – either as a result of higher rates or other factors – but will continue to be commensurate with the parking available in the system after construction of the underground parking garage. This assumption is addressed in Step 2, which deems the new study to be complete if it’s shown that demand for parking is expected to decrease. Again, while this would satisfy the requirement of the settlement agreement, it would raise questions about the viability of a financing plan that is dependent on stable or increasing demand for parking.

After “completion” of the study in Steps 1-4, the settlement agreement requires a Step 5 – a public hearing – before the study is “finalized.”

The settlement agreement also does not require the city to engage the services of a consultant, as suggested in the May 29, 2009 letter sent by GLELC. Rather, the agreement specifies that it’s “the City’s environmental staff, working with [Downtown Development Authority] DDA staff” who will conduct the study.

The settlement agreement explicitly rejects the implication that the city of Ann Arbor must undertake environmental impact studies for other building projects:

Nothing in this Agreement shall mean that the City has any obligation to conduct any environmental study for any other building project, or that the City is required under the Michigan Environmental Protection Act or any other environment act to conduct any similar environmental study for any other building project.

The city is, however, conducting an environmental assessment in connection with the Fuller Road Station, which in Phase I consists of a parking structure and a bus station. The memorandum of understanding on the project between the city of Ann Arbor and the University of Michigan makes clear that the environmental assessment is related to its hope that federal funding can be obtained:

The City will conduct an Environmental Assessment consistent with the National Environmental Policy Act, at its expense and for its sole benefit, to enable federal funding of Fuller Road Station.

Background: OMA and FOIA Issues

Part of the complaint in the lawsuit alleges that the city violated the Freedom of Information Act (FOIA) because “[u]pon information and belief, much of the material exempted from GLELC’s FOIA requests were disclosed as part of a similar FOIA request submitted by The Ann Arbor Chronicle.”

The complaint also alleged that the city council violated the Open Meetings Act (OMA) in the course of exchanging emails unseen at the time by the public during council’s Feb. 17, 2009 meeting. Some of the emails exchanged by councilmembers addressed the subject of postponement of a vote on the parking structure bonds.

The Chronicle published an opinion column on Oct. 1, 2009 that analyzed why such email exchanges are violations of the OMA, regardless of whether a quorum of councilmembers participated in them. That position is aligned with the Attorney General’s OMA Handbook, which states:

… e-mail, texting, or other forms of electronic communications among members of a  board or commission during the course of an open meeting that constitutes deliberations toward decision-making or actual decisions violates the OMA, since it is in effect a “closed” session.

The publication of the opinion column ["When's an Open Meeting Open?"] prompted a phone call to The Chronicle from the city attorney, Stephen Postema, but he declined to speak on the record about the legal analysis presented in the column. Postema also refused a later request to be interviewed on the subject, and also declined an opportunity to be interviewed for this article.

Settlement: FOIA and OMA Issues

In the settlement agreement, the question of the alleged FOIA violation is resolved as part of the “recitations” as follows:

The parties recognize that the City has provided all documents (subject to permissible statutory exemptions) requested by the FOIA requests of the plaintiff Great Lakes Environmental Law Center.

The question of the OMA violations as a result of emails sent during council meetings, however, is essentially left open.

In the wake of the email scandal that had erupted the previous spring, at its Sept. 10, 2009 meeting, the city council approved a new council rule that requires email activity during meetings to be restricted to city business. Messages from councilmembers are required to go only to city staff – or other councilmembers, if the content is limited to draft amendments and resolutions. All such drafts are to be read aloud before discussion by the council.

At its  Sept. 21, 2009 meeting, the council approved a resolution requiring that emails sent and received by councilmembers during the meeting will be attached to the minutes of those meetings.

Under the current set of rules and resolutions on how city council meeting minutes are handled, it would be possible for councilmembers to use non-government accounts to send email messages, and thereby shield those communications from public view. Outside of their meetings, it is known to The Chronicle that councilmembers use non-government accounts to communicate with each other on topics of council business, and that the city of Ann Arbor does not produce records of such communications, even when those city records are responsive to requests made under the FOIA.

The settlement agreement requires the city council to contemplate their use of non-government email accounts on substantive council matters by considering the following amendment to their rules:

City Council members will use their City e-mail accounts when sending e-mail communications about substantive City business, to the extent feasible. This rule does not cover communication to constituents or residents or communication regarding political activity.

The settlement agreement does not require the council to adopt such a rule, but just to consider it at one or more of their April 2010 meetings.

View of construction site (Ed. note: corrected from "sight") for proposed underground parking garage looking east to west. Herb David Guitar Studios and Jerusalem Garden are located in the upper right corner of the block. (Image links to Microsoft's Bing Maps for full interactive display.)

As The Chronicle previously reported, at last week’s city council meeting, Ann Arbor CFO Tom Crawford announced that bonds for the 677-space South Fifth Avenue underground parking garage had been sold on Aug. 5.

And on Friday, Aug. 7, the Downtown Development Authority’s capital improvements committee conducted interviews with four candidate companies for the job of construction manager of the garage.

Then, by Wednesday morning of this week, references and financials for the Christman Company had checked out to the satisfaction of the DDA staff and Carl Walker – the design firm that’s been hired for the project. DDA executive director Susan Pollay is working out a time for a special meeting of the whole board to award the job to Christman.

But the day before, on Aug. 11, a lawsuit in connection with the parking garage project – which had previously been threatened by the Great Lakes Environmental Law Center – was actually filed. The complaint alleges violations of the Michigan Environmental Protection Act, the Michigan Open Meetings Act, as well as nuisance and trespass violations.  Herb David Guitar Studio and Jerusalem Garden restaurant are plaintiffs in the suit, along with GLELC.

Bonds

On Wednesday morning, after arriving at a consensus that they wanted the Christman Company as their construction manager for pre-construction services, several DDA capital improvement committee members wanted to know: “When do we get the money?” That is, when does the bond money arrive so that they can pay Christman?

The money is coming from municipal bonds. And it’s supposed to arrive next week  (on Aug. 19), Tom Crawford told The Chronicle in a phone conversation. It’ll be a wire transfer for roughly $49 million. Here’s a brief historical sketch of the bonds.

The municipal bonds for the proposed underground parking garage were first authorized by Ann Arbor’s city council at its Feb. 17, 2009 meeting – that’s a key date with respect to the lawsuit that’s been filed. Then at its July 20 meeting, the council authorized a change from tax-free bonds to taxable municipal bonds, which have higher interest rates, thus costing the city more in debt service. That’s more than offset, however, by money from the federal stimulus package through its Build America Bonds program.

In his presentation to the DDA board at its July 3 meeting, Crawford said that switching to the BABs would actually save around a $1.5 million over the life of the bond.

At the council’s most recent meeting, on Aug. 6, Mike Anglin (Ward 5) queried Crawford about the city’s bond rating in light of a $5 million payment out of cash reserves, which was needed to finance the early-out police retirements. Crawford told Anglin that the cash reserves were still within the policy range of 8-12% of expenditures, and that the city’s bond rating  had been confirmed the previous day at Aa2 when the bonds for the parking garage had been sold.

So the bond sale date was Aug. 5. How exactly are bonds sold? There’s a bidding process. In this case the “sale date” corresponds to the deadline for submitting sealed bids. From the city’s Preliminary Official Statement for the issuance of the bonds:

Sealed bids for the purchase of the issue of  bonds described below of the aggregate par value of $49,420,000 to be issued by the  City of Ann Arbor, Washtenaw County, Michigan (“City”), will be received by the undersigned at the office of the Treasurer, at 100 N. Fifth Ave. Ann Arbor, Michigan
48107, until 11:30 o’clock, A.M., Eastern Daylight Time, on Wednesday, the 5th day of  August, 2009, at which time and place such bids will be publicly opened and read.

Delivery of the bonds is scheduled for Aug. 19. After delivery, the city would receive a wire transfer of around $49 million, which would be invested in low-risk financial instruments – like U.S. Treasury bonds – in a manner that would allow those investments to be cashed out in the course of the project. That way, when the DDA requests funds to meet its construction payment obligations, those funds will be available.

When we spoke with Crawford, we asked him explicitly not to factor in any possible implications of the lawsuit on what might happen to the bonds – from Crawford we wanted to know how things worked in a garden-variety case. In a usual course of events, after the “sale,” Crawford told The Chronicle, “We’re in, we’re done.”

However, based on the Preliminary Official Statement, it appears that delivery of the bonds might founder on the need to attest that there is no pending litigation:

DELIVERY OF BONDS: The City will furnish bonds ready for execution at its expense. Bonds will be delivered at the principal office of the Bond Registrar, or any other place mutually agreeable, at the expense of the City. The usual closing documents, including a certificate that no litigation is pending affecting the issuance of the bonds [emphasis added], will be delivered at the time of delivery of the bonds. If the bonds are not tendered for delivery by twelve o’clock noon, Eastern Daylight Time, on the 45th day following the date of sale, or the first business day thereafter if said 45th day is not a business day, the successful bidder may on that day, or any time thereafter until delivery of the bonds, withdraw its proposal by serving written notice of cancellation on the undersigned, in which event the City shall promptly return the good faith deposit.

The lawsuit filed by GLELC alleges Open Meeting Act violations at the Feb. 17 meeting when the bonds were issued.

If the lawsuit delays bond delivery, that would delay construction start. And based on the construction manager interviews,  delays in the construction start could potentially wreck the timing of crucial phases of the project.

Construction Interviews

The DDA board’s capital improvements committee interviewed four candidate construction companies from around noon to 7 p.m. last Friday in a meeting open to the public.

We’re Going to Dig a Big Hole

At least two companies  for the construction manager job had taken to heart an apparent message from the DDA about timing: Get Fifth Avenue back open in time for the Art Fairs.

Timing of closure and opening of Fifth Avenue was a key part of presentations from Barton Malow and Christman Company – we missed Spence Brothers, and Granger Construction Company’s pitches. Those four had been winnowed down from 14 companies that submitted bids.

Barton Malow described digging the big hole from west to east. Christman had an idea for digging from east to west.  They both talked about the project in terms that pretty much anybody could understand. Barton Malow, whose construction trailers can currently be seen parked on the north end of Michigan Stadium in connection with the university project, described the process like this: “We’re going to dig a hole – a big hole. And we’re going to fill it with concrete – a lot of concrete.” For their part, Christman described starting the excavation then “chasing ourselves around the hole with our concrete.”

Interviews for the construction manager job by the DDA's capital improvements committee. From left, Roger Hewitt (DDA), Michael Ortlieb (Carl Walker), Neal Morton, standing (Barton Malow). (Photo by the writer.) (Ed. note: "Barton" corrected from "Baron")

The presentation was by no means just a bunch of concrete guys pouring out homespun phrases. It was a bunch of concrete guys with 3-D renderings of the site and their proposed phasing of the construction to take place in the tight quarters on the library lot.

Both companies had put effort not just into 3-D modeling, but into getting to know their potential client. Christman met with councilmembers.  Barton Malow attended DDA board and city council meetings – at the interviews, The Chronicle had noticed the face of Neal Morton of Barton Malow, which had grown familiar from some of those meetings. Morton had also put time into measuring current light levels (in  foot candles) and noise levels (in decibels) at the site so that they’d know what kind of comparative impact the construction was having.

Morton’s effort, however, was ultimately not rewarded with a recommendation to the board that his company be selected as construction manager.

Still, Barton Malow and Morton could make money on the job – if they’re selected as a concrete subcontractor. The construction manager candidates have their “in house” concrete divisions, and would ordinarily not need to subcontract out that work. But the DDA would like the construction manager for this project to bid out the concrete work. It was a question that DDA board member Leah Gunn put to the construction manager candidates during the interviews: Would they be comfortable having to compete for the concrete work with other bidders? The correct answer was yes.

The candidates for the job emphasized that the close quarters of the site made it a challenge – both logistically and in terms of minimizing impact on the immediately surrounding property. They’d be installing earth retention systems that would minimize vibration impacts, for example.

Why Christman is the Committee’s Choice for the Job

At Wednesday’s meeting of the DDA’s capital improvements committee, Mike Ortlieb of Carl Walker reported that they’d followed up with six different references for Christman: the cities of Lansing, East Lansing, and Traverse City; Foote Hospital, Catalyst Development, and Spectrum Hospital.

They heard back from four of them. There was “not a negative word in any of them,” said Ortlieb. What had been particularly impressive was the fine job of coordination on any issues that had come up. It was their people who really made the difference, he reported.

The financial picture for Christman had also checked out. Adrian Iraola of Park Avenue Consultants, who’ll be coordinating with the construction manager for the DDA, said that Joe Morehouse, deputy director of the DDA, had cross-referenced the financial statements. Asked by board member Roger Hewitt if they’d looked at an audit, DDA executive director Susan Pollay indicated that Christman’s numbers had been checked using an online service from Dun & Bradstreet Inc.

But for Hewitt and other capital improvement committee members, what made Christman rise above the other three was the fact that they just recently completed three simultaneous projects of the same kind as the underground parking project planned in downtown Ann Arbor – they’d worked on the Michigan Street Development project in Grand Rapids. Plus, they’d be bringing that same project team to Ann Arbor.

Carl Luckenbach of Luckenbach|Ziegelman Architects listens to a presentation from the Christman Company, one of four candidates for the job of construction manager for the Fifth Avenue underground parking garage. (Photo by the writer.)

Recently-elected board chair John Splitt placed a high enough value on the people on the project team that he said he’d like it written into the contract that if Christman were selected to handle the actual construction phase – the current award for the job is just the pre-construction phase – then he wanted that same project team in place.

Recently-appointed board member Newcombe Clark noted there was an interesting parallel between Christman as a construction company with its own “in house” concrete division, and Christman as a construction company that is also affiliated with its own development company:  Christman Capital Development Company. As previously noted, the DDA wants its construction manager to solicit sealed bids for subcontracted work – the construction company’s “in house” concrete division won’t have any advantage against other bidders.

In the same way, Clark said, it’d be important that Christman as a development company not have any advantage in an RFP (request for proposals) process for the question of what, if anything, gets built on top of the underground parking structure.

The question of “what goes on top” was a contentious one at city council’s July 6 meeting when the council ultimately passed a resolution to set an RFP process into motion for how the top of the parking garage would be developed.

It’s possible, even likely, that alterations in the parking garage design might need to be undertaken on the fly during construction to accommodate plans for what goes on top. So, during the interviews last Friday, Carl Luckenbach of Luckenbach|Ziegelman Architects, who’s on the design team, asked candidates how well-equipped they might be to deal with such design revisions.

At Wednesday’s capital improvement committee meeting, Hewitt emphasized that “no RFP would come from us [the DDA]!”

The Lawsuit Against the City of Ann Arbor

Recall that references were checked for Christman, the construction company recommended by the DDA’s capital improvements committee for the construction manager job. Of those, Mike Ortlieb indicated that one was a neighbor to the Grand Rapids street improvement project that Christman had worked on, directly across the street from the site.

In Ann Arbor, it’s two immediate neighbors to the Fifth Avenue construction site – Herb David Guitar Studios and Jerusalem Garden restaurant – who are parties to the lawsuit filed on Aug. 11 against the city of Ann Arbor.

One: Nuisance

The  first count of the suit’s claim is one of nuisance:

86. The City’s proposed Parking Garage project will cause vibrations, noise and dust, creating a nuisance that will cause damage to, and interfere with the businesses, of Plaintiffs Herb David Guitar Studio and Jerusalem Garden.

Two: Trespass

The second count of the suit’s claim is one of trespass:

94. If the Parking Garage project is permitted to go forward, vibrations, noise and dust from the construction process will physically invade the Plaintiffs’ properties.

95. The vibrations, noise and dust which will enter, settle upon and physically invade Plaintiffs’ properties will interfere with Plaintiffs’ use and possession of their properties and will constitute a continuing trespass upon Plaintiffs’ properties.

96. Plaintiffs do not consent to having vibrations, noise and dust physically invade their land and property.

Three: FOIA Violation

The third count of the suit’s claim is that the city of Ann Arbor violated the Freedom of Information Act in failing to provide documents that the Great Lakes Environmental Law Center had requested under that act:

108. The City has failed to meet its burden of claiming an exemption because FOIA exemptions must be supported by substantial justification and explanation, not merely conclusory assertions.

109. The City withheld email communications among Council members concerning whether to postpone a decision on the Parking Garage resolution which is clearly a matter of urgent public interest. These communications do not fall within any of the exemptions to FOIA claimed by the City.

In part, GLELC became aware  of the failure of the city to provide responsive documents through a FOIA request made by The Chronicle:

69. Upon information and belief, much of the material exempted from GLELC’s FOIA requests were disclosed as part of a similar FOIA request submitted by The Ann Arbor Chronicle.

Four: Open Meetings Act Violation

The FOIA violation claimed in the third count of the suit is a key element related the fourth count, which is a claim that the  Open Meetings Act was violated at the Feb. 17 meeting of the city council:

122. The Open Meetings Act requires that all decisions and deliberations of a public body shall be made at a meeting open to the public. MCL 15.263

123. The City violated the Open Meetings Act when City Council members discussed and decided not to postpone a vote on the resolution to approve the Parking Garage project through private email communication.

124. After the private email discussion among Council members, Council voted to approve the site plan for the new Parking Garage and the bonding to finance the project.

Paragraph 54 (b) of the complaint indicates the specific councilmembers, whose email exchanges during the Feb. 17 meeting are alleged to constitute a violation of the Open Meetings Act, are Carsten Hohnke, Sandi Smith, Margie Teall, Leigh Greden, Marcia Higgins and Sabra Briere. In The Chronicle’s set of emails, we identify only one email involving Briere, which was sent to her and Smith by Higgins at 8:27 p.m. with an empty body and the subject line: “I won’t be asking for a postponement.” To the extent that  GLELC wants to make a quorum-based argument that a meeting took place that was not properly noticed,  it may depend on demonstrating that Briere looked at that email during the meeting.

As a part of that OMA count, the suit states that because of the FOIA violation, GLELC did not become aware of the OMA violation until long after it occurred:

126. In response to GLELC’s FOIA request, the City refused to provide the email communications between Council members regarding postponement of the vote on the resolution to approve the Parking Garage.

127. As a result of the City’s failure to comply with FOIA, Plaintiffs did not become aware of the private emails and the City’s violation of the Open Meetings Act until on or about July 9, 2009.

Five: Violation of MEPA

The details of the claimed violation of the Michigan Environmental Protection Act are discussed more fully in a previous Chronicle article. From the complaint:

148. The proposed Parking Garage will “pollute, impair and destroy” the natural resources in several respects, including, but not limited to, the following:

(a) The Parking Garage will increase motor vehicle miles traveled (“VMT”) to downtown Ann Arbor, causing increased greenhouse gas pollution and other air pollution impacts;

(b) Construction  of the Parking Garage will create significant localized environmental impacts such as particulate pollution, dust and noise in the project area; (c) The manufacture and synthesis of construction materials require vast amounts of resources and energy with associated pollution, impairment and destruction of the natural environment; and (d) Such other pollution impacts as may become apparent during the course of discovery in this matter.

149. During the City Council meeting on February 17, 2009, Environmental Commission Chairman Bean urged City Council to postpone its decision regarding the bonding and approval of the new Parking Garage until the City properly considered the need for the project, the environmental impact of the project and the range of less impacting alternatives to the project.

150. In clear violation of MEPA, the City failed to consider the environmental impacts of the proposed new Parking Garage and/or the alternatives to the Parking Garage.

What’s Being Asked of the Court?

REQUEST FOR RELIEF

WHEREFORE, Plaintiffs request the following relief:

(a) Declare that the City approved the Parking Garage project in violation of the Open Meetings Act;

(b) Declare that the City’s nondisclosure of requested documents violated the Freedom of Information Act;

(c) Enter an order which invalidates City Council’s approval of the site plan for the Parking Garage and the bonding to fund the project which occurred at its meeting on February 17 , 2009 ;

(d) An order which enjoins City Council members from engaging in any further private emails discussions during public meetings regarding the Parking Garage project or funding for the project; [emphasis added]

(e) Enter an order holding that the proposed Parking Garage project constitutes a threatened nuisance to Plaintiffs’ properties;

(f) Enter an order holding that the proposed Parking Garage project constitutes a threatened trespass to Plaintiffs’ properties;

(g) Enter an order holding that the proposed Parking Garage project is likely to pollute, impair or destroy the air, water and other natural resources;

(h) Enter a preliminary injunction requiring the City to undertake a study to determine the following:

• (i) Consideration of the environmental impacts of the proposed new Parking Garage;
• (ii) Identification and evaluation of the purpose and need for the proposed new Parking Garage; and
• (iii) Evaluation of alternatives to the proposed new Parking Garage;

(i) Enter a preliminary injunction which prohibits the City from constructing the Parking Garage until a comprehensive study as detailed above is completed;

(j) If construction of the Parking Garage proceeds, award Plaintiffs damages for the City’s interference with the use and enjoyment of their properties as more fully described above;

(k) If construction of the Parking Garage proceeds, award Plaintiffs damages for the trespass upon their properties committed by the City as more fully described above;

(1) Award GLELC its actual and reasonable attorney’s fees, as required by MCL 15.240(6);

(m) Award Plaintiffs their actual and reasonable attorney’s fees as required by MCL 15.271(4); and

(n) Award Plaintiffs such other relief as the Court deems just under the circumstances.

Chronicle Commentary on What’s Next

The city of Ann Arbor has 21 days to file a written answer to the court in response to the suit filed by GLELC. Based on The Chronicle’s understanding of the requirements of bond delivery – described at the beginning of this article – the fact that a lawsuit has been filed surrounding the issuance of the bonds could stop the parking garage project at least until the city files a response. Specifically, on our understanding, the existence of the lawsuit stops the project because it makes bond delivery impossible – because  bond delivery requires there be no pending litigation on the issuance of the bonds.

The full DDA board will not meet to vote on the award of the construction manager job for pre-construction services until sometime in the week of Aug. 17. But if the lawsuit remains unresolved past the end of next week, it’s fair to start the clock on the length of the project’s delay.

The request (d) in the lawsuit by the plaintiffs that the court enjoin city councilmembers from further email communications on the topic of the underground parking garage is a narrowly drawn version of requests to the city council that The Chronicle made earlier this week. That is, The Chronicle’s requests have not yet been escalated to litigation, and the request is not confined to the topic of the underground parking garage. Those requests are numbered 1-3 in this excerpt from the full text of our communication.

On examination of the corpus of email exchanges between city council members during open 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. This is not a gray area and constitutes a violation of both the letter and spirit of the OMA.

It is The Chronicle’s position that the city council should adopt a policy to prevent such instances of Open Meetings Act violations in the future. Our concerns for the openness of future discussions of public policy could be addressed by immediately enacting a council policy that does the following:

1. Prohibits electronic communications between members of city council during public meetings, because such electronic communications are not accessible to the public at the time of the meeting.
2. Defines “electronic communications” broadly enough to include email, instant messaging, text messaging and use of third party message services such as Facebook.
3. Does not rely on self-policing or FOIA requests made by citizens to check for compliance with the policy.

There are obvious technology solutions that would allow for the council to conduct its business in an efficient and convenient way, while still enforcing the openness that Open Meetings Act requires, a requirement which the Ann Arbor city council has not met in its recent history as demonstrated by the corpus of emails obtained by The Chronicle under the FOIA.

In light of our specific interest in the Open Meetings Act, it is that aspect of GLELC’s lawsuit that has been filed against the city on which we will focus as the litigation makes its way through the court.

[Partially Searchable Text of Complaint]

Example of attempted redaction of printed electronic record with magic marker by the city of Ann Arbor.

As we reported in connection with a recent column analyzing the possible legal and ethical implications of email exchanges among Ann Arbor city councilmembers, The Chronicle requested additional email records from the city.

Our purpose in requesting additional records was to explore more fully the workings of the city council as reflected in emailed communications – and to compare that with the public deliberations at the council table. That public discourse is something we already describe in a fair amount of detail in our meeting reports.

The request was for a substantial amount of material, dating back to the launch of this publication in September 2008. We provided a voluntary extension to the city of two weeks – beyond the three weeks within which an agency is required to comply with a Freedom of Information Act request. That extension ended last Friday.

On Friday we picked up the email records and paid for them (around $380 total). The records had been printed out, in some parts redacted with a black pen, then photocopied. The Chronicle’s contention is that we are legally entitled to copies of the electronic files – appropriately redacted.

FOIA-ed email records from the city of Ann Arbor.

We will be pursuing  the dual paths of (i) convincing the city to provide the requested records in electronic form, and (ii) working – more slowly than we could with the electronic files – with the printed material we have to explore topics like the 601 S. Forest brownfield vote, the arguments for postponing the City Place PUD, plus how and why specific committee assignments on city council were made for the current round of appointments.

In this updater, we’ll confine our focus to laying out some of the technology issues surrounding electronic versus printed records.

What the FOIA Law Says

When a government agency complies with a Freedom of Information Act request, it must do so within certain constraints. Some of these constraints are there to prevent agencies from creating a de facto denial of access to information by raising economic barriers. In relevant part the FOIA law states:

(3) In calculating the cost of labor incurred in duplication and mailing and the cost of examination, review, separation, and deletion under subsection (1), a public body may not charge more than the hourly wage of the lowest paid public body employee capable of retrieving the information necessary to comply with a request under this act. Fees shall be uniform and not dependent upon the identity of the requesting person. A public body shall utilize the most economical means available for making copies of public records. [emphasis added] A fee shall not be charged for the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information as provided in section 14 unless failure to charge a fee would result in unreasonably high costs to the public body because of the nature of the request in the particular instance, and the public body specifically identifies the nature of these unreasonably high costs. A public body shall establish and publish procedures and guidelines to implement this subsection.

To The Chronicle’s knowledge, the city of Ann Arbor has not published procedures and guidelines as required by the FOIA law. What we understand of the city’s policies in this regard comes from verbal conversations with the city attorney, Stephen Postema, together with the physical items provided by the city in response to our request.

In the first conversation with Postema, he raised the specter of charging The Chronicle as much as $25,000 in order to comply with our request – which included records of emails among councilmembers and staff for the days on which the city council met dating back to September 2008. In subsequent conversations, he clarified that he had meant to associate that figure with what it would have cost to undertake a full “disaster recovery” of all deleted files – something we had not requested.

In calculating the charges to The Chronicle, Postema said, the city was construing each of the meeting dates as separate requests. That worked out to The Chronicle’s benefit, he explained, because it was the city’s policy not to charge for the first four hours of labor associated with examination, review, and redaction associated with a FOIA request. That means that for each date on which email records were requested, the city allotted four hours of labor that it did not charge to The Chronicle.

It appears that the practical outcome of this policy was that The Chronicle was charged only for the cost of photocopies.

Electronic Format for Requested Records

Because the records we requested were stored in electronic format, that is the format we explicitly requested from the very start and in every subsequent communication we had with the city. It is The Chronicle’s position that the city of Ann Arbor is required to produce those records in their original electronic format.

Benefits of Electronic Format

Independently of legal requirements, there  are clear benefits to both the city and to The Chronicle (and its readers) for the city to provide records in electronic format.

• Reduced Material Cost: The cost of a single CD-ROM is lower than several thousand sheets of paper, many of which bear an admonition to “Think Green!” and to print out the the email only if necessary.
• Reduced Time Cost: The time required for copying electronic files is less than a process that entails first printing, then redacting, then photocopying again (presumably two copies – if someone else were to request the same records, it would not be efficient to undertake the same redaction).
• Improved Accuracy and Convenience in Use: If the records are provided in electronic form, then copying and pasting from the records themselves helps ensure accuracy in re-publication of the information. If paper documents are provided, there’s a step in converting printed text (back) to digital text where errors can creep in. It’s also more convenient. Finding material among the records is more convenient with electronic documents because of the machine-searchability of electronic text.
• Improved Accuracy and Convenience in Compliance: If redaction  is undertaken using an electronic editor on electronic files, it’s easier for the person doing the redaction – any material that appears multiple times can be deleted “all in one go.” Quality control of digital redaction is also easier than when undertaken electronically. For example, running a simple “diff” analysis on redacted versus original files would allow a reviewer to focus just on the redacted material to ensure that whatever had been deleted really met the criteria for redaction under FOIA.

Case Law on Format

While there are strong practical benefits to provision of documents in electronic format, a practical benefit does not rise to the level of a legal requirement. For that The Chronicle bases its contention that the city is required to provide the records in their original format on a 15-year-old lawsuit brought against the city of Ann Arbor. From the court records of the case.

In the fall of 1993, Plaintiff, Jon Zeeff, made a Freedom of Information Act (“FOIA”) request to Defendant, City of Ann Arbor, for current data used to produce “Traffic Condition Section Condition Reports” and “Property Information” reports. Defendant offered to provide Mr. Zeeff paper copies of the Traffic Condition Section Condition Reports and microfiche copies of the Property Information reports. Mr. Zeeff, however, requested that the data be provided to him in computer format. [Emphasis added.] Defendant declined to provide the data in the desired format. and Plaintiff initiated this action to compel its production. Defendant motions for Summary Disposition pursuant to MCR 2.116(C)(8) and (C)(10). Plaintiff responds and requests that the Court render judgment in his favor pursuant to MCR 2.116(I)(2). At a hearing held on February 23, 1994, the Court granted judgment in favor of Plaintiff as to his request for the data to produce the Traffic Condition Section Condition Reports. [Emphasis added.]

The records were ordered to be released and attorney fees of $25,000 were awarded.

The City’s Position on Electronic Documents

In conversations with The Chronicle, the Ann Arbor city attorney has taken the position that the Zeeff case does not apply because it did not involve redaction. He cited concerns that if electronic data were redacted electronically, the redacted material could be recovered through data forensics by the requester.

Based on conversations with coworkers at the Workantile Exchange, plus affiliates with the University of Michigan College of Enginering Computer Science department –  a PhD student,  an assistant professor, and a full professor – the risks of inadvertently providing electronically redacted material to a FOIA requester can be dealt with in a straightforward way.

First, it’s important to recognize the real risk of electronically editing a document, copying that document electronically and inadvertently providing to a FOIA requester a history of the changes undertaken. In ordinary, non-FOIA circumstances, provision of a document’s previous editing history is sometimes not inadvertent, but intentional – many Chronicle readers will no doubt be familiar with MS Word’s “track changes” functionality.

But email records are not as inherently complex as MS Word documents are. They can be reduced in straightforward fashion to a simple “text file” – a file that contains just the characters you see on the screen, with no fancy fonts or underlines, or any other “word processing” features. The text format used for storage of email files is commonly mbox.

Using a simple text editor, redaction of any material meeting the criteria under FOIA can be replaced with something like “[Redacted]“.  For its plain text editing needs, The Chronicle uses TextWrangler, which is available free.

For the sake of argument, let’s say the file  FOIAfile.txt is stored on drive C. If the plain text edits are undertaken to FOIAfile.txt and saved to drive C, and drive C is handed over to the FOIA requester, then there’s still some risk that the redacted information could leak to the requester.

How? When a file is saved, the computer file system could reallocate where exactly the file’s data is physically stored on the disk, so that the parts of the old version of the file could still be lying around on the disk somewhere. That is, the “redacted” data would be on the disk, just not labeled by the file system as part of the file. But because it would still be there, it could be read – though reading it would require tools somewhat more sophisticated than a text editor like TextWrangler.

That’s why it’s important that the files be saved to a different file system – like a newly formatted CD. By using a different file system to save the files to be provided under FOIA, the risk described above is eliminated.

Key to this approach is that the text files in question really are text files. That is, their size measured in bytes, should match the number of characters in the file. That’s straightforward to verify. Here’s how we verified it for a sample text file. First, we asked TextWrangler to count the characters in the file by clicking on the “I” button: 72.

Screenshot of character count from TextWrangler.

Then we asked the computer’s operation system to tell us how many bytes the file took up: 72.

Screenshot from "Get Info" on Macintosh computer.

So the file really is a plain text file.

Where From Here?

We’ll begin working on the the printed materials we have, but it will be a slog. It’s not clear that a first step of just scanning everything and running an optical character recognition program on the whole kit and kaboodle is feasible. Some intial sorting is probably in order.

We recognize that the use of a text editor is not necessarily as universal a skill as using a black marker. But in both cases, the real skill lies in the judgment of whether the material meets the criteria for redaction, not the operation of the tool. Based on some of the batches of records provided early in the process, it’s clear that things can go wrong, even with the relatively simple technology of a black pen.

As the lead art for this article shows, the city’s attempts at redaction were in some cases unsuccessful because the pen was not dark enough – and probably also because the photocopier applied an autosharpening process to help bring out the contrast between the marker and the letters underneath. When we noticed that phenomenon, we provided an example to the city, so that the issue could be addresssed in subsequent batches.

We hope  that the city of Ann Arbor will recognize the importance of providing electronic records in electronic form when requested under FOIA.

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
• pack6k.txt