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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Government should not be like an open sewer, but it should be open.

Fact: In local government, it doesn’t get any sexier than sanitary sewers.

The study’s full name is the sanitary sewer wet weather evaluation (SSWWE). As background reading, in preparation for next Thursday’s meeting, readers might find it useful to immerse themselves in this recent Chronicle report: “Backups: Lawyers, Sewers, Pumps.” That report is centered on a Jan. 9, 2014 meeting of the city’s citizens advisory committee (SSWWE-CAC) associated with the study.

But this column does not dwell on the substance of either the Jan. 9 or the Feb. 6 meetings. Instead, it focuses on the nature of meetings and expectations of Ann Arbor residents for local governmental activity: Government shouldn’t be like an open sewer, but it should be open.

First, meetings that are accessible to the public – like the one earlier this month or the one next Thursday – are a part of the fundamental standard set by Ann Arbor residents for the function of our local government. Ann Arbor residents don’t consider the convening of a publicly accessible meeting, with data and information available beforehand, to be some kind of bonus, value-added feature of our local governance. It’s just axiomatic.

Of course, Ann Arbor residents don’t have a monopoly in Michigan on an expectation of open government. Two state statutes ensconce a statewide commitment to open government – the Open Meetings Act (OMA) and the Freedom of Information Act (FOIA). From the OMA: “All meetings of a public body shall be open to the public and shall be held in a place available to the general public.”

But a group like the SSWWE-CAC is not, strictly speaking, a “public body” as defined in the statute. So in Ann Arbor, we take the OMA a step further. By longstanding city policy established through a city council resolution passed in 1991, even advisory groups like the SSWWE-CAC are expected (to the best of their abilities) to conduct their meetings in accordance with the OMA.

I’ve written a lot about this topic in the past, and don’t really have much to add now.

What prompted me to write this column, more as a reminder than anything else, was seeing a note sent to SSWWE-CAC members via Basecamp – a piece of project management software that allows group collaboration and communication. The note was sent by one of the city’s outside consultants for the sanitary sewer wet weather evaluation – Charlie Fleetham of Project Innovations.

Fleetham’s note included the following statement about the Basecamp site that’s been set up for the SSWWE-CAC: “… I believe that the CAC is and would be well served by having a site [Basecamp] to discuss this very complex and emotional issue without fear of public scrutiny.”

While I think that Fleetham’s sentiment was likely well-intended, public scrutiny is part of what Ann Arbor residents sign up for when they serve on one of the city’s citizens committees. This kind of service makes a resident a participant in a quintessential governmental function. As such, that service should be and will be subjected to public scrutiny.

City Policy on Open Meetings

The city’s policy on various committees, commissions, boards and task forces was established through a city council resolution, passed on Nov. 4, 1991:

R-642-11-91 Resolution Regarding Open Meetings For City Committees, Commissions, Boards And Task Forces
Whereas, The City Council desires that all meetings of City boards, task forces, commissions and committees conform to the spirit of the Open Meetings Act;
Resolved, That all City boards, task forces, commissions, committees and their subcommittees hold their meetings open to the public to the best of their abilities in the spirit of Section 3 of the Open Meetings Act; and
Resolved, That closed meetings of such bodies be held only under situations where a closed meeting would be authorized in the spirit of the Open Meetings Act.

The idea of the resolution is this: Even entities to which the OMA would not technically apply are still expected to conform to the spirit of Section 3 of the OMA – to the best ability of that entity’s members. Section 3 includes a provision that allows a person to address a meeting of a public body.

The first meeting of the SSWWE-CAC took place on Aug. 21, 2013. The time for public commentary was provided at the end of the meeting. But on that occasion, facilitator Charlie Fleetham indicated to the members of the CAC that they were free to leave the meeting before the public commentary started. And a few CAC members did leave before members of the public addressed the CAC.

Subsequent CAC meetings attended by The Chronicle have, fortunately, not included an invitation to members to depart before the public commentary started.

Just as members of the CAC should not be shielded from the responsibility of listening to what the public has to say, the public should not, as suggested by Fleetham, be shielded from conversations among CAC members. Here’s Fleetham’s side of some communications obtained by The Chronicle:

From: Charlie Fleetham
Date: Fri, 17 Jan 2014 at 2:23pm
Please find attached a draft copy of the FDD Survey report.
Until the CAC has reviewed this report, it is DRAFT and should not be distributed outside of the CAC. We want to gather your input/requests before finalizing and distributing.
Please provide your input before Wednesday, January 22th …

Charlie Fleetham Fri, 24 Jan at 11:22am
Regarding the question of whether or not BaseCamp is subject to FOIA, per a conversation with Abigail Elias, as a private website, BaseCamp is not subject to FOIA provisions.
…

Charlie Fleetham Fri, 24 Jan at 2:06pm
I believe that BaseCamp needs to be off limits to FOIA requests. It provides a venue for the CAC to express their opinions without fears about legal actions/scrutiny etc.
…

Charlie Fleetham Fri, 24 Jan at 8:27pm
The question that was asked was whether or not the BaseCamp is subject to FOIA. According to Abigail [Elias, city of Ann Arbor assistant city attorney] it is not, and that is what I reported. I also said that I believe that the CAC is and would be well served by having a site to discuss this very complex and emotional issue without fear of public scrutiny.
…

Charlie Fleetham Sat, 25 Jan at 6:18pm
Regarding keeping information secret, no one on the project team has ever suggested keeping project data away from the public or using BaseCamp to conceal information. However, I believe it is appropriate to all folks to review draft reports before distribution to the public. That said, Lori and I scanned the project library last week, identified some documents that needed to be uploaded and the City has done so. (Note – we need to correct the year date for the Jan 9 meeting and note that the video covers the last 90 minutes only – we will do this on Monday.)
…

What’s the OMA issue here? If Basecamp is used as proposed by Fleetham, then Basecamp is a venue to conduct what are functionally meetings of the CAC – which are, according to Fleetham, explicitly intended to escape public scrutiny. Because Basecamp is protected by password, the meetings of the CAC that take place in the forum of Basecamp are, in fact, inaccessible to the public. They’re also not noticed to the public as to when they take place. But it appears that there’s a standing, ongoing meeting of the CAC that’s taking place on Basecamp.

In any event, inviting CAC members to share their opinions on Basecamp, shielded from public view, is problematic with respect to the 1991 city policy on the OMA – in at least two ways. First, these meetings are inaccessible to the public when the meetings happen. Second, there’s no opportunity for a member of the public to address the CAC on Basecamp during such meetings.

Basecamp: Freedom of Information

If the 1991 city policy on the OMA is flouted by the use of Basecamp to facilitate closed meetings of the CAC, how does this practice stack up against Michigan’s Freedom of Information Act (FOIA)?

The answer is already included in the communications above: Records held by a private entity are not subject to required disclosure under Michigan’s FOIA.

This technique for shielding records from public access is one familiar to the city’s history of citizen participation in matters related to sanitary sewers and footing drain disconnection. The Feb. 24, 2001 meeting minutes of  Ann Arbor’s sanitary sewer overflow (SSO) prevention task force reflect a conscious choice to use private contractors to hold raw data, so that the data couldn’t be obtained through Michigan’s FOIA:

Raw data will be held by CDM or sub-contractor to prevent anyone from obtaining data under the Freedom of Information Act. [.pdf of Feb. 24, 2001 minutes of the SSO task force]

While the city appears to be on solid legal ground if it were to deny a request for information on the Basecamp site set up for the SSWWE-CAC, I don’t think that would be a good idea. This approach fuels a perception that information that belongs to the public is being withheld from the public. It’s not in the spirit of Michigan’s FOIA to use the statute as a legal guide to keeping public information out of the public’s hands.

We certainly have a legitimate interest that documents still in draft form not be represented to the public as if they were final documents. For example, the initial draft of the survey results to be discussed at the Feb. 6 meeting contained some mistakes and did not include all of the survey responses. Some people were still responding to the survey when the draft was created. So it was important not to present that preliminary draft report as if it were the final version.

However, a concern about the draft nature of documents is not effectively addressed in the way that Fleetham suggests in the communications above – by circulating the drafts to committee members on Basecamp and admonishing them not to share the draft documents outside the group. If a document is a draft, it can simply be clearly designated as such through watermarking or some other digital technique. It’s not a constructive approach to ask committee members not to share the documents outside of a private website that is immune to requests made under Michigan’s FOIA.

Meetings: Coda – Feb. 6, 2014

One complaint I heard from a member of the public at the Jan. 9 meeting of the SSWWE-CAC was that the Jan. 9 meeting had not been posted anywhere on the city’s website. In fact, the meeting had been included in the city of Ann Arbor’s listings of events. Those are a subset of events that are included in The Chronicle’s event listings.

Neither of those sources is perfectly exhaustive for every single meeting. But it’s worth checking those sources.

To reiterate, the next public meeting for the study of Ann Arbor’s sanitary sewer system during wet weather will take place on Thursday, Feb. 6 from 6:30-8:30 p.m. in the Slauson Middle School auditorium.

And again, here’s the link to results of a recent survey of participants in the city’s footing drain disconnection program, which will be part of the agenda. The meeting will also include an update on the study itself, which included flow measurements in the sanitary system made last year.

About the author: Dave Askins is editor and co-founder of The Ann Arbor Chronicle. The Chronicle could not survive without regular voluntary subscriptions to support our coverage of government and civic affairs. Click this link for details: Subscribe to The Chronicle. And if you’re already helping The Chronicle flush its toilet, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!

This ballot likely reflects a sentiment against the Fuller Road Station, which would include a train station, bus terminal and – in its first phase – a large parking structure. At last report, the facility would be a joint city of Ann Arbor-University of Michigan project, located on city-owned land that's designated as part of the park system.

Out of curiosity, The Chronicle asked intern Hayley Byrnes to take a look at the names of people voters wrote by hand on their ballots. 

Of the 1,206 Ward 1 voters who dragged themselves to their polling stations on a rainy Tuesday last November, 57 filled in the bubble next to the blank space for write-in candidates.

None of the people whose names were written on any of those 57 ballots could have won the election. Some were not the names of actual people who live in Ward 1, or even actual people at all.

But even among those actual Ward 1 residents whose names were put forward by voters, none of them had filed officially for a write-in candidacy. They were therefore not legal opponents in the election. Those 57 bubbles, however, reflected the votes of 57 Ward 1 voters.

Writing in the name of a person who has not registered as a write-in candidate – on a ballot that offers only one candidate – could reasonably be seen as an expression of dissatisfaction.

So The Chronicle wanted to discover: What form did voters’ dissatisfaction take?

Ward 1 Compared to Other Wards

How did the 57 write-ins (4.73%) for Ward 1 compare to other wards?

Bar Chart A. Percentage of write-in ballots for Nov. 8, 2011 Ann Arbor city council elections by ward.

In Ward 3, 1.29% of voters wrote in a candidate. In Ward 4, that figure was 1.11%. Ward 5 had 0.81% write-ins, while Ward 2 had 0.17%. So Ward 1 had more than three times as many write-ins as any other ward.

To consider those numbers in the context of each ward’s contest, the lowest percentage of write-ins (by far) came from Ward 2, where Jane Lumm won one of the closest races, garnering 60% of the vote. The Ward 2 race was expected to be close, so it’s not surprising that only six voters ward-wide chose to “waste” their votes.

A slightly closer race than Ward 2 turned out to be Ward 4, where Marcia Higgins won with 59% of the vote – but it was not necessarily expected to be that close. That could explain a greater willingness of a Ward 4 voter to write in a candidate than in Ward 2.

But beyond numbers and percentages, available online on the Washtenaw County clerk’s website, no record is kept of the text of the write-ins themselves, other than the physical ballot. Ballots are sealed, and the number of handwritten candidate names are tallied as “write-ins” – even if no candidate registered as a write-in candidate.

Ballots as Public Documents

According to Michigan’s Freedom of Information Act (FOIA), citizens “are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees.”

Bar Chart B: Ward 1 Write in ballots by precinct

Whether that broad sentiment of “full and complete information” applies to voted ballots, which are entitled to strict secrecy, is not a part of the explicit language of the FOIA. But in May 2010, Michigan’s then-attorney general Mike Cox concluded that ballots are subject to the FOIA.

In attorney-general opinion #7247, Cox writes that voted ballots do indeed “constitute ‘public records’ for the purposes of the FOIA.” The opinion continues by explaining that because ballots are virtually untraceable to an individual after they have been tabulated, making them available to the public does not violate ballot secrecy.

While the public has the right to see voted ballots, the timeframe for that access is more restrictive than for an ordinary FOIA request. In the same opinion, Cox concluded that the ballots could be released 30 days after certification by the relevant board of canvassers.

For the Nov. 8, 2011 city of Ann Arbor election, the county board of canvassers certified the results on Nov. 16, opening the earliest window for access on Dec. 16. After that window opened, The Chronicle arranged with the city to inspect ballots. In the interest of efficiency, we targeted Precincts 4 and 8 in Ward 1, because together they supplied almost half of the write-in ballots (24 of 57).

While Precinct 9 offered another 16 write-ins, the Clague Middle School polling station for Precinct 9 was the same polling station for a precinct in a different ward – Ward 2, Precinct 6. The voting machine does not separate the ballots by ward, so on balance we expected to be more efficient by opting for precincts that wouldn’t require sorting by ward.

Names of Write-Ins

The 300 Ward 1 ballots we inspected were held in two blue-and-red bags – each with an unbroken seal on the handles. After breaking the seals, city clerk Jacqueline Beaudry remained present throughout the inspection, thus complying with another restriction that a city official be present at all times during ballot inspection.

After 30 minutes we’d confirmed all 24 write-in ballots from precincts 4 and 8. Here’s a sampling of the names that voters filled in on their ballots:

Anyone Else.

John Hilton. Likely a reference to the editor of the Ann Arbor Observer. The printed monthly magazine's articles are also available on arborweb.com

Mr. No Fuller. This ballot likely reflects sentiment against the Fuller Road Station, which would include a train station, bus terminal and – in its first phase – a large parking structure. The facility has been proposed as a joint city of Ann Arbor-University of Michigan project, located on city-owned land that's designated as part of the park system.

Mary Elton. Likely the car enthusiast, spouse of Bob Elton.

Robert Elton. Likely the local car historian who is one of the founders of the Rolling Sculpture Car Show. Image links to Ann Arbor District Library video of a history of Chrysler by Elton.

Pat Clancy. Possibly the co-operator of Lil Dog Rescue.

Grant J. Weber. Possibly a former student at the Ross Business School at the University of Michigan.

Wickboldt. Likely Richard Wickboldt, who ran unsuccessfully for the Ward 1 Democratic nomination for city council in 2007, a race won by Sabra Briere.

Sarah Pinckleman. Likely an English instructor at Washtenaw Community College.

Cthulhu. A fictional character from the short story “The Call of Cthulhu” by H. P. Lovecraft, published in 1928. The creature has a following for the 2012 presidential election.

Wards are represented on the city council by two councilmembers, one of whom stands for election each year. Briere’s wardmate, Sandi Smith, has not announced publicly any plans for seeking re-election to her Ward 1 city council seat in 2012.

But of the names written in on last November’s Ward 1 city council ballots, Cthulhu is the least likely to challenge for her seat – he’ll apparently be otherwise occupied running for president: Chthulhu for President in 2012 Facebook page.

[.pdf of full set of 24 write-in ballots for city council in Ward 1, precincts 4 and 8, from the Nov. 8, 2011 election.]

The Chronicle could not survive without regular voluntary subscriptions to support our coverage of public bodies like the Ann Arbor city council. Click this link for details: Subscribe to The Chronicle. And if you’re already supporting us, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!

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

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

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

Charter Requirements on Opinions

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

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

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

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

The city attorney is wrong about that.

Opinion on Percent for Art

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why The Chronicle Will Persist

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

The Matter of Law

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

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

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

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

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

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

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

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

The Matter of Semantics

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

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

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

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

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

The Practical Matter

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

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

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

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

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

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

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

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

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

Dave Askins is the editor of The Ann Arbor Chronicle.

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

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

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

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

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

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

Near North

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

Public Comment on Near North

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

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

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

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

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

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

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

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

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

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

Council Deliberations on Near North

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

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

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

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

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

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

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

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

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

City Place

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

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

Public Commentary on City Place

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

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

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

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

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

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

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

Council Deliberations on City Place

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

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

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

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

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

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

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

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

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

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

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

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

Council Electronic Communications

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

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

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

Public Commentary on Council Email Resolution

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

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

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

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

Council Deliberations on Council Email Resolution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Analysis of Cost-Shift Argument

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

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

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

Budget Projections

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

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

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

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

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

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

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

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

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

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

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

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

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

Publishing

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

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

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

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

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

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

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

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

Plastic Bags

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

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

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

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

Applications Requested

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

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

Cable Commission

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

Taxicab Board

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

Sign Board of Appeals

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

Board of Review

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

Other Business

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Public Comment

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

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

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

Other Council Business

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

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

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

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

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

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

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

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]