Simultaneous service on the 15-member Washtenaw Ride (Act 196) board and the seven-member AATA board generated legal questions. (Illustration by The Chronicle.)

It was previously assumed that the seven Ann Arbor appointments to the new authority’s 15-member board would serve simultaneously on AATA’s board. Now, it appears that different appointments will be made.

Responding to an emailed query from The Chronicle, Ann Arbor mayor John Hieftje wrote late Friday afternoon: “On Monday night [at the council's Oct. 15 meeting] I will put out a call for applications to serve on the 196 Board. I will not be appointing anyone to that board who would also sit on the AATA Board.”

An application for all city boards and commissions is available on the city clerk’s website.

An informal 15-member group has been meeting as the board of the unincorporated authority for around a year. Some members of the AATA board and many others had assumed that upon incorporation, the informal group would become automatically installed as the board of the new Act 196 authority. However, that won’t be the case. Ann Arbor’s seven representatives to the new authority’s board first need to be nominated by the mayor and confirmed by the city council – under terms of a four-party agreement ratified between the cities of Ann Arbor and Ypsilanti, Washtenaw County and the AATA.

More significantly, according to several sources, the apparent current view of the Ann Arbor city attorney’s office is that service on the AATA board is not legally compatible with simultaneous service on the board of the new transit authority. So appointing seven Ann Arbor members to the new authority’s board would require nominating seven individuals who are different from those who might continue to serve on the seven-member AATA board.

Another issue apparently identified by the city attorney’s office is the fact that Act 196 of 1986 refers to an additional 30-day window for a jurisdiction in the county to opt out of inclusion in the new transit authority – a window that has not yet opened. Letters of notification sent by the AATA in late September to all jurisdictions in the county referred to a statutory 30-day window starting with the filing of the articles of incorporation. But Act 196 also requires that the new transit authority itself notify jurisdictions, which also triggers a 30-day window for opting out. The statute makes clear that it’s the later of the two windows that is relevant. Because the new transit authority does not yet have a seated board, it has not yet acted to notify jurisdictions countywide.

In any case, some jurisdictions have already opted out of the new Act 196 authority. The Northfield Township clerk’s office responded to a Chronicle phone query with confirmation that on Oct. 9, the township board decided to withdraw from the new authority on a 4-0 vote. The Chronicle has as-yet-unconfirmed reports that the boards of Salem Township and Manchester Township have also voted to opt out.

Another wrinkle: The change in composition of the Ann Arbor city council after the Nov. 6 election. Councilmember Stephen Kunselman (Ward 3) has told The Chronicle that he would like to pursue the possibility of Ann Arbor opting out – and he thinks there might be six votes on the new council to accomplish that. If Ann Arbor opted out, it would effectively end the initiative.

Delay in Decision: Implications for Board Makeup

The question of whether the same individual could simultaneously serve on the boards of the two transit authorities has been under discussion by attorneys for the city of Ann Arbor and the AATA for the past week. On Oct. 8, mayor John Hieftje – in a response to an emailed query from The Chronicle – could not offer anything definitive on the board compatibility question. And AATA board chair Charles Griffith wrote on the same day that “… we are still seeking clarification with [legal counsel] but are confident we will resolve and move forward. We do think that the city’s best interests are served by ensuring continuity from one entity to the next.”

In the interest of promoting continuity, it’s conceivable that some members of the current AATA board could resign their positions on that board, in order to become eligible for appointment on the new Act 196 board. Hieftje’s statement would allow for that possibility.

Boards for both organizations will need to exist until a possible transfer of assets is made from the AATA to The Washtenaw Ride. That transfer can’t happen until all conditions of the four-party agreement are met – including a voter-approved funding source for expanded services that are to be offered by the new transit authority.

Ann Arbor’s regular appointment process for a board or commission stipulates that candidates are nominated by the mayor, then confirmed by the full city council. That confirmation can’t take place until at least the next regular meeting of the council after the nomination has been made – unless approved by an eight-vote majority on the 11-member body. Based on Hieftje’s written statement, nominations for Ann Arbor’s members to the board of The Washtenaw Ride could not be made any sooner than Nov. 8 – the next council meeting after Oct. 15.

So under the city’s regular appointment process, confirmations would then come no sooner than the council’s Nov. 19 meeting – which will be the first meeting of the newly-constituted city council following the Nov. 6 election. Departing from the council will be three councilmembers who could have reasonably been expected to support the nominations made by the mayor: Carsten Hohnke (Ward 5), Sandi Smith (Ward 1) and Tony Derezinski (Ward 2).

So the additional lag in time has potential implications for the actual makeup of the new authority’s board.

Opt-Out Window

The additional time lag also has implications for the possibility that Ann Arbor itself would opt out of the new authority, as well as for the timing of any millage vote. More detail on that is included below.

Incorporation under Act 196 initially includes by default every jurisdiction in Washtenaw County. But the statute provides more than one way of opting out of inclusion.

Opt-Out Window: Which Window?

The working assumption for many observers has been that the trigger of a 30-day timeframe for a jurisdiction to opt out was the event of incorporation. But the language of the act itself ties a possibly different timeframe to the notification of jurisdictions in the county. [.pdf of Act 196 of 1986]

Section 8. (5) A political subdivision or other entity that is part of a public authority under this act may withdraw from the public authority until the expiration of the thirtieth day following the date the public authority is incorporated or until the expiration of the thirtieth day after receiving notification under subsection (7), whichever is later, without meeting the conditions listed in subsection (1) or (2).

And according to the statute, the notification in subsection (7) is properly done by the new authority:

Section 8. (7) An authority that forms under this act on or after May 1, 2006 shall notify all political subdivisions or portions of any city, village, or township that are included in the authority that the political subdivision or portion of the political subdivision is included in the authority. The authority shall include in this notification notice of the right to withdraw from the authority under this section. The political subdivision or portion of the political subdivision that is notified has 30 days after receiving the notification to withdraw from the authority pursuant to subsection (5).

Although the AATA sent letters of notification on Sept. 27 to every jurisdiction in the county – of the intent to file the articles of incorporation – that does not satisfy the requirement in subsection (7). Those letters did satisfy a requirement in the Washtenaw County board of commissioners’ resolution ratifying the four-party agreement – commissioners had required that notification letters of an intent to file be sent.

When the new transit authority eventually sends out letters of notification to all jurisdictions – stating that those jurisdictions are included in the authority – only at that point will the later relevant 30-day window open.

Opt-Out Window:  Implications for Ann Arbor’s Participation?

If Ann Arbor board appointments are delayed for another few weeks and the relevant 30-day window does not open until December or later, it’s conceivable that the complete picture of which jurisdictions are participating in The Washtenaw Ride might not be finalized until next year.

The extension of the 30-day window well past the November election also has implications for the possibility of the city of Ann Arbor opting out of new Act 196 authority. While the current edition of the city council almost certainly does not have the six-vote majority necessary to opt out, the council will seat three new members after the election. Carsten Hohnke (Ward 5) and Sandi Smith (Ward 1) chose not to seek re-election, and Tony Derezinski (Ward 2) did not win the Democratic primary in August.

The council approved the four-party agreement on just a 7-4 vote – and three of the seven votes of approval were cast by outgoing councilmembers. Ann Arbor councilmember Stephen Kunselman (Ward 3) has told The Chronicle that he would like to pursue the possibility of Ann Arbor opting out – and he thinks there might be six votes on the new council to accomplish that.

If the city of Ann Arbor opted out of the new Act 196 authority, that would effectively end the initiative. The four-party agreement does not appear explicitly to contemplate the possibility that Ann Arbor would opt out. But by its terms, the city would withdraw from the agreement if Ann Arbor opted out – because as residents of a non-participating jurisdiction, Ann Arbor voters would necessarily fail to approve any millage that the new Act 196 authority requested. Excerpted from the four-party agreement:

If Ann Arbor voters fail to approve the NEW TA [transit authority] Act 196 funding source before December 31, 2014, regardless of whether it is approved or not by the other voting jurisdictions, then the City shall withdraw from this agreement without penalty, shall veto any attempted termination by AATA of the AATA-City operation agreement, and shall refuse to designate and/or assign its millage under Section 3(a).

Opt-Out Window: Implications for Millage Vote Timing?

The AATA has indicated that a possible funding scenario is to ask voters in Washtenaw County to fund the new transit authority with a property tax of 0.584 mills. A millage proposal might be put on the ballot as early as May 2013.

But given the now-extended timeframe for seating the new board, a May 2013 millage vote presents an increasingly challenging timeframe for an effective millage campaign to be mounted.

Even before the additional delays were apparent, Tom Heywood, director of the State Street Area Association, feared that a millage would not pass if voted on that soon – because he thought there would not be adequate lead time for a millage campaign. Heywood made the remarks at a Sept. 25 meeting of Ann Arbor’s district advisory committee (DAC), which helped advise the unincorporated authority and will continue to do that.

Incompatible Offices

It’s been widely assumed that the current seven members of the AATA board would serve as Ann Arbor’s representatives to the new transit authority’s board. However, according to multiple sources, the view of the Ann Arbor city attorney’s office appears now to be that simultaneous service on the two boards is disallowed, because such service would violate the state’s statute that characterizes incompatible offices. [.pdf of Act 566 of 1978 (Incompatible Public Offices)]

Incompatible Offices: Transit Authority Exemption

By way of background, the statute on incompatible offices provides an explicit exemption from applying the statute’s key clause (Sec. 2) for certain types of transit authorities. The Washtenaw Ride and the AATA don’t have the kind of relationship to each other that is exempted by the statute. But the argument that simultaneous service is not allowed on the two boards doesn’t depend on the failure to meet the exempted condition. Here’s the specific exemption:

Sec 3. (11) Section 2 does not prohibit a public officer or public employee of an authority created under the public transportation authority act, 1986 PA 196, MCL 124.451 to 124.479, from serving as a public officer or public employee of another public transportation authority if each public transportation authority has members consisting of identical political subdivisions.

For reference, Sec. 2 is fairly short:

Sec. 2. (1) Except as provided in section 3, a public officer or public employee shall not hold 2 or more incompatible offices at the same time.

It’s clear that the two transit authorities in question – the AATA and The Washtenaw Ride – don’t meet the condition for the exemption in subsection (11), because they consist of different political subdivisions. From that, however, it does not necessarily follow that the two offices are incompatible.

But because the exemption criterion is not met, the definition of “incompatible offices” as provided by the statute has to be applied.

And according to the statute, here’s what “incompatible offices” means:

‘Incompatible offices’ means public offices held by a public official which, when the official is performing the duties of any of the public offices held by the official, results in any of the following with respect to those offices held:
(i) The subordination of 1 public office to another.
(ii) The supervision of 1 public office by another.
(iii) A breach of duty of public office.

So the question becomes: Are the offices of AATA board member and Washtenaw Ride board member incompatible under (i), (ii), or (iii)?

Incompatible Offices: Subordination, Breach

It seems clear that if the two offices are incompatible, then it’s not because of (ii) – because AATA board members will not be supervising Washtenaw Ride board members, or visa versa.

But under (i) or (iii) it’s now apparently the view of the Ann Arbor city attorney’s office that simultaneous service on the two boards is not allowed. The new transit authority’s board might be analyzed as subordinate to the AATA board, because the new authority has no assets. And without assets, the new authority’s board cannot perform the most basic of duties assigned to it by Act 196 – notifying jurisdictions in the county that they are included in the authority, which starts the 30-day window for opting out. In order to complete that required task, the AATA would presumably need to appropriate money to the new transit authority to cover the cost of materials and postage associated with that notification. That could conceivably make the new authority’s board dependent on, and therefore subordinate to, the AATA board.

A breach of duty generally would result from a conflict in the fiduciary responsibilities between offices. The two entities – the Washtenaw Ride and the AATA – are separate, so it’s conceivable that there’s a separate fiduciary responsibility to them. But it’s also conceivable that a counterargument could be made – that in this case, the fiduciary interests of the two entities are completely aligned.

The fact that the discussion among the various legal counsel extended over several days is consistent with a divergence of views on the matter. But Hieftje’s statement – that he’ll seek applications so that the new authority’s board can be filled without requiring simultaneous service on the AATA board – makes the matter essentially academic.

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

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

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

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

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

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

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

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

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

Crosswalks

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

Crosswalks: Ordinance Revision – Background

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

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

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

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

Crosswalks: Public Commentary

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

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

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

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

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

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

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

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

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

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

Crosswalks: Ordinance Revision – Council Deliberations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Crosswalks: Flashing Beacons – Background

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

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

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

Crosswalks: Flashing Beacons – Council Deliberations

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

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

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

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

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

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

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

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

University Bank, Hoover Mansion Rezoning

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

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

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

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

Hoover Mansion: Public Hearing

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

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

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

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

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

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

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

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

Hoover Mansion: Council Deliberations

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

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

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

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

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

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

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

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

Mayoral Appointments of City Employees

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

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

Mayoral Nominations: Meeting Bookends

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

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

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

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

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

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

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

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

Mayoral Nominations: Miscellaneous

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

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

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

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

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

Mayoral Nominations: Economic Development Board

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

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

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

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

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

Mayoral Nominations: Eli Cooper to AATA Board

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

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

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

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

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

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

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

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

Eligibility for City Office–General Qualifications
SECTION 12.2. Except as otherwise provided in this charter, a person is eligible to hold a City office if the person has been a registered elector of the City, or of territory annexed to the City or both, and, in the case of a Council Member, a resident of the ward from which elected, for at least one year immediately preceding election or appointment. This requirement may be waived as to appointive officers by resolution concurred in by not less than seven members of the Council.

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

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

Mayoral Nominations: Opposing City Employee Nominations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pay Increase for Poll Workers

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

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

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

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

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

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

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

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

City Attorney Performance Review, Contract Amendment

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

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

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

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

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

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

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

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

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

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

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

Drop-Off Recycling Contract

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

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

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

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

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

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

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

Solar Money

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

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

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

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

Reimbursement for MRF Magnet

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

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

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

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

Bond Re-Funding

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

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

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

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

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

Communications and Comment

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

Comm/Comm: Vacant Properties

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

Comm/Comm: Property Tax

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

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

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

Comm/Comm: Immigration

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

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

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

Comm/Comm: Spirit of Christmas

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

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

Comm/Comm: Coordinated Funding

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

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

Present: Jane Lumm, Mike Anglin, Margie Teall, Sabra Briere, Sandi Smith, Tony Derezinski, Stephen Kunselman, Marcia Higgins, John Hieftje, Christopher Taylor, Carsten Hohnke.

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

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!