Jim Casha shows Mary Jo Callan, director of Washtenaw County’s office of community & economic development, a map of the Michigan state fairgrounds. Casha is advocating for the southeast Michigan regional transit authority to develop the site as a regional transit hub. (Photos by the writer.)

However, in the previous week, a jury had awarded nearly $1.2 million to a former Washtenaw County employee, Ali Aboubaker, who had filed a discrimination lawsuit against the county in 2011. Responding to a query after the March 5 meeting, corporation counsel Curtis Hedger told The Chronicle that the county would be evaluating its options for appeal. The administration would also be meeting with the county’s insurance carrier to discuss the situation.

In other action, the board gave initial approval to hire a contract position that would support budget-related work for the board and administration. The item had been originally considered, but postponed, at the Feb. 5, 2014 meeting. The vote on March 5 was 7-1, over dissent from Dan Smith (R-District 2). Rolland Sizemore Jr. (D-District 5) was absent.

Commissioners also voted to accept a grant from the Michigan Council of Arts and Cultural Affairs for the Youth Arts Alliance (YAA). Washtenaw County is the fiduciary for this five-county collaborative, which provides creative arts workshops to youth in the juvenile justice system. The county also provides office space for YAA.

The grant will pay local artists to install public art at each of the five county juvenile facilities, made with help from the youth at those facilities. The youth will also work with local musicians to create an original album. The alliance’s director, Heather Wilson, told commissioners: “We are seeing huge transformations with the kids experiencing creative arts as an outlet.”

During his communications to the board, chair Yousef Rabhi (D-District 8) laid out the application process to fill the seat on the Washtenaw County road commission board left vacant by the recent death of long-time road commissioner Fred Veigel. The deadline for submitting applications is Sunday, March 16. Rabhi hopes to make a nomination at the board’s March 19 meeting. The appointment would be to fill the remainder of Veigel’s term, through Dec. 31, 2014. During the March 5 meeting, commissioners passed resolutions honoring Veigel as well as local activist Lois Mayfield, who died on Feb. 21.

Commissioners also scheduled a public hearing to give input for the Washtenaw Urban County 2014-15 action plan. The hearing will be held at the county boardroom in downtown Ann Arbor during the March 19 meeting, which begins at 6:30 p.m. It’s intended to solicit feedback about proposed projects and programs that the county intends to implement with federal funding – through community development block grant (CDBG), HOME and emergency shelter grant programs – from July 1, 2014 through June 30, 2015.

The March 5 meeting included an update from Diane Heidt, the county’s human resources and labor relations director, about a proposal to offer autism health care coverage for county employees. A formal resolution is expected to be on the March 19 agenda for the board’s consideration.

Public commentary included advocacy from Jim Casha, who has previously addressed the board regarding the southeast Michigan regional transit authority. Washtenaw County is a member of the RTA, and the county board appoints two representatives to the RTA board. Casha’s remarks focused on the benefits of using the former state fairgrounds as a regional transit hub, instead of private development.

Pending Litigation

During the March 5 meeting, the board went into closed session for about 45 minutes to discuss pending litigation. That topic is one of the exceptions allowed under Michigan’s Open Meetings Act.

Curtis Hedger, Washtenaw County’s corporation counsel.

The specific litigation was not mentioned during the meeting.

The most recent news regarding a lawsuit against Washtenaw County was a nearly $1.2 million jury award given to a former employee, Ali Aboubaker. The award in the discrimination lawsuit was handed down on Feb. 27 – less than a week before to the county board’s March 5 meeting. The lawsuit had been filed in U.S. District Court in Detroit on Aug. 29, 2011. [.pdf of Aboubaker's complaint] [.pdf of jury verdict]

According to the complaint, Aboubaker worked for the county from 1991 until he was fired in July of 2008. He was originally hired as a bus driver, and was a maintenance technician when he was fired. The complaint states that he ”faced severe harassment from his supervisors and co-workers on the basis of his race, religion and national origin.” The lawsuit alleges that Aboubaker was denied promotion, and was fired when he filed a complaint with the Equal Employment Opportunity Commission. The county denied the claims made in the complaint.

The award included $221,490 in wages and fringe benefits for the period starting in July 2008; $614,028 in future wages and fringe benefits that would have been earned until retirement; and $250,000 in other damages. The award also included $1 in punitive damages.

Responding to a query after the March 5 meeting, corporation counsel Curtis Hedger told The Chronicle that the county will be evaluating its options for appeal. The administration would also be meeting with the county’s insurance carrier to discuss the situation, he said.

If the award stands, it would be one of the largest ever imposed against the county. Hedger and county administrator Verna McDaniel couldn’t recall any other discrimination case of this nature.

Youth Arts Alliance

The March 5 agenda included a resolution to authorize accepting a $21,980 grant from the Michigan Council of Arts and Cultural Affairs for the Youth Arts Alliance (YAA).

Heather Wilson, Youth Arts Alliance director.

The YAA is a five-county partnership in southeast Michigan between the Washtenaw County children’s services department, the Monroe County youth center, the Lenawee County Maurice Spear campus, the Livingston County juvenile court, and the Jackson County youth center. It provides creative arts workshops to youth in the juvenile justice system.

Lisa Greco, director of the Washtenaw County children’s services department, said she was excited about the award to support the Youth Arts Alliance. Washtenaw County is acting as the fiduciary for the collaborative and the grant, she said. The county also houses the YAA office.

She introduced the team of people involved in the project who were attending the March 5 meeting: Kevin Mitchell, assistant director of the Washtenaw County youth center; management analyst Mike Langenright; Melissa Strong, director of the Monroe County youth center; Geremy Burns, director of the Jackson County youth center; and Heather Wilson, Youth Arts Alliance director.

Greco also thanked several others who couldn’t attend the meeting, including Jason Brooks from the county’s budget and finance department.

Greco noted that Wilson had been instrumental in getting this grant.

Wilson then addressed the board, describing the work of the YAA. It started in 2013 with four counties, she said, and more recently expanded to add Jackson County. During the YAA’s first year, over 1,400 workshops were provided to over 450 youth, with support from 48 community volunteers and a 20-person executive committee of juvenile justice professionals. The program operates in five of the 24 county juvenile facilities in the state, she said, “and we are seeing huge transformations with the kids experiencing creative arts as an outlet.” For any given workshop, 90% of the youth have never been exposed to the arts activity that’s presented, Wilson said. The workshops include visual arts, creative writing and theater.

Wilson joked that she didn’t know what was more impressive – the transformation of youth in YAA workshops, or the fact that five county governments were working together.

The grant from the Michigan Council of Arts and Cultural Affairs will pay local artists to go into each of the five county facilities and install public art – murals and mosaics that are made by the youth within that facility. The youth will also be working with local musicians to create an original album, Wilson said. YAA is planning a big event in September, she reported, saying she expected to see all of the commissioners there.

The county board can be proud of what’s happening, Wilson said. They should be proud of the visionary leadership in each juvenile facility to understand the creative needs of the kids in their care, “and how truly transformative and healing participating in the arts can be.”

Outcome: Commissioners unanimously authorized accepting the grant.

Road Commission Board

Applications are being accepted to fill the seat on the Washtenaw County road commission board left vacant by the recent death of long-time road commissioner Fred Veigel. The appointment process was announced by county board chair Yousef Rabhi during the March 5 meeting.

Conan Smith (D-District 9).

The deadline for submitting applications is Sunday, March 16. Rabhi hopes to make a nomination at the board’s March 19 meeting.

The appointment would be to fill the remainder of Veigel’s six-year term, through Dec. 31, 2014. Applications can be submitted to Peter Simms of the Washtenaw County clerk’s office at simmsp@ewashtenaw.org.

The road commission is overseen by a three-member board that’s appointed by the county board. The two current commissioners are Doug Fuller and Barb Fuller, who are not related. The organization manages the maintenance and repair of about 1,650 miles of roads in the county that are outside of cities and villages, including about 770 miles of gravel roads. The organization employs 115 full-time staff, down from 156 in 2004. [.pdf of 2013-2014 road commission budget] [.xls of all road commission projects 2014-2018] [.pdf list of unfunded projects 2014-2018]

The organization of the road commission has been the focus of a county board subcommittee that recently made a recommendation not to absorb the road commission’s operations into the county government. For more background, see Chronicle coverage: “No Major Change Likely for Road Commission.”

Veigel, who also served on the county parks & recreation commission as a representative of the road commission board, died on March 2.

At the March 5 county board meeting, commissioners passed a resolution honoring Veigel for his work. [.pdf of resolution honoring Veigel]

Outcome: This was not a voting item.

Staff for Budget Work

Commissioners were asked to give initial approval to a proposal to hire a contract position that would support budget-related work for the county board and administration. The item had been originally considered, but postponed, at the board’s meeting on Feb. 5, 2014.

Washtenaw County administrator Verna McDaniel.

This process started on Nov. 20, 2013 meeting, when commissioners gave direction to county administrator Verna McDaniel to research and recommend staffing options that would support the board’s community investment priorities. As part of adopting a four-year budget, the board set up a new strategic model to help it determine where the county’s resources should go. The board set goals as well as outcomes that are intended to measure how those goals are being achieved.

The priority areas for investment that were approved by the board in 2013 are: (1) ensure community safety net through health and human services, inclusive of public safety; (2) increase economic opportunity and workforce development; (3) ensure mobility and civic infrastructure for county residents; (4) reduce environmental impact; and (5) ensure internal labor force sustainability and effectiveness.

The dollar amount for this position wasn’t included in the resolution, which stated that “compensation shall not exceed the scope of the Administrator’s authority.” The administrator has discretion to spend up to $50,000 on professional services contracts, and up to $100,000 for any proposed goods, services, new construction or renovation. [.pdf of staff memo and resolution] A four-page job description had been included in the Feb. 5 board packet. The person would report to the county administrator in terms of daily operations. [.pdf of job description] [.pdf of scope of services]

The issue was debated at some length during the board’s Jan. 22, 2014 meeting, when commissioner Ronnie Peterson (D-District 6) questioned the process for hiring this kind of staff support. On Feb. 5, several commissioners expressed concern about spending money on this position and wanted more details about funding and duties, which led to the postponement.

There was no discussion of this item on March 5.

Outcome: On a 7-1 vote, commissioners gave initial approval to a contract staff position for budget work, over dissent from Dan Smith (R-District 2). Rolland Sizemore Jr. (D-District 5) was absent. A final vote is expected on March 19.

Public Hearing for Urban County Plan

The March 5 agenda included a resolution to schedule a public hearing for March 19. The purpose is to get public input for the Washtenaw Urban County 2014-15 action plan. The hearing will be held at the county boardroom in downtown Ann Arbor, 220 N. Main St., during the March 19 meeting, which begins at 6:30 p.m.

The county is soliciting feedback about proposed projects and programs that would be implemented with federal funding – through community development block grant (CDBG), HOME and emergency shelter grant programs – from July 1, 2014 through June 30, 2015. [.pdf of action plan]

The Urban County is a consortium of Washtenaw County and 18 local municipalities that receive federal funding for low-income neighborhoods. Members include the cities of Ann Arbor, Ypsilanti and Saline, and 15 townships. “Urban County” is a designation of the U.S. Dept. of Housing and Urban Development (HUD), identifying a county with more than 200,000 people. With that designation, individual governments within the Urban County can become members, entitling them to an allotment of funding through a variety of HUD programs. The Urban County is supported by the staff of Washtenaw County’s office of community & economic development (OCED).

Two HUD programs – the Community Development Block Grant and HOME Investment Partnership – are the primary funding sources for Urban County projects.

Outcome: Commissioners set the public hearing for feedback on the Urban County master plan, to be held on March 19.

Health Care Coverage for Autism

During the March 5 meeting, Felicia Brabec (D-District 4) noted that a subcommittee of the board has been working with Diane Heidt, the county’s human resources and labor relations director, to develop an option for the board to consider on offering health care coverage to county employees for the treatment of autism. The subcommittee includes Brabec, Andy LaBarre (D-District 7) and Ronnie Peterson (D-District 6). The board previously had been briefed on this issue at its Jan. 22, 2014 meeting.

Yousef Rabhi (D-District 8).

On March 5, Heidt reported that they are continuing to gather information on what kind of coverage might be offered. All county employees are offered a core level of preferred provider organization (PPO) coverage, she explained, with the option to buy additional coverage levels. The employee premium-sharing for the core coverage is $75 per month. That’s what the county had negotiated with its bargaining units, Heidt said. The other levels of coverage have higher premiums for the same coverage, but the deductibles are lower.

If the county offered a rider for the autism spectrum disorder that’s provided by Blue Cross Blue Shield of Michigan, then the county would be able to seek reimbursement from the state of Michigan for any covered services related to autism. If the county offered some kind of coverage other than the BCBS rider, however, then it would be opening itself up to additional liability if a significant claim came in and the state decided not to reimburse it, Heidt said.

Heidt noted that Brabec and LaBarre are seeking additional information from clinicians in the field, regarding the kind of coverage that might be available.

LaBarre reported that he recently spoke with the parent of a student with autism who goes to school where his wife teaches. [LaBarre's wife is a special education teacher.] They talked about out-of-pocket costs, and the parent told him it cost about $30,000 annually. “It’s a significant, significant burden,” LaBarre said.

Brabec said that some of the information they’d be gathering relates to the cost of offering coverage for dependents aged 18-26, who aren’t eligible for reimbursement from the state.

Heidt reported that a resolution for the board has been drafted, and she hoped to bring it forward at the board’s March 19 meeting.

Conan Smith (D-District 9) asked whether it was within the purview of the county administrator to decide whether to offer the autism coverage to employees. He indicated that he didn’t think the board needed to vote on it. Heidt replied that the administration plans to seek board approval, because of the additional cost that offering the benefit would entail. [At the board's Jan. 22 meeting, Heidt had estimated that offering the coverage would result in up to a 5% increase in medical expenses, or up to $1 million annually. The county would expect to be fully reimbursed by the state of Michigan for the amounts that are allowed under the autism program.]

Dan Smith (R-District 2) wondered if Heidt knew what other companies are doing to cover autism treatment. Heidt replied that she’ll put that information in the memo that will accompany the resolution, based on information gathered from the Autism Alliance of Michigan and other sources. Many large corporations offer the coverage, she said, and several states mandate it.

Outcome: This was not a voting item.

Homeland Security Grant

Commissioners were asked to give initial approval to authorize the acceptance of $444,215 from the federal homeland security grant program, to fund projects and positions in the county sheriff’s office for a period from Sept. 1, 2013 through May 31, 2015.

According to a staff memo, each project was reviewed and recommended by Washtenaw County’s homeland security task force. Major allocations include $117,983 for the Washtenaw County Technical Rescue Team; $107,704 for Washtenaw County Sheriff Emergency Services; and $90,000 to continue funding an existing crime analyst position in the sheriff’s office. The position is dedicated to the Detroit/Southeast Michigan Fusion Center, which coordinates crime analysis efforts and regional information sharing. [.pdf of staff memo]

Outcome: Commissioners gave initial approval to authorize the grant acceptance. A final vote is expected on March 19.

“Prescription for Health” Grant

The March 5 agenda included a final vote to accept a two-year $226,357 ”Prescription for Health” grant from the Kresge Foundation. It will fund a part-time staff position and requires a $54,250 match from the county’s public health department. Commissioners had given initial approval to this item at their Feb. 19, 2014 meeting.

The county’s previous funding for this program was a two-year, $361,519 Kresge grant from Jan. 1, 2011 through Dec. 13, 2012. According to the program’s website, the purpose is ”to increase fruit and vegetable consumption among patients with low income, and to build capacity of clinics to expand the traditional medical model to include the food system.” The program also aims to strengthen relationships between clinics, farmers markets and the local food system. [.pdf of grant application]

According to a staff memo, analysis of feedback from 930 participants in 2011-2012 showed the following results:

Both years, the average daily consumption of fruits and vegetables increased by nearly one cup per day among patients who visited their local farmers market as measured by a pre- and post-program survey.

Participants overwhelmingly agreed that visiting the farmers market helped them and/or their family members eat more fruits and vegetables (96% Year 1; 94% Year 2).

Participants increased their awareness of other resources in the community. Both years, the number of participants who said they were aware that food stamps (Bridge/EBT cards) could be used at local farmers markets greatly increased from pre- to post-program (48% difference from pre to post Year 1; 43% difference Year 2).

Participants indicated that they were very likely to visit the farmers market again in the future at the conclusion of the program (98% Year 1; 97% Year 2).

The program had a positive economic impact on the local farmers markets, generating over $26,000 in new sales ($5,967 Year 1; $20,279 Year 2). Prescription for Health represented 9% of total sales at the Downtown Ypsilanti Market and accounted for 23% of the total sales at the Chelsea Bushel Basket Market.

Outcome: Commissioners unanimously voted to accept the Kresge grant.

Honoring Fred Veigel and Lois Mayfield

Commissioners passed resolutions honoring Fred Veigel and Lois Mayfield for their service to Ann Arbor and Washtenaw County. Mayfield died on Feb. 21. Veigel passed away on March 2.

Conan Smith (D-District 9) called both of them wonderful advocates and ardent supporters of the community. “I didn’t agree all the time with either one of them, but I really valued their passion,” he said. Yousef Rabhi (D-District 8) echoed Smith’s remarks, saying he’d attended Mayfield’s memorial service at St. Mary’s Student Parish. [Veigel's funeral was held the following week, on March 10.]

Mayfield’s resolution cited several examples of her work, including serving as executive director of the Welfare Advocacy Program in Ann Arbor, and vice chair for the Ann Arbor Democratic Party’s mature adult issues committee. The resolution stated that she “served as a mentor to countless leaders, stood tall among the powerful – and when necessary – kept them in line with the sheer force of her character.” [.pdf of resolution honoring Mayfield]

The resolution honoring Veigel cited his 23 years of services as a Washtenaw County road commissioner, and as a member of the Washtenaw County parks & recreation commissioner since 2000. He was the longest-serving president of the Huron Valley Central Labor Council of the AFL-CIO. [.pdf of resolution honoring Veigel]

Outcome: Both resolutions pass unanimously.

Communications & Commentary

During the March 5 meeting there were multiple opportunities for communications from the administration and commissioners, as well as public commentary. In addition to issues reported earlier in this article, here are some other highlights.

Communications & Commentary: Prisoner Re-Entry Program

Yousef Rabhi (D-District 8) announced that Joe Summers is organizing a forum on Saturday, March 29 to discuss the Washtenaw prisoner re-entry program. There’ve been some cuts in state funding, so a group of local citizens are trying to figure out how to sustain the initiative. No location had yet been determined, he said.

Alicia Ping (R-District 3) and Andy LaBarre (D-District 7).

Ronnie Peterson (D-District 6) asked whether any county staff were involved in this program. Rabhi said he knew the sheriff’s office was involved to some degree.

Peterson told other commissioners that it was important to be aware of the program and its lack of support. The board should take an interest, because it’s an important program, he said. You can’t send people home, who’ve paid their debt to society, without a support system and without resources. Without sufficient state funding, Peterson noted, the responsibility falls on the local communities. It’s a statewide problem, and the system should be changed, he said. He hoped the board would have more discussion on this issue.

Conan Smith (D-District 9) told Peterson that county prosecutor Brian Mackie is active on the prisoner re-entry steering committee, as is Delphia Simpson from the county public defender’s office, Ellen Schulmeister of the Shelter Association of Washtenaw County, and several others. Smith noted that a little funding is provided through the local coordinated funding program, in which the county participates. It’s a big concern, Smith said. “In this down economy, we’ve seen a real decline in the strategic support for this issue.”

Washtenaw County has been a leader on prisoner re-entry in Michigan, Smith said, “and we should stay in that position, by all means.”

Andy LaBarre (D-District 7), who chairs the board’s working sessions, said he’d make a working session available for this issue to discuss it further.

Communications & Commentary: Regional Transit Authority (RTA)

Jim Casha addressed the board, saying he was there again to talk about the southeast Michigan regional transit authority (RTA) and the possible acquisition of the Michigan state fairgrounds. [He had previously spoken about this issue at at the board’s Jan. 8, 2014 and Jan. 22, 2014 meetings.]

Dan Smith (R-District 2).

He showed commissioners a map that indicated the locations of several buildings on the site that could be used for a temporary or permanent regional transportation hub at a very low cost. “You really can’t have a better location for a regional transportation center,” he said.

Casha questioned whether the transfer of the property is being handled legally, and whether the public should have had the opportunity to bid on it at a public auction. [The property had been transferred to the Michigan Land Bank in 2012. In the fall of 2013, the land bank's board voted to transfer the property to a development team that includes Magic Johnson.]

Casha hoped to convince the RTA board to at least try to delay the transfer of the land, so that it could be evaluated as a possible public transportation center. He said he’d attended the recent Detroit Policy Conference, where it was stressed that Detroit problems need to be addressed on a regional level. If there’s no effort to collaborate on a regional level, Detroit’s problems will never get solved. “What better way to solve a regional problem – especially a regional transportation problem – than by building an iconic regional transportation hub,” Casha said.

The RTA board seems to be stalling, Casha said. He argued that they’ve failed to pursue the fairgrounds, they’ve failed to hire a director, and now they’ve postponed putting a tax proposal on the ballot until 2016. They need to speed up the process, he said. He wanted the county commissioners to pass a resolution requesting that the RTA board ask the land bank to postpone transferring the fairgrounds until the RTA has evaluated it. He also wanted the county board to formally request that SEMCOG [the Southeast Michigan Council of Governments] cease meeting with private developers and instead start protecting the interests of the SEMCOG member communities.

Communications & Commentary: Thomas Partridge

Speaking during both opportunities for public commentary, Thomas Partridge called on commissioners to address the housing needs of county residents, especially during the cold winter. Residents also need access to affordable transportation, health care and education, he said. There should be no excuses from the county to take on these issues. The goal should be to eliminate homelessness in Washtenaw County by building affordable housing throughout the county, and by supporting viable public transportation.

Partridge also demanded that all meetings of all county boards and commissions be held in the boardroom of the county administration building in downtown Ann Arbor, and be taped for broadcast on Community Television Network and posted online. The county is too fragmented, he said. The Washtenaw Community Health Organization (WCHO) should have a representative attending the county board meetings. He contended that the WCHO is working with the legislature that’s “under the right wing leadership of the Snyder administration” to take away the rights of Washtenaw County residents to have considerate, friendly health care. The WCHO board holds its meetings at its Zeeb Road office, he said, out of public view. Too many other boards and commissioners are doing the same thing, Partridge said. That kind of thing lends itself to corruption, he said.

Present: Felicia Brabec, Andy LaBarre, Kent Martinez-Kratz, Ronnie Peterson, Alicia Ping, Yousef Rabhi, Conan Smith, Dan Smith.

Absent: Rolland Sizemore Jr.

Next regular board meeting: Wednesday, March 19, 2014 at 6:30 p.m. at the county administration building, 220 N. Main St. in Ann Arbor. The ways & means committee meets first, followed immediately by the regular board meeting. [Check Chronicle event listings to confirm date.] (Though the agenda states that the regular board meeting begins at 6:45 p.m., it usually starts much later – times vary depending on what’s on the agenda.) Public commentary is held at the beginning of each meeting, and no advance sign-up is required.

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The county had previously settled a wrongful death lawsuit brought by the heirs of Clifton Lee. For that $4 million settlement, the county paid $250,000 and insurance covered $3.75 million. Insurance will cover all but $125,000 for the current proposed settlement. The county plans to cover that remaining $125,000 out of attorney reimbursement funds from its insurer.

At the commissioners’ Aug. 26 administrative briefing, the county’s attorney, Curtis Hedger, said the settlement proposal was along the lines of what had been discussed with commissioners in a closed executive session they’d had about the pending litigation.

Background: The Incident

In the early morning of June 1, 2006, sheriff deputies made a traffic stop in West Willow involving the nephew of Clifton and Bruce Lee. The Lees arrived on the scene and tried to intervene. Bruce Lee struggled with the officers and was subdued, handcuffed and put into a patrol car. When he spit in an officer’s face through a window, deputies pulled him out of the car and onto the ground, where one officer kicked him and another punched him – an incident captured on video recorded from another patrol car.

According to reports of the incident, Clifton Lee confronted officers, and when he didn’t obey their commands – including calls to take his hands out of his pockets – deputies wrestled him to the ground. A video shows several officers kneeling on him, one punching him, another kicking him, and Lee crying out. Medical examiners ruled Lee’s cause of death as asphyxiation by respiratory restriction.

Four officers involved in the scene – Shawn Hoy, Joseph Eberle, Aaron Hendricks and Eric Kelly – were suspended with pay after the incident. Hendricks was never charged. Eberle and Hoy were indicted on criminal civil rights charges but were acquitted last year. Kelly pled guilty to use of excessive force on Bruce Lee and was sentenced to probation.

The 2006 incident occurred under the tenure of former Sheriff Dan Minzey. Sheriff Jerry Clayton, who defeated Minzey in the 2008 election, released videos of the June 2006 incident earlier this year. [Link to videos published by The Ann Arbor News in March 2009.]

The Lawsuits and Proposed Settlement

The two lawsuits in the proposed settlement deal were filed separately in federal court by Bruce Lee and his mother, Beatrice McKeown. Bruce Lee’s lawsuit – filed in 2008 against the county, former Sheriff Dan Minzey and several employees of the sheriff’s department – sought damages for his alleged physical and psychological injuries during the 2006 incident. McKeown’s lawsuit was filed in May 2009 – also against Washtenaw County, several sheriff’s employees and Minzey – alleging intentional interference with familial relations. Both her lawsuit and Lee’s lawsuit claim that their civil rights were violated.

The proposed settlement was reached under a voluntary mediation that was overseen by Richard Kauffman, former chief judge of the Wayne County Circuit. In addition to the $1.375 million settlement, the county has agreed to some non-financial demands. The plaintiffs asked for a meeting between Sheriff Jerry Clayton and members of the Lee family. The plaintiffs also requested a commitment from Clayton for better training of sheriff’s deputies and to listen to complaints about the sheriff’s department from concerned citizens.

Reached by phone on Monday, Clayton said his department had already been doing the kinds of things the plaintiffs were requesting. He said he had reached out to the family months ago for a meeting, which they had initially declined because of the litigation. A comprehensive training plan for staff is being developed, he said, which will include relationship-building and increasing cultural competencies. Finally, Clayton said that plans to re-form a citizens advisory council are already under way, with a formal resolution coming to the board on that soon.

The monetary piece of the settlement will be covered by insurance. The county’s insurance coverage through Chicago-based Genesis Insurance Co. totals $5 million for the policy year 2006, but requires that the county make an initial payment of $250,000 before tapping the $5 million. Called self-insured retention, the $250,000 is similar to a deductible but is added to the $5 million insurance coverage, not deducted from it. The $250,000 went toward the $4 million Clifton Lee settlement, with the insurance company paying the remaining $3.75 million. That left $1.25 million in insurance coverage for all other general liability claims during that year.

The county plans to use the $1.25 million for the bulk of its proposed $1.375 million settlement in the Bruce Lee and Beatrice McKeown lawsuits. They expect to pay the remaining amount – $125,000 – out of attorney fees that are reimbursed by the insurance company. A total of $201,382 has been spent by the county on attorney fees for these cases – the insurance company will reimburse 94% of those costs, or $189,299. Those are the funds that the county will use to pay the $125,000 it owes in the settlement.

Attorney fees were originally paid out of the county’s risk management/self-insurance fund – a $2.18 million non-general fund account that gets its revenue from fees paid to it by other county departments. The fund is used to pay insurance premiums and costs associated with lawsuits, among other things.

Additional Litigation

Meanwhile, three officers involved in the 2006 incident – Shawn Hoy, Joseph Eberle, Aaron Hendricks – sued the county earlier this year, claiming they were racially discriminated against by former Sheriff Dan Minzey and police investigators following the incident. The officers are white; the Lees are black. Those cases are pending. According to Judy Kramer, the county’s risk management coordinator, expenses related to these lawsuits will be covered under the current policy year, because they deal with employment-related claims. The lawsuits filed by the Lees were covered under the county’s general liability policy, and the settlement would be covered under the 2006 policy year.

For its insurance coverage, the county pays an annual premium of $685,305, which covers a package policy: general liability, auto, police liability and public officials liability. For 2008-09, the county increased its coverage to $10 million and raised its self-insured retention amount to $350,000. A proposal for insurance coverage in 2009-10 will be part of county administrator Bob Guenzel’s budget recommendations to commissioners at their Sept. 16 board meeting.

Joining Hall as signatories to the letter are Henry L. Henderson (Natural Resources Defense Council), Stuart Batterman (environmental health sciences at the University of Michigan), David Yves Albouy (economics at the University of Michigan), Doug Cowherd (Sierra Club-Huron Valley Group), Tom Whitaker (Germantown Neighborhood Association), as well as two other Ann Arbor residents.

In an emailed response to The Chronicle reacting to a previous draft of Hall’s letter circulated two months ago (which covered substantially the same issues), Leigh Greden (Ward 3) stated: “A lawsuit alleging that the parking garage violates MEPA would be frivolous,” contending that the standard suggested by Hall would make any construction project non-compliant with the MEPA.

Still, based on background sources for The Chronicle,  the project has been slowed somewhat by the extra unknown of a lawsuit. We’ll track this dispute as it evolves, and will hopefully be able to gain some insight into any planned next steps from councilmembers at their Sunday night caucus.

Meanwhile, what exactly is the MEPA standard to which Hall appeals in his letter to the Ann Arbor city council? Two key aspects to consider in evaluating a MEPA claim are (i) standing, and (ii) cause. The first relates to those who are allowed to bring a suit in a MEPA case.

Legal Standing

In relevant part, the section from Michigan Compiled Law 324.1701 reads [emphasis added for readability]:

(1) The attorney general or any person may maintain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.

But in a July 25, 2007 Michigan Supreme Court decision, the court set a possible precedent for narrowing the set of possible plaintiffs in such cases, by applying traditional requirements for legal standing. That is, there must be an injury to the plaintiff, and that plaintiff’s injury must be different than the injury to the public at large. The 2007 case involved a water bottling plant operated by Nestlé Waters North America that threatened to lower the levels of two nearby lakes, a stream and three wetlands.

In that decision, the court ruled that the group filing the lawsuit could sue based on damages related to one of the lakes and the stream, because some members of the group owned property located directly on the lake and the stream. But because none of the group owned property on the second lake or any of the three wetlands, nor did they enjoy the direct benefit of those properties, the court said the group could not sue based on damage to those bodies of water, because the group lacked the legal standing to do so.

… the record below does not indicate that plaintiffs used or had access to these areas or that they enjoyed a recreational, aesthetic, or economic interest in them. Plaintiffs failed to establish that they have a substantial interest in these areas, detrimentally affected by Nestlé’s conduct, that is distinct from the interest of the general public. The absence of a concrete, particularized injury in fact is fatal to plaintiffs’ standing to bring a MEPA claim.

So while the MEPA itself appears to grant legal standing to anyone at all to bring a lawsuit based on “pollution, impairment, or destruction” of the environment, the precedent set by the 2007 case allows for some restriction on the range of people who can bring a lawsuit under the MEPA.

And that restriction depends on the relationship of the potential plaintiffs to the resource that is alleged to be in danger of “pollution, impairment, or destruction.” That relationship needs to be relatively direct: The court rejected an “interconnectedness” argument based on the entire planet’s hydrology, on pain of giving “anyone but a Martian” the standing to contest water withdrawals like Nestlé’s. It’s not enough, the court said in a previous case (Lujan v Defenders of Wildlife), to use a resource in an area roughly “in the vicinity” of the jeopardized resource.

One resource identified in Hall’s letter as jeopardized by the planned Fifth Avenue underground parking structure is air – partly in the form of increased CO2 emissions from automobile emissions caused by motorists driving to and from the structure. So with respect to the issue of legal standing, one question on which a court might deliberate would be: Is there a party to the lawsuit who has a recreational, aesthetic, or economic interest in the air that is likely to be directly affected by the garage? A second question on which the court could deliberate with respect to legal standing would be whether the question of CO2 air pollution is sufficiently similar to water hydrology to reject any claim to standing based on the global warming phenomena.

With respect to the first question, the locations of the letter’s signatories’ homes could be germane: The geographic area of the Germantown Neighborhood Association abuts the same block on which the underground parking garage is to be built; Albouy, the UM economics professor, lives on the 300 block of South Division, directly adjacent to the proposed structure.

Hall’s letter indicates that CO2 emissions from automobiles are not the only source of environmental damage he might argue, should the case be litigated:

… the construction of a new parking structure of the size proposed will require a massive quantity of materials, including concrete and steel. The manufacture and synthesis of these construction materials require vast amounts of resources and energy, with associated pollution, impairment, and destruction of the natural environment.

The Case for Environmental Damage

Based on the space allocated to the topic in Hall’s letter, he’d likely place more emphasis on the the case for environmental damage from automobile CO2 emissions, than on destruction of resources associated with construction of the facility.

The line of reasoning for environmental damage based on CO2 emissions goes roughly like this: more vehicle miles traveled means more CO2 emissions, and more CO2 emissions translates into more global warming.

Once built, the underground parking structure – with 677 spaces in Phase I – will lead to increased vehicle miles traveled (VMT) on the streets surrounding the structure that provide entrance and exit to the structure. The expected increase in VMT at those locations is reflected in two kinds of city documents: (i) in the site plan analysis done for the underground parking garage project by the city, which notes the expected increase in traffic surrounding the structure, and (ii) the financial plan analyzing the feasibility for issuing bonds to fund the structure, which assumes an overall increase in the number of vehicles using the Ann Arbor parking system downtown.

Part of the context of the VMT discussion is that an increase in VMT is counter to the city of Ann Arbor’s stated environmental goals. It’s also one of the areas of weakness identified in the city’s State of the Environment report. The number of per capita VMT has been trending upward from 2000 to 2005.

Does increased VMT lead to increased C02 emissions? For now, at least, Hall said in an interview with The Chronicle, increased VMT correlates with increased CO2 emissions. Until there’s a predominance of electric vehicles on the road, with batteries charged with solar arrays or windmills, more VMT means more CO2, he said.

What’s the significance of CO2, given that various natural processes emit CO2? At least the legal significance of CO2 could be affected by the April 17, 2009 proposed endangerment finding by the U.S. Environmental Protection Agency that greenhouse gases (of which CO2 is one) contribute to air pollution that may endanger public health or welfare. The EPA finding is “proposed” because it must now go through a public commentary phase.

It’s that proposed finding, together with a scientific consensus on global warming, that convinces Hall that the case he might bring would be easier to argue now than it would have been a year ago. Even considering that, Hall allows that it’s not an open-and-shut case. Otherwise put, it’s not about “routine enforcement,” but rather a new kind of case that could establish new precedents.

Defense and Settlement

Hall contends that either in advance of the parking garage construction – or as a defendant in an environmental lawsuit – the city of Ann Arbor needs “to engage in a thorough and objective evaluation of alternative ways to meet the defined need (for example, providing downtown Ann Arbor with transportation to support vibrant commerce).”

What is the defined need in this case? At the Feb. 17, 2009 city council meeting, the public commentary as well as council deliberations focused on symptoms that indicated a lack of sufficient parking. Those symptoms ranged from the anecdotal (complaints by potential patrons of downtown merchants about a lack of parking), to a parade example of a business that was reported to have relocated away from downtown Ann Arbor due to a lack of parking (Xoran Technologies), to some numbers on structure usage (84% capacity during peak periods) and excessive waiting times (greater than 30 days) to obtain a monthly permit.

The anecdotes will likely be familiar to readers of The Chronicle.

The example of Xoran Technologies was introduced at council’s Feb. 17 meeting during public commentary by Newcombe Clark, who works with Bluestone Realty Advisors, and who reported trying to negotiate a deal to provide 20 dedicated parking spaces for the growing company. Xoran, which makes advanced medical imaging equipment, will move from their current location at Miller and First in in the summer of 2009 to Pittsfield Township. At their current location, The Chronicle counted 53 spaces designated by signage for Xoran employees.

During council deliberations, Leigh Greden (Ward 3), who was involved in the attempt to negotiate the 20 additional spaces through the Downtown Development Authority, seemed to portray the Xoran decision as turning only on the 20 parking spaces. Based on a cursory inquiry by The Chronicle, it’s not clear who on Xoran’s part might have introduced a requirement or desire for the specific number of 20 additional parking spaces as a condition for staying downtown.

According to Jackie Vesitvich, head of communications for Xoran, with whom The Chronicle spoke by phone a few days after council’s Feb. 17 meeting, the company needed additional space in general. The company had been very interested in staying in the downtown Ann Arbor area, she said, because they loved being there – but the decision to move to their new Pittsfield location was based on the need for additional space, and specifically a particular configuration of office and warehouse space to accommodate their operation to FDA requirements. An extra 20 parking spaces, she allowed, would have been nice.

In an email sent to The Chronicle in response to an inquiry about the 20 spaces, Clark clarified that there were numerous “deal points” in addition to parking that led Xoran to decide to move to Pittsfield Township. However, he wrote, “All that is certain is that they had a strong desire to stay downtown and a very specific and small lack of parking was the stated reason at the time to look outside of the downtown.”

Asked at the podium during the Feb. 17 meeting what the usage numbers were for the parking system, Roger Hewitt, chair of the Downtown Development Authority’s operations committee, indicated that during peak periods the usage was at 84% of capacity, and that at 85% of capacity, there was already perception that a structure was full. [The DDA administers the city's parking structures and surface lots through Republic Parking. The organization's chair, Jennifer S. Hall, is married to Noah Hall.]

In light of the discussions and deliberations at council’s meeting, then, the need to add parking capacity by approving an underground structure was based on symptoms of a lack of parking capacity.

The parking study for Ann Arbor prepared for the city in 2007 by Nelson\Nygaard, a consulting firm, alludes to some of these symptoms in its final recommendations. With respect to permits, the study says:

6. Maintain sufficient parking supply to allow purchase of monthly parking access instrument on demand, or following a waiting period of no more than 30 days.

And with respect to the need to woo particular companies (like Xoran), the study says:

Coordinate on Economic Development Strategies: The recent Google deal (400 free parking permits offered to lure an influential employer to Downtown) points to the reality that parking access can play a major role in economic development. The City, the Chamber of Commerce, and the DDA should therefore meet early in the process of such deals to determine the potential volume of permits being discussed, the potential value returned to the City for providing this incentive, and to begin developing an approach that follows the established Downtown Parking Policy.

In a phone conversation on May 14, 2009, The Chronicle spoke with David Fields, principal with Nelson\Nygaard, about a basic approach to determining when to add capacity to a parking system. Although Fields worked on the Ann Arbor study, we were asking him to comment in complete generality, not to weigh in on the question of whether to build the underground parking garage at Fifth Avenue. And in that spirit, he suggested that every community will determine for itself how much parking it wants.

One possible step, he allowed, was to decide how much access to an area the community wanted to provide – that is, how many people did a community want to transport into and out of an area. From there, the community could decide what portion of that access was feasibly provided by various means: single occupancy vehicles, bus, rail, bicycle, etc.

In his letter, Hall argues essentially that the feasibility of providing access to downtown Ann Arbor through various other means besides the proposed underground parking garage needs to be analyzed by the city in order to defend against the prima facia case that the underground parking structure will damage the environment. That is, in response to the lawsuit that he might bring, Hall cites one allowable defense specified in the MEPA, which reads in relevant part:

The defendant may also show, by way of an affirmative defense, that there is no feasible and prudent alternative to defendant’s conduct and that his or her conduct is consistent with the promotion of the public health, safety, and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment, or destruction.

Settlement

When The Chronicle interviewed Hall, he suggested that a 2000 2008 case involving the Sierra Club and the city of Stockton, Calif. might provide a model for a settlement of the Ann Arbor case. There, the city of Stockton took two steps. They (i) set forth a whole range of plans to reduce CO2 emissions and vehicle miles traveled, and (ii) made a specific investment in bus rapid transit. Hall is not wed to the idea of bus rapid transit in particular, but says that it’s important to make some commitment to an initiative that the federal government is interested in helping to fund.

Hall notes there’s no federal stimulus money being offered for parking structures – because, he says, they’re totally out of line with what the Obama administration wants to do. The only part of the underground parking garage bond issuance that’s receiving matching funds from non-local sources, Hall points out, are the streetscape improvements (to enhance pedestrian experience) along Fifth and Division streets. For that project, the Michigan Department of Transportation has awarded a $1 million grant.

During the last couple of months, Mayor John Hieftje  has often made a somewhat similar point about federal versus local funding in connection with the East Stadium bridges. The city of Ann Arbor  would not want to issue bonds, or use the local street repair millage to repair the bridges, he has pointed out, because the state and federal government place a high enough value on such projects to offer funding for them.

Editorial Aside

Hall has lent to The Chronicle nearly 1,000 printed pages of material related to the underground parking structure obtained under the Freedom of Information Act from the city of Ann Arbor. Some of that material includes email exchanges among city councilmembers made during their council deliberations. Hall’s letter mentions that material as possible Open Meetings Act violations. Having read through it, the content seems to fall into two categories: (i) adolescent humor, and (ii) apparent “backchannel” discussion of issues before the council, which raises more serious concerns.

We have arranged to have the material digitally scanned as images, and converted to text. To the extent that’s a successful arrangement, we’ll make the material available here on The Chronicle, and follow up as appropriate.