From left: Larry Krieg, Ann Arbor Area Transportation Authority’s newest board member, pending confirmation by the Ypsilanti Township board of trustees, and Eric Mahler, AAATA board member. (Photos by the writer.)

That capital and categorical grant program got a unanimous vote of approval at the Dec. 19 meeting. It’s a plan for spending about $45 million in federal funds over the next five years. According to the AAATA, this year’s plan does not include additional capital needs that would be associated with a five-year service improvement plan in the urban core, or any funding associated with rail initiatives. Having in place such a capital and categorical grant program – a set of allocations for specific categories of capital expenditures – is a requirement to be eligible for federal funding. [.pdf of 2014-2018 grant program]

The five-year service improvement plan could be implemented by the AAATA with funding that will likely be sought through an additional millage sometime in 2014. That would require approval of a majority of voters in the three jurisdictions making up the AAATA – the city of Ann Arbor, the city of Ypsilanti and Ypsilanti Township. The township became a member as a result of an Ann Arbor city council vote taken on Nov. 18, 2013.

The expected appointee to the AAATA board from Ypsilanti Township, Larry Krieg, attended the Dec. 19 meeting and sat at the table, although his appointment has not yet been confirmed by the township board of trustees. His confirmation did not appear on the township board’s Dec. 9, 2013 agenda. The next township board meeting is set for Jan. 21, 2014, which comes the week after the AAATA’s next regular meeting, on Jan. 16.

So Krieg did not participate in any of the votes taken on Dec. 19.

A significant vote taken by the board was to approve a nine-month extension of a contract with SelectRide through April 30, 2015, to provide paratransit service. The value of the contract for the extension period is $2.263 million. That’s essentially a pro-rated amount of SelectRide’s current contract, which ran through July 31, 2014.

The AAATA is currently preparing a request for proposals (RFP) with an eye to overhaul the concept of its paratransit service – which comes in the context of the possible five-year service improvement plan. Without a contract extension, that RFP would need to be ready for issuance in time to complete selection of a vendor by the time SelectRide’s current contract expires in July 2014. To avoid the possibility of an interruption in service, the AAATA board approved the SelectRide contract extension.

Other business items handled by the board included contracts for snow removal and janitorial services.

AAATA 2014-18 Capital and Categorical Grant Program

The board was asked to approve the 2014-2018 capital and categorical grant program – a plan for spending federal funds. According to the AAATA, this year’s plan does not include additional capital needs that would be associated with a five-year service improvement plan in the urban core. [.pdf of 2014-2018 grant program] [.pdf of Dec. 10, 2013 planning and development committee presentation]

That five-year service improvement plan – also called the urban core expansion program – could be implemented by the AAATA with funding that will likely be sought through an additional millage sometime in 2014. A millage would require approval of a majority of voters in the three jurisdictions making up the AAATA – the city of Ann Arbor, the city of Ypsilanti and Ypsilanti Township.

Having in place such a capital and categorical grant program – a set of allocations for specific categories of capital expenditures – is a requirement to be eligible for federal funding. This year’s plan outlines how roughly $45 million would be spent over the next five years.

Among the items that AAATA manager of service development Chris White characterized during the board meeting as departing from “business as usual” were the following highlights from the program:

• purchase of small buses for paratransit services
• construction of a “superstop” on Washtenaw Avenue
• increase in funding for on-board systems for fixed-route and paratransit
• a change in the number of vans per year for vanpool services
• spreading out the replacement of the 19 2003 buses over four years
• purchase of management software and business intelligence software
• planning for projects like the connector, a possible high-capacity service for the corridor running from US-23 and Plymouth southward along Plymouth to State Street and further south to I-94

In last year’s program, no funds were programmed for dedicated park-and-ride lots. Based on minutes from the Jan. 10, 2013 meeting of the board’s planning and development committee, the lack of funding for park-and-ride lots drew concern from AATA board member Eli Cooper, who is also the transportation program manager for the city of Ann Arbor. In this year’s plan, $250,000 is designated for park-and-ride facilities in each of the first three years of the program.

The submission of the capital and categorical grant program is due to the Michigan Dept. of Transportation by Feb. 1, 2014. Annual approval of the AAATA’s capital and categorical grant program has typically taken place in January of each year, but the need to allow time for review by the newly established southeast Michigan Regional Transit Authority (RTA) has moved up the timeline to December.

Capital and Categorical Grant Program: Presentation

At the Dec. 19 meeting, AAATA manager of service development Chris White was invited to come to the podium and to give an overview of the capital and categorical grant program.

“It’s quite a lot of money,” White said, and it’s important to have some understanding of the basis for the program so that board members feel comfortable supporting it.

He began with some background on the total grant funding approval for past fiscal years. There’s a fair amount of variation, he noted – from $6 million to $20 million.

The big spikes in 2007 and 2012, he said, are bus purchases. That’s the biggest purchase the AAATA makes with grant funds, he noted. Federal grants come in “two flavors,” he continued: formula funds and discretionary funds. The formula funds are awarded based simply on formula. The really important aspect of formula funding, he said, is that the AAATA is allowed to save that money for a couple of years to plan for its use. So the AAATA is able to ration out those grant funds to take care of the authority’s needs.

AAATA total grant funding.

AAATA total grant funding – discretionary and formula.

Discretionary funds are significantly different from that, White explained. Typically, discretionary funds are awarded on the basis of a competitive application and are typically only capital funding. The amount of discretionary funding can vary from year to year as the programming varies year to year. What has had a significant impact on discretionary funds is the new federal authorizing legislation (MAP-21), which eliminated almost all of the bus discretionary funds, White said. Congress wanted to take away all the “discretion” associated with those funds.

Many transit agencies use discretionary funding as their primary means of bus replacement, White said. There’s been a fair amount of hue and cry from the transit industry, he added, but at this point it’s hard to tell if something is going to get changed. Right now, White said, there’s no discretionary money available.

White pointed out the variation in the discretionary funding levels over the last several years. The AAATA had been pretty successful in obtaining discretionary funding, he said.

White explained that the AAATA is able to choose the balance in formula funds, within certain limitations, between operating and capital expenses. So the AAATA wants to make sure that it has money for replacement capital – in particular replacement buses. Replacing buses has always been a top priority, White said. That has to be balanced against operating needs, White continued.

Federal formula funds for operating/capital.

Discretionary funds are used to supplement formula funds to carry out planned projects, White said. The AAATA has resisted the urge to “chase” money – it doesn’t develop programs just because there’s money available. Instead, the AAATA tries to develop a program and then check to see if there is discretionary federal money available to support that program.

White characterized the operating expense portion of the formula funds as relatively consistent from year to year – until 2013. The AAATA was averaging a little over $2 million a year in operating funding from the formula funds, but that had been increased to over $3 million in 2013. That reflects a decision to fund increased service – on Route #4 in particular, White said.

White continued by explaining that the federal funding allocation has a couple of different sources. He noted that 2009 was a big anomaly, because a lot of money had come in under the American Recovery and Reinvestment Act of 2009 (ARRA) – the federal stimulus act. The AAATA had used ARRA funds to build the Plymouth Road park-and-ride lot, the AAATA’s portion of the University Michigan central campus center stop, as well as the bus storage facility expansion. ARRA had been “a nice shot of money,” White said, but the AAATA knew at that point that it would not continue.

Federal formula allocation.

What will continue, White noted, was a new category of formula funds that the Congress had created in 2013 – Section 5339 funds. It’s for capital only, he explained. It’s meant to be a replacement for discretionary funds, but it’s a lot less money, he said.

White explained the federal formula as follows. Congress makes an annual allocation, and then it’s divided up according to a formula. Half of the formula is based on population and population density – so it’s a relatively constant figure, he said. The other half is based on how much service is provided and how much service gets consumed. Miles of service is a much bigger factor, he said, than passenger miles. The AAATA can actually calculate how much in federal formula funds would be generated by a new service, White said.

The service that the University of Michigan provides is considered a public transit service. So the AAATA had begun working with UM a number of years ago, he said, to start filing a report to the feds that brings in some additional federal funds to Ann Arbor’s urbanized area. Under the M-Ride agreement with UM, White explained, those federal funds are committed to helping to pay for that agreement.

White noted that the AAATA had started a van pool program a couple of year ago – and he explained that van pool miles also count as a part of the federal formula. Those passenger miles from the van pool bring in enough money from the federal formula funds to pay for the vans, he said. So the vans are not having local money spent on them, White said – because it’s being funded through the formula funds and the riders.

White laid out how much federal formula money is generated by the UM bus operation – which is a little over $1 million. It had increased a bit last year, due to an increase in the UM bus operation as well as the formula, he said. Using that money to fund the M-Ride agreement reduces the amount that the University of Michigan pays in cash, White said. The federal money generated by UM is applied to “operating assistance,” White explained.

UM portion of federal formula allocation.

The five-year capital and categorical grant program includes both the capital and the operating funds that are used by the AAATA. So the authority doesn’t have a capital program by itself – because those funds are interchangeable, and the AAATA needs to plan for both the capital and the operating part of the funds. The current program was adopted in January 2013, he noted, to form the basis for the federal application last year as well as for state funding. The program the board was being asked to authorize, White said, would form the basis of the 2014 federal application and for the 2015 state application. It must also be reviewed by the southeast Michigan Regional Transit Authority (RTA).

White said it’s important to emphasize the fact that this year’s program does not include any capital or operating funds for the urban core service expansion. It does not include any money for operating expenses for that possible expansion or for money to purchase additional buses, White said. It also doesn’t include any money for rail service or service that operates outside of the immediate area, White explained, saying he wanted to dispel any rumors along those lines.

AAATA manager of service development Chris White.

White highlighted some substantial changes in this year’s program, saying it’s “not quite business-as-usual.” The big changes include the fact that the AAATA is looking to buy some small buses. That’s related to the SelectRide paratransit contract extension that was on the board’s agenda that night, White said. The AAATA would be buying buses (e.g., wheelchair lift-equipped vehicles) rather than having the contractor provide those vehicles as part of the contract. The effect of that would be to shift the expenditure from operating expenses (paying for the vehicles through the paratransit contract with a third-party vendor) to a capital expense.

The van pool purchases have changed significantly, White continued. The AAATA’s approach had initially been simply to program 25 vans a year. Now the program is based on actual replacement and what’s expected from expansion. The van purchase has turned into a much more definite program, he concluded.

The third departure from business as usual involved operating assistance. The feds have given transit agencies the ability to apply directly for operating assistance for the first time in about 20 years, White said. It’s advantageous to use the formula funds for straight operating assistance rather than for preventive maintenance, he said.

The AAATA is looking to construct one superstop on Washtenaw Avenue, White said, as a part of the Reimagine Washtenaw project. The AAATA wants to demonstrate what that would look like, and would look for different funds to construct the remaining superstops on Washtenaw Avenue. Constructing one superstop would be a way to jump start things by demonstrating the concept, White said.

There’s about $3 million in the capital and categorical grant program that’s supposed to go toward “onboard systems.” TransitMaster, which is the brand name of the AAATA “advanced operating system,” was cutting edge in 1997, White said. He reported that 16 years ago, the AAATA was the first transit agency in the country to have unified operating software. But it’s now 16 years old, he noted. So there’s a decision to make about upgrading that existing system or soliciting bids for a different kind of software. The money is included in the capital and categorical grant program to “make sure we’ve got it if we need it,” White said.

Of the buses acquired in 2003, 19 are eligible to be replaced in 2015, White said. Rather than do that all in one year, the AAATA would rather spread that out over four years. Finally, there are funds that would allow the purchase of management “business intelligence” software.

Capital and Categorical Grant Program: Board Questions

Board member Eric Mahler picked up on this remark of White’s during question time, asking, “If preventive maintenance is not an operating cost, what is it?” White allowed that preventive maintenance is, in fact, an operating cost. White explained that when the AAATA gets preventive maintenance funds from the federal government, the feds pay 80% and the state provides a 20% match. But that becomes an eligible expense for state operating assistance, White said. So if the AAATA receives $800,000 for preventive maintenance, and the state provides $200,000, that’s $1 million total for preventive. And that $1 million would then be ineligible for state operating assistance.

So the AAATA would lose about $300,000 in state operating assistance on that approach. [The state operating assistance formula is budgeted this year at about 30.5%.] If the $800,000 is allocated by the AAATA as operating assistance – instead of preventive maintenance – then the AAATA does not get the state match ($200,000). However, it does stand to receive more money than the matching state preventive maintenance funds – through the state’s operating assistance ($300,000). So that gets the AAATA somewhat more money. Mahler chuckled and said, “That works for me!”

Asked by Jack Bernard what a superstop is, White first gave some background on Reimagine Washtenaw, which is a partnership between the city of Ann Arbor, Washtenaw County, Pittsfield Township and Ypsilanti Township.

AAATA board member Jack Bernard votes in the affirmative.

That project is looking at the redevelopment of Washtenaw Avenue, particularly as a transit corridor. Part of that includes bus stops that are more than a pole or a shelter. It would be something that looks a lot more like a bus rapid transit (BRT) stop, White said. Some design work has been done by the consultant that the county hired to design superstops, so now the AAATA is looking to build one to show what it looks like. Bernard ventured that a superstop would not be a staffed facility, which White confirmed it would not be.

In response to a question from Larry Krieg, White explained that federal funds can only be used in the Ann Arbor urbanized area, so could not be tapped by the RTA for “existential funding.” What the RTA has discussed, White continued, is tapping some of the state operating assistance given to agencies. Right now, transit agencies are reimbursed for about 30.5% of their operating expenses by the state. There’s been a lot of resistance from transit operators in Detroit, White said, to the RTA taking some of that operating assistance to fund its administrative costs.

Following up on a question from Krieg, AAATA’s IT manager Jan Black explained that the advanced operating system takes all the data the AAATA has – GPS, fare collection, financial – and allows you to produce key performance indicators. In most cases, that information can be generated in real time. It’s valuable to be able to generate that information, so a lot of transit agencies have that software, Black concluded.

White wrapped up his presentation by going over the projected federal funds balance for each of the next five years. The $2.1 million at the end of 2018 is estimated, so the AAATA thinks that the projects it has planned can actually be paid for. He noted that the capital and categorical grant program is something that is revisited every year.

Fund balance at year’s end.

When the board reached the item on the agenda, there were no further deliberations.

Outcome: The board voted unanimously to approve the capital and categorical grant program for 2014-2018.

Paratransit

The issue of paratransit services, which the AAATA provides under the brand A-Ride through a contract with SelectRide, came up several different ways during the Dec. 19 meeting. Most obviously, this topic came up in connection with a nine-month extension for SelectRide’s contract.

But the issue was also connected to the capital and categorical grant program and the decision by the AAATA in the future to purchase small buses used to deliver the service. That makes those buses a capital expense – instead of an operating expense paid through the contract with SelectRide.

The board also received an update from the AAATA’s local advisory council (LAC), a group that provides input and feedback to AAATA on disability and senior issues.

And finally, public commentary from Thomas Partridge included a standing complaint about the quality of the A-Ride service, which he uses.

Paratransit: Background

The provision of complementary paratransit service for people with disabilities – as an alternative to fixed-route service – is a requirement of the Federal Transit Administration under the Americans with Disabilities Act. Public transportation agencies must provide special service to those with disabilities that is “comparable to the level of service provided to individuals without disabilities who use the fixed route system.”

The paratransit service is required to be offered within a corridor 3/4 mile on either side of a fixed bus route. Comparable service is defined as a demand-response service from door to destination, in which the public transit agency schedules and provides paratransit service to an eligible person for a request made the previous day. The fare that can be charged for the paratransit service can’t be more than twice what the fare would be for a similar trip taken on the fixed-route system. [.pdf of Federal Transit Administration Section 7 of Title 49 on "Transportation Services for Individuals with Disabilities"]

The AAATA fulfills its obligation under the ADA through its A-Ride program. Trips can be arranged at least one day in advance for a $3 fare, which is twice the $1.50 full fare for regular fixed-route rides. In addition, same-day trips can be arranged through A-Ride for a $4 fare. The higher fare can be charged for those trips, because they are not being offered under the ADA requirement. Some holders of A-Ride passes – who have the right to reserve rides for $3 under the A-Ride program – might also be able to ride the AAATA regular fixed-route system. If they opt to ride the fixed-route system, the A-Ride program allows them to do that without paying a fare.

Paratransit: Rethinking

Rebecca Burke gave an update from the local advisory council (LAC), a group that provides input and feedback to AAATA on disability and senior issues. Following up on her remarks was Jack Bernard, who’s acting as a liaison from the board to that group, and who has started attending its meetings.

Bernard noted that another issue the group had talked about was terminology. The group had discussed the idea of “stepping back” from using the phrase “the ADA service” and instead talking about the AAATA’s paratransit services as “the accessibility service.” By calling it the “ADA service,” it gives the false impression that the only reason the AAATA provides the service is to comport with the ADA, he noted.

Chair of AAATA’s local advisory council, Rebecca Burke.

Burke expressed her appreciation that the AAATA has always gone above and beyond what is necessarily required by the ADA.

And when the board reached the SelectRide contract on the agenda, Bernard said that one reason it’s important for the board to support the nine-month extension is that AAATA paratransit coordinator Brian Clouse and the other AAATA staff have put together a very robust potential overhaul of the service.

They really want to look deeply at ways the AAATA might improve its provision of the accessibility of the service, Bernard said. Putting out an RFP now would be premature, he said, because it would lock the AAATA into an agreement too soon. He called the nine-month extension a good mitigating measure – to ensure that service would not be interrupted.

Bernard said that his sense from attending the LAC meeting is that most riders are feeling good about the service and that they feel there’s a good response when there is a concern. He got the sense from AAATA staff that riders are assertive when concerns come forward. Bernard wholeheartedly supported creating an opportunity for the next RFP for paratransit service to be very forward-looking and give the AAATA the chance to do new and interesting things.

Paratransit: SelectRide Contract

The board considered a contract extension with SelectRide for nine months, through April 30, 2015. The value of the contract for the extension period is $2.263 million. That’s essentially a pro-rated amount of SelectRide’s current contract, which ran through July 31, 2014.

Just six months ago, the board had authorized the final year of a three-year contract with SelectRide – at its July 23, 2013 meeting. Board deliberations at that meeting indicated that negotiations on that $3,016,871 contract with SelectRide had been difficult, and had been completed under time pressure with no feasible alternative to SelectRide.

The contract extension comes in the context of the need to issue a request for proposals for the service, and the AAATA’s possible implementation of a five-year transit improvement plan. The AAATA is currently contemplating a substantial revision to the paratransit program and wants to take the time needed to develop a request for proposals (RFP). The AAATA wants to ensure that there’s no interruption in paratransit service.

In the context of the five-year transit improvement program that the AAATA might implement, the paratransit service would, according to the AAATA, include “later weekday service hours, later weekend service hours, and access to destinations like the Pittsfield Branch of the Ann Arbor Public Library, the Ypsilanti District Library, Meijer (Carpenter Road), Kroger (Whittaker Road), Walmart, and Quality 16 Movie Theater.”

The AAATA’s implementation of the five-year plan depends on funding that will likely be sought through an additional millage sometime in 2014, which would require approval of a majority of voters in the three jurisdictions making up the AAATA – the city of Ann Arbor, the city of Ypsilanti and Ypsilanti Township.

Paratransit: SelectRide Contract – Board Deliberations

Gillian Ream Gainsley asked if there had been any discussion at the performance monitoring and external relations committee about the quality of the paratransit service.

She noted that there’d been various concerns expressed by users of the A-Ride service. She was not sure how much of that concern was based on the performance of SelectRide as the contractor and how much was a function of the structure of the A-Ride program. Given that the same contractor would be used for nine more months, Ream Gainsley wanted to know: What has been done to address those concerns?

AAATA CEO Michael Ford noted that in the context of the most recent contract renewal, the AAATA had required some “accountabilities” – which included better on-time performance. There’s more frequent communication between the AAATA and SelectRide, Ford said, characterizing the relationship as now improved. The latest report shows that there are some accountability standards that SelectRide is meeting but also some that haven’t been met. So some of that is being addressed through “liquidated damages,” he said. Ford added that he thinks the AAATA provides a good paratransit service, but at the same time he wants to make things more streamlined and more effective for whichever contractor provides the service.

Outcome: The board voted unanimously to approve the nine-month contract extension for SelectRide to provide paratransit services.

Paratransit: LAC

Jack Bernard’s contention that when riders of the paratransit service are not satisfied, they are assertive about their complaints, has some historical merit in connection with the AAATA’s carry-on policy. Two years ago, at its Nov. 17, 2011 meeting, the board heard from a rider during public commentary who’d been denied a ride for having too many grocery bags.

And reporting out from the local advisory council at the Dec. 19 meeting, Rebecca Burke said that in reviewing the new rider’s guide, they’re trying to come up with a more concise carry-on policy for people with disabilities – so that it’s clear about how many bags can be brought aboard a vehicle and what the expectations are of each passenger.

As part of that LAC report, Burke also said the group had drafted a letter of appreciation for Gloria Kolb, who was a LAC member until recently but had to resign for personal reasons.

Paratransit: Public Commentary

During public speaking time at the end of the meeting, Thomas Partridge introduced himself as a recent candidate for public office at the state and local levels. He was there as an advocate for riders who need paratransit services that are friendly, considerate and professionally operated. He called for an end to “automatic renewal” of the paratransit contract and an overhaul to the entire system. He had arrived there at the meeting [after the public commentary at the start of the meeting had concluded] after a very disappointing experience with the A-Ride service, he said.

He’d specifically asked in his ride order for door-to-door service from a friendly, professional driver who knew how to find his address and would be driving a four-door low-bodied sedan. Instead he was picked up with a wheelchair-lift equipped vehicle, with temporary seating for ambulatory passengers – seats that are “not appropriate for persons of my height” and are difficult to cope with, Partridge said. He told the board that he was taken on a ride all over the west side of Ann Arbor before arriving at the library. He said he didn’t know if it was a “set up” or not, but he felt it had all the appearance of a “set up” – because he’d called for the replacement of Ann Arbor mayor John Hieftje, Michigan Gov. Rick Snyder and other right-wing conservatives.

Snow Removal Contracts

The board considered contracts for snow removal at five different locations.

Based on the outcome of the bidding process, Arbor Building Services of Ypsilanti will handle snow removal at the Ypsilanti Transit Center, and the Miller Road and Plymouth park-and-ride lots. The downtown Ann Arbor Blake Transit Center snow removal will be handled by A.M. Services Inc. of Ann Arbor. And when they are built, the “superstops” at Washtenaw Avenue and Pittsfield Street will be serviced by Margolis Companies of Ypsilanti.

The contracts have a one-year term with four one-year renewal options. The AAATA has spent roughly $50,000 a year on snow removal over the last five years.

Outcome: The board voted unanimously to approve the snow removal contracts.

Living Wage for AAATA Janitorial Services

The board was asked to consider a renewal of the contract for janitorial services with JNS Commercial Cleaning. The contract renewal triggered application of the AAATA’s two-and-a-half-year-old living wage policy.

The impact of the living wage policy, together with additional bi-weekly floor care services at the AAATA headquarters, will increase the annual value of the contract from $72,000 annually to $102,000. The three-year contract with JNS had already been authorized by the AAATA board at its Dec. 16, 2010 meeting, with up to two one-year renewals. However, the amount of the increase connected to the one-year extension, with a remaining one-year renewal option, is 42% – which exceeds the 10% increase threshold for board approval specified in the AAATA’s procurement policies.

The janitorial contract covers cleaning at the Blake Transit Center, the Ypsilanti Transit Center and the AAATA headquarters on South Industrial.

The AAATA’s living wage policy mirrors that of the city of Ann Arbor, which requires that contractors pay their workers at least $13.96 per hour if they don’t provide health care benefits and at least $12.52 per hour if they do provide health care benefits. The AAATA board adopted the living wage policy at its June 16, 2011 meeting.

The board did not deliberate on the item apart from a remark from Anya Dale earlier in the meeting to the effect that the application of the living wage was a good thing, because people would be getting paid what they deserved.

Outcome: The board unanimously approved the janitorial services contract.

Question of Quorum, New Member Appointment

For its Dec. 19 meeting, the board had only five of its members present – which does satisfy either of the conditions for quorum specified in the AAATA’s bylaws: “Four members of the Board, or a majority of the Board duly appointed and confirmed, constitutes a quorum.”

From left: Ann Arbor Area Transportation CEO Michael Ford, and Larry Krieg, AAATA’s newest board member, pending confirmation by the Ypsilanti Township board of trustees.

However, the four members specified in the bylaws date from the time before the two Ypsilanti jurisdictions (city and township) were added to the authority, and the board consisted of just seven members. The most recent change to the AAATA’s articles of incorporation specify a total of 10 members of the board – eight appointed by the city of Ann Arbor and one each by the Ypsilanti jurisdictions.

The expected appointee to the AAATA board from Ypsilanti Township, Larry Krieg, attended the Dec. 19 board meeting and sat at the table, although his appointment has not yet been confirmed by the township board of trustees. So Krieg didn’t participate in any votes. At the previous month’s AAATA board meeting, on Nov. 21, 2013, Krieg had watched from the audience and board chair Charles Griffith had noted the expected confirmation of Krieg’s appointment so that Krieg would be officially confirmed by the time of the AAATA board’s Dec. 19 meeting.

But Krieg’s confirmation did not appear on the township board’s Dec. 9, 2013 agenda. The next township board meeting is set for Jan. 21, 2014, which comes the week after the AAATA’s next regular meeting, on Jan. 16.

For the AAATA’s Dec. 19 meeting – because only 9 members of the board are appointed and confirmed – five members were sufficient for a quorum, even under the clause stating that a quorum can be “a majority of the Board duly appointed and confirmed …”

When she opened the meeting, as acting chair in place of Charles Griffith, Anya Dale noted that Larry Krieg was at the board table in an unofficial capacity, but could provide comment and insight.

As part of his report to the board, CEO Michael Ford welcomed Krieg to the board. “We’re pleased to have you here and for you to share your vast knowledge and transit experience.”

Communications, Committees, CEO, Commentary

At its Dec. 19 meeting, the board entertained various communications, including its usual reports from the performance monitoring and external relations committee, the planning and development committee, as well as from CEO Michael Ford. The board also heard commentary from the public. Here are some highlights.

Comm/Comm: Public Support for Urban Core

During public commentary at the start of the meeting, Tad Wysor addressed the board as a daily rider from Ypsilanti Township to Ann Arbor.

Tad Wysor, an organizer of WeROC – the Washtenaw Regional Organizing Coalition.

He said he was very pleased that Ypsilanti Township is now a part of the AAATA. He was looking forward to working with the AAATA and the other stakeholders to make the most of the new momentum. He’s working with a new group called the Washtenaw Regional Organizing Coalition (WeROC).

He said the group is hearing that regardless of how much people might use the AAATA services, they generally like the idea of improving the economy by developing as efficient and effective a transit system as possible. So he encouraged the AAATA board to keep up their good work and keep leaning on the folks in the community to understand how they can help with that.

Anya Dale responded by saying, “We’re pretty excited about that as well.”

Comm/Comm: Urban Core Financial Analysis

As a part of his report to the board, CEO Michael Ford noted that a meeting had been held the previous week on Dec. 11 with a subgroup of a financial task force that had worked on the now demised countywide effort.

That subgroup included Mary Jo Callan (director of Washtenaw County’s office of community & economic development), Bob Guenzel (former Washtenaw County administrator and current Ann Arbor Downtown Development Authority board member), Norman Herbert (retired treasurer, University of Michigan), Paul Krutko (CEO of Ann Arbor SPARK), Mark Perry (director of real estate services, Masco Corp.) and Steve Manchester (a financial advisor doing business in Ypsilanti Township). Representing the AAATA board on the subgroup will be Susan Baskett, Eli Cooper, Charles Griffith and Roger Kerson.

The next meeting of that group will be Jan. 13, 2014, Ford said. They’d be gearing up for a Jan. 23, 2014 meeting of the urban core working group at 4 p.m. at Pittsfield Township Hall.

Comm/Comm: Peer Comparisons

As a part of his report to the board, CEO Michael Ford noted that the previous meeting of the board on Nov. 21, 2013 included a report on some peer data analysis. Board member Jack Bernard had asked the staff what the staff would be doing with that information going forward and how it would inform the staff’s work.

Ford said that the AAATA is “doing fairly well, particularly with the quality and usage of our service,” but he allowed that “we can always continue to improve.” Ford said that the staff would focus in on factors that affect the cost per service hour, living wage impacts on service contracts, and aligning services to control costs and improve them. Other staff efforts will be to continue developing partnerships with stakeholders to add value, enhance ridership and conserve resources. Ford spoke of collaborating with peers to optimize work models, and to improve customer service functions, fare and fare media policies.

He concluded by saying that the AAATA offered a good quality service that’s well run and well utilized, and he wanted to ensure that the AAATA continued to provide the good quality service that meets the public’s needs.

Comm/Comm: AirRide

CEO Michael Ford also reported that the AirRide service between downtown Ann Arbor and Detroit Metro Airport had enjoyed its second highest ridership week for the week of Nov. 14 – with 1,802 rides. Last year around the same time, 1,920 trips had been taken on AirRide. Ford hoped that figure would be surpassed in December of this year.

Comm/Comm: Year-End Thanks

As part of his report to the board, CEO Michael Ford summarized 2013 by calling it a really amazing year. He thanked board members for their continued support and valuable input. Adding the two new jurisdictions to the AAATA – the city of Ypsilanti and Ypsilanti Township – was a pretty major accomplishment, he said.

Ford also thanked the AAATA staff, which provides a solid foundation, he said. The AAATA had a rock solid commitment to being the best transportation provider it can be, he said. Ford concluded by reiterating his thanks to the staff and the board, and wished everyone a happy holiday.

Comm/Comm: Fare Equity

In her report out from the planning and development committee, Sue Gott described a presentation that manager of service development Chris White had given the committee on fare equity. The committee had reviewed a draft policy that would then come back to the board in January, she said.

During public commentary at the conclusion of the meeting, Jim Mogensen said he’d try to provide some substantive comments on the service and fare equity analysis by Jan. 15, 2014. He said he hoped that he would not overwhelm the board with his commentary, but wanted to give them a heads up that it would be forthcoming.

Comm/Comm: How Need for Stops Is Determined

At the conclusion of the meeting during public commentary, Michelle Barney delivered some remarks to the board on the topic of superstops. She expressed concern that the location of such stops had been determined by the number of users – which she allowed was a fair thing to take a look at. What she did not see, however, was inclusion of the number of handicapped or differently-abled users as a factor. She felt that the AAATA would conclude that there were additional locations where a superstop with snow removal would be warranted – if the AAATA considered the number of handicapped users who board and get off the buses.

At Chidester Place in Ypsilanti, where she lives, at least 40% of the riders are differently-abled, she told the board. She complained that in seeking an application for A-Ride eligibility based on mobility limitations, she needed an eye exam – which was not the grounds for the eligibility. So she wanted the board to consider changing those criteria.

Present: Eric Mahler, Sue Gott, Anya Dale, Gillian Ream Gainsley, Jack Bernard.

Absent: Charles Griffith, Susan Baskett, Eli Cooper, Roger Kerson.

Also present: Larry Krieg, whose appointment from Ypsilanti Township to the AAATA board is still pending.

Next regular meeting: Thursday, Jan. 16, 2014 at 6:30 p.m. at the Ann Arbor District Library, 343 S. Fifth Ave., Ann Arbor. [confirm date]

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The impact of the living wage policy, together with additional bi-weekly floor care services at the AAATA headquarters, will increase the annual value of the contract from $72,000 annually to $102,000. The three-year contract with JNS had already been authorized by the AAATA board at its Dec. 16, 2010 meeting, with up to two one-year renewals. However, the amount of the increase connected to the one-year extension, with a remaining one-year renewal option, is 42% – which exceeds the 10% increase threshold for board approval specified in the AAATA’s procurement policies.

AAATA board action authorizing the contract extension with JNS came at its Dec. 19, 2013 meeting. The janitorial contract covers cleaning at the Blake Transit Center, the Ypsilanti Transit Center and the AAATA headquarters on South Industrial.

The AAATA’s living wage policy mirrors that of the city of Ann Arbor, which requires that contractors pay their workers at least $13.96 per hour if they don’t provide health care benefits and at least $12.52 per hour if they do provide health care benefits. The AAATA board adopted the living wage policy at its June 16, 2011 meeting.

This brief was filed from the downtown location of the Ann Arbor District Library at 343 S. Fifth Ave., where the AAATA board holds its meetings. A more detailed report will follow: [link]

BTC under construction on Nov. 21, 2013. View is from Fifth Avenue looking southwest.

The increase will allow for around-the-clock security service coverage at the Blake Transit Center construction site. According to the staff memo accompanying the board resolution, “This additional security service is required until the installation of doors, windows and locks has been completed on the new building to help prevent trespassing, vandalism, loitering, etc.”

That increase in the contract amounts to 18%. Under the AAATA procurement policy, increases of contracts over 10% require board approval. That’s why it was before the board on Nov. 21, 2013. When the board approved the $205,000 in April 2012, that was for the fourth year of a contract first authorized by the board on March 19, 2009 for one year. That contract increase came before the board because it increased the amount of the contract from the previous year by more than 10% – from $150,000 to $205,000, or 36.7%. That new contract was based on hourly wages between $14.33 and $19.67 per hour for a regular shift, and between $21.50 and $29.51 for extra hours and holidays.

The April 2012 increase in the Advance Security contract was based on the need to make the hourly wages in the contract meet the city of Ann Arbor living wage standard, which was adopted by the AATA board at its June 16, 2011 meeting.

This brief was filed from the downtown location of the Ann Arbor District Library, where the AAATA board holds its meetings. A more detailed report will follow: [link]

The 15th District Court’s portion of that adjustment stemmed from $112,000 in salary increases based on an interest in retaining employees, $203,000 due to a “catch up” payment to the law firm that provides indigent representation, and a back-bill for security from Washtenaw County for two fiscal years for $110,000.

Related to the FY 2013 budget adjustment to account for 15th District Court indigent representation were two other agenda items regarding the law firm that provides that kind of representation. [The 15th District Court is required to provide representation to those who cannot afford an attorney, if a conviction would result in jail time.]

The council approved a $240,000 flat-fee contract for representation of indigent defendants – with Nassif and Reiser, P.L.L.C. (f/k/a Funkhouser and Nassif, P.L.L.C.), d/b/a Model Cities Legal Services (“MCLS”). The contract covers FY 2014.

The reason the contract was structured as a flat fee is that MCLS had customarily delayed billing for services until a defendant’s case was completely closed or additional court action was deemed unlikely. Even after a guilty verdict, defendants remain under court supervision and can be subject to other court orders. So for the previous year, the council was asked at its June 3 meeting to cover $203,000 of fees that accrued due to the delayed billing practice used by MCLS.

In addition to approving the city’s FY 2013 budget adjustment that included back-billing for security services, the council approved next year’s $160,000 contract with the Washtenaw County sheriff’s office for weapons screening at the Justice Center, which houses the 15th District Court. The estimated annual cost is based on $25.25 per hour per court security officer. The estimated maximum annual cost of $160,000 is $27,000 less than last year. The money comes from the 15th District Court’s budget.

Two other items related to the 15th District Court appeared initially on the council’s consent agenda, a group of items considered routine and voted on as a group. The council was asked to approved $30,000 for a Sobriety Court grant program contract with the Washtenaw Community Health Organization (WCHO) to provide mental health treatment to 15th District Court defendants. And the council was asked to approve $65,000 for a Sobriety Court grant program contract with Dawn Farm for in-patient and out-patient drug abuse counseling to 15th District Court defendants.

The Dawn Farm item was pulled out for separate consideration, because the item included a request for a waiver of the city’s living wage ordinance for Dawn Farm to provide its counseling services. According to the staff memo accompanying the resolution, Dawn Farm employs 70 people, including 15 employees who are paid less than $12.52 per hour with health care coverage, and 18 people who are compensated at rates less than $13.96 per hour without health care coverage. Those are the rates specified in the city’s living wage ordinance.

Last fall the council engaged in a vigorous discussion of a living wage ordinance waiver for Community Action Network (CAN), which ultimately resulted in the granting of a waiver at the council’s Nov. 8, 2012 meeting.

On June 17, the council ultimately voted to approve the Dawn Farm grant over dissent from Sabra Briere (Ward 1) – based on the living wage issue.

This brief was filed from the city council’s chambers on the second floor of city hall, located at 301 E. Huron. A more detailed report will follow: [link]

Previously, the council had postponed the ordinance amendments at its Nov. 19, 2012 meeting. The main proposed changes to the local law – which sets a minimum wage of $12.17/hour for those employers providing health insurance and $13.57/hour for those not providing health insurance – would exempt nonprofits that receive funding from the city for human services work. The changes would mean that such nonprofits would not need to meet the minimum wage requirements.

Following the council’s Nov. 19 postponement, consideration of the changes had been referred to the city’s Housing and Human Services Advisory Board (HHSAB) for more study. [For coverage of the HHSAB's Dec. 18, 2012 meeting of HHSAB see: "Human Services Group Ponders Living Wage"] The HHSAB is taking a bit longer with its recommendations in part because those recommendations will be informed by work done by a class of University of Michigan students. The class is being taught in the winter 2013 term by Ian Robinson, a lecturer in the department of sociology. Robinson attended the Dec. 18 meeting of the HHSAB, and sketched out the range of work he thought his students might be able to do to assist the board.

At the council’s Feb. 19 meeting, Jane Lumm (Ward 2) – a city council liaison to the HHSAB – indicated that the board was moving in a direction she did not feel she could ultimately support. That direction included interest in changes that would require the city to pay a living wage and to rescind an exemption for those events funded by the city’s community events fund (like the Ann Arbor Summer Festival). She ventured that the other council liaison to HHSAB, Sabra Briere (Ward 1), might be more inclined to bring such proposed amendments forward, but Lumm wouldn’t be the one to do that.

The current law applies to organizations that have contracts with the city for more than $10,000 in a given calendar year, and that employ five or more people (10 or more for nonprofits). The current law also provides an exemption for organizations funded from the city’s community events budget – an exemption put in place to accommodate the Ann Arbor Summer Festival’s practice of paying its temporary employees less than the living wage and the city’s desire to fund the festival at a higher level.

Among the other contemplated amendments to the living wage ordinance was an increase from $10,000 to $25,000 for the amount of a contract triggering the application of the ordinance. The timeframe would also change from a calendar year to one fiscal year. Also included in the proposed amendments was one that would allow the city administrator to grant a waiver from compliance with the ordinance, instead of requiring the approval of the city council.

At its meeting on Nov. 8, 2012, the council had granted such a waiver to the nonprofit Community Action Network, which receives funding from the city to do human services work.

At the Feb. 19, 2013 meeting, Stephen Kunselman (Ward 3) indicated that he was still interested in seeing the living wage ordinance amended, to give the city administrator the responsibility of granting waivers.

This brief was filed from the city council’s chambers on the second floor of city hall, located at 301 E. Huron. A more detailed report will follow: [link]

Left to right: Jim Mogensen addressed the city’s housing and human services advisory board (HHSAB), including board chair David Blanchard, during its Dec. 18, 2012 meeting. (Photos by the writer.)

HHSAB members as a group displayed little enthusiasm for a possible revision to the city’s living wage ordinance – a change that would exempt some nonprofits from compliance. The nonprofits that would not have to pay their workers a living wage are those that provide human services under contract with the city.

However, the group formed a consensus around the idea that their board was, in fact, an appropriate body to review the possible change to the ordinance. Some members felt their attitude toward the possible exemption depended in part on whether they construed the responsibility of the HHSAB narrowly, to focus exclusively on those who receive human services, or broadly, to include humans generally.

The HHSAB review of a possible change to the living wage ordinance will be informed in part by work done by a class of University of Michigan students, to be taught in the winter 2013 term by Ian Robinson, a lecturer in the department of sociology. Robinson attended the Dec. 18 meeting of the HHSAB, and sketched out the range of work he thought his students might be able to do to assist the board. The original timeline for the board to deliver a recommendation to the Ann Arbor city council was mid-February. But it appears now that will be pushed at least to March and possibly April.

The HHSAB is reviewing the living wage ordinance at the direction of the Ann Arbor city council, which had considered an ordinance revision at its Nov. 19, 2012 meeting. The council postponed the matter until mid-February, pending advice from HHSAB.

But discussion of the city’s living wage ordinance had begun at meetings of the HHSAB two months before that. At its Sept. 13 meeting, HHSAB board members were addressed by Joan Doughty, executive director of Community Action Network (CAN), on the topic of the city’s living wage ordinance. She indicated that CAN hired many part-time work/study students for its after-school programs – and her organization had to pay them $13.57 an hour under the city’s living wage ordinance. That detracted from CAN’s ability to pay its full-time staff, who depend on wages paid by CAN to earn a livelihood. HHSAB discussed the idea of forming a subcommittee to study the issue.

City councilmembers Sandi Smith and Jane Lumm, who then served as council liaisons to HHSAB, had introduced a resolution at the council’s Sept. 17, 2012 meeting on the topic. Their resolution would have waived the living wage requirement for those nonprofits that provide human services under contract with the city – which include CAN, although CAN was not mentioned in the resolution or the council’s discussion. That resolution was withdrawn, because it amounted to an ordinance change, which can’t be accomplished with a simple resolution. Councilmembers were told to expect a proposal for an ordinance change in the future.

HHSAB discussed the living wage again at its Oct. 16 meeting, determining that additional study was needed before making a recommendation. But at the city council’s Nov. 8, 2012 meeting, Lumm introduced a resolution to grant a waiver to CAN. Her resolution invoked the ordinance provision that allows the council to grant such a waiver for a specific nonprofit. The council granted the waiver, but on just a 9-2 vote. That relieved some of the immediate pressure – because it meant that CAN could receive its grant under contract with the city. The city had been withholding CAN’s allocation, because CAN could not sign an attestation that it was complying with the living wage ordinance.

So when the city council subsequently considered the proposed change to the living wage ordinance, at its Nov. 19 meeting, it did so without the sense of urgency that came with the earlier context of CAN’s financial difficulties. [.pdf of marked up proposed changes to living wage ordinance] The council’s postponement included a referral to HHSAB for its input.

The well-attended special meeting of HHSAB on Dec. 18 included some who were involved in the push to establish Ann Arbor’s living wage ordinance back in 2001. It was clear from the discussion that the situation of nonprofits that deliver human services had been consciously considered when the local law was first enacted over a decade ago. And because of that previous consideration, it seems unlikely – based on the board’s conversations on Dec. 18 – that HHSAB would make a recommendation in support of an ordinance change. 

Legal Issues

Existing provisions in the ordinance, as well as its current legal foundations, arose as topics at the Dec. 18 HHSAB meeting.

Legal Issues: Exemptions, Applicability

The city of Ann Arbor’s living wage ordinance does not apply to employers in the city of Ann Arbor generally, but rather only to those that have contracts with the city. So a private company, based in Ann Arbor and operating within the city limits, is not impacted by the city’s living wage ordinance – unless it seeks to win a contract or receive a grant from the city.

So the city itself, as an employer, does not fall under the terms of the ordinance. The city is not exempted per se – rather, the city is simply not subject to the living wage ordinance based on its terms. Still, this circumstance is often described as the city “exempting itself” from the ordinance.

At the Dec. 18 meeting of the HSSAB, this situation was identified as an equity issue: If the city of Ann Arbor expects contractors to pay a living wage, how can the city justify paying less than the living wage standard to some of its own employees – for example, seasonal, temporary workers? Eliminating existing exemptions in the ordinance, absent additional changes, would still not result in the law’s applicability to the city.

One of the ordinance changes the city council is being asked to consider is to add an exemption for those nonprofits that provide human services through a contract with the city. During the Dec. 18 HHSAB discussion, Ned Staebler floated the idea that perhaps the board’s recommendation eventually should be: Don’t add any more exemptions, and remove those that already exist in the ordinance. Jane Lumm’s response to Staebler was unambiguous: “I’m not going to be the councilmember to put forward an amendment to un-exempt those who are now exempted.”

Entities to which the living wage standard currently does not apply include:

• For-profit organizations that have fewer than five employees, and nonprofit organizations that have fewer than 10 employees. A 2001 survey of 56 nonprofits with city contracts showed that 19 had fewer than 10 employees. The survey was conducted to inform the city council’s decision on the possible enactment of a living wage law.
• Organizations that hold contracts totaling less than $10,000 for a 12-month period. A 2001 survey of 56 nonprofits with city contracts showed that 15 had contracts/grants totaling less than $10,000 for 12 months.
• Organizations that receive grants from the city’s community events fund. This was a provision added in 2008. As a practical matter, only one organization benefits from this exemption – the Ann Arbor Summer Festival. But it’s not singled out explicitly in the ordinance for a waiver. Before 2008, the Summer Festival received a $10,000 grant from the city. But the city council wanted to grant a larger amount. In 2012, for example, the city granted $25,000 to the festival. But granting more that $10,000 to the Summer Festival pushed that organization past the dollar-amount threshold triggering application of the living wage law. The new exemption, based on the specific city funding source, allows the Summer Festival to pay its workers less than the living wage standard, while still receiving more than $10,000 from the city.
• Organizations that have been granted a waiver by the city council based on the submission of a plan to achieve compliance within three years. This was the kind of waiver granted to the Community Action Network at the council’s Nov. 8, 2012 meeting. The council and the staff on that evening did not recall any previous waiver being granted since enactment of the ordinance. But resident Jim Mogensen brought material from his files to the Dec. 18 HHSAB meeting to show that the Shelter Association of Washtenaw County (SAWC) – which runs the Delonis Center – had been granted such a waiver soon after enactment of the ordinance. The city’s online Legistar archive of meeting minutes show that the council passed the living wage ordinance on March 5, 2001, and the council granted the waiver to SAWC four months later, on July 16. Mogensen was active in the movement to establish the living wage in Ann Arbor as a member of the Washtenaw Coalition for a Living Wage.

Legal Issues: Legal Foundations for Regulation of Wages

At the Dec. 18 HHSAB meeting, board member Ned Staebler raised the question of the legal foundations for the city’s living wage ordinance. He indicated a lack of enthusiasm for investing time in revising an ordinance that had been found to be illegal.

Staebler was alluding to a case decided by the court of appeals in 2009 involving Detroit’s living wage law. By way of background, in that ruling the court of appeals felt bound by a 1923 Michigan Supreme Court decision. The 1923 decision had determined – based on the state constitution – that only the state legislature could regulate wages. [.pdf of court of appeals opinion] Although the court of appeals analyzed that precedent as binding, it expressed frustration that the basis of the 1923 decision – the Michigan state constitution – had changed since then. Specifically, the court of appeals cited a change to Section 34 of Article 7:

The provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor. Powers granted to counties and townships by this constitution and by law shall include those fairly implied and not prohibited by this constitution.

On that basis, the court of appeals expressed the view that the state Supreme Court should review the case: “…we respectfully urge our Supreme Court to revisit Lennane [the 1923 decision] and reconsider whether the rule therein continues to have a place in today’s jurisprudence.”

However, a Michigan Supreme Court order from April 7, 2010 declined to hear the appeal on the Detroit living wage case, leaving the court of appeals ruling to stand in that case – a result that’s led many observers to conclude that a challenge to Ann Arbor’s living wage law would be struck down at least initially, and would require an appeal to the Michigan Supreme Court to maintain it.

The court of appeals ruling was classified as unpublished – which means it’s not binding on other courts. It’s only the classification of the case as published versus unpublished that matters to determine precedence, not whether the case is broadly disseminated. In actual practice, however, judges may use the logic and reasoning available in unpublished opinions to inform their thinking about how to correctly analyze a case. And it’s this practical issue that has led many observers to conclude that Ann Arbor’s living wage ordinance is not on a solid legal foundation.

At the Dec. 18 HHSAB meeting, Jane Lumm allowed that the ruling was an unpublished opinion, but pointed out that Detroit no longer has a living wage law as a consequence of it. She told the board that the city council had been given a lengthy legal advice memo from the city attorney’s office, and that it’s subject to attorney-client privilege – so she was not in a position to share that memo.

Board member Soni Mithani – an attorney with Miller Canfield – sketched out the background of the 2009 case. Staebler indicated that while he didn’t want to make a recommendation on something that could be illegal, he was content that what’s at stake is not the creation of a new ordinance – but rather a recommendation either to modify the existing ordinance, or to leave the existing ordinance alone.

Other Possible Living Wage Law Changes

A blanket exemption to human services nonprofits is one of several proposed changes to the city’s living wage ordinance, considered and postponed by the city council on Nov. 19. Among other amendments are: (1) changes to the threshold amount per year that triggers application of the living wage standard, increasing it from $10,000 to $25,000; (2) a change from the entity that can grant a hardship waiver (from the city council to the city administrator); and (3) a change in the description of bureaucratic procedures related to enforcement. [.pdf of marked up proposed changes to living wage ordinance]

Other Changes: Minimum Threshold

Currently the threshold that triggers application of the living wage standard on a contract with the city is $10,000 for a 12-month period. At the Dec. 18 HHSAB meeting, Jane Lumm reported that the recommendation to raise the threshold to $25,000 stemmed from conversations with the city attorney’s office and financial staff. It was based in part on the idea that the dollar figure should be in line with another threshold – one triggering city council approval of contracts in general.

The city council is required by ordinance to approve any contract with the city of more than $25,000. Lumm mentioned at the Dec. 18 meeting that this amount had been the subject of a voter referendum in the mid-1990s. By way of additional background, the city charter stipulates that the council is to enact an ordinance to regulate which contracts can be approved without a city council vote; but the charter sets an upper bound on such contracts.

On Aug. 21, 1995, the council voted to place a charter amendment on the ballot, to raise the upper bound to $25,000 – from $15,000. That amendment was subsequently approved by voters. Contracts under $25,000 can be approved by the city administrator, without explicit approval by the city council.

So at the time of the initial passage of the living wage ordinance in 2001, it appears that a conscious choice was made to set the threshold triggering application of the living wage standard ($10,000) to an amount that was different from that triggering a need for the city council to approve contracts ($25,000).

Other Changes: Council vs. Administrator

The contrast between the city council and the city administrator as approving agents appears in another proposed change to the living wage ordinance. Currently a hardship waiver can be granted only by a vote of the city council. The change now being contemplated by the city council is to allow the city administrator to handle such waivers.

Based on city council deliberations on Nov. 19, this kind of change appears to have some traction with councilmembers. They see it as more likely that a nonprofit might ask for a waiver – as opposed to just flouting the ordinance – if that waiver could be pursued without the publicity associated with a formal request to the city council. The question of how many nonprofits that have contracts with the city might not be complying with the ordinance has been mooted publicly, at both the city council’s sessions and at meetings of the HHSAB.

Other Changes: Agent of Enforcement

If the living wage ordinance is to be enforced at all, then from a technical point of view, some revisions of the living wage ordinance appear to be warranted – based purely on the fact that the city’s bureaucratic organization has changed since the passage of the ordinance. The current ordinance refers to a “human rights officer” and the “human rights office,” which no longer exist at the city. The proposed change is to revise the language to specify the “procurement officer.”

At the Dec. 18 HHSAB meeting, potential future board appointee Julie Steiner, who’s executive director of the Washtenaw Housing Alliance, pointed out that problem with the ordinance. She noted that she had been the last employee of the city’s human rights office, before it was eliminated from the organizational structure. Board member Tony Ramirez told her: “Roger [Fraser, former city administrator] worked real hard to get rid of you!”

On the question of the actual compliance by nonprofits with the living wage, some of the correspondence from CAN executive director Joan Doughty to city officials this past year indicates that she does not believe that conformance is very good:

So it’s really become this joke among some nonprofits (recently I heard someone say – as if incredulous – in a nonprofit meeting: do they really think we are paying the living wage?). So those who follow the ordinance as it’s written are schmucks … ?

At the Dec. 18 HHSAB meeting, Lumm shared her own perspective on compliance as a board member of several nonprofits. She reported that one nonprofit had characterized the living wage standard as “not-applicable.” Lumm continued by saying that nonprofits are “creative” in how they account for employee compensation. Part-time student employees are paid out of different grants so the nonprofits can pay them less than full-time workers, she ventured.

Lumm said she did not believe there was malice on the part of nonprofits in their creative approaches. She wished it were possible to increase human services allocations from the city equal to the consumer price index (CPI). But everyone has been through tough economic times, she said. Lumm was more concerned with the fact that full-time employees, who are supporting families, aren’t getting increases in their wages.

Mary Jo Callan, head of the city/Washtenaw County office of community and economic development, countered Lumm’s view by saying she thought that nonprofits with whom the city had contracts were, in fact, meeting the living wage standard. The OCED oversees the process of making funding recommendations for human services nonprofits, as part of a coordinated approach with the city, county, United Way of Washtenaw County, Washtenaw Urban County, and the Ann Arbor Area Community Foundation.

A Narrow or Broad View?

A key point of discussion was how narrow or broad a view HHSAB should take in evaluating the proposed changes to the living wage ordinance.

At its Nov. 20 meeting, board chair David Blanchard had questioned the appropriateness of HHSAB weighing in on every aspect of the living wage ordinance, and had ventured that it might be more suitable to identify just those elements within the purview of the HHSAB. The question of scope was also discussed at the Dec. 18 meeting, which enjoyed far better attendance than did the meeting on Nov. 20.

The idea of holding the line on the living wage standard, even for human services nonprofits, seemed to have a substantial amount of sympathy on the board. What caused some board members to hesitate was the idea that conclusions they might reach as HHSAB board members could be different from those they’d draw if they were members of a different body – like the human rights commission.

Narrow or Broad: Human Rights Commission?

Even though the human rights office no longer exists within the city’s bureaucracy, a volunteer commission persists. Members of the human rights commission are appointed by the city council. HHSAB board member Tony Ramirez remarked that he’d served on the human rights commission back in 2001 when the living wage ordinance had been enacted – and that body had been consulted on the ordinance. He wondered if it were not appropriate for the human rights commission to be consulted now.

Narrow or Broad: Initial Impressions of Board Members

The notion that nonprofits providing human services to the city shouldn’t be exempt from the living wage standard enjoyed substantial support in remarks from board members. Rosemary Sarri noted that she’d been a social worker for many years – and social workers are primarily women. She indicated that an exemption for human services nonprofits could have a disparate impact on women.

Andrew Gilroy allowed that he didn’t have a lot of day-to-day interaction with these types of issues. He saw it as a question of trying to solve the problem or apply a band-aid. By not allowing an exemption to the living wage standard, you make it more challenging to provide human services – but if you make exceptions, where does it stop? he wondered. Ultimately, he said, the goal is not to rely on human services organizations as much as we do now. If we don’t keep to our standards to make a world that provides a living wage to everyone, he wondered, what are we really doing? He indicated a greater willingness for the issue to be handled on a case-by-case basis rather than to grant a blanket waiver.

Clockwise from Adam Zemke (standing): Ned Staebler, Stephen Pontoni, Jane Lumm at the Dec. 18 meeting of the city’s housing and human services advisory board.

Adam Zemke, newly elected to represent the 55th District in the Michigan house of representatives, characterized it as a complicated problem. He said that obviously we don’t want to add to the pool of people who’d be recipients of human services – by reducing the wages that human services nonprofits are required to pay. [It's a point that is frequently raised – that workers of human services nonprofits are often eligible to receive services themselves, and reducing their wages would further exacerbate that problem].

At the same time, Zemke did not want the ability to provide services to be diminished due to the need to pay workers more than the market rate. There’s just not enough human services funding, he said, and that’s a result of many different factors. Still, he said, he did not think funding levels would change anytime soon. So it’s a careful balancing act, he concluded.

Stephen Pontoni said he had a hard time looking at the issue pragmatically – because he’s so pro-worker. He found it difficult to endorse a cut to the living wage for anybody. He felt that higher funding levels for human services should continue to be a priority for HHSAB.

Ned Staebler indicated that his initial reaction was similar to that of Sarri and Pontoni. But he was also worried about unintended consequences – as funding goes down and expenses go up.

Gary Hayden and Jane Lumm at the Dec. 18 meeting of Ann Arbor’s housing and human services advisory board.

Gary Hayden made two observations. First, there’s a contention now that there’s a problem with the ordinance because it’s claimed to be over-broad in its application to human services nonprofits. But he rejected that idea, because this had been an issue that was discussed at the time the living wage ordinance was enacted. Second, Hayden did not see a contrast being presented between nonprofits that deliver human services and nonprofits that don’t.

Tim Colenback, a recent appointee to HHSAB, reiterated the point that others had made previously – that the ordinance had been passed without an exemption for human services nonprofits, even though the potential impact on such organizations was explicitly and consciously considered at the time. He wanted HHSAB’s discussion to acknowledge a larger issue of growing inequality. Over the last 30 years, he said, we have seen income inequality grow.

He also put the conversation in the context of the “right to work” legislation that had been signed into law earlier in December by Gov. Rick Snyder during the lame duck session of the state legislature. Colenback described “a rather concerted effort to lower the wages of people who are working in these positions.” The living wage ordinance was enacted to say: “In Ann Arbor, we set a higher bar.”

Given the reports that the ordinance wasn’t being followed by some human services nonprofits, he felt at a minimum HHSAB should give the advice that the ordinance be enforced. Colenback also argued against making exemptions for part-time workers, because he felt it would create disincentives to hire people on a full-time basis. That was a sentiment expressed by Jim Mogensen during public commentary as well. Colenback also stated that HHSAB should ask the city to pay all their workers a living wage.

Soni Mithani began by saying she didn’t know where she fell on the issue. She identified a real tension between the city’s commitment to human services funding, and the living wage ordinance. If the city were to increase its human services budget, she ventured, people might feel more comfortable requiring human services agencies to pay the living wage standard. Still, she found herself hard pressed to change a philosophical position in response to an economic crisis. She indicated a more favorable view of granting exceptions on a case-by-case basis.

Ingrid Ault began by sharing her own background – saying she works in the nonprofit world and has served on many nonprofit boards. She found the idea frustrating that part-time workers should not be subject to the living wage standard – because she works two part-time jobs herself. [One of those jobs is as executive director of Think Local First.] She’d prefer one full-time job, she said, but works two part-time jobs because she has to. And in her own work for a nonprofit, if the budget was short by $2,000, “then maybe you need to figure out how to raise that.” She said it would be hard to sell her on the idea of exempting human services nonprofits from the living wage law.

[The $2,000 figure stemmed from the amount that Community Action Network had indicated its costs increased, as a result of an increase in the living wage from last year to this year – from $13.19/hour to $13.57/hour.]

Narrow or Broad: Mission of the HHSAB

A vignette from the meeting featuring Soni Mithani and Tim Colenback illustrated the tension some members of HHSAB felt in their roles as board members. Mithani said she was sympathetic to the arguments made by Colenback. But she ventured that there was a good reason that back in 2001 it had been the human rights commission that had weighed in. She read aloud the formal charge of the HHSAB:

Purpose: To make recommendations to the city council, city administration and the office of community development regarding policies and programs to address the needs of low income residents of the city of Ann Arbor. To monitor the implementation of the city’s housing policy and the creation of a city housing Coordinator to oversee, carry out and coordinate these policies.

She took that to mean that HHSAB is supposed to care about human services nonprofit organizations. A different body – like the human rights commission – might look at the proposed revisions and say it’s a “slam dunk” not to grant an exemption in the ordinance. But it might not be a slam dunk for HHSAB.

Colenback drew a laugh when he countered Mithani by saying, “Human services are primarily for humans – and the humans working for low wages are our concern.”

But Pontoni also indicated that he felt he’d draw a different conclusion depending on whether he saw the responsibility of the HHSAB as advocating for a constituency of human services nonprofits – which he ventured would prefer not to pay wages at the living wage standard. That speculation was not met with universal agreement, with Lumm contending that nonprofits would be “the last ones to choose not to compensate their employees well.”

Mary Jo Callan, head of the city/county office of community and economic development, was clear about the idea that she felt it was appropriate for HHSAB to weigh in on the question of the living wage ordinance: “This is the most beautiful board to be weighing in on this issue.” The living wage policy is squarely within the board’s purview, she said.

Ned Staebler did not feel constrained to weigh in on the narrow view contained in the purpose statement of the HHSAB. If the city council was asking HHSAB to weigh in, then he was interested in doing that, he said. Staebler also indicated he was interested in getting results from the work that Ian Robinson’s University of Michigan students would be doing.

Open Questions for Further Study

It’s clear from the 2001 survey of nonprofits that the impact on such organizations was taken into consideration.

At one point during the Dec. 18 HHSAB meeting, reacting to a $2,000 figure associated with a specific impact on CAN, Ned Staebler ventured that if it’s $2,000 the board was arguing about, then he felt the conversation was over.

A more recent survey was not as exhaustive as the 2001 effort. [.pdf of November 2012 human services nonprofit survey] Responding to the survey were 30 out of 38 nonprofits. A key question was answered by 20 of them:

2. How much in additional annual wages does your agency pay as a direct or indirect result of the Living Wage Ordinance?

Of the 20, eight nonprofits gave a non-zero dollar amount. The total impact was $156,592. The range of impacts on each nonprofit was $1,040 to $43,000 annually. Twelve nonprofits replied with $0 or NA; 10 didn’t answer the question.

So HHSAB members wanted to get a clearer idea of what the actual impact is of the living wage ordinance on human services nonprofits in Ann Arbor. It’s the kind of work that University of Michigan sociology lecturer Ian Robinson felt his students could help with – by interviewing leaders of nonprofits, reviewing documents or handling other tasks under the direction of the board or the city/county staff.

Robinson is teaching a winter 2013 course called “Understanding Ethical Consumption.” He told the board that currently six students are enrolled, so he could not promise a huge group. Still, he felt that some of them might be intrigued by the idea of working with the city on this project.

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The newly elected members of council are sworn in by city clerk Jackie Beaudry (back to camera). From left: mayor John Hieftje, Chuck Warpehoski (Ward 5), Margie Teall (Ward 4), Christopher Taylor (Ward 3), Sally Petersen (Ward 2) and Sumi Kailasapathy (Ward 1). (Photos by the writer.)

Legislative activity on the public art ordinance resulted from the Nov. 6 rejection by voters of an alternate means of funding public art – a 0.1 mill tax that would have generated roughly $450,000 annually. At the Nov. 19 meeting, Jane Lumm (Ward 2) proposed ending the existing public art program, which requires that 1% of the budget for all capital projects in the city be allocated for public art – with a limit of $250,000 per project. A competing proposal, from Sabra Briere (Ward 1), would narrow the type of capital project from which Percent for Art funds could be allocated. Briere’s proposal would have the practical effect of reducing – by about 90% – the amount of public art funds generated by the existing program. In the last two years the program has generated over $300,000 a year, and more in previous years.

The council wound up tabling both proposals, a parliamentary move that means there’s no particular time in the future when the council must consider them. The proposals will expire, if the council does not take them up off the table in six months. However, the council’s strategy will likely be to appoint a committee to study the matter and to suspend temporarily the existing program. A resolution to that effect was added to the council’s agenda during the meeting, after the tabling of the other proposals – but that third resolution was then postponed until the council’s Dec. 3 meeting.

Also postponed was a set of revisions to the city’s living wage ordinance. The main change would be to exempt those nonprofits from the ordinance that receive funding through the city’s human services allocation, which has totaled roughly $1.2 million each year for the last several years. The ordinance currently has a waiver provision, requiring a city-council-approved plan for compliance with the living wage ordinance within three years. Only one such waiver has been sought since the living wage ordinance was enacted in 2001. That came at the council’s meeting earlier this month, on Nov. 8, 2012.

Based on council deliberations at the Nov. 19 meeting, the living wage revisions in their current form seem likely to be approved only with great difficulty. Some councilmembers seemed more interested in pursuing exemptions for categories of workers – temporary or seasonal – instead of exempting categories of organizations. The living wage ordinance revisions were postponed until Feb. 19.

Getting initial approval were changes to two other city ordinances – on noise and the storage of cars on streets.

The changes to the noise ordinance were prompted by the impact that recent construction of the Landmark building at 601 S. Forest had on neighbors. If given final approval by the council, the changes would make clear that holidays are to be treated like Sundays and that supervisors can be cited under the ordinance, not just a worker who’s operating a piece of equipment.

The revision to the towing ordinance would make it easier to prevent people from storing inoperable vehicles on city streets. Like all changes to city ordinances, it will need a second vote by the council, after a public hearing.

In other business, the council authorized a $15,000 budget for analyzing alternatives for installing a sidewalk along a section of Scio Church Road. Residents in the area have petitioned the city for a sidewalk.

And Stephen Kunselman (Ward 3) used his communications time toward the end of the meeting as an occasion to deliver harsh criticism of the Ann Arbor Transportation Authority and mayor John Hieftje.

In the first meeting for newly elected councilmembers, the council also chose Marcia Higgins (Ward 4) to serve as mayor pro tem, as she has for the last three years. The order of succession to the mayor, based on seniority lines, was also set.

Public Art

The council had two items on its agenda related to the city’s public art ordinance. One proposal would have terminated the program, while the other would have narrowed the range of eligible projects.

Added to the agenda during the meeting was a resolution to appoint a task force of five councilmembers to study the issue and to suspend the expenditure of funds – with several exceptions – currently allocated for public art.

Public Art: Background

The legislative activity was prompted by a failed public art millage that had been placed on the Nov. 6 ballot.

The city’s Percent for Art ordinance currently requires that 1% of the budget for all capital projects undertaken in the city be set aside for public art – up to a limit of $250,000 per project. The proposal to revise the ordinance, sponsored by Sabra Briere (Ward 1), focused on the definition of projects to which the ordinance applies. It also added requirements for public participation. The practical effect of the narrowing of project eligibility in the way proposed by Briere is estimated to reduce the amount of public art funding by about 90%. For each of the last two fiscal years, the Percent for Art program has generated roughly $300,000. If the ordinance revisions had been in place, only about $25,000 would have been generated.

Left to right: Ward 2 councilmembers Sally Petersen and Jane Lumm.

The other proposal, to terminate the program, was put forward by Jane Lumm (Ward 2). She interpreted results from the failed public art millage on Nov. 6 as an indication that voters wanted the existing, non-millage-based program eliminated. The millage failed by a 10-point margin (55.8% opposed and 44.14% in favor). Lumm had described her intent at the council’s Nov. 8 meeting to bring forward a proposal similar to one she’d made on Aug. 20, 2012 – a resolution that directed the city attorney’s office to prepare an ordinance revision that would repeal the Percent for Art program. In an email sent to other councilmembers, Lumm stated that “… the version I will bring forward on 11/19 will be the proposed ordinance changes themselves for consideration at first reading.” The Aug. 20 meeting was the occasion on which the council voted to place a public art millage on the Nov. 6 ballot. It was meant to provide a more flexible funding mechanism for public art in Ann Arbor. The 0.1 mill tax was expected to generate around $450,000 annually.

The public art millage won a majority of votes in just 13 out of 59 Ann Arbor precincts, with the most support coming from Ward 5, Precinct 4 where 60.5% of voters supported the public art millage. Ward 5 had six of the 13 precincts where the proposal achieved a majority. And the proposal finished in a dead heat in Ward 5, Precinct 5 with 471 voting for and against it. Opposition among in-person voters was strongest in Ward 1, Precinct 9, where only 34.5% of voters supported it.

The proposal did not win a majority of votes in any precinct of Ward 2, which is represented by Lumm and – following her election on Nov. 6 – Sally Petersen. Differing interpretations of the expressed voter sentiment that were part of the council’s deliberations on Nov. 19 included the idea that voters were saying something about: (1) the way public art is funded, or (2) whether public money should be used to support public art at all.

The proposal to modify the ordinance took a different tack from the one Briere has previously explored. In the past, Briere has proposed ordinance revisions based on restricting the funds from which public art projects could draw. But her proposal on Nov. 19 was to narrow the definition of projects to which the existing ordinance would apply. Currently, the Percent for Art ordinance applies to essentially any capital improvement project undertaken by the city. Briere’s proposal would narrow the definition by restricting eligible capital improvement projects to those that are “intended to be open or visible to the public.” Projects to construct roads, highways, paths, and sidewalks would be eliminated from eligibility. Bridges would still qualify.

History of public art funding allocations by year and by fund.

Of the roughly $300,000 that’s been allocated to public art through the Percent for Art program in each of the last two fiscal years, about 90% of it has been generated through projects that have been paid for partly out of the street millage fund and the sanitary sewer fund. The two-year total attributable to the street millage fund is about $250,000. For the sanitary sewer fund, the two-year amount is about $180,000. Given the narrowing of the eligible project scope in Briere’s ordinance revision, that money would not have been allocated to public art if Briere’s ordinance amendments had been in place.

Briere’s proposal also included a financial threshold for qualifying projects: $100,000. Her proposed ordinance amendments would also require a public process associated with proposed art projects. Part of that process would require notification of the councilmembers in whose ward a project is proposed.

Public Art: Public Commentary

Debra Polich introduced herself as a Ward 5 resident who’s worked in the cultural sector for 30 years, and currently works as director of the Arts Alliance. She served with Marsha Chamberlin as co-chair of the public art millage campaign. [Chamberlin, who is retiring as president of the Ann Arbor Art Center, also serves as chair of the Ann Arbor public art commission, which oversees the Percent for Art program.] Polich contended that the election results don’t give a clear reason why the measure didn’t pass. She’d heard people were confused about the ballot language. [The question began with "Shall the Charter be amended to limit sources of funding for public art ... ] The campaign committee also heard that people voted against the millage because they wanted to keep the existing Percent for Art program.

The Ann Arbor region is widely recognized as an outstanding arts and cultural community, Polich said, rivaling the offering of cities that are larger and have more resources. Ann Arbor is an arts leader in the region and in the state. And because of that, she said, Ann Arbor is a great place to live, work, play, learn and visit. She asked the council to take time to give some thoughtful consideration to the Percent for Art program. If councilmembers decided to move either of the proposals forward, she asked that 120 days be allowed before the second and final reading, to give some time for discussion and improvement.

Margaret Parker introduced herself as co-owner of Downtown Home & Garden with her husband, Mark Hodesh. She noted that she’d chaired the Ann Arbor public art commission for many years and had worked on the millage campaign. She observed that Ann Arbor has been designated as an arts and culture destination by the convention and visitors bureau and by the state’s Pure Michigan campaign. She characterized that as “just one more success” that had come from the city council’s support for art in public places – which had put a beautiful and environmental fountain in front of the city hall that children can plan in, she said. [Parker was referring to the piece by Herbert Dreiseitl.] Parker pointed out that the council had wanted to replace the current program with a voter-approved millage – with only eight weeks for a millage campaign. The failure of the millage meant that the current program is still in place, she noted. She allowed that it might not be perfect, but contended that “it works.” In the last five years, she said, there’s been more public art than ever before in Ann Arbor, and at least 10 more projects are ready to go out the door.

Parker invited councilmembers to compare Ann Arbor to other cities in the Big 10 athletic conference. She told them that 10 out of 13 Big 10 states have a statewide percent for art program. Of the 13 Big 10 cities, nine fund public art as well, she said. Of those nine, five use a percent-for-art approach, while the other four use a public-private mix. Michigan has a percent for art law, she said, but it’s optional.

Parker contended that by now, Ann Arbor’s public art commission has gotten the hang of the system, and city departments are ready to go, and the community is getting excited, she said. She invited councilmembers to ask neighbors of Allmendinger Park how they like their new mural. She asked what needs to be fixed. She questioned whether now is the time to restrict funding and to add more oversight, by giving the city council more control. She asked councilmembers: “Do you really need more work?” What the city’s public art program really needs, she suggested, is a vote of confidence.

Marsha Chamberlin addressed the council as chair of the public art commission and as retiring president and CEO of the Ann Arbor Art Center. She ventured that we can agree that nobody can agree on what makes good public art: Some people love it and some people hate it. But she contended that there’s agreement that public art is good because it attracts people, excites people, generates interesting discussion and serves as a place maker. Public art is an important thing for cities that have an educated and international population, she said. She reminded the council that she’s stood there before to talk about the serious commitment that the city has made to public art by establishing funding through the Percent for Art ordinance. It takes time to make good artistic decisions, she said. It takes time to engineer pieces of art, it takes time to put the legal agreements in place, and it takes time to nurture the community engagement. The commission has done all of that and there are many projects in the pipeline, she said. The important thing is not to rush a decision that negates the opportunity for the future. Chamberlin supported Polich’s request for a delay.

Public Art: Rescinding – Lumm

Jane Lumm (Ward 2) led off deliberations by saying that since 2007, when the Percent for Art ordinance had been established, it had been controversial. She reviewed aspects of the program that she described as controversial: the basic premise of public funding of art instead of focusing priorities on enhancing private funding of art; diversion of funds from capital projects to art; and the legal basis of the program, which had never been authorized by the voters. She described the program as plagued by operational challenges, including the requirement that art be permanent and monumental. That constraint on the type of art that could be funded by the program, she pointed out, had been given as an argument for placement of the millage on the ballot.

Lumm continued by saying she felt that the art projects produced through the program had been met with less than universal acceptance. She felt that it stretched the bounds of reason to come back after the millage failed to say that the public art program is fine and that it shouldn’t be changed.

If it’s the council’s collective priority to publicly fund public art, Lumm said, then it’s up to the council to find some other mechanism to do it besides the Percent for Art program. When the council approved the public art ballot question, Lumm reminded her colleagues, many of them said they were confident that the millage would be approved by voters, but if it didn’t there would be a need to reassess.

Mike Anglin (Ward 5).

Lumm anticipated hearing that the vote against the millage was somehow really an endorsement of the existing Percent for Art program, or some other convoluted explanation. She hoped that other councilmembers would agree it’s time to terminate the program. She reviewed how her proposed change would terminate the program effective July 1, 2013. Funding to date would remain in the public art fund, she said.

Marcia Higgins (Ward 4) observed that there were questions raised when the council voted to put the millage question on the ballot. There were legitimate questions about what the appropriate funding was. When councilmembers had said if the millage failed it would be time to reassess the public art program, she felt that time was now, and she felt that more time was needed to do that properly.

So Higgins said she wanted to make a motion to lay Lumm’s proposed ordinance changes on the table, then listen to comment on Sabra Briere’s proposal, and then to lay that question on the table as well. She believed that a council committee should be formed to look at both proposals, to find a way to move forward. Ultimately, she said, Lumm was right in that it needed to be explained to the voters. And the council had not done as good a job as it should have. So Higgins moved to table the resolution, which was seconded by Stephen Kunselman (Ward 3). [At this point, under Robert's Rules of Order, the council should have voted on the tabling, because according to Robert's Rules, a tabling motion is not subject to debate. However, discussion continued.]

Mike Anglin (Ward 5) felt that it’s legitimate for the council to have a discussion on Lumm’s proposal and later on Briere’s. No one at the table disagrees that public art is beneficial to the city, he contended. The only question is the implementation. He noted that the council had previously considered changes to the ordinance with some frequency – reducing the required allocation to 0.5%, for example. He thought the public art commission needed to be asked for a dollar figure along the lines of: “We can supply really good art to the town for this amount of money.”

Anglin described the program as having gotten off to a rough start. It’s good to admit mistakes, he said. He felt that the Allmendinger Park mural was a success. He was less confident about the Dreiseitl fountain. “Just admit a mistake and move on; it’s not a perfect project. I walk past it all the time … What I like about it is its purple colors – I couldn’t say anything else.” [The bronze structure includes flashing blue lights that are meant to evoke falling water.] He said he was disappointed with the price tag. [In total, the project cost nearly $1 million.] He said the voters had given a clear message with their rejection of the 0.1 mill public art tax, so he wondered how the public could now be sold on a public funding mechanism for art.

Mayor John Hieftje felt that Anglin’s comments supported the idea of tabling the issue.

Sumi Kailasapathy (Ward 1) said that when the public art millage was placed on the ballot, two problems were identified with the existing approach: (1) the money has to be linked thematically to the fund paying for the project; and (2) art that’s paid for through the program has to be monumental and permanent.

Sumi Kailasapathy (Ward 1) and Christopher Taylor (Ward 3) before the Nov. 19 council meeting started. The public art millage ballot question was pushed forward by Taylor over the advice of the larger arts community.

Given that the millage failed, to maintain the existing public art program is problematic, Kailasapathy said. She felt that would undermine the electoral process. She believed that the council should have repealed the existing millage and then put a “clean” proposal before the voters. But the council did not do that. She called the approach the council had taken as “playing games.” She thought that now the council should repeal the ordinance. No one is trying to say that art isn’t valuable, she said.

Hieftje noted that the discussion should focus on the tabling, not the merits of the ordinance revisions.

Sally Petersen (Ward 2) said she was inclined to think about what it means when voters rejected the millage. She was hesitant to interpret the no vote on the millage as a vote against art in public places. She also was hesitant to interpret the outcome as a yes vote for the existing Percent for Art program. But she noted that the legal effect of the no vote on the millage was to continue the existing program. She said the existing program is problematic and that the council doesn’t know what was going through the minds of the public when they voted on the public art millage.

Petersen then delivered a broadly supportive statement about art: “… [A]rt happens in Ann Arbor; every single day, art happens.” She indicated she supported tabling the question, and asked that during the period when the question is on the table, the council take the time to consider it. She asked that during the time of the tabling, any future allocations be suspended that would otherwise be required under the public art program. That would give the council the time to consider what the public is thinking. Councilmembers need to review with their constituents how the city should reflect its support for art.

Responding to Petersen’s suggestion immediately to suspend the program, Hieftje noted that even if the proposed ordinance repeal were to pass, it wouldn’t take effect until after June 30, 2013.

Higgins indicated that if both questions were to be tabled and both referred to a council committee, she had a resolution prepared that would implement Petersen’s suggestion – to suspend the allocation of funds required by the current ordinance.

Lumm said she wouldn’t support the tabling. Like Kailasapathy, she believed that in many ways, public dollars for public art gets to the essence of how we view taxpayer funding of services. She did not feel the community was telling the council “to perfume” the existing Percent for Art ordinance.

Sabra Briere (Ward 1) didn’t want to address the issue of suspending funding at this time. If the council tables the question, she said, she felt the council would be responding to the message that voters had delivered. Of the voters, 55% said they don’t want a tax on their houses to pay for public art. But 44% actually said they did want to be taxed to support public art. “When we represent our constituents, we don’t only represent those who agree with us; we represent those who disagree with us. We don’t just represent the majority; we represent all the minority voices as well.”

Sabra Briere (Ward 1) and Paul Fulton, with the city’s IT department.

Briere was content to see her resolution tabled as well. One of her concerns, after formulating her proposed ordinance changes, was that there was little opportunity for anyone to weigh in on the possible impact of the changes. She had intended to request a two-month postponement of her own proposal. So she encouraged the tabling of the questions, on the condition that the council held firm on appointing some councilmembers to draft new ordinance revisions – or to decide that this is not the way to go.

Kunselman indicated he’d support tabling because it’s important to discuss everything. He wanted everything discussed, not just tweaking. He noted that he’d been one of the strongest critics of the Percent for Art program, because he doesn’t believe it’s legal to take funds that are designated for other purposes and transfer those funds to support public art. He had voted for the original ordinance in 2007 because of the importance of art in the community. He described himself as caught between a lot of emotions. But he didn’t want to vote it up or down without a little more thought. He noted that little time had elapsed since the vote to reject the public art millage and he didn’t want to speculate about what that rejection meant. He wanted a little more time to see the issue discussed thoughtfully.

Outcome: The vote to table Jane Lumm’s proposal to rescind the city’s public art ordinance was 8-3, with Lumm, Mike Anglin and Sumi Kailasapathy dissenting.

Public Art: Modifying – Briere

Briere led off discussion of her proposed changes by saying she didn’t think another round of discussion was required. She noted that the council had in the past more than once voted on reducing the funding to the public art program, but those proposals had failed. She took that as a reflection of the community’s strong commitment to public art and to the strong commitment to the public funding of art. She moved to table her proposal, in the event a committee could be established that could make recommendations.

Lumm said she was ready to vote on the proposal, indicating she was opposed to tabling the proposal. She noted that some information had been provided by the staff that made clear that Briere’s proposal would have the practical impact of reducing public art funding significantly. She wanted to know what was supposed to happen while the question was tabled.

Briere observed that when the council had voted to table Lumm’s proposal, it had been in the expectation that a committee would be formed to look at the Percent for Art ordinance as well as the ordinance establishing the public art commission and to consider how to go forward from there. It’s possible that the committee’s recommendation would be to eliminate publicly funded art. There would be a lot of divided ideas about the outcome of the election, she said. Considering the issue for a longer time seemed wiser, Briere concluded.

Hieftje ventured that what was being proposed with the eventual tabling of both questions was a task force of five councilmembers.

Higgins said that the charge to that task force would be imperative. Whether to go forward at all would be very important, she said. She felt the committee needs to consider all the options. She also felt it needs to be done in an expeditious manner. The task force that’s appointed should come back to the council with a recommendation, she said. In her opinion, Higgins said, that recommendation “should be a repeal of the current ordinance, and anything that you think is the right thing to move forward with – or not.” She felt that the council is an intelligent body and is interested in what’s in the best interest of Ann Arbor.

Anglin ventured that the task force should have one council representative from each ward.

Public Art: Modifying – Rules

As the council appeared ready to vote on the tabling of Briere’s proposal, city attorney Stephen Postema interjected and appealed to Robert’s Rules – which governs all matters of procedure that are not addressed in the council’s own rule set. He expressed the view that under Robert’s Rules for these circumstances – with two questions about the same subject matter that were potentially to be tabled – it was preferable to table one but to postpone the other, or else to suspend the council’s rules. Postema told Higgins that “… the effect of laying on the table of two items that have the same subject matter, the recommended way to go about it is to call the second one a motion to postpone – that’s under Robert’s Rules – so either way, either suspending the rules on that or calling the second one a motion to postpone may be preferable just for the sake of rules …”

By way of background, it’s not clear to what part of Robert’s Rules Postema’s remarks appealed. The section of the rules on tabling a motion does indicate a prohibition against considering a question on the same subject as one that is already lying on the table [emphasis added]:

Since a motion that has been laid on the table is still within the control of the assembly, no other motion on the same subject is in order that would either conflict with, or present substantially the same question as, the motion that is lying on the table. To consider another motion on the same subject, it is necessary first to take the question from the table and then to move the new proposal as a substitute, or to make whatever other motion is appropriate to the case.

However, if this issue were to have been raised in connection with the city council’s deliberations on Nov. 19, then it would have been proper to raise the point of order immediately when the council reached Briere’s proposal – as Briere’s proposal might have been considered to conflict with Lumm’s, which at that point was already lying on the table. It’s not clear how a council action to postpone Briere’s proposal would have solved the issue of not considering a question with the same subject matter as one already lying on the table. Any discussion of Briere’s proposal at all, including deliberations on postponing it, would appear to violate the prohibition against considering a question with the same subject matter as one already lying on the table.

The Chronicle queried Postema by email for a citation of his contention expressed at the council table that under Robert’s Rules there would be a preference against simply tabling both motions and for either postponing at least one of them or else suspending the council rules. Postema did not provide a citation for that strategy. From his email response:

Section 17 deals with Laying on the Table, and in the standard description as to the particular effects of the motion there is some vague and broad language concerning “motions on the same subject.” For that reason, the waiver of the rules was done as a way to simply allow the motions to table to be used as desired, and to preclude any issue.

The tabling of the two motions was a way to deal with both proposed ordinances in the same way. Any proscription against this obviously would not make sense. Waiver of the rules ensured this was clear.

In the end, it is for Council to use the rules so as to make sense. I did not mean to suggest that postponing the second motion was preferable to waiving the rules, or even required.

My only thought about postponing, was that Robert’s Rules about postponing (Section 11 and 14) don’t have the same language as found in Section 17.

I did not intend to suggest that such a method was preferable to waiving the rules.

Obviously, Robert’s Rules doesn’t state preferences; the language provides procedures. My only intent was to work through those procedures.

A rule that could have been applied during deliberations – but was not – was the fact that motions to table are, under Robert’s Rules, not debatable. Considerable discussion was entertained on both motions to table the public art questions. However, because no councilmember objected to the debate of those motions, the discussion continued without a need to suspend the council rules.

In this the council could be considered to be following the advice of Henry Robert:

In enforcing the rules there is a need for the exercise of tact and good sense. In small assemblies, and especially when the members are unfamiliar with parliamentary procedure, a strict enforcement of the rules is unwise. It is usually a mistake to insist upon technical points, so long as no one is being defrauded of his rights and the will of the majority is being carried out. The rules and customs are designed to help and not to hinder business.

Public Art: Modifying – Finally Tabling

In light of Postema’s suggestion that either Briere’s proposal should be postponed (as opposed to tabled) or the council rules suspended and Briere’s proposal tabled, Higgins was emphatic in wanting to treat the proposals by Lumm and Briere in the same way. So the council voted to suspend the council rules, and Higgins re-introduced the motion to table Briere’s proposal.

Lumm argued again against the tabling. The Percent for Art ordinance didn’t meet her threshold for a taxpayer expenditure, she said. Responding to Briere’s point that 44% of voters had supported the public art millage, she felt that kind of reasoning could be extended to any millage.

Outcome: The council voted 10-1 to table Sabra Briere’s proposal. Dissenting was Jane Lumm.

Public Art: Committee Recommendations?

Higgins then moved to re-open the agenda to add the resolution she’d alluded to during deliberations on the two public art proposals. That was accomplished over the objection of Lumm, who consistently objects to late additions to the council agenda.

It was placed on the agenda in a slot that came a bit later. Higgins read aloud the entire resolution. Key points of the resolution included the suspension of the use of funds for new art projects until April 1, 2013, but it explicitly did not affect projects for which funding had already been approved, like the Kingsley rain garden, or artwork at the East Stadium bridges or Argo Cascades.

The resolution included in its “whereas” clauses a statement that a committee had been appointed to make recommendations on the public art program – but no such committee had up to that point been appointed. Christopher Taylor (Ward 3) requested a short recess to sort things out. When the council returned from the break, the consensus was quickly reached to postpone the resolution until Dec. 3, the council’s next meeting.

Outcome: The council voted unanimously to postpone Marcia Higgins’ resolution until Dec. 3.

Living Wage

The council was asked to consider several amendments to Ann Arbor’s living wage ordinance. The main proposed changes to the law – which sets a minimum wage of $12.17/hour for those employers providing health insurance and $13.57/hour for those not providing health insurance – would exempt from the minimum wage requirements those nonprofits that receive funding from the city for human services work.

The current law applies to companies that have contracts with the city for more than $10,000 in a given calendar year, and that employ five or more people (10 or more for nonprofits). The current law also provides an exemption for organizations funded from the city’s community events budget – an exemption put in place to accommodate the Ann Arbor Summer Festival’s practice of paying its temporary employees less than the living wage and the city’s desire to fund the festival at a higher level.

Among the other amendments is an increase from $10,000 to $25,000 for the amount of a contract triggering the application of the ordinance. The timeframe would also change from a calendar year to one fiscal year. Also included in the proposed amendments is one that would allow the city administrator to grant a waiver from compliance with the ordinance, instead of requiring the approval of the city council.

At its meeting on Nov. 8, 2012, the council had granted such a waiver to the Community Action Network, which receives funding from the city to do human services work.

At its Sept. 17, 2012 meeting, the council had considered but withdrawn a resolution that appeared to be an attempt to invoke the waiver clause of the ordinance across all nonprofits that receive human services funding from the city. The move was tantamount to revising the city’s ordinance with a simple resolution, which is not a legal way to proceed. The Sept. 17 resolution was prompted by concerns expressed by CAN, although the resolution did not mention that organization explicitly.

The city’s ordinance is likely on dubious legal grounds. A Michigan Supreme Court order from April 7, 2010 left in place an unpublished court of appeals opinion that found a Detroit living wage law to be unenforceable.

Living Wage: Public Comment

Ian Robinson introduced himself as an Ann Arbor resident and a teacher in the University of Michigan’s department of sociology. He also noted that he serves on the board of the Sweatfree Purchasing Consortium – an organization he described as one that seeks to encourage state and local governments to purchase supplies from sources that don’t use sweatshop labor.

He told the council he opposed the proposed changes to the living wage ordinance – raising the threshold from $10,000 to $25,000 and the exclusion of nonprofits. The ordinance itself isn’t being eliminated, so he interpreted that to mean that the proposer must not be opposed to the ordinance in principle. He felt that the two changes taken together might substantially reduce the coverage of the ordinance, which he said would not be a good thing. It would be good have some empirical data to determine how many contracts are covered under the ordinance, but he assumed that the changes would be large enough to have a significant impact.

There are several reasons the city shouldn’t want to change the coverage of the ordinance, Robinson said. First, government is bound by rules to take the lowest bid – rules created to prevent corruption. But that can also have the effect of incentivizing bidders to cut costs by paying sub-living wages, which does not serve the larger public. The best way to prevent that from happening is to put something in the bidding process that neutralizes that potential incentive. When nonprofits are working for the city, they shouldn’t be treated differently from any other employer, he said. When companies pay a living wage, it increases the purchasing power of workers, which increases the purchasing power of the community. He allowed that some nonprofits might have to reduce their employment if they have to pay their workers more, but purchasing power would increase.

During the concluding public commentary at the end of the meeting, Michael Benson said that as a student at the University of Michigan, he was glad the issue had been postponed. Commenting on the idea that students don’t need to be paid at the level of the living wage, he said that while it might be true that some students don’t use a wage to support themselves, that wasn’t true of all. About half of the masters degree students at the university receive financial aid, he said. For the half that don’t receive financial aid, it doesn’t mean they don’t need it.

Living Wage: Council Deliberations – Preliminaries

Sally Petersen (Ward 2) led off deliberations by disclosing that she sits on the board of the Neutral Zone, which receives funding through the coordinated process for funding human services in which the city of Ann Arbor participates. [The other partners in the coordinated process are Washtenaw County, the Urban County consortium, United Way, and the Ann Arbor Area Community Foundation. For the current 2013 fiscal year, the Neutral Zone was allocated $10,000 from Washtenaw County for its S.C.O.R.E. (School, Career, Opportunities, aRe, Endless) program.] Petersen did not believe that there’s a conflict of interest that would preclude participation in deliberations and voting, but she was declaring the relationship in the event that other councilmembers wanted to vote to excuse her from voting.

Jane Lumm (Ward 2) noted that she’s on the on board of Big Brothers and Big Sisters, which also receives funding through the coordinated funding process. She stated that she did not think it reflected a conflict of interest. [The funding through the coordinated funding program in FY 2013 was $43,460, which comes from Washtenaw County for a youth mentoring program.]

Lumm reviewed the history of the council’s Sept. 17 agenda item and the wavier granted to the Community Action Network (CAN) on Nov. 8, which she characterized as a “one-off” action. Based on the council’s discussion at the Nov. 8 meeting, Lumm said it was clear that the issue was complex. Lumm said the nonprofit community supports the living wage, but in a challenging economic climate the requirement made it more difficult to maintain programs.

Lumm expressed the view that when the ordinance had been enacted, it could not have been anticipated that it would put the city’s nonprofit partners in this kind of difficulty. The need for the human services provided by nonprofits has continued to grow, Lumm said. Since 2008, city funding for nonprofits has dropped by 11% but the living wage specified by the ordinance has increased 18%. She described the situation as a “squeeze” that was resulting in some nonprofits ignoring the living wage ordinance or causing them to drop programs. Other nonprofits are structuring their budgets in a way that segregates employees who’d be subject to the city’s living wage ordinance so that they’re not funded with city money.

Lumm indicated that her thinking on this issue was guided by trust in nonprofit human services providers that they’ll weigh the right balance on the question of how much to pay their workers.

Living Wage: Council Deliberations – Legal Issues

Christopher Taylor (Ward 3) queried about current legal status of the city’s living wage ordinance. City attorney Stephen Postema seemed keen to discredit the idea that there was a significant question as to the legal basis of the city’s living wage ordinance. Referring to a Detroit case, where the Michigan court of appeals found Detroit’s living wage law to be unconstitutional, Postema said that some people begin to cite a case without realizing it may have no broader applicability. Postema then argued that the Detroit case had no binding effect on the city of Ann Arbor, because the court chose not to publish the case.

By way of background, it’s the classification of the case as published versus unpublished that matters, not whether the case is broadly disseminated. In actual practice, however, judges may use the logic and reasoning available in unpublished opinions to inform their thinking about how to correctly analyze a case. And it’s this practical issue that has led many observers to conclude that Ann Arbor’s living wage ordinance is not on a solid legal foundation – not a mistaken belief that the unpublished opinion is binding. Attorneys sometimes rely on unpublished opinions to provide advice to their clients, even if those opinions do not impose a binding precedent. For example, Postema relied on an unpublished opinion in advising the city council that a failure to provide unrestricted access to a special meeting posting for an 18-hour period before the meeting – for an Aug. 29, 2011 session – was not a violation of Michigan’s Open Meetings Act.

In the Detroit living wage case, the court of appeals felt bound by a 1923 Michigan Supreme Court decision that found the regulation of wages to be assigned by the state’s constitution only to the state legislature. [.pdf of court of appeals opinion] Although the court of appeals analyzed that precedent as binding, it expressed frustration that the basis of the 1923 decision – the Michigan state constitution – had changed since then. Specifically, the court of appeals cited a change to Section 34 of Article 7:

The provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor. Powers granted to counties and townships by this constitution and by law shall include those fairly implied and not prohibited by this constitution.

On that basis, the court of appeals expressed the view that the state Supreme Court should review the case: “…we respectfully urge our Supreme Court to revisit Lennane [the 1923 decision] and reconsider whether the rule therein continues to have a place in today’s jurisprudence. ”

However, a Michigan Supreme Court order from April 7, 2010 declined to hear the appeal on the Detroit living wage case, leaving the court of appeals ruling to stand in that case – a result that’s led many observers to conclude that a challenge to Ann Arbor’s living wage law would be struck down at least initially and would require an appeal to the Michigan Supreme Court to maintain it. As a practical matter, that kind of challenge is unlikely to come from the set of nonprofits to which the city provides human services funding.

In his remarks to the council, Postema characterized the Detroit living wage case as “sort of a historic relic.” The general rule, Postema said, is that an unpublished case has no precedential effect. Postema said that in his view, the court of appeals was not required to follow the 1923 Supreme Court precedent that it felt it was bound to follow. The Supreme Court, Postema said, had allowed the unpublished case to stand, which left people to wonder about it, and to “spread information about it that is sometimes incorrect,” he said.

Left to right: city administrator Steve Powers and CFO Tom Crawford.

Stephen Kunselman (Ward 3) asked about the city’s enforcement of its ordinance. The city’s CFO, Tom Crawford, explained that enforcement is based on complaints – which are forwarded to the city’s purchasing office when someone believes there’s a violation of the city’s living wage ordinance. In the last couple of years, he said, he was aware of one complaint, which had been investigated and found not to be a violation. Responding to follow-up from Kunselman, Crawford confirmed that enforcement is complaint-driven and that he wasn’t aware of any complaints that found a violation – but he couldn’t speak to the entire 10-year period since the ordinance had been enacted.

Kunselman followed up with Postema on the enforcement question. Postema said there’d not been enforcement action, although he’d heard some allegations. He wasn’t aware of any violations.

Living Wage: Council Deliberations – Continued

Sabra Briere (Ward 1) recalled that she had worked for a nonprofit, and when that organization had a contract with the city, it had to agree to pay the living wage, post the current living wage amount on bulletin boards where it could be read, and to report what wages it was paying to the city. She had written those reports, so she remembered it, Briere said.

So Briere wanted to establish that the lack of enforcement activity that Crawford and Postema had described did not mean there’d been a failure to ask for that documentation. Crawford returned to his point that the process was primarily complaint driven – and if the purchasing office does become aware of something, they do pursue enforcement. “We will not contract with an organization that is not in compliance,” he said. He was not sure how many companies might start the bidding process and not finish it because they weren’t in compliance – but was not aware that it was a large or frequent number.

Briere imagined from Crawford’s remarks that few complaints had been received and that no contracts had been cancelled as a result of proving a case that an organization wasn’t paying the living wage. Briere ventured that the city required the same thing from for-profit and nonprofit organizations.

Crawford responded by saying that the city is very clear about its requirements. Briere concluded that it would be misleading to say that the city has not enforced the ordinance. Crawford provided some support for Briere’s comment by saying he was aware of some companies saying they would not submit a bid because of the city’s living wage requirement. In terms of “enforcement,” Crawford said, the city documents well what it expects, and that results in companies sometimes deciding not to pursue a contract. Briere finished out her speaking turn by saying she was happy the city did not have sufficient staff to go look at every contractor’s books to verify living wage compliance.

Margie Teall (Ward 4) mentioned that during the council’s previous deliberations on Nov. 8, there’d been a lot of discussion of part-time and seasonal positions. She observed that there was no mention of that kind of position in the ordinance revisions.

Lumm responded to Teall by re-stating that the ordinance revisions address a category of nonprofits – those that receive funding from the city to do human services work – that also tend to hire part-time and seasonal workers to do a lot of their work.

Teall noted that the exemption granted to those nonprofits is not limited to just positions that are part-time, seasonal or temporary. Lumm confirmed that was the case and compared it to the 2008 revision to the ordinance that exempted those organizations that are funded from the community events fund.

Kunselman noted that the proposed ordinance revision exempted a class of organizations. He wondered if that violated the equal protection clause of the constitution. Postema offered to provide further information on that before the council considered the ordinance at second reading. Postema said there needs to be a reason for exempting a particular class of organization.

Mike Anglin (Ward 5) asked if Lumm’s intention was to deal with the issue on a contractual basis. Some back-and-forth then took place between Anglin, Lumm, and Mary Jo Callan – director of the city/county office of community and economic development, which oversees the coordinated funding process. The discussion centered around Anglin’s question about handling things at a contractual level. Anglin asked if the idea was that a nonprofit would approach the city and say that due to economic hardships, they were proposing that the living wage would not be paid to a specific list of employees: “We’re going to hire 15 employees to teach reading at this pay scale.” He ventured that this would be clear, if it were included in the contract signed by a human services nonprofit. Anglin wanted to know if that was the kind of mechanism that was being proposed.

Callan responded by saying that she was not sure she understood the question – as all the work is done through contracts. Anglin observed that CAN had come back and said it couldn’t fulfill the contract – so he wanted to know if this was now the proposed vehicle that would be used. Callan said that as far as the mechanism goes – by which a nonprofit would share its hardship – she explained that a nonprofit completes a “self-survey” indicating that it’s paying the living wage. In order to execute a contract, she explained, the nonprofit has to self-certify that it’s paying the living wage. In the case of CAN, that triggered a process of applying for a waiver.

Marcia Higgins (Ward 4) indicated she didn’t think the intent was to exempt all employees for a nonprofit. She’d heard from some people who were part of the effort to establish a living wage 10 years ago, who were really concerned about exempting a whole class of employers. The ordinance was aimed in part exactly at these nonprofits, Higgins said. If the council was going to say that the living wage didn’t apply to certain kinds of workers, she said, that would have to be spelled out in the ordinance. It’s not something that can be done administratively, Higgins said.

Higgins ventured that she and mayor John Hieftje were the only two councilmembers still serving on the council who had voted to establish the living wage ordinance. A concern at the time was that everything looks great on paper, but after implementation there might be some evidence that the council didn’t get it right. But at the time the council felt that they’d hear about it if the nonprofits were being harmed by the living wage ordinance. After implementation, the council hadn’t heard that the living wage ordinance was doing harm to the nonprofits. She indicated that the issue was supposed to be monitored, but she was not aware that the question of harm to nonprofits had been pursued. Higgins felt that Lumm had brought up a good issue, but she was not ready to move forward with it.

Callan responded to Higgins by indicating that the question of the possible harm to nonprofits done by the living wage ordinance has not been revisited. Higgins indicated her disappointment at that.

Higgins said she was dismayed about what CAN executive director Joan Doughty said at the council’s previous meeting about many nonprofits who receive funding from the city for human services work. Doughty had indicated that many nonprofits are not paying the living wage to some of their workers. So Higgins wanted to know what the checks-and-balances process was.

Callan echoed the description that Crawford had given, saying that the process is complaint-driven. It’s basically the honor system, she said. There’s not a separate monitoring process for the living wage. When her office monitors an agency, they look for the living-wage poster that’s supposed to be placed in a visible spot, but Callan said her office doesn’t monitor every agency every year. Callan said she thinks that nonprofits are paying the living wage – because she hears how “tortured” they are as a consequence of having to pay it. Nonprofits take contracts with the city or county seriously, she said. She allowed it was possible that there were some nonprofits that did not pay the living wage.

Higgins said that based on the council’s Nov. 8 deliberations on CAN’s request for a waiver, it seemed that after CAN submitted its letter requesting a waiver, the request had languished. It was Higgins’ understanding that Callan had people in her office who could help put together a business plan for compliance with the living wage – a plan that would not just be the dire things a nonprofit would do. [This was an allusion to CAN's compliance plan, which was critiqued along those lines at the council's Nov. 8 meeting.]

Callan told Higgins that the expectation of help from her office with a business plan is an appropriate one. She allowed that CAN’s application for a waiver did languish and she took that on her shoulders. She said that CAN’s plan was written with strategic intent, which was separate from offers to work on sustainability and capacity building. Higgins said she appreciated Callan’s candor.

Before the meeting, Sumi Kailasapathy (Ward 1) gets a hug of support from Washtenaw County commissioner Yousef Rabhi, who was re-elected on Nov. 6 to represent District 8 in Ann Arbor.

Sumi Kailasapathy (Ward 1) observed that the living wage is supposed to help the most vulnerable – so she wanted to know if an exemption from the living wage applied to just the lowest-paid workers, or if there was a wage freeze across the board. Callan responded by saying that the exemption sought by CAN was the first one to be requested – and her office doesn’t certify that an organization cannot pay the living wage, but rather only that they are paying it. If the organization certifies that it’s paying the living wage, then she executes the contract.

Chuck Warpehoski (Ward 5) noted that the current hourly rates specified in the city’s living wage ordinance [$12.17/hour for those employers providing health insurance and $13.57/hour for those not providing health insurance] worked out to about $24,000-26,000 annually for a full-time employee. Callan confirmed for Warpehoski that such an employee would be eligible for support through the city’s human services nonprofits. She said that most people who work in the nonprofit sector would be eligible for such services, as would many city and county workers.

Kunselman wanted to hear why it took so long for any nonprofit to seek a waiver from the living wage ordinance. Was it because the process is so arduous? He wondered if it would solve the problem to tweak the ordinance – by exempting just part-time or seasonal employees. He felt that might be a better way to go. Together with the proposed ordinance revision to allow the city administrator to grant an exemption, he felt that would result in a greater use of exemptions and better compliance.

Callan told Kunselman that the nonprofit sector is squarely in favor of the living wage – and no director of a nonprofit wants to stand in front of the cameras and say, “I don’t want to pay the living wage.” Kunselman wondered if granting an exemption for nonprofits’ seasonal workers would create an incentive to hire seasonal workers. Callan’s response indicated that she didn’t think so, noting that the nonprofit sector is about empowering people.

Living Wage: Council Deliberations – Who Supports?

Hieftje indicated he couldn’t support the ordinance revision. The issue had been the subject of great discussion when the ordinance was passed. He reiterated Warpehoski’s point that someone who’s making the living wage qualifies for human services. One of the big worries at the time was that exclusion of part-time workers would encourage the hiring of those workers to get around the ordinance requirements. He observed that it’s taken “all these years” before a nonprofit asked for an exemption, yet the council was now discussing major changes to the ordinance. Many people who work for human services organizations are themselves on the edge of being clients, he said.

Hieftje then responded to criticism that the city has exempted itself from the living wage ordinance. But he contended that the city had recognized that it could get on a path to bring those workers up to a living wage standard, and gave two examples of having done that: workers at the materials recovery facility (MRF) and employees who work in the public parking system.

[In neither case were city employees at issue. For example, in September 2004, the council reopened a contract with FCR Casella, the private operator of the city’s materials recovery facility (MRF), in order to undertake a $5.6 million expansion of Ann Arbor’s recycling facilities. The contract with FCR – which extends to 2015 – thus became subject to the living wage ordinance. FCR was not willing to come into compliance, so the city council agreed to pay the wage differential. In the case of the public parking system, the Ann Arbor Downtown Development Authority is responsible for its oversight, and contracts with Republic Parking, a private firm. For more background on the city's decision not to abide by the levels set forth in the living wage ordinance for the workers it hires directly, see "Living Wage: In-sourcing City Temps."]

Hieftje characterized the changes as chipping away at the living wage ordinance, thus weakening it as a standard of pay.

Lumm elicited from Crawford that fact that a company in Texas had inquired about responding to a city contract for call center work. The company had pointed out that the cost of living in Texas was different than in Ann Arbor. Crawford said the company had been told that this was nevertheless the city ordinance. He didn’t recall if the company had bid on the contract, but he didn’t think so.

Some back and forth between Teall and Lumm focused on the previous exemption – which does not name the Ann Arbor Summer Festival but rather any organization that receives funding from the city’s community events fund.

Teall called it a difficult vote and wanted to look more seriously at limiting it to part-time, temporary employees. What made her inclined to support the changes is the difference between nonprofits and for-profit entities.

Briere returned to her perspective of having worked in the nonprofit sector, saying the impact of being paid a living wage was enormous. Knowing that you were one step above poverty was better than being paid a minimum wage, she said. For people who had to support children, the extra couple of dollars an hour made a tremendous difference. Most people who work for nonprofits didn’t do it for the money, she said, but rather because they are passionate about what they are doing. Briere noted that a question had come up at the council’s previous discussion about the applicability of the living wage ordinance to college students – with an accompanying assumption that college students are wealthy. Briere felt that a college student who was doing an internship at a nonprofit was not necessarily wealthy. Briere indicated she wasn’t inclined to support the ordinance revisions.

Sally Petersen (Ward 2).

Petersen indicated she’d be inclined to take it to second reading, with a focus on seasonal or part-time employees. A nonprofit is a professional business organization like any for-profit enterprise, she allowed, but she didn’t think that a consequence of an exemption would be to lowball salaries. Nonprofits know that employees can go elsewhere. She’s concerned that nonprofits might meet the living wage requirement by cutting services.

Christopher Taylor (Ward 3) echoed the sentiments of Petersen, agreeing that there’s tension between an important social justice issue and the need to maximize services. People should receive a living wage, he said, but he wasn’t certain that the proposed revisions were exactly the best means to support it. However, he indicated support for advancing the revisions to a second reading.

Kunselman indicated he’d support moving the proposed living wage ordinance changes to a second reading but wouldn’t support the changes as written, characterizing them as too far reaching. He wanted to look for ways of finding a middle ground on part-time and seasonal workers. He characterized as a failure of the ordinance the fact that there’s been only one nonprofit has applied for an exemption waiver in 10 years. He looked forward to discussing amendments that deal with the exemption section – like giving the city administrator the authority to grant exemptions.

Kailasapathy also indicated her support to move the changes to a second reading. She indicated she didn’t worry as much about a nonprofit taking unfair advantage of workers as she might about a for-profit company.

Anglin ventured that many nonprofits have left the field. He said he receives much more mail soliciting donations than he ever has before. He noted that the council has directed nonprofits to share resources and has asked them to get lean. Callan noted that she’d only been working in the county/city office for community and economic development for five years – but she’s seen a handful of nonprofits become defunct.

Warpehoski ventured that a lot of unanswered questions remain, some related to whether workers are part-time or seasonal. The council had heard from CAN that their after-school workers weren’t in need of being paid a living wage, because they weren’t trying to make a living. He felt like this would be a difficult issue to address. He wondered if it would be possible to refer the question to a committee of councilmembers or others and work it out.

Hieftje told Warpehoski that there were several options. The ordinance changes could be passed at first reading with a second reading and public hearing set two months from now. He also said if the ordinance changes were voted down, then the issue might continue to simmer for quite some time.

Left to right: Paul Fulton, with the city’s IT department, and Chuck Warpehoski (Ward 5).

Briere picked up on Warpehoski’s suggestion and wondered if there were a committee that would normally review a matter like this. Lumm responded to Briere by saying that when she and Sandi Smith had brought forward the Sept. 17 resolution, they’d done so as city council liaisons to the housing and human services advisory board (HHSAB). That’s a discussion that would be continuing at HHSAB, Lumm said. [Sandi Smith formerly was a councilmember representing Ward 1, but she did not seek re-election this year.]

Briere got Hieftje to confirm that the council’s action on the ordinance revisions could be delayed and referred to a committee or commission.

Briere noted that in the five years she’s served on the city council, the council has endeavored to hold steady on human services funding. But if you hold steady, you are losing ground, she said. The problem is that Ann Arbor is expensive. Part of the reason the living wage ordinance was enacted was because of the expense of living in Ann Arbor. She noted that the city is funding human services less fully than what might be ideal, but the solution is not to cut wages, she said.

Higgins asked Crawford what the current funding level for human services is. Working from memory, he said that it was around $1.3 million. Higgins recalled in the early 2000s the city was allocating around $1.1 million. And Mike Reid, who represented Ward 2 at the time, had led a move to raise that allocation by $250,000. Higgins noted that the human services funding comes from the city’s general fund. She wouldn’t look to lower it, but wanted to observe that Ann Arbor is one of the few communities in the state that funds human services at all.

Higgins still had some real questions, and expressed a desire to have HHSAB weigh in on the question. She suggested a postponement until the council’s second meeting in February to give HHSAB a chance to do that. Callan indicated that some amount of time would be needed to weigh in and offer recommendations. A consensus quickly emerged at the table to postpone the question of revising the living wage, with a request that HHSAB give the council advice on the subject.

Outcome: Consideration of the changes to the ordinance was unanimously postponed until the second council meeting in February 2013 and referred to the city’s housing and human services advisory board for more study in the meantime.

Towing Ordinance

The council was asked to give initial approval to a change to the city’s towing ordinance that makes it more difficult to store cars on the streets of Ann Arbor.

The city’s current strategy – of placing notices on cars that give owners 48 hours to move their vehicles – appears to be thwarted by people who simply push their vehicles a few feet. The proposed change in the ordinance would address directly the issue of whether a vehicle is operable, in part by adding the following language:

If a vehicle appears to be inoperative based on outward appearance or otherwise appears to not have been driven after a 48 hour notice has been affixed to the vehicle pursuant to section 10:136, the city administrator or his/her delegate may demand that the registered owner demonstrate that the vehicle is operative. Failure or refusal to demonstrate that the vehicle is operative shall be considered conclusive proof that the vehicle is inoperative.

Towing: Council Deliberations

The scant deliberations on the ordinance included a request from Stephen Kunselman (Ward 3) that both ordinance sections that were being changed should be mentioned in the agenda item.

Left to right: Stephen Kunselman (Ward 3), Ann Arbor firefighter Amy Brow, and Jane Lumm (Ward 2).

Kunselman wanted to highlight a change to the heading of an ordinance section, from “Abandoned Vehicles” to “Storage of Vehicles.” Kunselman felt that the word “abandoned” created confusion. What’s really being addressed is not people abandoning vehicles, but rather people using the city streets as storage, by leaving them longer than the 48 hours allowed by state law.

Sabra Briere (Ward 1) added that the ordinance change is meant to tackle one set of problems related to towing. The council is not trying to legislate relationships among neighbors, she said.

Outcome: The council gave unanimous initial approval to the changes to the towing ordinance.

Noise Ordinance

The council was asked to give initial approval of a change that strengthens the city’s noise ordinance. The amendments to the ordinance, sponsored by Ward 3 councilmember Christopher Taylor, were related to the now-completed construction of The Landmark at 601 S. Forest, an apartment building located in Ward 3. Construction noise was one of several aspects of the construction activity that came under sharp criticism at the council’s Oct. 1, 2012 meeting from nearby resident Eleanor Linn. Linn also addressed the council at the Nov. 19 meeting.

The revision adds language to the text of the ordinance to make clear that the ordinance can be enforced against those in a supervisory capacity – people who are causing the work to be done that is generating the noise, not just the workers who are operating the equipment causing the noise:

The persons to whom this subsection applies shall include, but not be limited to, construction managers, foremen, property owners, developers, contractors, and subcontractors who direct, order, require, authorize, or commission another person to perform these activities in a manner that violates this section. If the person is an entity, this subsection shall also apply to the officers, directors, partners, limited liability company members, or other individuals constituting such entity.

The revision also explicitly adds legal holidays to the time during which excessive noise levels caused by construction activity are prohibited:

Construction, repair, remodeling, demolition, drilling or excavation work at any time on Sunday or a legal holiday and between 8:00 p.m. and 7:00 a.m. Monday-Saturday …”

Legal holidays are defined in the ordinance as “New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Veterans’ Day, Christmas Day.”

Noise Ordinance: Public Comment

Eleanor Linn reprised comments she’d made at the council’s Oct. 1, 2012 meeting about her experience living near to the site of the Landmark building construction, which was recently completed.

Residents Eleanor Linn and Marc Gerstein chat with councilmember Christopher Taylor (Ward 3) before the council’s Nov. 19 meeting.

She supported the amendments to the noise ordinance, and related specific anecdotes that supported the two revisions. On Memorial Day she was awoken at 7 a.m. by construction noise, and learned that the code doesn’t explicitly state that holidays are to be treated just like Sundays.

And on another occasion, when construction noise was continuing past the time limit, a police officer was reluctant to issue a ticket – because the citation would go to the person doing the work, not the supervisor. Linn thanked Christopher Taylor (Ward 3), in whose ward the construction took place, for moving the ordinance change forward.

Noise Ordinance: Council Deliberations

Taylor summarized the changes to the ordinance, characterizing them as modest but important for residents who are affected by construction activity.

Outcome: The council voted unanimously to give initial approval to the revisions to the noise ordinance. To be enacted, the initial approval by the council will need to be followed by a second approval at a subsequent meeting, following a public hearing.

Sidewalk for Scio Church Road

The council was asked to authorize $15,000 to pay for a study of alternatives to filling a gap in Ann Arbor’s sidewalk system along Scio Church Road. The area of study will extend from Maple Road to Delaware Drive. [.pdf of map showing area to be studied]

Around 75 residents submitted a petition to the city in August requesting that the lack of sidewalks along the stretch be addressed. Margie Teall (Ward 4), in whose ward the stretch is located, mentioned the lack of sidewalks along Scio Church during deliberations at the council’s Sept. 17, 2012 meeting. At that meeting the council considered, but rejected, a proposal from Mike Anglin (Ward 5) to enact a general plan to fund a program for eliminating sidewalk gaps.

On approval of the project budget, city staff are supposed to develop conceptual alternatives and rough cost estimates. Those alternatives and costs will then be presented at a public meeting for discussion and input. After getting that feedback, city staff would make a recommendation to the council and possibly proceed with development of a final design.

Sidewalk for Scio: Public Commentary

Peter Hauk introduced himself as a resident of the Churchill Downs neighborhood. He had circulated a petition asking that a sidewalk be installed on a stretch of Scio Church Road near his neighborhood. Seventy-five of his neighbors had signed the petition, he said. A lot has changed since the neighborhood was built. More residents live west of town, which means there’s more traffic along Scio Church. Important destinations are nearby, like the Ice Cube and the Pittsfield branch of the Ann Arbor District Library.

Lately there are a lot of young kids in the neighborhood, including his two daughters, Hauk said. On his court there are eight houses, and there are 10 kids under the age of 18, he reported. There had been only one child under 18 when he moved into the house 12 years ago. He’s looking forward to a time when his kids and everyone else in the neighborhood have a safe pedestrian route to nearby destination. So he asked the council for their support of the resolution.

During public commentary at the end of the meeting, Michael Benson spoke more to the general issue of sidewalks. As the city replaces sidewalk slabs, he said, it might be worth looking at inserting re-bar in the slabs to improve durability.

Sidewalk for Scio: Council Deliberations

Margie Teall (Ward 4) noted that the resolution simply established a process to look at how a sidewalk might be installed and authorized a budget for a study. Sabra Briere (Ward 1) said she supported the resolution and noted that there was a demand for a lot of sidewalks in a variety of locations. Ann Arbor is lucky that in a town that was not really built for pedestrians, she said, so many people want to be able to walk to their destinations.

Outcome: The council unanimously approved the Scio Church sidewalk study.

Environmental Commission Nomination

Patti Smith was nominated as a replacement for John Koupal on Ann Arbor’s environmental commission (EC) – for a three-year term. Sabra Briere (Ward 1), the current Ann Arbor city council appointee to the commission, put Smith’s nomination forward. The commission provides advice to the city council on “environmental policy, environmental issues and environmental implications of all City programs and proposals on the air, water, land and public health.” Smith’s educational background is as an attorney, and she now works in the field of special education.

Unlike the majority of nominations to city commissions and boards, which are made by the mayor and confirmed by the city council, the environmental commission nominations are made by the council. The vote on Smith’s appointment will come at the council’s next meeting, on Dec. 3.

When the council arrived at the mayoral nominations on the agenda – which are placed toward the end of the meeting – Marcia Higgins (Ward 4) noted that there was a “Patti Smith” who was included as a nominee to the recreation advisory committee (RAC). She wanted to know if this was the same person as the Patti Smith who had been nominated to serve on the environmental commission. Mayor John Hieftje indicated that it was the same person, saying “she is eager to serve.”

Sally Petersen (Ward 2) then noted that Smith already serves on the city’s commission on disability issues, which is listed on her application. Also listed on her application is an interest to serve on the historic district commission. Petersen observed that Smith was being nominated to serve on two bodies – RAC and EC – that were not listed on her application for service. [It emerged in subsequent conversation that the city uses a single one-size-fits-all application form.] While Smith might be eager to serve, Petersen wondered if there might be a limit to the number of boards and commissions someone can serve on.

In support of Smith’s nomination to the environmental commission, which was not listed on Smith’s application, Sabra Briere (Ward 1) indicated that when the vacancy on the EC had been announced several months ago, Smith had immediately contacted Briere and indicated her interest in serving on that commission. It had taken some time for the council to move forward with that, but in that time Smith’s eagerness to serve on the environmental commission had not diminished, Briere said. She allowed that it’s unusual to find someone who’s willing to take on as big a load as Smith is, but Briere did not feel that indicates an inability to do the work.

Outcome: The council is expected to vote on Smith’s appointment at its Dec. 3 meeting.

Call for Accountability: AATA

Stephen Kunselman (Ward 3) took advantage of the final agenda slot assigned to council communications – toward the end of the meeting – to pick up on a topic the council had discussed at its previous meeting: opting out of the newly-incorporated transit authority. [The new transit authority, called the Washtenaw Ride, was incorporated on Oct. 3. After several jurisdictions exercised their right to opt out within a 30-day window, the city of Ann Arbor followed that lead, and itself chose to opt out of the authority that it had been expected to help move forward.]

Stephen Kunselman (Ward 3).

Kunselman said he wanted to point out some problems related to the communication that the Ann Arbor Transportation Authority had sent out.

A letter dated Sept. 28, 2012 – sent to the city of Ann Arbor as well as all other jurisdictions in the county – stated that requests to withdraw from the new transit authority after Nov. 2 would be null and void. [That timing was keyed to a 30-day window starting from Oct. 3, 2012, when the new authority was incorporated.] A follow-up communication from the AATA and Washtenaw County indicated that the first letter had raised a legal question and that additional time would be given. The letter from the Washtenaw County administrator had indicated that the first letter was not the official 30-day notice.

By way of background, the contrast that Kunselman was highlighting were the following two passages from the respective letters. From the AATA’s letter:

A legal question has been raised recently regarding the 30-day withdrawal period. Out of an abundance of caution, it has been decided to provide communities with additional time to make their decision to participate or withdraw from the transit authority. It is likely that this will result in new notices being sent out to all communities on or about Nov. 3, 2012, starting a new 30-day withdraw period. [.pdf of AATA Oct. 19, 2012 letter]

And from Washtenaw County administrator Verna McDaniel:

The letter dated Oct. 3 was sent by AATA, not the new TA [transit authority]; as such, it was not the official notice under Public Act 196 which triggers the 30-day opt out period. [.pdf of Washtenaw County administrator Nov. 5, 2012 letter]

In his subsequent remarks, Kunselman ventured the possibility that the intent of the AATA in sending out the letters specifying an earlier deadline of Nov. 2 was to prevent the new edition of the Ann Arbor city council from voting to opt out of the transit authority. [A deadline of Nov. 2 – if accurate – would have also precluded the prior council's Nov. 8, 2012 vote to opt out of the new transit authority.]

In his remarks, Kunselman said he was bringing this topic up because he’s deeply concerned about the professionalism of the AATA. The AATA’s letter, which was sent to every elected official in Washtenaw County, was “deeply embarrassing” to him. The AATA’s follow-up letter reflects a lack of accountability for the error, Kunselman said. It wasn’t the case that the AATA could extend the deadline, Kunselman said, but rather that the AATA had no authority to send the letter with that deadline. “Yet we continue as if nothing had happened … When we see this level of incompetence, in my opinion, it needs to be addressed.”

He said he didn’t have anything specific in mind as a way to address the issue. [One option he has reportedly weighed is to ask for the resignation of all AATA board members.] But he wanted to see something that shows the AATA leadership is cognizant of the error, that shows humility, and that will “restore the credibility of their way.” He stated that he does not have the confidence in the AATA’s leadership to move forward with the council’s direction given at the Nov. 8 meeting to work with other urbanized communities to improve transit.

The AATA has yet to “make amends” for the error, Kunselman said, and until the AATA makes amends, he’s deeply embarrassed as an elected official of Ann Arbor who has to oversee the AATA leadership. He again indicated that he did not have an answer but had some ideas. He noted that Marcia Higgins (Ward 4) had suggested at the previous meeting that the city council should meet with the AATA leadership – and Kunselman said that could take place in the context of some kind of work session.

The AATA needs to own up to the error that it made and recognize that they had no authority to write that letter, Kunselman said. When he saw the sentence about the Nov. 2 deadline, he said, it “just sent chills down [his] spine” because he knew that it was not true.

He said the AATA needs to do something to restore credibility to the organization. Until the issue is resolved, he won’t have any confidence in the AATA. He noted that one of the AATA board members is also a city staff member – Eli Cooper, who would have occasion to appear before the council as the city’s transportation program manager.

Kunselman stated that he would ask Cooper whenever he had the opportunity at council meetings: Did you have the authority to send out that letter? He’d also ask if there was an intent to send out that letter in order to close the 30-day opt-out window so that the new edition of the council would not have the opportunity to opt out. Kunselman then revealed a larger point to his remarks, saying to mayor John Hieftje: “Mayor, I have to put this on your lap, because you are the one who appoints these AATA leaders, and I think we should somehow deal with it.” [The mayor makes nominations, but the entire council votes on those appointments. Kunselman voted against confirmation of Cooper.]

Following up on Kunselman’s remarks, Sumi Kailasapathy (Ward 1) said she’d received several requests from residents for accountability from the AATA. She wanted to know how much it cost for the planning, marketing and advertising for the countywide effort.

Outcome: This was not a voting item.

Ann Arbor Mayor Pro Tem

On the council’s agenda was the election of a mayor pro tem and the order of succession to the mayor. According to the city charter, the Ann Arbor city council must elect from its members a mayor pro tem “at its first meeting after the newly elected members have taken office following each regular city election …” That meeting was Nov. 19 – the first meeting for new councilmembers who won their seats in the Nov. 6 general election.

Mayor John Hieftje and Marcia Higgins (Ward 4).

New councilmembers include: Sumi Kailasapathy (Ward 1), Sally Petersen (Ward 2) and Chuck Warpehoski (Ward 5). Petersen won the August Democratic primary against incumbent Tony Derezinski, while Kailasapathy and Warpehoski won their respective Democratic primaries against Eric Sturgis and Vivienne Armentrout, when incumbents Sandi Smith and Carsten Hohnke did not seek re-election. Petersen and Kailasapathy were unopposed in the general election, while Warpehoski prevailed against Republican Stuart Berry.

The mayor pro tem acts as mayor when the elected mayor is unable to do so. Mayor John Hieftje won election on Nov. 6 for a seventh term, against independent Albert Howard. When acting as the mayor, the mayor pro tem enjoys all duties and responsibilities of mayor except that of the power of veto. With respect to other duties and responsibilities of the mayor as compared with other councilmembers, they consist largely of serving as emergency manager, making nominations to boards and commissions, presiding over meetings, and fulfilling a ceremonial function.

The mayor pro tem’s salary is the same as other councilmembers – $15,913 per year. Although the local officers compensation commission recommended in 2007 that the mayor pro tem be given additional compensation, the city council that year rejected that part of the commission’s recommendation.

The order of succession to the mayor considered by the council adhered to the same principles as it has for the last several years. It’s seniority-based with a secondary sorting based on alphabetical order by last name. The order of succession, with the councilmember’s year of election, is as follows: Margie Teall (Ward 4 – 2002), Mike Anglin (Ward 5 – 2007), Sabra Briere (Ward 1 – 2007), Christopher Taylor (Ward 3 – 2008), Stephen Kunselman (Ward 3 – 2009), Jane Lumm (Ward 2 – 2011), Sally Hart Petersen (Ward 2 – 2012), Sumi Kailasapathy (Ward 1 – 2012), and Chuck Warpehoski (Ward 5 – 2012).

The nomination of Higgins as mayor pro tem was put forward by Taylor. She has served in that capacity since Christopher Easthope left the council in 2008.

Except for Higgins’ observation that the compensation for mayor pro tem is the same as for other councilmembers – despite some perception to the contrary – there was no discussion on the question.

Councilmembers were sworn in without incident.

Outcome: The council voted unanimously to adopt the order of succession and to have Higgins serve as mayor pro tem.

Communications and Comment

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

Comm/Comm: Divestment from Israel

Blaine Coleman passed out a copy of an Interfaith Council for Peace and Justice (ICPJ) resolution passed in 2003 that called for arms divestment and cessation of U.S. military aid to Israel. Coleman note that newly-elected Ward 5 councilmember Chuck Warpehoski is executive director of ICPJ, which Coleman described as the only visible peace group in Ann Arbor. Coleman said he wanted to put Warpehoski on the spot and ask him when he was going to enforce the resolution. The resolution pledges the ICPJ to push the city of Ann Arbor to divest from companies that support the Israeli military.

Coleman continued by saying that right then that night, “Israel is bludgeoning Gaza.” He described the situation as the fourth biggest military on earth attacking a tiny helpless strip of land populated by 1.5 million people “packed like sardines” in a tiny space. He called on the city council to boycott the “apartheid state of Israel.” The billions of dollars of aid that have been given to Israel should instead be spent on rebuilding Detroit and the cities of the U.S., he said. Coleman characterized cited a statement he attributed to an Israeli official – stating that Israel would bomb Gaza back to the Middle Ages – as a “Nazi statement.” and said in his opinion that  Israel is a Nazi state.

[Coleman has a lawsuit pending against the Ann Arbor Transportation Authority for refusing to run an advertisement on the sides of its buses that states, "Boycott 'Israel.'" The initial substantive ruling in the case was in Coleman's favor, when the judge granted a motion for injunctive relief. But the nature of that relief – which could include forcing the AATA to run the ad – has not yet been determined.]

Mozhgan Savabieasfahani addressed the council on the same topic as Coleman. [Chronicle archives indicate that she last appeared before the council on July 6, 2010.] She told the council she was there after a long absence, but said she still recognized many of their faces. She drew a laugh when she told them flatly: “You have all gotten a lot older.” She added that to their shame, however, they’d done nothing to stop the genocide of the Palestinian people. She had consistently tried to get the city to boycott Israel, so she had something to show for her age, she said. Today children in Gaza are being bombed – and many parents are mourning the death of their children. She was hopeful that Warpehoski would spearhead a city-wide boycott of Israel and stop arming Israel so that it’s no longer able “to slaughter children.” She asked the council to pass a resolution that called for the cessation of military aid to Israel.

Henry Herskovitz delivered commentary on Israel’s Law of Return. He described the law as granting the right of Jews anywhere in the world to “return” and gain citizenship there. The term “return” indicates a claim that Jews lived in the region thousands of years ago. He then went through some arguments that he said showed that there was no basis for the contention that Jews were expelled from the region, which would justify the notion of “return.”

Comm/Comm: Coordinated Funding

Lily Au told the council that she had three items she wanted to talk to them about. The first was that a traffic light is needed on Huron Parkway. The second was a request for a warming center – which is needed, she said, because many people are turned away from the Delonis Center. The third item was a criticism of the coordinated funding approach the city uses to support human services. She contended that it’s not a moral policy and she accused the United Way of paying its staff inappropriately high salaries.

Comm/Comm: City-Owned Property

Alan Haber greeted the new councilmembers by saying that he hoped it was a creative period for them. He said that some same-old questions persist – for example, about the future of the city-owned Library Lane site above new underground parking garage.

Left to right: Stephen Kunselman (Ward 3) and Alan Haber.

People want a public place there, Haber said, but the Ann Arbor Downtown Development Authority’s committee has not entertained any notion of a park or an expansion of the small concrete space that had been part of a conference center proposal. [Haber was referring to an advisory committee formed as part of the DDA's Connecting William Street initiative.] He contended that the DDA’s committee had totally stonewalled all comment that supported the development of the Library Lane as a public place. Haber hoped that the council would send back whatever report it received from the DDA’s committee with a request that a public space be considered with various amenities.

Haber also noted that freezing weather is approaching and it will be a hardship for homeless people. He contended that the city-owned building at 721 N. Main could be rehabbed for a community center, with no city expense.

Comm/Comm: Council Rules

During the period for public commentary at the end of the meeting, Michael Benson suggested that the council consider reviewing its rules on speaking and reserved time at the start of the meeting. There’s a priority list, he noted, for people to speak on agenda items as opposed to items that are not on the agenda. He essentially suggested that this priority ranking be further refined so that agenda items on which the council is taking action get higher priority than those where the council is not voting on something.

Present: Jane Lumm, Mike Anglin, Margie Teall, Sabra Briere, Sumi Kailasapathy, Sally Petersen, Stephen Kunselman, Marcia Higgins, John Hieftje, Christopher Taylor, Chuck Warpehoski.

Next council meeting: Monday, Dec. 3, 2012 at 7 p.m. in the second-floor council chambers of city hall, located at 301 E. Huron. [Check Chronicle event listings to confirm date]

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Consideration of the changes to the ordinance was postponed until the second council meeting in February 2013 and referred to the city’s Housing and Human Services Advisory Board for more study in the meantime.

The current law applies to companies that have contracts with the city for more than $10,000 in a given calendar year, and that employ five or more people (10 or more for nonprofits). The current law also provides an exemption for organizations funded from the city’s community events budget – an exemption put in place to accommodate the Ann Arbor Summer Festival’s practice of paying its temporary employees less than the living wage and the city’s desire to fund the festival at a higher level.

Among the other amendments to the living wage postponed on Nov. 19 is an increase from $10,000 to $25,000 for the amount of a contract triggering the application of the ordinance. The timeframe would also change from a calendar year to one fiscal year. Also included in the proposed amendments is one that would allow the city administrator to grant a waiver from compliance with the ordinance, instead of requiring the approval of the city council.

At its meeting on Nov. 8, 2012, the council had granted such a waiver to the Community Action Network, which receives funding from the city to do human services work.

The city’s ordinance is likely on dubious legal grounds. A Michigan Supreme Court order from April 7, 2010 left in place an unpublished court of appeals opinion that found a Detroit living wage law to be unenforceable.

This brief was filed from the city council’s chambers on the second floor of city hall, located at 301 E. Huron. A more detailed report will follow: [link]

Margie Teall (Ward 4) raises her hand asking to be recognized so she can speak at the Ann Arbor city council’s Nov. 8 meeting. (Photos by the writer.)

Smith had said her farewell from the council at the previous meeting, on Oct. 15. She had decided not to seek re-election to her seat. At the Nov. 8 meeting, two other councilmembers attended their final meeting – Carsten Hohnke (Ward 5) who, like Smith, did not seek re-election, and Tony Derezinski (Ward 2) who did not prevail in his August Democratic primary. New councilmembers – Sumi Kailasapathy (Ward 1), Sally Petersen (Ward 2) and Chuck Warpehoski (Ward 5) – will be ceremonially sworn in at the start of the council’s next meeting on Nov. 19.

A transitional theme emerged, as discussion of some agenda items straddled the Nov. 8 and Nov. 19 meetings – including the transit authority opt-out vote. Stephen Kunselman (Ward 3) had been planning to bring a similar item forward on Nov. 19, when he felt he’d have a six-vote majority on the question. But that move was preempted by the Nov. 8 item, which included the sponsorship of Sabra Briere (Ward 1), Christopher Taylor (Ward 3) and mayor John Hieftje – who had previously been key figures in supporting the city’s role in the planned authority.

Discussion of a living wage waiver for the nonprofit Community Action Network (CAN) also included mention of the Nov. 19 meeting. That’s when a proposal will be brought forward that would change the living wage ordinance itself. The preference of Hieftje and Hohnke to wait and consider the ordinance revision for all nonprofits – instead of granting a waiver to CAN – was strong enough that they voted against the waiver. But the eight votes it received were enough to ensure that for the next three years, CAN does not need to abide by the living wage ordinance – which would otherwise require it to pay all its workers $13.57/hour.

A resolution that transferred $90,000 from the general fund reserve to the affordable housing trust fund was part of the transitional theme – because it had Sandi Smith’s name attached as a sponsor, even though she could not attend the meeting. The dollar amount was keyed to the price of a strip of land belonging to the former YMCA lot, which the Ann Arbor Transportation Authority recently purchased from the city. The transfer of funds was made in the spirit, if not the letter, of a policy enacted by the council at Smith’s urging at her final council meeting. That policy called for net proceeds of the sale of the Y lot to be deposited in the affordable housing trust fund.

The council’s agenda for Nov. 19 was partially previewed when both Briere and Jane Lumm (Ward 2) announced they’d be bringing forward proposals to revise the city’s Percent for Art ordinance – in the wake of a failed public art millage proposal at the polls on Nov. 6. Briere’s proposal would alter the definition of projects that qualify, while Lumm’s would eliminate the program. The Percent for Art ordinance requires that 1% of the budgets for all capital projects be set aside for public art.

And although he’ll be leaving the council, Derezinski will serve out the remainder of Evan Pratt’s term on the city planning commission. Pratt is leaving that role after being elected Washtenaw County water resources commissioner. At the Nov. 8 meeting, council confirmed Derezinski’s planning commission nomination, which had come at the council’s previous meeting. The council also decided to expand a task force on planning for the North Main corridor to make room for outgoing councilmember Sandi Smith, and appointed her to that group as a citizen member. She’s been serving as the council’s representative.

In other business, a resolution that would have moved toward converting the city’s retirement system to a defined contribution plan – instead of a defined benefit plan – was withdrawn. The council also approved increasing the staffing level of the fire department from 85 to 86 firefighters. And the city’s sign board of appeals (SBA) was dissolved by the council, with responsibilities transferred to the zoning board of appeals (ZBA). The council also voted to give city attorney Stephen Postema a 2.4% raise, his first in five years.

Countywide Transit Act 196 Opt Out

The council considered a resolution that withdrew the city of Ann Arbor from a new transit authority – called The Washtenaw Ride – that was incorporated on Oct. 3, 2012, a little over a month ago. Incorporation of the new transit authority under Act 196 of 1986 had been preceded by the development of a 30-year transit master plan and a five-year service plan by the Ann Arbor Transportation Authority, over a more than two-year period.

The cost of the planning effort came up in council deliberations. An outside consultant, Steer Davies Gleave (SDG), held two contracts with AATA to help develop a transit master plan and take steps toward implementing it. At its Feb. 16, 2012 meeting, the AATA board authorized an increase in the SDG contract by $95,500 – to $288,817. That contract with the London-based consultant was for “implementation assistance” of the plan. The original implementation assistance contract was approved by the board at its July 19, 2011 meeting.

The original contract with SDG for development of the transit master plan was for $399,805. It was previously extended and increased at the AATA board’s Nov. 18, 2010 meeting by an amount not to exceed $32,500.

Countywide Transit: Background

The language of the council’s Nov. 8 resolution offered some optimism that expanded transportation services might be pursued with some other mechanism than a countywide Act 196 incorporation: “… AATA is encouraged to continue to discuss regional transportation options among Ann Arbor, Ypsilanti, Ypsilanti township, Ann Arbor township, Scio township and Pittsfield township, leading to a better understanding and process for improving local transit options …”

The version placed on the Nov. 8 agenda by mayor John Hieftje, Christopher Taylor (Ward 3), Sabra Briere (Ward 1), Marcia Higgins (Ward 4), and Stephen Kunselman (Ward 3) had the same effect as one that had been developed for the Nov. 19 agenda by Kunselman and Jane Lumm (Ward 2). The preambles to the two approaches, however, contrasted in the level of forward-looking optimism that was conveyed. The contrast is also evident in the titles of the two resolutions:

• [Resolution to Withdraw from New Act 196 Public Transportation Authority in and for Washtenaw County and Terminate the Public Transportation Agreement between the City, AATA, Washtenaw County and the City of Ypsilanti]
• [ Resolution to Withdraw from the New Act 196 Public Transportation Authority, to Terminate the 4­Party Agreement between the City, AATA, Ypsilanti and Washtenaw County, and to Continue Discussion of Expanded Transit Among Urban Core Communities]

The Ann Arbor city council’s resolution was placed on the agenda in the context of opt-out decisions by most of the other 28 municipalities in the county. Even so, until the Nov. 8 council meeting, jurisdictions still participating in the new authority included more than half the county’s population, and counted the county’s largest population centers: Ann Arbor, Ypsilanti, Ypsilanti Township, and Saline.

Ann Arbor had been expected to help lead the initiative, and had been the first of the four parties to ratify the agreement, on March 5, 2012. Since incorporation on Oct. 3, more than one glitch was encountered in the technical implementation. Those included unclarity about the start of a 30-day opt-out period, and the eligibility of current AATA board members to serve on the board of the new authority.

Countywide Transit: Public Comment

Joel Batterman told the council that although he’d been working with Washtenaw Partners for Transit, he was speaking as a resident of the city. He reminded councilmembers that he’d addressed them about two years ago on the topic of the Fuller Road Station, which he said he didn’t feel served the interests of the city or the University of Michigan. Decisions that are made or not made about transportation, he said, are among the most important and lasting choices that come before the council. He was sad that the council is looking to end current initiative. The current initiative would have meant improvement to the bus service, including extended hours and frequencies and more direct routes serving areas on the west side of town. It would also expand the service area to match better where people are living today.

Batterman allowed that people had concerns about local control. But it was also important to consider that when the AATA was formed in the early 1970s, about 56% of the county’s population lived in the cities of Ann Arbor and Ypsilanti, but today only 39% do. At the same time, the out-county is increasingly dependent on Ann Arbor employers, and the working families who need transit most often live outside the city limits.

Batterman acknowledged that rural townships might not be ready to participate in a transit authority. But those more urbanized areas that did not opt out would still have included a majority of the county’s population and would have brought a majority of the county’s transit-dependent residents within reach of the transportation they need. That’s something that really matters and still needs to happen, Batterman said – for Ann Arbor’s economy and for the well-being of everyone in the area. He encouraged the council to take the initiative in the coming year to work toward a new accord on expanding transit. He noted that Ann Arbor residents overwhelmingly support better transit – noting that even those who spoke against the formation of a new transit authority at a city council meeting last winter said they wanted many of the improvements, like expanded late night service, which the initiative was intended to help support. Whatever differences of opinion might exist over the structure and governance of an expanded transit system, he felt we could all support a future with more transit, cleaner air, expanded opportunities for people and perhaps even fewer parking garages.

Carolyn Lusch told the council that she also works with Washtenaw Partners for Transit. One of the great things about her job is she gets to hear people’s stories. Over last few months, she’s spoken with families, seniors, churches, students and businesses – people who are interested in and have great need for transit improvements. They’d told her about how they have to call a taxi to get groceries or miss a doctor’s appointment, or call up family members for favors.

The need for transit still exists, Lusch said. She was encouraged by the call for continued dialogue that’s expressed in the council’s resolution. As an Ann Arbor resident, she said, she was hopeful that expanded transit in the future would give her more options. The strong support for the concept of transit is an excellent first step, she said, but: “You can’t ride a concept home from your shift and I can’t hop on a concept when I’m going home from late night meetings downtown. I need a bus.” We need buses that run quickly, efficiently and to all the places we need them to run, she said. She thanked the council for keeping the discussion open.

Countywide Transit: Council Deliberations – Who Speaks?

Sabra Briere (Ward 1) said it’s become apparent that the interest in the current approach to expanded countywide service governance is not firm enough to go forward with it. So a group on both sides of the issue had decided to end this particular endeavor, she said. [By a group "on both sides," she meant some who had supported the four-party agreement governing the possible transition when the council voted on it (Briere, Hieftje, Taylor) and some who had opposed it (Kunselman, Higgins).]

Briere said it was important to end the initiative as firmly but as softly as possible.

Hieftje wanted to add Scio Township to a list of municipalities mentioned as those with which conversations would continue in the shorter term: Ann Arbor, Ypsilanti, Ypsilanti Township, Ann Arbor Township, Pittsfield Township.

Some members of the AATA board and staff were in the audience available for comment. So Tony Derezinski (Ward 2) invited AATA strategic planner Michael Benham to the podium. Higgins objected and asked that the matter be put to a vote. Arguing against allowing Benham to take the podium, Higgins said that before asking AATA to speak, the council should vote the resolution up or down.

By way of background, Higgins appeared to be invoking a subsection of the council’s Rule 4 [emphasis added]:

Members of Audience Addressing Council
Upon the request of a member of the Council, a member of the audience shall be permitted to address the Council at a time other than during public commentary, unless three members of Council object.

Kunselman also objected, saying that the council was voting on an issue that had been put before the council by Washtenaw County – the inclusion of Ann Arbor in a countywide Act 196 authority that had been incorporated by the county – not by the AATA. Carsten Hohnke (Ward 5) said he wanted to err on the side of allowing councilmembers to ask questions of anyone they’d like to ask. Although she said she agreed with Higgins that the vote was about opting out, Jane Lumm (Ward 2) didn’t have a problem with Benham fielding questions. Responding to Kunselman’s remarks that the resolution was not about the AATA, Taylor observed that AATA is identified in a resolved clause as being asked to do something.

Outcome on allowing AATA staff to speak: The council voted 8-2, with dissent from Higgins and Kunselman, to allow Michael Benham to speak.

Countywide Transit: Council Deliberations – AATA Speaks

Benham said the AATA was heartened by the language in the resolution that says “keep going.” He was optimistic that the community could arrive at a vision of expanded transit for those who need it the most.

Hieftje then disavowed the idea that the resolution that night was an attempt to pre-empt the Lumm and Kunselman resolution, pointing out that Kunselman had been invited to co-sponsor it, which he’d done. However, Hieftje said it was “difficult” to have more than five councilmembers co-sponsor a resolution. [Six is a quorum of the council; so if six councilmembers sponsor a resolution together, it gives rise to questions about whether they convened a meeting of the council in violation of Michigan's Open Meetings Act.] He ventured that Lumm’s name could be added as co-sponsor then, and Lumm indicated that she’d like that.

Kunselman picked up on remarks by Hieftje to the effect that ridership on the AATA was going up. He read aloud a portion of a press release from the AATA:

AATA also will review existing services and costs to ensure its history of strong fiscal stewardship is not disrupted, he said. The review will determine the feasibility of continuing to provide the services implemented as part of AATA’s initial investment under its Five-Year Transit Program. These services produced successful results within months of introduction but may no longer be sustainable without additional funding …

The services that had been introduced to jumpstart the countywide initiative include: increased Route #4 frequency, the AirRide airport service, expanded NightRide service, and commuter express service between Chelsea and Canton.

Kunselman said that what he heard in that language was: The AATA needs more money. Benham told Kunselman that the services mentioned in the press release were implemented with the expectation that there would be a new funding source – provided through the Act 196 authority. The services are not currently sustainable into the future, with just the existing funding that’s available. Kunselman told Benham that he really appreciated the straightforward response from Benham.

Higgins told Benham that she’d approached AATA over the years because councilmembers had heard from residents that their transportation needs are not being met out in neighborhoods. She asked what guarantee she had that these sorts of concerns would not continue to be ignored. Benham indicated that he was not aware of any view on the part of the AATA that travel to and from neighborhoods is not a priority. Higgins related an anecdote about a visitor to the city of Ann Arbor who needed 1.5 hours to get from the north to the south side of the city – saying a three-hour commute inside the city of Ann Arbor isn’t acceptable. She didn’t think all the community’s transportation needs are being met, and noted that Ann Arbor had an aging population that needs transportation. Now is an opportunity to make her a believer, Higgins said.

As the deliberations continued, local resident Thomas Partridge – sitting in the audience – expressed his displeasure with the way the conversation was going by pounding his crutch on the floor and slamming a bound copy of the council’s agenda on the counter. Hieftje raised the possibility that Partridge would be removed, saying that tantrums weren’t usually tolerated.

From left: Jane Lumm (Ward 2), Christopher Taylor (Ward 3 – leaning back) and Stephen Kunselman (Ward 3).

Kunselman weighed in heavily in favor of maintaining the current governance of the AATA under local Ann Arbor control using Act 55, with purchase-of-service agreements (POSAs) made with those communities who want transportation service. The articles of incorporation could be modified to include additional seats on the board for those communities, he said. Later in the deliberations, Briere ventured that residency in Ann Arbor for AATA board members was a possible issue of concern for some councilmembers, so that needs to be addressed directly.

Lumm expressed the view that those on the council who’d predicted that the proposal would not be well received by the townships had been right. She characterized the effort to implement the countywide authority as a colossal waste of time and money.

Margie Teall (Ward 4) responded to Lumm, saying that she didn’t think effort had been wasted – because it’s raised awareness that Ann Arbor is part of a region.

Derezinski expressed his disappointment that the effort was not going forward, but indicated he’d support the resolution.

Hohnke said he was a little bit disappointed in the decisions of some of the townships to opt out. Lumm responded that she was not disappointed in the townships, saying she trusted them to protect the interests of their residents.

Hieftje felt it was a little too easy to say that the AATA wasted resources developing a plan and exploring this approach to countywide governance. He noted that in Grand Rapids, a similar proposal had to be put to voters twice before they approved it. He drew a comparison to the failure of the Ann Arbor District Library bond proposal at the polls on Nov. 6 – noting that one of the greatest criticisms of the library bond proposal was that the library didn’t have a specific plan for the new downtown building.

Outcome: The council voted unanimously to opt out of The Washtenaw Ride.

Living Wage Exemption for Nonprofit CAN

The city council was asked to consider a waiver for Community Action Network (CAN), so that the nonprofit would be exempt from compliance with the city’s living wage ordinance for the next three years.

Living Wage: Background

CAN is a nonprofit dedicated to improving communities in underprivileged Washtenaw County neighborhoods, and receives allocations from the city through the city’s coordinated funding process to support human services. For fiscal year 2013, CAN was allocated $105,809 by the city for its Y.E.S. You CAN! program. Because those annual allocations exceed $10,000, CAN is subject to the city’s living wage ordinance, which currently requires that a minimum of $12.17/hour be paid to employees by employers who provide health insurance and $13.57/hour by those employers not providing health insurance.

However, Ann Arbor’s living wage ordinance has a mechanism by which the minimum requirements can be waived – if conformance would cause economic harm to a nonprofit. It’s that waiver provision that the Ann Arbor city council was asked to approve at its Nov. 8 meeting.

One condition of the waiver is that a plan for eventual compliance within three years must be submitted to the city. CAN’s plan highlights the programs that it would need to cut, in order to conform with the ordinance. [.pdf of CAN's compliance plan]

Jane Lumm (Ward 2) also announced at the Nov. 8 meeting that in the near future she would be bringing forward an ordinance revision to exempt nonprofits from the living wage ordinance permanently. That echoes a previous attempt two months ago by the council to exempt some nonprofits from the living wage ordinance. On the council’s agenda for Sept. 17, 2012 had been a resolution that would have exempted from the living wage ordinance those nonprofits receiving city human services funding.

The Sept. 17 resolution appeared to be an attempt to invoke the ordinance’s waiver provision, but it did not name a specific nonprofit, and no plans for eventual conformance had been submitted by any nonprofits at that time. So the agenda item was withdrawn as it was deemed to be tantamount to changing an ordinance through a simple council resolution – which is not a legal way to procede. At that time it was indicated that an ordinance revision would be forthcoming.

Living Wage: CAN’s Previous Waiver Attempts

Based on correspondence provided to The Chronicle by the city of Ann Arbor in the context of a broader request made under Michigan’s Freedom of Information Act, the Sept. 17 agenda item stemmed from requests made by CAN, although that organization was not specifically mentioned in the council’s resolution or in discussion at the table. Together with the material obtained through the FOIA, CAN’s compliance plan indicates that Doughty submitted a letter on July 10, 2012 asking for a waiver. [.pdf of July 10, 2012 letter from CAN]. Just before the Sept. 17 meeting, CAN was asked to revise the request to mention a plan eventually to comply. [.pdf of Sept. 17, 2012 letter from CAN] The revision consisted of the following addition:

Community Action Network will use this exemption time to devise and implement a strategic fund raising plan to fill our budget gaps caused in part by the increased burden the living wage ordinance continues to place on our finances.

However, the ordinance specifies that the plan to bring an organization into compliance must be submitted as part of the waiver. And the lack of an actual compliance plan led to the withdrawal of the Sept. 17 resolution.

The concern raised by CAN dates back at least to February 2012. In email correspondence sent on Feb. 7, 2012 by CAN director Joan Doughty to the city/county office of community development Mary Jo Callan and councilmember Christopher Taylor (Ward 3), she made a plea for some kind of accommodation with respect to the living wage ordinance:

From: Joan Doughty
Sent: Tue 2/7/2012 5:05 PM
To: Taylor, Christopher (Council); Callan, Mary Jo
Subject: Living Wage?

Hi Mary J and Chris:

Hope this finds you well. I would really like to reignite the living wage ordinance waiver for nonprofits. We’re going to be hurting, and paying summer camp counselors living wage is sort of ridiculous. The city doesn’t do it either. …. so …. Please? I’m begging you — do something!

Best,

jmd

Joan M. Doughty
PhD Executive Director Community Action Network
www.canannarbor.org

Doughty’s correspondence to the city indicates that many other nonprofits receiving funding from the city don’t meet the conditions of the living wage ordinance, but there is no enforcement.

Doughty’s correspondence in the summer of 2012 also mentions the fact that the city’s ordinance is likely on dubious legal grounds. As The Chronicle has previously reported, a Michigan Supreme Court order from April 7, 2010 left in place an unpublished court of appeals opinion that found a Detroit living wage law to be unenforceable.

Doughty appears to indicate in her correspondence that city attorney Stephen Postema had related in conversation with Doughty’s husband, Washtenaw County prosecutor Brian Mackie, that Postema felt if the city’s living wage ordinance were to be challenged in court, it would be struck down. Writing on July 12, 2012 to Sandi Smith (Ward 1), Doughty indicated that a “family member” of hers had discussed the legal issues with Ann Arbor city attorney Stephen Postema:

I understand that Steve Postuma [sic] circulated a confidential memo to city council members about the issue. Publicly he holds that because the Supreme Court’s decision was “unpublished” (it’s not – you can find it on the Internet) it isn’t applicable wider than in the Detroit case. That might be true, but a family member of mine with considerable legal knowledge contends that if a company or agency challenged the Ann Arbor living wage in court, it too would most likely fall. And Steve has conceded this to the same family member…

In a phone interview, Mackie told The Chronicle that he does recall discussing the living wage issue with Postema, characterizing the conversations as not being substantive. However, Mackie recalled telling Postema he thought it was wrong that the city was exempting itself from its own ordinance. He also recalled Postema saying there was an argument to be made in defense of the ordinance – but Mackie said he didn’t recollect anything more detailed than that.

In other correspondence on April 26, 2012 to city of Ann Arbor community services area administrator Sumedh Bahl, Doughty refers to her husband:

I asked my husband (who is an attorney) to read the court of appeals decision, and he is of the opinion that it shouldn’t take filing a lawsuit against the city to “make” it take the right and legal action.

In her July 12 email, Doughty pitches the idea to Smith of altering or rescinding the city ordinance. And it’s Smith to whom Doughty proposes the idea, in part because Smith would be leaving the council, because she did not seek re-election:

… she [Mary Jo Callan] told me that the city council members she talked to would like to change the living wage, but, in our liberal climate, none of them want to be “the one” who proposes it. So … since you’re not running for re-election, I’m hoping you are willing to “do the deed”. There are many approaches and options: abolish it completely since there is nobody monitoring it and it’s probably illegal – revoke it pending a potential overhaul, exempt nonprofits, define more specifically who should receive living wage (so: not summer staff, not true part time staff and entry staff levels) etc. etc. etc.

Living Wage: Council Deliberations

Marcia Higgins (Ward 4) wanted to know how many exemptions from the city’s living wage ordinance had ever been granted. City attorney Stephen Postema indicated that he was not personally aware of one.

Joan Doughty, executive director of the Community Action Network (CAN).

Mayor John Hieftje ventured that the Ann Arbor Summer Festival had been exempted. Jane Lumm (Ward 2) noted that the ordinance had been revised to exempt nonprofits that are supported through the city’s community events fund, as is the case with the Summer Festival. [For some additional history of the living wage in Ann Arbor, see "Living Wage: Insourcing City Temps"]

Higgins indicated she was not against granting a waiver to CAN – and she was asking about previous waivers merely because she was curious.

Hieftje had a couple of concerns about granting a waiver to CAN. For human services nonprofits, he said, some of their employees are trying to avoid becoming clients themselves. CAN’s situation, he allowed, might be somewhat different in that the positions in question were held by part-time, student employees, rather than full-time. Hieftje said he would need some time to think about it, but would prefer to consider the issue more as a package of all nonprofits at one time. His second concern was that there’s been a lot of time since the ordinance was enacted – and at the beginning the provision for a waiver was put in to give nonprofits time to adjust. He characterized himself as “still puzzling this one out.”

Margie Teall (Ward 4) asked Joan Doughty to come to the podium to answer questions. Doughty confirmed that the waiver was being requested not in order to pay full-time staff less than the living wage, but rather for students. Doughty also stressed that she and CAN are not against the living wage, but rather against it as it’s written and applied currently. She added that a lot of nonprofits are not paying the living wage, but said that “We all know that it’s not being checked.” But “flying under the radar” was not how CAN does its business, she said, so CAN wanted to use the waiver option as provided in the ordinance to do it the right way.

Lumm indicated that additional background on the living wage would be provided at the Nov. 19 meeting when the ordinance revision would be proposed. Sabra Briere (Ward 1) asked for clarification about why CAN hadn’t been able to receive the funds it was due under the contract with the city. Doughty explained that the city attorney had indicated the funds couldn’t be disbursed to CAN until she signed, indicating that CAN was complying with the city’s living wage ordinance. Doughty indicated that instead of signing something that attested that CAN was complying with the living wage ordinance, CAN had applied for a waiver. Unless that waiver is approved, she said, CAN could not get paid.

Stephen Kunselman (Ward 3) told Doughty that he appreciated that CAN was following the city’s ordinance – and that was enough to make him support it. Teall concurred with Kunselman. Unlike Hieftje, Teall said she’d prefer to decide the waiver for CAN separately from the ordinance revisions. She felt that CAN has waited long enough.

Carsten Hohnke (Ward 5) took issue with the view expressed by Teall and Kunselman, saying that the fact that there’s a mechanism for requesting a waiver shouldn’t be sufficient grounds for granting it. Part of the compliance plan is supposed to include an explanation for how the organization would come into compliance, he noted. Doughty told Hohnke: “That’s what we submitted.” Hohnke told her he was having trouble following the plan. Doughty ticked through the basic four options: (1) CAN would cut programs; (2) CAN would reduce eligibility for participation; (3) the city would increase human services funding; or (4) the city would change the ordinance exempting nonprofits.

From left: Ann Arbor councilmembers Mike Anglin (Ward 5) and Carsten Hohnke (Ward 5).

Hohnke asked what other sources of funding CAN had. Doughty listed off several organizations: Ann Arbor Housing Commission, the city of Ann Arbor, Washtenaw County, United Way, HUD, Ann Arbor Area Community Foundation, various church congregations, Kiwanis, and Rotary. She allowed that it’s a complicated funding structure for a small nonprofit. Hohnke appreciated that Doughty had brought forward the issue, because it allowed a structural issue to be identified. It might be that some people don’t need to earn a living with the wage they’re being paid, Hohnke said. Like Hieftje, he wanted to consider it as a whole rather than as a one-off exception. He indicated support for possible postponement.

Responding to Hohnke’s suggestion to postpone, Doughty indicated that CAN can’t get paid until a waiver is granted. Hieftje admonished Doughty that she needed to restrict herself to responding to questions.

Lumm addressed the timing issue by saying that the ordinance revision would have been brought for initial consideration that night. But it was seen as undesirable to have one edition of the council approve it on first reading and another at the second reading. [The new council will be seated at the Nov. 19 meeting.]

Sabra Briere (Ward 1) indicated that for her, there were two important considerations: (1) CAN hasn’t signed a living wage statement; and (2) the application for a waiver requires a plan to come into compliance. She said she’d read the plan submitted by CAN several times, but she didn’t see how it brought CAN into compliance. Doughty pointed Briere to the part in the plan that explains how CAN would use the time of the waiver to renegotiate contracts with other funders so that CAN could pay those contracts. Briere indicated she didn’t see that statement in the plan, but even if she did, she wasn’t sure how that would bring CAN into compliance. Briere recognized that Lumm was going to propose an ordinance revision, but there’s no guarantee it would pass.

Lumm asked city attorney Stephen Postema if he’d reviewed CAN’s compliance plan. Postema indicated that he’d looked at the plan, but said it’s for the council to determine if the plan is sufficient. He allowed that the plan covers the words of the ordinance. Lumm got confirmation from Postema that the city does exempt itself from the living wage.

Mike Anglin (Ward 5) told Doughty she was in an unenviable position, saying that CAN does a tremendous service to the community. He didn’t want to get lost in the semantics. He appreciated that Doughty had stepped forward and said CAN was having a hard time, calling it noble of Doughty to have come forward. Anglin feared that this is the tip of a terrible iceberg.

Tony Derezinski (Ward 2) echoed Anglin’s sentiments. He got confirmation from Doughty that the needs increase during the winter months. That immediacy, he said, warrants consideration immediately. The larger issue of the ordinance revision can be addressed later, he said.

Christopher Taylor (Ward 3) indicated that he knew what good work CAN does, and he felt it makes perfect sense that an amendment to the ordinance should be sought. That’s logically separate, however, from seeking a waiver within the ordinance, he said. In contrast to Teall and Kunselman, however, he didn’t see CAN’s request for a waiver as trailblazing or as enhancing the moral stature of CAN. For the city to enforce the ordinance also does not diminish its moral standing, he said. Taylor allowed that it’s a good thing that CAN chose not to dissemble, but it’s not a black mark on the city that it enforced its ordinance and withheld the funds. Taylor said he’s delighted there’s a mechanism to break through that knot, so he’d support it.

Marcia Higgins (Ward 4) said she didn’t have a problem supporting the waiver request. Hohnke reiterated that he felt the issue should be addressed holistically across nonprofits. Addressing the merits of the plan submitted by CAN, Hohnke felt the spirit of the plan specified in the ordinance was to think about increasing revenue streams and consolidating. He reiterated a preference to consider the ordinance change and to delay the waiver request.

Joan Doughty, executive director of the Community Action Network, and Stephen Kunselman (Ward 3).

Teall noted that if the request for the waiver had been presented last summer, the issue of considering the waiver and the ordinance change would not have come close to the same time. She wanted to know why it had taken so long. Postema observed that the city staff itself cannot provide a waiver, but rather it’s for the council to consider. There was no compliance request in place in July, he said – and CAN’s plan had only just been received.

Doughty reviewed how CAN had sent a letter, revised it and was then told that it was insufficient in September. Postema said he couldn’t comment on what happened between CAN and the office of community development. For whatever reason, he said, the waiver request is in front of the council now.

Teall indicated she agreed with Taylor’s remarks. Kunselman weighed in again, saying, “We’re way over-thinking this.” He disagreed with Taylor, saying that CAN was, in fact, blazing a trail, because they’re the first nonprofit to seek a waiver. He ventured that no nonprofit wants to seek a waiver, because they know they’d face a city council discussion that goes nowhere.

Hieftje reiterated that he wanted to take a more holistic look, which would begin at the next council meeting – in 11 days. He wanted to see the waiver postponed until the next meeting.

Briere floated the possibility that if CAN received a waiver, it might work against CAN because CAN would then be constrained by the ordinance, even if the council amended the ordinance. Taylor established that CAN would be done no harm with a waiver under the old ordinance, if the ordinance were eventually amended.

Outcome: The council voted to grant CAN a waiver from the city’s living wage ordinance, with dissent from mayor John Hieftje and Carsten Hohnke (Ward 5). Though she voted yes, Sabra Briere (Ward 1) indicated as she voted that she didn’t like granting the waiver.

Affordable Housing Trust Fund

The city council was asked to increase Ann Arbor’s affordable housing trust fund by $90,000, through a transfer from the general fund reserve.

The amount of the transfer was keyed to the cost of a piece of city-owned property that the city sold recently to the Ann Arbor Transportation Authority. And the justification for the transfer was based on the council’s recent enactment of a formal policy on the use of the proceeds of city-owned land sales.

The $90,000 piece of land is a six-foot-wide strip on the former YMCA lot at Fifth and William, immediately to the south of the location for the AATA’s planned new Blake Transit Center in downtown Ann Arbor. The $90,000 price was based on an independent appraisal. The AATA board approved its side of that deal this spring at its April 26, 2012 meeting. The city council approved the land sale over a year ago, at its Sept. 19, 2011 meeting. The total parcel area was 792 square feet.

The land sale policy approved by the council on Oct. 15, 2012 had begun as a proposal from Sandi Smith (Ward 1) to allocate 85% of the net proceeds of city-owned land to the city’s affordable housing trust fund. The council originally considered the item at its Sept. 17, 2012 meeting but delayed action. The council eventually opted to adopt a policy that treated land sales on a case-by-case basis – except for the former Y lot at Fifth and William, of which the six-foot-wide strip was a part. The enacted policy called for net proceeds from that parcel to be placed in the affordable housing trust fund. [For additional background, see: “City Council to Focus on Land Sale Policy.”]

Because the $90,000 piece of property had been a portion of the former Y lot, the resolution in effect would retroactively apply the policy on use of land sale proceeds – by transferring $90,000 to the affordable housing trust fund. The portion of the policy that requires the city to recover its costs associated with the property was not applied – as the city purchased the land for $3.5 million.

The resolution was sponsored by Sandi Smith (Ward 1), Marcia Higgins (Ward 4), and mayor John Hieftje – although Smith was not able to attend the Nov. 8 meeting.

The six-foot-wide strip of land, and its $90,000 price, has been highlighted in recent council deliberations for a different reason – as a funding source for a transportation connector study. The city of Ann Arbor had been asked to contribute $60,000 to an alternatives analysis study of the Plymouth/State corridor, from US-23 and Plymouth southward along Plymouth to State Street, extending south to I-94. The local match was needed for a $1.2 million federal grant that had been awarded to the AATA for the study.

During deliberations on the $60,000 connector study allocation at the Sept. 4, 2012 meeting, Stephen Kunselman (Ward 3) had objected to one of the “whereas” clauses in the resolution. The clause mentioned the availability of $90,000 in the general fund from the land sale, which was more than enough to cover the requested $60,000 local match. So the allocation was essentially pitched as a “return” to the AATA of a portion of the land sale price. Kunselman objected that once the $90,000 was in the general fund reserve, it was no longer earmarked as funds to be used for any particular purpose.

When the council eventually reconsidered the decision on Oct. 15, 2012 and wound up approving $30,000 for the study – because the Ann Arbor DDA had in the meantime agreed to contribute $30,000 – it was Higgins who raised the objection about the “whereas” clause. And the clause was amended out before the council’s approval.

The groundbreaking for the AATA’s new Blake Transit Center – which had occasioned the sale of the six-foot strip of land on the southwestern edge of the AATA’s property – is scheduled for Nov. 19. The AATA board gave final approval of a roughly $8 million budget for the transit center at its Oct. 18, 2012 meeting.

Affordable Housing Trust Fund: Council Deliberations

Jane Lumm (Ward 2) was concerned about the appearance that the council was randomly spending money out of the fund balance. In a back-and-forth with the city’s chief financial officer Tom Crawford, Lumm established that the resolution was a transfer from the general fund balance reserve and not directly connected to the sale of land. Crawford characterized the resolution as tying into the concept of the land sale policy, and linking the land sale in concept to the depositing of money into the affordable housing trust fund – he noted that the resolution was transferring $90,000 from the general fund balance.

From left: City administrator Steve Powers and chief financial officer Tom Crawford.

Lumm seemed to indicate some dissatisfaction with the fact that a requirement of the land sale policy – that the related transactional costs be deducted before transfer to the affordable housing trust fund – didn’t seem to apply to the resolution.

Sabra Briere (Ward 1) suggested a “friendly” amendment to change the “resolved” clause to read: “… after any costs associated with the sale have been deducted.” Crawford thought that the $90,000 was already the net amount, because the city had negotiated to have the AATA bear the closing costs. In any case, he said, the amount was not a large number. So Briere withdrew the proposed amendment.

Stephen Kunselman (Ward 3) expressed concern about the idea of applying a policy retroactively – to a piece of land that had previously been sold. Lumm echoed Kunselman’s sentiment.

Briere allowed that Kunselman and Lumm were right in that the land sale policy was enacted after the land in question had been sold. However, Briere said, “This resolution … has nothing to do with the policy – except as realization that we’d already sold a piece of the old Y lot.” It seemed appropriate to Briere to treat that previous sale as part of the Y lot, which the council wanted to go to the affordable housing trust fund.

Mayor John Hieftje indicated that he supported the resolution based on the fact that the city had not been able to make regular contributions to the affordable housing trust fund.

Outcome: The council voted unanimously to transfer $90,000 to the affordable housing trust fund.

Defined Contribution Retirement Plan

On the council’s agenda was a resolution, sponsored by Jane Lumm (Ward 2), that directed the city administrator to develop a defined contribution retirement plan to offer non-union employees hired after July 1, 2013. The city currently has a defined benefit plan.

Although the resolution indicated specific action for non-union employees, it also included a goal to implement a similar change for union employees – which would have to be collectively bargained. The second resolved clause indicated that the city would “… strive to implement the same pension changes for all new employees.”

The directive to the city administrator in the resolution stated that the non-union retirement plan – along with the appropriate ordinance amendments, related plan documents, and implementation steps – were to be developed within three months, by Jan. 31, 2013, for review first by the city council’s labor committee then by the full council.

Lumm’s resolution had been added to the Nov. 8 agenda on Nov. 2. She had told her colleagues at the council’s Oct. 1, 2012 meeting that she’d be bringing the resolution forward. She’d drafted a similar resolution in May this year, in connection with possible amendments to the FY 2013 budget. She didn’t bring forward the resolution at that time, partly because it was not technically an amendment to the budget and partly because the deliberations on the budget had already lasted several hours.

Lumm campaigned for her seat on the council in 2011 based partly on a call for a transition to a defined contribution plan. Among the reasons Lumm cited in her resolution was state legislation that was enacted recently – which will facilitate the transition to defined contribution plans. [.pdf of analysis by Senate Fiscal Agency of Public Act 329 of 2012]

In defined benefit plans, retirees receive a set amount per month during their retirement. In defined contribution plans, employers pay a set amount into the retirement plan while a person is employed. The most common of these defined contribution plans is the 401(k).

Defined Contribution Plan: Council Deliberations

Apparently related to the resolution on converting to a defined contribution retirement was a closed session held at the beginning of the council’s Nov. 8 meeting, to discuss labor negotiation strategy. Discussion of labor strategy is one of the exceptions that can be used under Michigan’s Open Meeting Act to hold a closed session. Conversion to a defined contribution plan for union members would need to be collectively bargained. The closed session was added to the council’s agenda at the meeting and took place before the council handled the rest of the agenda.

When the council reached the resolution on moving toward a defined contribution plan, Lumm said she believed the city must address issue of legacy costs. She felt that the issue should be addressed now, instead of kicking the can down the road. The city had taken one step toward addressing the problem by adopting an “access only” health care plan. The next step now, in her view, was to change to a defined contribution type plan similar to a 401(k) type of plan. She noted that other public and private organizations had adopted this approach in order to reduce employee costs.

In 2004, a city of Ann Arbor blue ribbon committee had made a recommendation to transition to such a plan, and it’s now seven years later, Lumm said. However, she noted that the city administrator and the city attorney had raised some questions about her resolution. Out of respect for their concerns she was withdrawing the item, but she looked forward to future discussion.

Outcome: The item on moving toward a defined contribution retirement plan was withdrawn.

Appointments

At its Nov. 8 meeting, the council handled a couple of items related to appointments to boards, commissions and task forces.

Appointments: North Main Task Force

The council considered expanding a task force that’s looking at future planning for the North Main Street and Huron River corridor – so that it could include outgoing councilmember Sandi Smith (Ward 1). She was appointed to represent the council on the group, but did not seek re-election to her council seat.

Mayor John Hieftje had indicated at the council’s Oct. 15, 2012 meeting that he would be moving to expand the task force in this way. The resolution was sponsored by Smith’s Ward 1 cohort, Sabra Briere.

Smith’s last meeting was Oct. 15, because she was unable to attend the final meeting of her term, which was Nov. 8. New councilmembers – including Sumi Kailasapathy, who’ll take the seat held by Smith – will be ceremonially sworn in at the council’s Nov. 19 meeting.

The task force is due to make a recommendation on a use for the city-owned 721 N. Main Street parcel by the end of the year. That comes in the context of a planned application by the city to the Michigan Dept. of Natural Resources Trust Fund next year for a grant in connection with 721 N. Main. The group’s broader recommendation for the entire corridor is not due until mid-year 2013.

Outcome: The council voted unanimously to expand the North Main task force, to confirm Sandi Smith as an additional citizen member and to confirm Sabra Briere as the council representative to the task force.

Appointment: Planning Commission

On the agenda was the confirmation of Tony Derezinski to fill a partial term on the city planning commission – through June of 2013. Derezinski’s last meeting as a city councilmember was Nov. 8, and up to that point he had served by annual appointment as the council’s representative to the planning commission. But because he did not prevail in his August Democratic primary race in Ward 2, he could not continue to serve on the planning commission in that capacity. Instead, it’s expected that Sabra Briere (Ward 1) will serve in that role.

The vacancy on the planning commission for which Derezinski was nominated is opening up due to the resignation of Evan Pratt, who won a new position for himself as Washtenaw County water resources commissioner in the Nov. 6 election. Derezinski was nominated by the council to fill a citizen position on the commission.

Derezinski, along with Susan Baskett, also had been nominated at the council’s Oct. 15 meeting to serve as a board member for the recently incorporated Act 196 transit authority. But in light of the council’s action to opt out of the transit authority at its Nov. 8 meeting, the council won’t be acting on those nominations.

Ward 2 city councilmembers Tony Derezinski and Jane Lumm.

Mayor John Hieftje introduced the item on the agenda by thanking Pratt for his service on the planning commission. Hieftje indicated that his interest in appointing Derezinski was based on a desire to have some continuity on the commission.

Jane Lumm (Ward 2) began her remarks objecting to Derezinski’s appointment by turning to Derezinski, seated immediately to her right, and saying, “You know I love you, Tony … This is really not fun for me.” She stressed that her objection had nothing to do with Derezinski. She was not comfortable making the appointment for reasons similar to those she gave in voting against the appointment of Sandi Smith (Ward 1) to the board of the DDA. [That vote came at the council's Aug. 20, 2012 meeting.] She drew a distinction between the appointment of Smith to the North Main task force, and the appointments to the DDA board and planning commission.

Lumm told Derezinski that she felt he’d done a phenomenal job on the planning commission. She allowed that it had been a practice to appoint former councilmembers to such positions, but she did not agree with it. She concluded her remarks by telling Derezinski, “I hope you understand.” His response: “Noted.”

Lumm’s remarks prompted several councilmembers to express their support of Derezinski’s appointment. Hieftje drew a comparison between Derezinski’s appointment to the planning commission and that of former councilmember Jean Carlberg. He said it would be a shame to waste the expertise and depth of knowledge that Derezinski offered.

Marcia Higgins (Ward 4) noted that Derezinski’s appointment would be finishing out a term.

Outcome: The council voted to appoint Tony Derezinski to the planning commission, over dissent from Jane Lumm.

Appointments: Upcoming

Sabra Briere (Ward 1) indicated during council communications time that she’d be bringing forward to the Nov. 19 meeting the nomination of Patti Smith to serve on the city’s environmental commission. [The environmental commission is one of the few boards and commissions that have nominations come from the council as a body instead of the mayor.]

Appointments: Council Committees

Marcia Higgins (Ward 4) told her council colleagues during communications time that with new councilmembers coming on board at the next meeting, it’s the time of year when the organization of the council is considered. She asked councilmembers to forward to her their preferences for committee appointments. She hoped to have the committee appointments ready for the council’s first meeting in December.

Upcoming Council Business

The Ann Arbor city council’s post-election Nov. 8 session was its last meeting before new councilmembers are ceremonially sworn in on Nov. 19. And current city councilmembers used the occasion to announce some issues that the new edition of the council will be asked to consider.

Upcoming Business: Towing

During council communications, Sabra Briere (Ward 1) noted that she, Stephen Kunselman (Ward 3) and Marcia Higgins (Ward 4) had been working on a towing ordinance revision that would come before the council for a first reading at the Nov. 19 meeting.

Upcoming Business: Public Art

At the Nov. 19 meeting, two proposals will be brought forward on the city’s public art ordinance. The changes stem from the fact that a proposed public art millage failed at the polls on Nov. 6 by a 10-point margin (55.8% opposed and 44.14% in favor).

So at the Nov. 8 meeting, two different proposals were floated on the city’s existing public art ordinance – based on possibly differing interpretations of the expressed voter sentiment. It’s possible to construe the result as either (1) about the way public art is funded or (2) about whether public money should be used to support public art at all. One proposal was announced by Sabra Briere (Ward 1) and the other by Jane Lumm (Ward 2).

Briere’s proposal is to narrow the definition of projects to which the existing ordinance would apply. Currently, the Percent for Art ordinance applies to essentially any capital improvement project undertaken by the city, and requires that 1% of the budget for such projects be set aside for public art. Briere’s proposal would narrow the definition by restricting eligible capital improvement projects to those that are “intended to be open or visible to the public.” Projects to construct roads, highways, paths, and sidewalks would be eliminated from eligibility. Bridges would still qualify.

Briere’s proposal includes a financial threshold for qualifying projects: $100,000. Briere’s proposed ordinance amendments would also require a public process associated with proposed art projects. Part of that process would require notification of the councilmembers in whose ward a project is proposed.

Lumm’s proposal is not to amend the existing public art ordinance, but rather to repeal it. Lumm described her intent at the Nov. 8 meeting to bring forward a proposal similar to one she’d made at the council’s Aug. 20, 2012 meeting – a resolution that directed the city attorney’s office to prepare an ordinance revision that would repeal the Percent for Art program. In an email sent to other councilmembers, Lumm stated that ”… the version I will bring forward on 11/19 will be the proposed ordinance changes themselves for consideration at first reading.”

The Aug. 20 meeting was the occasion on which the council voted to place a public art millage on the Nov. 6 ballot. It was meant to provide a more flexible funding mechanism for public art in Ann Arbor. The 0.1 mill tax was expected to generate around $450,000 annually.

The proposal won a majority of votes in just 13 out of 59 Ann Arbor precincts, with the most support coming from Ward 5, Precinct 4 where 60.5% of voters supported the public art millage. Ward 5 had six of the 13 precincts where the proposal achieved a majority. And the proposal finished in a dead heat in Ward 5, Precinct 5 with 471 voting for and against it. Opposition among in-person voters was strongest in Ward 1, Precinct 9, where only 34.5% of voters supported it.

The proposal did not win a majority of votes in any precinct of Ward 2, which is represented by Lumm and Tony Derezinski, who also serves on the Ann Arbor public art commission. Nov. 8 was Derezinski’s last council meeting – he was defeated by Sally Petersen in the August Democratic primary.

Upcoming Business: Living Wage

In connection to the discussion on the living wage ordinance exemption granted to Community Action Network, Jane Lumm (Ward 2) announced she’d also be bringing forward a proposed ordinance revision for the Nov. 19 meeting that would provide a uniform exception for nonprofit entities that receive human services funding allocations from the city.

Dissolution of Sign Board of Appeals

The council was asked to give final approval to the transfer of responsibilities previously performed by Ann Arbor’s sign board of appeals (SBA) to the zoning board of appeals (ZBA). The change to the city’s ordinance had been given initial approval on Oct. 15, 2012.

The ordinance change was accompanied on the agenda by a separate council action eliminating the seven-member sign board of appeals, which most recently has had only three members, according to the city’s online Legistar system. According to a staff memo accompanying the agenda item, during the fiscal year 2012 the SBA heard six appeals and none the previous year. Appeals previously heard by the SBA will now be heard by the ZBA.

One of the advantages cited is that staff support time for the sign board would be eliminated. The dissolution of the SBA has been under discussion since 2008. The city’s planning commission discussed the issue on March 30, 2010, and more recently at its Sept. 6, 2012 meeting, when it recommended the change.

During the brief deliberations, Tony Derezinski (Ward 2) described the move as an effort to streamline the process. He noted that the SBA handled just six appeals last year. The ZBA could easily handle that as a part of its regular process, he said. Eliminating the SBA would eliminate some of the paperwork that goes along with having a separate body, he said. Mayor John Hieftje said that the streamlining would be beneficial. He ventured that maybe some people who might have otherwise had interest in serving on the sign board would instead want to serve on the ZBA.

Outcome: The council voted unanimously to give final approval to the ordinance change transferring responsibility from the SBA to the ZBA and to dissolve the SBA.

Pedestrian Improvements

The council considered to two separate projects featuring pedestrian and non-motorized improvements. One is a Safe Routes to School project on Green Road. And the other involves a Michigan Dept. of Transportation (MDOT) project to install a pedestrian island on Huron Street between Thayer and Ingalls.

Thurston Elementary Safe Routes to School project.

What the council was asked to authorize for the Safe Routes to School project – in connection with Thurston Elementary School – was an agreement between the city and MDOT for the installation of bike and pedestrian safety improvements on Green Road. The agreement is required as a condition of the federal funds used for the project – a total of $111,800. The city will be using $18,000 from its alternative transportation fund to cover construction inspection and contingency costs.

The project itself includes installation of two new pedestrian crossing islands and bike lanes on Green Road. It also includes converting a portion of Green Road to three lanes and installing two rectangular rapid flashing beacons.

The authorization to apply for the federal funding was given by the council over two years ago at its Sept. 7, 2010 meeting.

The second project is a pedestrian island being installed by MDOT on Huron between Thayer and Ingalls. The city will be performing construction engineering services in its role as construction manager. The city’s cost of $6,400 will be reimbursed from federal funds.

Construction on both projects is expected to begin in the spring of 2013.

The item on the Huron Street pedestrian island was on the consent agenda, a collection of items that are voted on as a group. Any councilmember can pull individual items out of the consent agenda for separate consideration. Sabra Briere (Ward 1) pulled out the item about the pedestrian island in order to make some remarks about it.

Not many years ago, Briere said, it would be difficult to imagine a crosswalk or light on this part of Huron Street. Now there’s even a pedestrian island. She said that these infrastructure improvements reflect a greater use of the area by pedestrians and also an acknowledgment of the importance of transportation in the community. She was pleased with the accommodations that MDOT had been able to make to implement the pedestrian island. She called it a really good move. Students and faculty walk across Huron Street at that point all the time, she said. Anything to make the crossing safer is better, she concluded.

On the Safe Routes to School items, Jane Lumm (Ward 2) thanked the staff for providing a map of the improvements and for their work in making the grant applications. And Briere pointed out that this grant is the second one received by the city for this purpose. It’s important for children to be able to walk to school instead of catching a bus, she said. This project for Thurston Elementary coordinates with one for Clague Middle School.

Briere noted that it had taken two years to bring the grant process to fruition. So the city can’t rely only on this kind of mechanism to address gaps in the pedestrian infrastructure.

Briere’s concluding remark served to foreshadow an item on the council’s Nov. 19 agenda, which would establish a $15,000 budget to analyze alternatives for filling a sidewalk gap on Scio Church Road.

Outcome: The council voted unanimously to approve both pedestrian improvement-related agenda items.

Firefighter Staffing Levels

The council was asked to nudge upward by one the number of firefighters authorized in the current year’s budget for the city of Ann Arbor – to 86. The position will be funded for the rest of the current fiscal year by tapping the general fund balance reserve for $50,000. For the full year next year, the additional position would cost about $82,000.

According to a memo sent by city administrator Steve Powers to city councilmembers, as the budget planning cycle begins for FY 2014-015, he anticipates being able to maintain the 86 firefighter positions. Part of the rationale for adding the additional position is based on the fact that a recent hiring cycle to fill six positions had resulted in seven highly qualified candidates. The additional position would, according to Powers’ memo, help manage overtime and allow assignment of personnel to fire prevention work.

Ann Arbor city administrator Steve Powers peruses the printed copy of the council’s agenda.

The staffing level at 85 already reflects the addition of three firefighters since the FY 2013 budget was approved on May 21, 2012. That staffing level increase, from 82 to 85, was funded from a $642,294 federal grant through the Staffing for Adequate Fire and Emergency Response (SAFER), which was announced on May 30, 2012. The vote to accept the SAFER grant and add three firefighter positions was taken at the council’s Aug. 9, 2012 meeting. At that time, fire chief Chuck Hubbard reported that the city had three vacancies, or 79 firefighters on staff.

The $321,000 from the SAFER grant for each of the next two years was allocated for three firefighter positions, which the city estimates will cost $255,000 (at $85,000 per position). The remaining $66,000 per year was determined to be spent on other unspecified fire services needs, according to the staff memo accompanying the council’s August resolution – including overtime and fleet expenses. Hiring a fourth firefighter was analyzed at the time as requiring $19,000 of fund balance.

Deliberations by the council featured a question from Stephen Kunselman (Ward 3): How does this affect a possible decision to close two fire stations? [By way of background, the city is currently still weighing whether to re-open Station 2, and close Station 3, 4 and 6, leaving three stations open – a net reduction of two stations. For more detail, see previous Chronicle coverage: "A Closer Look at Ann Arbor's Fire Station Plan"]

City administrator Steve Powers indicated that the addition of one firefighter would not have an impact either way on the station plan – because a staffing level of 86 still provides enough firefighters to operate an additional station. Adding the position would allow for better performance in the current operational configuration, he said.

Sabra Briere (Ward 1) confirmed with Powers that the addition would result in an actual addition of a firefighter, and would not just be an addition on paper.

Jane Lumm (Ward 2) expressed her support for the increased firefighter staffing levels.

Outcome: The council voted unanimously to increase the staffing level for firefighters from 85 to 86.

Plymouth Green Crossing Revision

The council was asked to give final approval to several changes to the PUD (planned unit development) supplemental regulations for Plymouth Green Crossings – a mixed-use complex off of Plymouth Road, west of Green Road. At the meeting, the council was also asked to give approval to corresponding changes to the site plan for the complex.

The city planning commission had given its recommendation to approve the change at its Aug. 21, 2012 meeting. Six major changes were proposed: (1) adding parking or flexible space for special events as permitted uses in the ground floor of a proposed three-story mixed-use building, on the site’s northeast corner; (2) increasing the use of potential restaurant space within the site from 7,000 square feet to 14,224 square feet; (3) eliminating requirements for a free-standing restaurant that had previously been planned; (4) increasing the maximum number of parking spaces from 275 to 290; (5) reducing the minimum number of bicycle storage spaces from 70 to 64; and (6) adding the following language to the facade section: “ground level facades of Building A if used as interior parking shall include architectural columns, a minimum 3-foot height masonry screen wall, and louvers or grills to screen views to parking while permitting natural ventilation.”

In addition, the city recently discovered that the bank building was built one foot from the west property line, although the approved site plan and supplemental regulations required a two-foot setback. To resolve this, the owner proposed an amendment of the PUD supplemental regulations, according to a staff memo. The memo also indicates that the owner has been making contributions to the city’s affordable housing fund, rather than providing affordable housing within the complex. The final payment is due at the end of this year. [For background on a current policy discussion on the affordable housing trust fund, see "City Council to Focus on Land Sale Policy."]

This isn’t the first time that changes have been requested for the site. In 2009, developers also asked to amend the original PUD agreement. Rather than build a restaurant, they asked for permission to turn that part of the site into a temporary parking lot, adding 26 additional parking spaces and 11 spots for motorcycles. The planning commission didn’t act on that request until its Feb. 18, 2010 meeting. Although all five commissioners at that meeting voted to approve the request, the action required six votes to pass, so it failed for lack of votes. However, the request was forwarded to the city council, which ultimately granted approval at its April 19, 2010 meeting.

Plymouth Green: Public Hearing

Thomas Partridge spoke at both public hearings on the Plymouth Green Crossing. He called for connecting these types of rezoning approvals to a commitment to provide access for affordable public transportation to the sites. As a Democrat, he stands for progress, he said. He alluded to the presidential election and the campaign, which resulted in an admonishment from mayor John Hieftje to confine his comments to the topic of the hearing. Partridge told him that he disagreed with Hieftje’s attempt to limit freedom of speech. Hieftje responded that he didn’t see how a presidential candidate related to the site plan. Partridge parted from the podium with a suggestion: “Maybe you should go to law school.”

Plymouth Green: Council Deliberations

Tony Derezinski (Ward 2) described the revisions as an attempt to use the space in a better way. A lot of other potentials could be realized if the site had more parking, he said. On the site plan, Jane Lumm (Ward 2) recited the key changes and indicated that she felt they had a beneficial effect for the city and were consistent with the master plan.

Outcome: The council voted unanimously to approve the PUD and the site plan changes for Plymouth Green Crossing.

City Attorney Performance Review

The council held a closed session toward the end of the meeting, to discuss the personnel review of city attorney Stephen Postema. Deliberations on a personnel review are not required to be held in a closed session under Michigan’s Open Meetings, and may not be held in closed session unless “the named person requests a closed hearing.” Postema’s employment contract requires his personnel evaluation be conducted in a closed session.

When the council emerged from the closed session, Marcia Higgins (Ward 4) read aloud the resolution adjusting Postema’s salary upward for the first time since 2007, by 2.4%. According to the city’s human resources office, Postema’s salary before the increase was $141,538. The 2.4% increase on that base brings his annual salary to $144,934, just under that of city administrator Steve Powers, who is paid $145,000. The city attorney and the city administrator are the two positions that report directly to the city council. [.pdf of form used by councilmembers to evaluate Postema's performance]

The salary increase for Postema was balanced against the elimination of his vehicle allowance of $330/month – for a net loss in total annual compensation of $563 [141538*.024 - 330*12].

An overview of Postema’s salary history:

• Nov. 8, 2012: 2.4% raise on base salary ($141,538) bringing it to $144,934; can cash in 300 hours before June 30, 2013; car allowance of $330/month eliminated.
• Dec. 19, 2011: can cash in 250 hours before June 30, 2012.
• Oct. 24, 2011: can cash in 250 hours before Dec. 31, 2011.
• Nov. 5, 2009: can cash in 120 hours before June 30, 2010.
• Oct. 20, 2008: paid lump sum of 2.75% annual salary; could cash in 150 hours before June 30, 2009; allowed to engage in outside legal work.
• Nov. 5, 2007: base salary increased by 2.75% for “merit increase” and 1.25% “market increase”; vacation days increased to 25 days per year.
• March 20, 2006: could cash in 80 hours of unused vacation time before June 30, 2006.
• Oct. 5, 2005: base salary increased at Postema’s discretion up to 3%; awarded 80 hours of vacation time.
• Sept. 13, 2004: base salary increased by 3% to $130,810; annual vacation days increased to 22 days.
• April 3, 2003: started work at base salary of $127,000 (20 vacation days in addition to legal holidays).

After the council voted to approve Postema’s salary increase, Postema asked to deliver some remarks. He said that when he was hired, he’d been asked to come in and help the city. He described his work as a sometimes thankless task. He appreciated the faith that the council had shown in him, saying that the words of councilmembers meant a great deal to him. He said he’d continue to do what aids the city.

Outcome: The council’s vote on Postema’s salary adjustment was unanimous.

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: Elections

During his communications time, city administrator Steve Powers thanked the city clerk’s staff for their work in connection with the Nov. 6 elections.

The line to vote at the Ann Arbor Community Center on North Main Street on Election Day – Nov. 6, 2012. It wrapped around on itself inside the building and spilled out onto the sidewalk and out to the street. Some people reportedly stood in line up to two hours.

He acknowledged the long lines that some precincts experienced, and took a positive perspective on that, saying that it reflected heavy turnout. Following up on Powers’ remarks, mayor John Hieftje indicated an interest in reviewing the possibility of adding more than one electronic poll book per precinct – noting that the limit of one per precinct was a state requirement.

Hieftje ventured that it might be worth discussing the creation of more precincts – even if it were only for national elections. The length of the lines could deter some people from voting, he said.

Marcia Higgins (Ward 4) inquired with city clerk Jackie Beaudry whether the turnout for state elections might warrant additional poll books or precincts. Beaudry indicated that turnout for state elections did not generate the kind of turnout that national elections did.

Comm/Comm: AAPD Volunteer

Samantha Brandfon was recognized with a mayoral proclamation for her volunteer work with the Ann Arbor police department.

Ann Arbor chief of police John Seto and Samantha Brandfon, who was recognized by the city council for her volunteer work.

In her brief remarks to the council, she said that she’d come to Ann Arbor to attend graduate school, had stayed and was pleased to give back to the community in whatever way that she could.

Comm/Comm: Progressive Politics

During the initial public commentary session, Thomas Partridge introduced himself as a resident of Ann Arbor and Washtenaw County, a Democrat and longtime advocate for most disadvantaged members of society. He had been calling publicly and vociferously for measures to advance the cause of America’s most vulnerable for more than for 10 years. He was honored to do so once again on the occasion of the re-election of first African American U.S. president. He called on councilmembers and the mayor to remember the commitments they made when they ran for office, to work for accessible affordable services for middle class residents – and in so doing to build a better society with a greater and higher commitment to street level politics, not selfish, divisive issues. He was critical of the fact that the resolution to opt out of the countywide transit authority and the allocation of money to the affordable housing trust fund would take the city in opposite directions.

At the end of the meeting, Partridge also addressed the council and expressed his disappointment at the council’s decision to opt out of the countywide transit authority. He called on members of the public not to take that decision sitting down and encouraged them to take heart. He described mayor John Hieftje as having given up – not like Barack Obama.

Comm/Comm: Role of Local Government in Sustainability

Kermit Schlansker allowed that the presidential debates were important for the future of the country, but he lamented the fact that there’d been no mention of running out of energy. He described the national government as concerned mostly with politics. Local governments need to take up the slack, he said. He described how he’d not be able to address the council during general public commentary on some previous occasions because he’d been “kicked off the agenda” in favor of speakers who wanted to talk about medical marijuana and public art. [The council's rules for public commentary reserved time at the start of the meeting give preference to speakers who want to speak about items on the council's agenda.]

Schlansker described the Ann Arbor District Library’s bond proposal as a desire to build “a new Taj Mahal.” He wondered why there was not a bond proposal on the ballot “to feed the city.” Jobs are needed now, he said, and local government has just as much responsibility to address that need as state and federal governments. He called for the establishment of energy farms as one step that could be taken.

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

Absent: Sandi Smith.

Next council meeting: Monday, Nov. 19, 2012 at 7 p.m. in the council chambers at 301 E. Huron. [Check Chronicle events listing to confirm date]

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